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CALCUTTA HIGH COURT
Soumen Sen and Siddhartha
Roy Chowdhury, JJ.
Pranati Ghosh and Ors. – Appellants
versus
Anil Kumar Ghosh – Respondent
F.A. No.10 of 2015
Decided on : 14.9.2022
Per Soumen Sen, J.
(A) Indian Succession Act, 1925 – Section 276 – Probate of Will – Burden of proof is on Propounder to prove that Will has been voluntarily executed in sound disposition of mind – Onus of Propounder may be discharged if he succeeds in bringing on record sufficient cogent evidence in this regard and removing all suspicions – However, burden of proof shifts to Caveator if a defence of undue influence, fraud or coercion is raised – Where a Will is prepared and executed under circumstances which excite suspicion of Court it is for those who propound Will to remove such suspicion and to prove affirmatively that testator knew and approved of contents of document – Burden of proving undue influence is not discharged by merely establishing that a person has power unduly to overbear Will of testator – It must be shown that in particular case power was exercised and that it was by means of exercise of that power that Will was obtained. (Paras 2 and 3)
(B) Indian Succession Act, 1925 – Section 63 – Indian Evidence Act, 1872 – Section 68 – Proof of Will – In case of a Will which is required to be executed in mode provided in Section 63 of Succession Act, when there is an attesting witness available, Will is to be proved by examining him – He must not only prove that attestation was done by him but he must also prove attestation by other attesting witness – Will executed to exclude other natural heirs by itself is not a suspicious circumstance as whole idea behind execution of Will is to interfere with normal line of succession – Registered Will carries a higher degree of solemnity attached to it than an unregistered one – In deciding genuineness of a Will primary duty of court to ascertain intention of testator while looking at surrounding circumstances and by putting itself in armchair of testator. (Paras 18, 32 and 33)
(C) Indian Evidence Act, 1872 – Sections 71 and 68 – Refusal by witness – When evidence of attesting witness is vague, doubtful or even conflicting upon some material point, Court may take into consideration circumstances of case and Judge from them collectively whether requirements of Statute were complied with – Court may on consideration of other evidence or whole circumstances of case come to conclusion that their evidence is of a suspicious character or that they are wilfully misleading court and accordingly disregard their testimony and pronounce in favour of document – Section 71 is a safeguard to mandatory provisions of Section 68 to meet a situation where it is not possible to prove execution of Will by calling attesting witnesses, though alive – In such cases, proof with mathematical certainty cannot be insisted upon. (Paras 36 and 42)
Siddhartha Roy Chowdhury, J. (Assenting View)
Indian Succession Act, 1925 – Section 276 – Probate of Will – Will reflects last desire of testator or testatrix – Court should normally act in accordance with wishes of maker of Will, unless there is any doubt about genuineness or voluntariness of maker of Will – Delay of 13 years in filing petition for grant of probate or exclusion of daughters by testator do not engulf execution of Will duly registered, with suspicion per se, so as to deny probate of Will – Execution of Will is not surrounded by suspicious circumstances – Impugned judgment and decree passed by Trial Court affirmed. (Paras 2, 7 and 8)
Result:Appeal dismissed.
JUDGMENT
Soumen Sen, J.—The facts of the case in brief are that the testator Bibhuti Bhushan Ghosh executed his last Will and testament on the 14th of October 1997. The Will was also registered on the said date. The testator had appointed his second son Anil Ghosh as executor. Bibhuti died on 31st of January 1998. The executor applied for grant of probate as propounder of the last Will and testament of Bibhuti and claimed that at time of execution, Bibhuti was mentally and physically alert enough to understand worldly affairs including that of disposition of properties, that attesting witnesses were present at the time of such execution who had seen the testator execute the same. However, Pranati Ghosh along with others and including Ashima Ghosh one of the daughters of Bibhuti, an attesting witness claimed that the Will was executed by someone other than Bibhuti and the signature in the alleged Will was not that of the late Bibhuti Bhushan, he was not present during execution and registration and alleged impersonification and forgery.
2. It is trite law that the burden of proof is on the propounder to prove that the Will has been voluntarily executed, that the testator has signed the Will and put his signature on his own free Will having sound disposition of mind, understanding the nature and effect thereof and that the Will is a genuine document. The onus of the propounder may be discharged if he succeeds in bringing on record sufficient cogent evidence in this regard and removing all suspicions. However, the burden of proof shifts to the caveator if a defence of undue influence, fraud or coercion is raised.
3. As held in Barry v. Butlin reported in (1838) 2 Moo PC. 480, the law is well settled that the onus probandi lies on the person who propounds the Will, and this onus is in general discharged by proof of capacity, and the fact of execution, from which the knowledge and the assent to its contents by the testator will be assumed. But where a Will is prepared and executed under circumstances which excite the suspicion of the Court it is for those who propound the Will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document as opined in Tyrrell v. Painton reported in L.R. 1894 Page 151. Where once it has been proved that a Will has been executed with due solemnities by a person of competent understanding and apparently a free agent, that is, when the propounder of the Will has discharged the onus: the burden of proving that it was executed under undue influence is on the party who alleges it as observed in Boyse v. Rossborough reported in (1857) 6 H.L.C. 2: 26 L.J. Ch. 256. It was also held that influence in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a Will must be an influence exercised either by coercion or by fraud. To the same effect is the statement in Barry (supra) which held that the undue influence and the importunity must be of the nature of fraud or duress if they are to defeat a Will. As observed in Craig v. Lamoureux L.R., reported in (1920) A.C. 349 the burden of proving undue influence is not discharged by merely establishing that a person has the power unduly to overbear the Will of the testator. It must be shown that in the particular case the power was exercised, and that it was by means of the exercise of that power that the Will was obtained.
4. In RM. Ak. P. Kannammal Achi & Ors., v A.N. Narayanan Chettiar reported in (1970) 1 MLJ 252 it was held that “While the burden on the propounder of the Will is to show that the testator executed the Will in his right mind and with disposing mental capacity, the caveator to succeed and have the Will thrown out should establish that the Will was executed under undue influence and the evidence in regard to this must be of the exercise of influence either by coercion or by fraud. Mere persuasion and importunity which do not unduly overbear the Will o
(1) Probate of Will – Where a Will is prepared and executed under circumstances which excite suspicion of Court it is for those who propound Will to remove such suspicion and to prove affirmatively t....
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