The burden of proof rests on the propounder to establish the valid execution of a will and dispel suspicious circumstances, which includes demonstrating that the attesting witnesses were aware of the document's nature (animo attestandi) under Section 63 of the Indian Succession Act, 1925.

PANKAJ JAIN, J. (Oral)

CM-5314-CII-2026

This is an application for recalling of the order dated 05.03.2025 and for restoration of the appeal.

For the reasons mentioned in the application, the same is allowed. Appeal is restored to its original number and is taken on board today itself for final disposal.

FAO-2921-2021 (O&M)

1. Present appeal is directed against order dated 24.02.2021 passed by Probate Court dismissing the petition filed by the appellant under Sections 276 and 278 of the India Succession Act, 1925.

2. The probate relates to Will dated 20.12.2000 claimed to be executed by Ram Ganapati. The parties are daughter and sons of the late testator of the Will. Daughter-appellant propounded the Will of her father. The Will is claimed to have been attested by Krishan Kumar and S.C. Nanda, Advocate who appeared as PW4 and PW5 respectively. Probate Court after analysing the evidence threadbare came to the conclusion that testimony of the attesting witnesses does not meet the requirement of Section 63(c) of 1925 Act.

3. Learned counsel for the appellant has assailed the findings recorded by the Probate Court. He refers to statement of the attesting witnesses PW4 and PW5 to submit that the same has been misread.

4. The argument raised is misconceived. Law with respect to proof of Will is well settled. The same has been elaborately laid down by Supreme Court in the case of in H. Venkatachala Iyengar vs. B.N. Thimmajamma and others , 1959 AIR (Supreme Court) 443 laid down the following prepositions: -

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18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has th