Shanta Sinha vs Ruma Devi and Anr
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.128 of 2017
CNR No. BRHC010972642017
======================================================
1.1. Jayant Vishnu Prabhakar Bhardwaj Son of Surya Narayan Singh and Late
Shanta Sinha, Resident Village - Ghoswari, Police Station - Bakhtiyarpur,
District- Patna, at present residing at Flat No. 423 Ara Garden, Rupaspur
Patna, Police Station - Rupaspur, District- Patna.
1.2. Surya Narayan Singh Son of late Jai Sharan Prasad Singh, Resident Village -
Ghoswari, Police Station - Bakhtiyarpur, District- Patna, at present residing
at Flat No. 423 Ara Garden, Rupaspur Patna, Police Station - Rupaspur,
District- Patna.
... ... Appellant/s
Versus
1. Ruma Devi and Anr Wife of Sri Ajay Kumar, Daughter of Sri Bijali Prasad
Singh, Resident of Village and P.O. Manjhaul, P.O. Manjhaul, P.S. Cheriya
Bariyarpur, District Begusarai. At present residing at Suhird Nagar, P.S. and
District Begusarai.
2. Prabha Devi, Wife of Sri Digvijay Prasad Singh, Daughter of Sri Bijali
Prasad Singh, Resident of Village and P.O. Gangia, P.S. Katra, District
Muzaffarpur.
3. Nilu Ashok D/o Late Shanta Sinha, Wife of Ashok Kumar, Resident of U-
2/G6 Aprapali Royal Indirapuram Gajiyabad (UP).
4. Renu Arun D/o Late Shanta Sinha, Wife of Arun Kumar, Resident of 203
Dwarikesh Apartment, Peace Road, Lalpur, Ranchi - 834001.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Jitendra Pd. Singh, Senior Advocate
Mr. Varun Krishna Singh, Advocate
For the Respondent/s : Mr. Shri Nandan Prasad Singh, Senior Advocate
Mr. S.P. Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
Date : 29-10-2026
Heard learned counsel for the appellants and the
learned counsel for the respondents.
2. This First Appeal has been filed under Section 299
of the Indian Succession Act, 1925 (hereinafter referred to as the
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‘Act’) against the judgment dated 05.07.2017 passed by the
learned VIIIth Additional District Judge, Begusarai (hereinafter
referred to as ‘Trial Court’) in Title Suit No. 02 of 2007 (arising
out of Probate Case No. 01 of 1995).
3. For the sake of convenience, the parties where
required shall be referred to in terms of their status before the
learned Trial Court.
4. The facts of the case, in brief, are that Ruma Devi
and Prabha Devi (daughters of Bijali Prasad Singh) filed
Probate Case No. 01 of 1995 under Section 276 of the Act
before the learned Trial Court. They sought probate of the last
will and testament dated 17.12.1994 (Exhibit 3), purportedly
executed by Mosst. Sabujwati Kunwari, wife of late Haribansh
Narayan Singh, resident of village Ratanpurawali alias
Sakhmohan, P.S. Bibhutipur, Subdivision Dalsinghsarai, District
Samastipur. Ruma Devi prayed for probate in her favour with
respect to the property in Schedule I of the application, Prabha
Devi with respect to the property in Schedule II, and both jointly
with respect to the property in Schedule III. According to the
petitioners, the properties in Schedules I, II and III were owned
and possessed by Sabujwati Kunwari, who had acquired them
from her husband, late Haribansh Narayan Singh. He died in
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1920, leaving her as his sole heir, and her right in the properties
became absolute after the enforcement of the Hindu Succession
Act, 1956.
5. It was further pleaded that Sabujwati Kunwari was
the full sister of the petitioners’ father, Bijali Prasad Singh. She
had no issue of her own, and there was none in the family of her
husband. While managing and controlling her properties, she
took assistance from her Naihari (maternal home) relations.
From an early age, Sabujwati Kunwari showed great love and
affection towards them, and the petitioners treated her as their
own mother and rendered her all services. The same relations
continued even after the petitioners’ marriage. Because of this
relationship, she bequeathed her properties to the petitioners by
the Will (Exhibit 3). The Will was attested by Uday Shankar
Kumar of village Binodpur, Begusarai, Krishnadeo Prasad
Singh of village Pakra, Nawgachhia, Bhagalpur, and Dr Binoy
Kumar, son of Bijoy Kumar. Her brother, Bijali Prasad Singh,
identified her L.T.I. on the Will. It was also averred that she was
not illiterate, but because of her advanced age, her hands
trembled, so she put her L.T.I. instead of her signature. The
testatrix died on 20.01.1995. Thereafter, on 14.03.1995, the
application for the grant of probate was filed by the two
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legatees, stated to be in compliance with the required
formalities.
6. On 25.07.1995, Baban Devi @ Rukmini Devi,
claiming to be the full sister of the husband of the testatrix, filed
a petition praying to be impleaded as a party and opposing the
grant of probate. After her death, her daughter, Shanta Sinha,
was substituted and continued the proceeding as
defendant/objector. In her written statement, the
defendant/objector raised several objections such as; the probate
petition was framed contrary to Sections 280 and 281 of the Act,
the probate application was not supported by the affidavit of the
witnesses or the scribe as required by law, and the Will was was
forged, fabricated and antedated and was in contravention of
Section 16(2)(iii) of the Bihar Land (Ceiling) Act. The objector
further asserted that Land Ceiling Case No. 10 of 1994-95 was
pending before the Collector, Samastipur, with respect to the
property covered by the Will. In that case, the petition of Ruma
Devi and Prabha Devi to be made parties was turned down by
the Collector, while Baban Devi, being the full sister of the
husband of the testatrix, was made a party and defended the
ceiling case. It was pleaded that Sabujwati Kunwari had no right
or authority to execute a Will with respect to all the land
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involved in the ceiling proceeding. At best, she was competent
to bequeath only the land which would have been allotted to her
under Section 10(2) of the Bihar Land Ceiling Act. The objector
also pleaded that, even if the L.T.I. of Sabujwati Kunwari on the
Will were proved genuine by a legal expert, it might have been
obtained by the father of the plaintiffs after her death. The
defendant's case, as it emerges from her own deposition (D.W.
6) and the First Information Report lodged by Sabujwati
Kunwari on 08.12.1994 (Exhibit A), is that Bijali Prasad Singh
got her land sold through eight registered sale deeds by
practising fraud and coercion and misappropriated the sale
proceeds. She also stated that the L.T.I. of Sabujwati Kunwari
was taken by Bijali Prasad Singh on blank paper at the Teghra
Registry Office, and was later converted into the alleged Will or
obtained after her death. On the objection being filed, the
probate proceeding was converted into a regular Title Suit and
registered as Title Suit No. 02 of 2007 (arising out of Probate
Case No. 01 of 1995). The parties then went to trial on the
pleadings.
7. In view of the pleadings of both parties, the learned
Trial Court framed the following issues for determination:
I. Whether the probate case, as filed and
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framed, is maintainable?
II. Whether the plaintiffs have a valid cause
of action for filing the petition for probate?
III. Whether the Will in question is the last
testament of the testatrix?
IV. Whether the Will in question is legal,
valid and duly executed by the testatrix, the
deceased Sabujwati Kunwari, in a fit state
of her mental and physical health?
V. Whether the plaintiffs are entitled to the
grant of letters of probate?
8. In support of their case, the plaintiffs adduced oral
as well as documentary evidence. They examined altogether
seven witnesses, namely, PW-1 Abhishek Kumar (on facts), PW-
2 Uday Shankar Kumar (attesting witness to the Will dated
17.12.1994), PW-3 Radhey Shyam Prasad (scribe of the Will),
PW-4 Bijali Prasad Singh (father of the plaintiffs, brother of the
testatrix, and also a witness and identifier of her L.T.I.), PW-5
Dr. Binoy Kumar (attesting witness, who proved Exhibit 3),
PW-6 Ruma Devi (plaintiff no. 1) and PW-7 Prabha Devi
(plaintiff no. 2).
9. Moreover, the plaintiffs, in support of their case,
also produced documentary evidence, which was marked as
follows:
Exhibit 1: Signature and writing of the scribe,
•
Radheyshyam Prasad, on the Will dated 17.12.1994.
Exhibit 2: Signature and writing of Bijali Prasad Singh
•
on the first page of the Will dated 17.12.1994, in the
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execution portion.
Exhibit 2/A: Signature and writing of Bijali Prasad Singh
•
on the second page of the Will, as witness.
Exhibit 2/B: Signature and writing of the witness Uday
•
Shankar Kumar on the Will dated 17.12.1994.
Exhibit 3: The original Will dated 17.12.1994, executed
•
by Sabujwati Kunwari in favour of Ruma Devi and
Prabha Devi.
10. Similarly, the defendant, in support of her case,
examined altogether seven witnesses, namely, DW-1 Narayan
Paswan, DW-2 Satto Paswan, DW-3 Tribhuwan Rai, DW-4
Binda Singh, DW-5 Gopi Prasad Singh, DW-6 Shanta Sinha
(the defendant herself) and DW-7 Sanjay Kumar (Advocate
Commissioner, who recorded the evidence of the defendant on
commission).
11. The defendant also produced documentary
evidence, which was marked as follows:
• Exhibit A: Certified copy of the F.I.R. dated 08.12.1994
lodged by Sabujwati Kunwari.
• Exhibit B: Certified copy of the order sheet of Ceiling
Case No. 2 of 2007 (Ruma Devi and others v. State of
Bihar and others).
Exhibit C: Certified copy of the order sheet dated
•
02.03.1988 of Probate Case No. 27 of 1979, passed by
the learned District Judge, Bhagalpur.
Exhibit D: Certified copy of the probate application in
•
Probate Case No. 27 of 1979, filed by Ruma Devi and
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Prabha Devi.
12. After considering the facts and circumstances of
the case and upon perusal of the materials available on record,
the learned Trial Court held, inter alia, that the objection
regarding non-compliance with Sections 280 and 281 of the Act
was not tenable, as the probate application stood verified and
signed by both plaintiffs, and was also verified by Bijali Prasad
Singh, a witness and identifier of the Will, on 14.03.1995. It also
noted that an affidavit sworn by him was already on record. The
objection that the Will, being unregistered, could not be
probated in view of Section 16(2)(iii) of the Bihar Land
(Ceiling) Act was also rejected, relying on the Division Bench
ruling of the Patna High Court reported in 1979 BBCJ 16 ,
which overruled the earlier Single Bench ruling reported in
1976 BBCJ 27 . The learned Trial Court held that probate cannot
be refused merely because the Will is not registered. The plea of
lack of territorial jurisdiction was rejected as well, since it was
neither pleaded in the written statement nor spoken of in the
defendant’s deposition, and since, once the probate case was
converted into a title suit, Section 17 of the Code of Civil
Procedure allowed the suit to be filed where part of the property
was situated, namely in Begusarai district.
13. On merits, the learned Trial Court held that the
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Will (Exhibit 3) bore the L.T.I. of the testatrix, identified by her
brother Bijali Prasad Singh (PW-4), and that the attesting
witnesses Uday Shankar Kumar (PW-2) and Dr Binoy Kumar
(PW-5), as well as the scribe Radhey Shyam Prasad (PW-3),
fully supported its execution. It was observed that the testatrix
was literate but had put her L.T.I. because her hands trembled
on account of advanced age, and that the use of an L.T.I. instead
of a signature lends little support to an allegation of forgery. It
further held that the plaintiffs’ onus of proving the L.T.I. had
been lightened by the defendant herself, who, in her own
deposition as DW-6 and through DW-1 to DW-4, admitted that
the testatrix’s L.T.I. was taken by Bijali Prasad Singh on papers,
which were allegedly later converted into the Will. The learned
Trial Court found the defendant’s case that Bijali Prasad Singh
obtained the L.T.I. by fraud to be unbelievable in view of
Exhibit A (the F.I.R.) lodged by the testatrix herself, in which
there was no complaint against her brother. It also held that the
plaintiffs’ failure to get the disputed L.T.I. compared with an
admitted L.T.I. was of no negative consequence, and that Bijali
Prasad Singh, whose daughters were married and who had his
own family, would not have been expected to grab the property
for himself rather than for his daughters.
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14. As to the remaining circumstances relied upon by
the defendant, the learned Trial Court held that the Collector,
Samastipur, had no jurisdiction to decide whether a Will was
genuine, and that his refusal to implead the plaintiffs in the
ceiling case could not invalidate the Will. It also held that the
plaintiffs' earlier claim through a Will of their grandmother
(Exhibits C and D) was not reasonable or cogent as a ground for
doubting this Will. Accordingly, the learned Trial Court
concluded that it could not hold that the Will had not been
executed by Sabujwati Kunwari, and that the Will was duly
executed and attested and was her last testament. Issue Nos. I,
III and IV were decided in favour of the plaintiffs. Issue No. II
was also decided in their favour, as they, being the legatees, had
a valid cause of action, and Issue No. V was decided in their
favour as they were held entitled to a grant of probate.
15. Aggrieved by the aforesaid judgment dated
05.07.2017 passed by the learned Trial Court in Title Suit No.
02 of 2007 (arising out of Probate Case No. 01 of 1995), the
defendant has preferred the present First Appeal challenging the
findings recorded by the learned Trial Court and seeking
reversal of the impugned judgment.
16. Learned counsel for the appellant submits that the
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impugned judgment dated 05.07.2017 is bad in law and on the
facts and is fit to be set aside. It is submitted that the testatrix,
Sabujwati Kunwari, was about 90 years old and unwell. On the
pretext of taking her to a doctor at Begusarai, her brother Bijali
Prasad Singh (PW-4), the father of the plaintiffs, took her on
05.12.1994 to the Teghra Registry Office. There she was
allegedly forced at gunpoint to sign various documents and a
few blank papers, and her brother also signed those documents
as a witness. She returned to her village, Sakhmohan, in a state
of shock and lodged an F.I.R., Teghra P.S. Case No. 198 of 1994
(Exhibit A), on 08.12.1994. Being a literate lady, she signed the
F.I.R. herself. Learned counsel for the appellants further submits
that the Will is forged and fabricated and was never executed by
the testatrix. It is wholly improbable that an ailing lady of about
90 years, who had just been taken to an unknown place on a
false pretext and forced to sign blank papers, would within
twelve days of that incident, and nine days after lodging the
F.I.R., voluntarily bequeath her property to the daughters of the
very brother against whom she had complained. The Will is
alleged to have been executed at the house of one of the
beneficiaries in Begusarai, a place far from her native place and
unknown to her. She was surrounded by the beneficiaries and
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their close relatives, who had planned the whole affair, as well
as witnesses and a scribe, all of whom were strangers to her.
16.i. Learned counsel for the appellant further submits
that the Will (Exhibit 3) has not been executed in accordance
with Section 63 of the Act. The L.T.I. of the testatrix appears at
the top of the right side of every one of its 8 pages. Although
she was literate and had signed the F.I.R. herself only days
earlier, she is said to have put her L.T.I. on the Will. This raises
serious suspicion about how the document was created and does
not reflect the natural conduct or intention of the testatrix. The
Will was also not registered, although the Begusarai Registry
Office is within one kilometre of the house of plaintiff no. 1, and
no cogent reason has been given for this. He further submits that
the attesting witnesses and the scribe are not independent. The
scribe, Radhey Shyam Prasad (PW-3), was an unlicensed scribe.
Uday Shankar Kumar (PW-2) admitted in para 23 of his cross-
examination that he is the business partner of Ajay Kumar, the
husband of plaintiff no. 1, Ruma Devi. Dr Binoy Kumar (PW-5)
is the brother-in-law of Ajay Kumar. The third attesting witness,
Krishnadeo Prasad Singh, died before his deposition. The L.T.I.
of the testatrix was identified by Bijali Prasad Singh (PW-4), the
father of the beneficiaries, and no person from the testatrix’s
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own village, Sakhmohan, took part in the preparation of the
Will. The Will was therefore created in suspicious circumstances
and does not reflect the intention of the testatrix.
16.ii. Learned counsel for the appellant further
submits that, as shown by Exts. C and D, the plaintiffs, in
connivance with their father Bijali Prasad Singh (PW-4), had
earlier set up a Will dated 15.04.1977 with respect to the
property of their grandmother, Jagdamba Devi. That Will was
rejected by the learned District Judge, Bhagalpur, by order dated
02.03.1988 in Probate Case No. 27 of 1979. This shows that
they have a habit of forging Wills to seize property. It is further
submitted that the defendant had specifically pleaded in para 14
of her written statement that Bijali Prasad Singh (PW-4) created
the Will after the death of Sabujwati Kunwari by antedating it,
without the signature of the landholder, who had signed the
F.I.R. on 08.12.1994. Learned counsel next submits that it is
well settled that in a grant of probate, the genuineness of the
Will must be examined. In the present case, the testatrix, a
literate lady who had signed the F.I.R. on 08.12.1994, is said to
have put her L.T.I. on all 8 pages of the Will on 17.12.1994.
This itself shows that the Will was created in suspicious
circumstances and is a forged and fabricated document. In this
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regard, reliance is placed on the judgment of this Hon'ble Court
in Smt. Bimla Devi v. Uma Devi reported in M.A. No. 145 of
2013 , where this Court, while observing that the absence of a
thumb impression at the foot of a Will would not by itself make
it illegal, held (para 42) that the thumb impression at the top
right of every page, taken together with the other circumstances,
raised serious suspicion about the manner in which the Will was
created.
16.iii. Learned counsel for the appellant further relies
on the judgment of the Hon'ble Supreme Court in Pazhanathal
v. Alamathal , ( 2026 INSC 860 ) para 15, in which it was held
that three distinct acts are required for proof of the genuineness
of a Will: first, the testatrix must sign or affix her mark to the
instrument; secondly, the placement of the signature or mark
must indicate her intention; and thirdly, the Will must be attested
by at least two witnesses. Para 123 of the said judgment
illustrates the suspicious circumstances surrounding a Will.
Reliance is also placed on Malli Bewa v. Natabar Naik and
others , reported in AIR 1980 Orissa 34 , para 8, where the
circumstances that appear suspicious for a Will have been
illustrated. He next submits that the probate petition is contrary
to Sections 280 and 281 of the Act, as it was not properly signed
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and verified in accordance with the Act, and that the Will
contravenes Section 16(2)(iii) of the Bihar Land (Ceiling) Act,
since Land Ceiling Case No. 10 of 1994-95 was pending before
the Collector, Samastipur, in which the plaintiffs’ prayer for
impleadment was rejected. The learned Trial Court did not
properly consider these aspects. He further submits that the
learned Trial Court did not appreciate the oral and documentary
evidence adduced by the defendant, namely Exts. A to D and the
depositions of DW-1 to DW-7, and has granted probate in a
mechanical manner on the basis of the testimony of the
plaintiffs' interested witnesses, proceeding on surmises and
conjectures. Learned counsel for the appellant accordingly
submits that the Will is not genuine and was created in
suspicious circumstances, and that the appeal deserves to be
allowed and the impugned judgment set aside.
17. Learned counsel on behalf of the respondents
submitted that the appeal is not tenable and is devoid of merit,
and that the impugned judgment dated 05.07.2017 does not call
for any interference. He submitted that the main contention of
the appellants at the time of argument is that the Will (Exhibit 3)
is unregistered and that the thumb impression of the testatrix has
been put at the top of the right-hand side of the Will, which
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makes the entire Will doubtful. It is submitted that this question
was never raised by the defendant in her pleadings before the
learned Trial Court. It is a settled position that a party cannot be
allowed to travel beyond its pleadings, and the appellants cannot
be permitted to argue this point for the first time in appeal. In
this regard, reliance is placed on Ram Swarup Gupta v 1. Bisun
Narayan Inter College and others , reported in AIR 1987 SC
1242 , where it was held that evidence which is not supported
by pleadings cannot be considered, and that no party can be
permitted to go beyond its pleadings.
17.i. Learned counsel for the respondents further
submitted that, in any event, the contention is wholly uncalled
for. On a perusal of Exhibit 3, the right side of the page has been
left blank, as is usual, and the signatures of the witnesses and
the L.T.I. of the testatrix have been placed on that side. This is a
normal practice. Even in registered deeds, signatures are placed
in the same manner, and there is no illegality in placing a
signature or L.T.I. at the top of the right-hand side of the page.
As to the Will being unregistered, it is submitted that the learned
Trial Court examined this objection and rejected it, relying on
the Division Bench ruling of this Hon'ble Court reported in
1979 BBCJ 16 , which held that probate cannot be refused
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merely because a Will is not registered.
17.ii. Learned counsel for the respondents further
submitted that the second contention of the appellants, that
Sections 280 and 281 of the Act were not complied with, is also
not based on facts. The point was raised before the learned Trial
Court and has been dealt with in para 10 of the impugned
judgment. The learned Trial Court found that the probate
application was verified and signed by both applicants, Ruma
Devi and Prabha Devi, and that the signature of Ruma Devi was
also verified by her advocate, Sri Arun Kumar Singh. Bijali
Prasad Singh, the witness who identified the Will, also gave a
verification on the last page of the application on 14.03.1995.
The learned Trial Court therefore rightly found that Sections
280 and 281 were fully complied with. He next submitted that
the L.T.I. of the testatrix on the Will stands admitted by the
defendant herself and by her own witnesses. The learned Trial
Court, in para 13 of the impugned judgment, quoted the
statements of DW-6 (the defendant), DW-1 Narayan Paswan,
DW-2 Satto Paswan, DW-3 Tribhuwan Rai and DW-4 Binda
Singh. All of them admitted that the thumb impression of
Sabujwati Kunwari might have been obtained by Bijali Prasad
Singh at the Teghra Registry Office. The appellants, having
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admitted the L.T.I., cannot now contend that it is not genuine.
17.iii. Learned counsel for the respondents further
submitted that the genuineness of the Will has also been proved
by the attesting witnesses and the scribe, namely Dr. Binoy
Kumar (PW-5), Radhey Shyam Prasad (PW-3, scribe) and Uday
Shankar Kumar (PW-2). The learned Trial Court, on the basis of
this evidence, has rightly held that the genuine thumb
impression of the testatrix is present on the Will. He further
submitted that the contention of the appellants that the testatrix
signed the F.I.R. (Exhibit A) dated 08.12.1994, only a few days
before the Will, and made allegations in it against Bijali Prasad
Singh, was considered by the learned Trial Court and found to
be incorrect. In Exhibit A, the informant and her brother were
kidnapped by some persons, and there is no allegation against
Bijali Prasad Singh. As to the L.T.I. on the Will in place of a
signature, it has been explained that after the kidnapping, the
testatrix became mentally and physically weak and disturbed,
and her hands used to tremble. In any case, the thumb
impression on the Will has been admitted by DW-2, DW-3, DW-
4 and DW-6. Learned counsel submitted that the argument of
the appellants that the Will was a creation of Bijali Prasad Singh
in his own interest has also been examined by the learned Trial
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Court in para 12 of the impugned judgment. The learned Trial
Court found that there was no reason for Bijali Prasad Singh to
get the Will executed in favour of his daughters, because in
1994, both plaintiffs were married and living with their
husbands, and Bijali Prasad Singh had his own family of wife
and sons. If he had wanted to grab the property, he would have
got the Will executed in favour of his sons and not his
daughters. Learned counsel accordingly submitted that the
plaintiffs (respondents herein) have proved that the Will in
question is genuine and natural, and that the learned Trial Court
rightly granted probate. The appeal is therefore fit to be
dismissed with costs.
18. In view of the above contentions submitted by
both parties, the following points arise for consideration:
i. Whether the objections regarding non-compliance
with Sections 280 and 281 of the Indian Succession Act, 1925
and contravention of Section 16(2)(iii) of the Bihar Land
(Ceiling) Act, and the appellants' objection to the Will on
grounds not pleaded before the learned Trial Court, are tenable?
ii. Whether the Will dated 17.12.1994 (Exhibit 3) was
duly executed and attested by the testatrix, Sabujwati Kunwari,
in accordance with Section 63 of the Act, and is genuine, or
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whether it was created in suspicious circumstances?
19. This Court has considered the submissions
advanced on behalf of the parties, perused the Trial Court record
and re-appreciated the oral and documentary evidence. The
three issues formulated in paragraph 18 are taken up in seriatim.
Since all three revolve around the proof of a Will, the governing
principles are first examined.
20. The law on proof of a Will is well settled by H.
Venkatachala Iyengar v. B.N. Thimmajamma , AIR 1959 SC
443 . A Will must be proved in accordance with Section 63 of the
Indian Succession Act, 1925 and Section 68 of the Indian
Evidence Act, 1872 (para 18). The propounder must show by
satisfactory evidence that the Will was signed by the testator,
that he was in a sound and disposing state of mind, that he
understood the nature and effect of the dispositions, and that he
put his signature or mark of his own free will; where the
evidence on these points is disinterested, satisfactory and
sufficient, the onus stands discharged (para 19). Where the
execution is surrounded by suspicious circumstances, the onus
becomes heavier, and the propounder must remove all legitimate
suspicions before the document is accepted as the last Will
(paras 20 and 22). Which circumstances are suspicious cannot
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be exhaustively defined, and is a question of fact in each case
(para 39). If the caveator alleges fraud, undue influence or
coercion, he must prove it, but even without such pleas the
circumstances may raise a doubt which it is part of the
propounder's initial onus to remove (para 20). A prominent part
taken by the propounder in the execution of a Will conferring a
substantial benefit on him is itself a suspicious circumstance
(paras 21 and 31). At the same time, the scepticism of the Court
must be reasonable and not an obdurate refusal to believe (para
22). These principles were reaffirmed in S.R. Srinivasa v. S.
Padmavathamma , (2010) 5 SCC 274 , which holds that
registration of a Will by itself does not remove suspicion (para
57) and that where suspicious circumstances exist, the
propounder must offer a cogent and convincing explanation
(paras 63 and 65, applying Jaswant Kaur v. Amrit Kaur , (1977)
1 SCC 369 ).
21. A probate application is non-contentious and
summary only until it is opposed. Once it is contested, Section
295 of the Act requires the proceeding to take, as nearly as may
be, the form of a regular suit under the Code of Civil Procedure.
In the instant case as well, the matter was tried as Title Suit No.
02 of 2007, and it was not a summary proceeding. The probate
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Court decides only whether the instrument is the last Will of the
testatrix, duly executed and attested, and does not decide title or
the legality of the bequest. ( Ishwardeo Narain Singh v. Kamta
Devi , AIR 1954 SC 280; Kanwarjit Singh Dhillon v. Hardyal
Singh Dhillon , (2007) 11 SCC 357; Chiranjilal Shrilal Goenka
v. Jasjit Singh , (1993) 2 SCC 507.) A grant operates in rem and
binds persons who are not before the Court and the same calls
for exacting scrutiny.
22. The respondents contend that the L.T.I. in place of
a signature, its placement at the top right of the pages, and the
non-registration of the Will were never pleaded, and they rely
on Ram Sarup Gupta v. Bishun Narain Inter College , AIR
1987 SC 1242 . The general rule is accepted. A party cannot be
allowed to set up a new case at the appellate stage, and relief
cannot be founded on a case that was neither pleaded nor put in
issue. ( Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491 .)
The objection fails here for the reasons stated in the upcoming
paragraphs.
23. The defendant pleaded that the Will was forged
and fabricated. She also pleaded that even if the L.T.I. were
found genuine by an expert, it might have been obtained by the
father of the plaintiffs. How the testatrix's mark came to be on
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the paper was therefore in issue from the outset. Both sides
adduced evidence on it (PW-2 to PW-5; DW-1 to DW-4 and
DW-6; Exhibit A). The learned Trial Court itself considered, at
para 11 of its judgment, why an L.T.I. was used in place of a
signature, and it dealt with the unregistered character of the
Will. The plaintiffs knew the case they had to meet and suffered
no prejudice. Ram Sarup Gupta (supra) itself looks to the
substance of the case, and it does not insist on the form of the
pleadings. Bachhaj Nahar (supra) is of no help to the
respondents, because this Court grants no relief outside the case
pleaded. It examines the proof of a Will on the pleaded case of
forgery and misuse of the testatrix’s mark.
24. Section 63(a) and (b) of the Act require that the
testatrix sign or affix her mark and that the mark be so placed
that it appears to be intended to give effect to the writing as a
Will. These are ingredients of due execution which the
propounder must prove, and they are not a defence that the
contestant must plead. ( Pazhanathal (supra) para 51.) Even
where the contestant has not pleaded a suspicious circumstance
with particularity, the Supreme Court has held that the Will is
not thereby proved if the circumstance is inherent in the
document, because the propounder must then convince the
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Court and dispel the suspicion. ( Derek A.C. Lobo v. Ulric M.A.
Lobo , 2023 SCC OnLine SC 1893 , para 16.) The circumstances
relied upon here are inherent in Exhibit 3 and in the plaintiffs’
own evidence. These are the L.T.I. in place of a signature, its
position, the relationship of the attesting witnesses to a
beneficiary, and the absence of registration. Further, the Court of
probate must itself be satisfied of the genuineness of the Will
whether or not a plea has been taken. ( H. Venkatachala Iyengar
(supra) , para 20).
25. The respondents’ reliance on Chitturi Subbanna
v. Kudapa Subbanna, AIR 1965 SC 1325 , is misplaced. The
observations about waiver and the function of an appellate
Court on which they rely are from the dissenting opinion of
Mudholkar J. The majority permitted a new ground to be raised
in appeal where it arose on facts already on record and caused
no prejudice to the other side. The same is true here. The
objection that the grounds were unpleaded is rejected, and this
part of point (i) is answered against the respondents.
26. In addition to the principles in para 20, Section
63(c) of the Act requires attestation by at least two witnesses.
Each must have seen the testatrix affix her mark, or have
received her personal acknowledgement of it, and each must
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sign in her presence. Section 68 of the Evidence Act requires at
least one attesting witness to be called to prove execution, and
this applies to a registered Will as well as to an unregistered
one. The witness must be able to prove the whole of the
statutory ceremony, including attestation by the other witness.
( Pazhanathal , ( supra ) paras 53-59) Proof that the mark is the
testatrix’s own is not proof that she executed this Will. Where
suspicion survives, even proof of attestation is not proof of
genuineness. These principles accord with S.R. Srinivasa v. S.
Padmavathamma, (2010) 5 SCC 274 , which holds that
registration does not, by itself, remove suspicion (para 57) and
requires a cogent and convincing explanation for each
suspicious circumstance.
27. The standard of proof is not the formal standard of
proof beyond reasonable doubt in a criminal trial. The Hon’ble
Supreme Court has said that proof is not required with
mathematical certainty. But where a Will displaces natural
succession, and the contestant alleges forgery, fabrication or
antedating, the Court is called upon to decide a solemn question
and must be fully satisfied that the Will was validly executed, as
observed in Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369 . In
the same precedent, it was significantly observed that:
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“ 6. If a caveator alleges fraud, undue
influence, coercion etc. in regard to the
execution of the will, such pleas have to be
proved by him, but even in the absence of
such pleas, the very circumstances
surrounding the execution of the will may
raise a doubt as to whether the testator was
acting of his own free will. And then it is a
part of the initial onus of the propounder to
remove all reasonable doubts in the
matter.”
Thus, if a genuine and legitimate doubt remains, probate cannot
be granted, and the benefit of the doubt goes to the natural line
of succession and not to the propounder. In this respect the
caution required of the Court is no less than that of a criminal
court.
28. Section 63 of the Act is mandatory in nature. A
testator “shall” execute the Will according to its rules. The
testatrix must sign or affix her mark, and the mark must be so
placed that it appears she intended thereby to give effect to the
writing as a Will. These are statutory requirements which cannot
be dispensed with, and the mark must therefore clearly show her
testamentary intent. Additionally, testamentary capacity is part
of the propounder’s burden, whether or not the contestant has
pleaded incapacity. The propounder must show by satisfactory
evidence that the testatrix, at the relevant time, was in a sound
and disposing state of mind, understood the nature and effect of
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the dispositions, and put her mark knowing what the document
contained. It is for the propounder to establish that the testator,
at the time of the disposition, knew and understood the property
he was disposing of and the persons who were to be the
beneficiaries. Producing the scribe and the attesting witnesses,
or proving the genuineness of the testator’s thumb impression, is
not by itself sufficient unless the suspicious circumstances are
ruled out and the Court’s conscience is satisfied not only about
execution but about authenticity. Issue No. IV before the learned
Trial Court, which asked whether the Will was executed by the
testatrix “in a fit state of her mental and physical health”, placed
this question squarely in issue. The learned Trial Court erred in
treating it as outside the enquiry because the defendant had not
pleaded unsoundness (para 9).
29. The explanation which the respondents themselves
offer for the L.T.I. bears directly on this. Their case in appeal is
that after the kidnapping the testatrix “became mentally and
physically weak and she was a bit disturbed”, and that her hands
used to tremble (para 14 of the respondents’ written notes).
Counsel’s submission is not evidence, and this Court does not
treat it as evidence. But it is the case that the propounders
themselves advance to explain the central feature of the
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document they must justify. Having advanced it, they cannot ask
the Court to presume that the same testatrix was in full
command of her faculties when, twelve days after the
kidnapping and nine days after the F.I.R., she is said to have
disposed of her entire estate. On their own showing, her state of
mind at the relevant time was not the state that the law requires
the propounders to establish. If she was weak and disturbed as
they say, it was for them to show by satisfactory evidence that
this did not impair her understanding, that she knew what
property she was disposing of and who the beneficiaries were,
and that the contents were read over and explained to her. No
such evidence is recorded in the impugned judgment.
30 . The respondents’ explanation is also self-
defeating. If the weakness was such that she could not sign, it is
contradicted by Exhibit A, which she signed nine days earlier
and which gives a detailed and coherent account of the events of
05.12.1994. If she was fit enough to lodge that complaint and
sign it, no reason is left for the mark in place of a signature. And
if she was disturbed in the sense now described, capacity and
understanding remain unproved. Whichever way it is taken, the
explanation deepens the doubt and does not remove it. The
Court does not find that the testatrix lacked capacity. It finds
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that the propounders have failed to discharge their burden of
proving that she was in a sound and disposing state of mind and
understood the nature and effect of the Will, and that the enquiry
therefore includes both whether the specific circumstances on
record have been removed and whether capacity and
understanding have been proved. Both are answered against the
plaintiffs.
Point (ii)
31. An FIR (Exhibit A) was lodged by the testatrix
herself on 08.12.1994, nine days before the date of the Will and
long before any dispute over the Will could arise. Both sides
rely on it. The learned Trial Court records (para 12 of its
judgment) that, according to Exhibit A, she and her brother were
kidnapped by one Dani Rai and his group, that eight kewalas
were taken from her, and that her brother was forced to sign as
an identifying witness. As this Court reads the original of
Exhibit A, she also states that on 05.12.1994 she was made to
sign and to put her mark on several papers, including plain and
stamped papers, at the Teghra Registry office, and that her
signature and mark could be misused. The Trial Court read
Exhibit A as exculpating Bijali Prasad Singh, because no
allegation is made against him. This Court need not decide
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whether Bijali Prasad Singh had any part in the events of
05.12.1994. It is enough that, nine days before the date of the
Will, the testatrix herself recorded that her signature and mark
had been taken on papers whose contents she did not know and
that she feared their misuse. On that record, the possibility that a
mark of hers taken on papers during those days was later used
for another purpose is not fanciful. The learned Trial Court,
having held that the defendant’s case is unbelievable because
Exhibit A makes no allegation against the brother, did not ask
this question at all.
32. The learned Trial Court itself finds that Sabujwati
Kunwari was not illiterate and used to give her signature.
Exhibit A, lodged nine days before the date of the Will, appears
to bear her signature. The Will, by which she is said to have
disposed of her entire estate, bears no signature of hers
anywhere and carries only an L.T.I. on every page. In the
language of the defendant’s case, her signature is established on
the record, and the L.T.I. on Exhibit 3 is not admitted as the
mark of a Will.
33. The explanation accepted by the learned Trial
Court is that the testatrix's hands trembled on account of
advanced age, and it was pleaded in the probate petition. A
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pleading by the propounder is not evidence. The explanation
also cannot be reconciled with the fact that she signed Exhibit A
nine days earlier. A person who could sign a complaint to the
police could sign her Will. General weakness or old age, without
evidence, cannot be accepted as a ready-made explanation for a
departure from the way the testatrix ordinarily authenticated her
documents. Where a literate testator affixes a mark in place of a
signature, the propounder must adduce satisfactory evidence of
why. ( Smt. Guro v. Atma Singh, (1992) 2 SCC 507 .) The
plaintiffs have not done so.
34. The Court is conversant of the precedent set in
Lachhmi Narain Singh v. Sarjug Singh ( AIR 2021
,
SUPREME COURT 3873 ) where the Hon’ble Supreme Court
cautioned against drawing an adverse inference merely because
a literate person had affixed a thumb impression. The case is
distinguishable. There, the thumb impression was the
executant's habitual mode of execution, because every deed he
executed in his lifetime bore it. The impugned deed was
registered, and expert evidence supported it. Here, the learned
Trial Court itself finds that the testatrix habitually signs, the Will
is not registered, and there is no expert evidence. The principle
that literacy alone does not make a thumb impression suspicious
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does not help propounders where the testatrix’s established
practice was to sign and where she had signed a document nine
days earlier.
35. The L.T.I. and the witnesses’ signatures appear at
the top of the right-hand margin of the pages. Although no
format is prescribed for a Will, the position is not illegal. But
Section 63(b) requires that the mark be so placed that it appears
intended to give effect to the writing as a Will. In ordinary
practice, the testator’s signature or mark appears at the close of
the testamentary text or at the foot of the page, so that it closes
and authenticates what is written above it. A mark at the head of
each page, in the margin, does not necessarily serve that
purpose. It is also the position in which a mark may be taken in
advance on papers which are later written upon, and that is the
defendant's case. Standing alone this would not be decisive, but
it must be read with paragraphs 30-32. No witness is recorded as
explaining why the marks were taken in this manner.
36. The learned Trial Court held that the defendant,
DW-6, and DW-1 to DW-4 had admitted the L.T.I., so that the
plaintiffs’ onus was lightened. This cannot be accepted. The
defendant’s case is that the testatrix's mark was taken on papers
at the Teghra Registry office and was later converted into the
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alleged Will, or obtained after her death. That is a denial of the
Will and not an admission of it. DW-6’s statement is expressed
as a surmise (‘it appears’). DW-1 to DW-4 repeat only what the
testatrix is said to have told them, and they cannot supply an
admission of execution. An admission must also be read as a
whole. Even if the mark is hers, execution of the Will under
Section 63 is not thereby proved. The propounder must prove
that she affixed it on this Will, with knowledge of its contents,
and that it was attested as the law requires. The weakness of the
defence does not discharge the propounders’ burden.
37. Bijali Prasad is the father of both beneficiaries and
the brother of the testatrix. He identified her L.T.I. (PW-4). His
signature and writing appear in the execution portion of the first
page (Exhibit 2) and on the second page as a witness (Exhibit
2/A). He also verified the probate application and swore an
affidavit in support. Where a person closely connected with the
beneficiaries takes a prominent part in the execution, that is a
recognised suspicious circumstance. ( Smt. Guro ( supra ) ). The
rationale applies equally to a father acting for his daughters. The
law does not ask what the person who arranged the execution
might have preferred. It asks whether independent evidence
removes the suspicion. In the instant case, there is none.
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38. PW-2, Uday Shankar Kumar, admitted in para 23
of his cross-examination that he is the business partner of Ajay
Kumar, the husband of plaintiff no. 1. PW-5, Dr. Binoy Kumar,
is the brother-in-law of Ajay Kumar. The third attesting witness,
Krishnadeo Prasad Singh, died before he could be examined.
The scribe, PW-3, was not a licensed scribe. Relationship does
not disqualify an attesting witness, but the evidence of interested
witnesses must be examined with care. The learned Trial Court
did not examine independence at all. It treated PW-5 as
respectable because he is a doctor, which says nothing of his
independence. No person from the testatrix's own village,
Sakhmohan, was examined on her condition, her intention or the
circumstances of execution. The whole of the evidence of
execution comes from the circle of the beneficiaries.
39. The plaintiffs pleaded that none survived in the
family of the testatrix's husband. The defendant's pleaded
genealogy shows Baban Devi @ Rukmini Devi as the full sister
of the testatrix's husband, with the defendant as her daughter.
The learned Trial Court made no finding. The Court does not
hold the disposition in favour of the testatrix's nieces to be
unnatural. But where a Will excludes those through whom the
property came, the evidence must show that the exclusion was
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the testatrix’s own conscious decision and not something
arranged around her. Such evidence is absent.
40. Registration of a Will is optional, and the learned
Trial Court rightly held that probate cannot be refused only
because the Will is unregistered. But registration, where it
exists, supplies an independent assurance, and the Supreme
Court has held that even registration does not by itself remove
suspicion. ( S.R. Srinivasa , para 57.) Here the testatrix had been
taken to the Teghra Registry office on 05.12.1994 and
complained of it three days later. The Will executed twelve days
later was not registered. No reason was shown. The propounders
therefore have no assurance of that kind to offer.
41. The learned Trial Court found the application
signed and verified by both plaintiffs and by Bijali Prasad
Singh. Section 281 requires verification by a witness to the Will
"when procurable", and High Courts have treated the provision
as directory. ( Nand Kishore Rai v. Mst. Bhagi Kuer, AIR 1958
All 329 ) After a full trial in which execution was tested on
evidence, any defect would be a curable irregularity. This Court
does not rest its decision on this ground and answers it against
the appellant. A verification by the father of the beneficiaries
adds no independent assurance of genuineness.
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42. The contention that the bequest offends Section
16(2)(iii) of the Bihar Land (Ceiling) Act, and the effect of the
Collector’s refusal to implead the plaintiffs, concern the legality
of the bequest and title to land. A probate Court does not decide
those questions. The learned Trial Court rightly held that the
Collector has no jurisdiction to decide whether a Will is
genuine, and that his order neither supports nor invalidates it.
43. In a probate matter, the question is not only
whether the mark on the paper is the testatrix’s, which is how
the learned Trial Court framed the case. It is whether the
propounders have proved, by evidence that satisfies the
conscience of the Court, that she executed this document as her
Will, knowing what it said, and that every suspicion surrounding
the execution has been removed. By asking the first question,
and answering it from the weakness of the defence, the learned
Trial Court reversed the burden that the law places on the
propounder. It treated the defendant’s surmise as an admission,
it filled gaps in the plaintiffs’ evidence with conjecture about the
motive of Bijali Prasad Singh, and it did not examine the
independence of the attesting witnesses, the explanation for the
thumb impression in place of the signature, or the testatrix’s
own complaint nine days before the date of the Will. This is not
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a case in which the learned Trial Court’s finding rests on the
demeanour of witnesses. It rests on documents and on
inferences, which this Court is equally able to draw. A finding
reached by applying the wrong test, and without considering
circumstances that go to the root of the matter, cannot be
sustained merely because it is a finding of fact.
44. The findings of the learned Trial Court on Issue
Nos. III and IV, namely that the Will is the last testament of the
testatrix and was duly executed by her in a fit state of mental
and physical health, are set aside. The Trial Court correctly
noted that no unsoundness of mind had been pleaded, but it was
wrong to treat that as the end of the enquiry. Testamentary
capacity and understanding of the nature and effect of the
disposition form part of the burden on the propounder, whether
or not the contestant has pleaded incapacity. The plaintiffs have
not discharged that burden on the case they themselves put
forward, namely that the testatrix was weak and disturbed at the
relevant time. The finding on Issue No. I (maintainability) is
upheld only to the extent that the probate case was not liable to
be dismissed in limine on the technical objections raised. The
finding on Issue No. II (cause of action) does not require
disturbance, as the legatees have a cause to seek probate. Issue
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No. V (entitlement to letters of probate) is answered against the
plaintiffs, because the Will is not proved.
45. The observations in this judgment concern only
whether the Will is proved. They do not decide title to the
properties, and the rights of the parties in them shall be
determined in accordance with law.
46. Accordingly, the present appeal is allowed. The
judgment dated 05.07.2017 passed by the learned VIIIth
Additional District Judge, Begusarai in Title Suit No. 02 of 2007
(arising out of Probate Case No. 01 of 1995) is set aside.
Probate of the Will dated 17.12.1994 (Exhibit 3) is refused, and
the probate case is dismissed.
(Ramesh Chand Malviya, J)
Sunnykr/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 29.10.2026
Transmission Date 29.10.2026