Asha Devi vs Narendra Jangbahadur

IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.19 of 2020
======================================================
Asha Devi W/o Devendra Jangbahadur Sahay @ Munna Ji Resident of Vill.
and Mauza- Chanda, P.S.- Ara Dist.- Bhojpur at present Resident of vill.-
Binda Toli (Ara) P.S.- Ara Town Distt.- Bhojpur.
... ... Appellant
Versus
1. Narendra Jangbahadur S/o Late Brijnandan Sahay Resident of Vill. and
Mauza- Chanda, P.S.- Ara Distt.- Bhojpur.
2. Ashwani Kumar S/o Amarendra Jangbahadur Resident of Vill. and Mauza-
Chanda, P.S.- Ara Distt.- Bhojpur.
... ... Respondents
Appearance :
For the Appellant/s : Mr.Ram Kishore Singh, Advocate
Mr. Ramanuj Tiwary, Advocate
For the Respondent/s : Mr.Ravindra Kumar, Advocate
Mr. Amish Kumar No. 1, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RUDRA PRAKASH
MISHRA
C.A.V. JUDGMENT
Date : 08-07-2026
The present First Appeal is directed against the judgment
and order dated 09.12.2019 passed by learned 3rd Additional
District Judge, Bhojpur at Ara in Probate Case No. 04 of 2018
by which the Court below dismissed the probate petition filed
by the applicant-appellant.
2. Facts of the case is that Most. Rameshwari Devi,
widow of the late Brijnandan Sahay, was the absolute owner and
possessor of the suit property situated at Bind Toli, Police

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Station Ara Nagar, District Bhojpur. Brijnandan Sahay had two
wives - Rameshwari Devi and Rajvanshi. From Rameshwari
Devi, he had two sons, Nagendra Jung Bahadur and Devendra
Jung Bahadur. From his second wife Rajvanshi, he had two
sons, Narendra Jung Bahadur alias Madan Ji and Amarendra
Jung Bahadur @ Munmun Ji, the latter of whom died leaving
behind five children - three daughters Nidhi, Nisha and
Ashmita, and two sons Ashwani Kumar and Shishir Kumar.
During her lifetime, Rameshwari Devi was looked after and
cared by Asha Devi, wife of her son Devendra Jung Bahadur.
Being satisfied with her daughter-in-law's dedicated service,
Rameshwari Devi executed a Will dated 09.09.2009 in favour of
Asha Devi, bequeathing her entire property to her. The Will was
executed voluntarily and, in a sound, disposing state of mind, in
the presence of attesting witnesses and a scribe, all of whom
later testified in court that Rameshwari Devi had signed the Will
before them. Rameshwari Devi passed away the very next day,
on 10.09.2009. Thereafter, Asha Devi filed Probate Case No.
19/2017 before the learned Sub Judge I, Ara. Upon appearance
and objection, the case was converted into Probate Suit No.
04/2018. In support of her claim, the applicant placed on record
substantial oral and documentary evidence, including the Will,

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death certificate, pension documents, Bank passbook, and
testimony of the attesting witnesses.
3. The first objectors, Narendra Jung Bahadur alias
Madan Ji and Ashwani Kumar, challenged the Will on several
grounds. They contended that Rameshwari Devi was 94 years
old, had been continuously ill since 2008, and had lost her
mental capacity to think and understand, making her incapable
of executing any Will. They further alleged that the applicant
and her husband had abandoned Rameshwari Devi contending
that it was Amarendra Bahadur who actually cared for her and
performed her last rites and that the Will dated 09.09.2009
executed just one day before her death was completely forged.
They also raised maintainability issue contending that the
applicant had failed to disclose the complete family of
Brijnandan Sahay by omitting the descendants of his second
wife Rajvanshi. The second objector, Nagendra Jung Bahadur,
who is the applicant's own brother-in-law, however, supported
the applicant's case and prayed for probate to be granted in her
favour.
4. Upon consideration of the pleadings of the parties, the
learned Trial Court framed the following issues for
determination:

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1).Whether the applicant has a valid cause of action
for filing the probate case?
2).Whether the probate case, as instituted, is
maintainable in law?
3).Whether the Will dated 09.09.2009 alleged to have
been executed by Smt. Rameshwari Devi in favour of
the applicant is a genuine, valid and duly executed
testamentary document?
4).Whether the Will dated 09.09.2009 is forged,
fraudulent and fabricated?
5).Whether the applicant is entitled to the grant of
probate on the basis of the said Will?
5. In order to substantiate her claim, the applicant
examined three witnesses, namely, Manoj Kumar (PW-1),
Shailesh Kumar (PW-2) and Asha Devi, the applicant herself
(PW-3). The applicant also adduced documentary evidence,
namely: (i) the Will dated 09.09.2009 (Ext.-1); (ii) the death
certificate of Smt. Rameshwari Devi (Ext.-2); (iii) the family
register extract relating to the service of late Brijnandan Sahay
(Ext.-3); (iv) the medical certificate of late Brijnandan Sahay
(Ext.-4); (v) the pension passbook of Smt. Rameshwari Devi
(Ext.-5); (vi) her bank passbook (Ext.-6); and (vii) the Punjab
National Bank, Ara Branch passbook and allied bank records
(Exts.-7 and 8). Although the defendants contested the claim by
filing written objections and also cross-examined the applicant’s
witnesses but they neither examined any witness nor produced
any oral or documentary evidence in support of their defence.

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6. The learned Trial Court observed that Issues Nos. 3 and
4 constituted the core controversy and while deciding those
issues, the learned Court below examined the evidence adduced
by the applicant to establish the due execution and validity of
the Will dated 09.09.2009. Manoj Kumar (PW-1) deposed
regarding the execution of the Will. Shailesh Kumar (PW-2),
one of the attesting witnesses, entered the witness box and
proved the execution of the Will by identifying his own
signature as well as the signature of the testatrix, Smt.
Rameshwari Devi, appearing on the original Will (Ext.1). The
applicant asserted that the Will had been scribed by Rajendra
Tiwari. The applicant herself was examined as PW-3 and fully
supported the averments made in the probate petition. Besides
the oral evidence, the documentary evidence referred to above
was also brought on record and upon appreciation of the oral
and documentary evidence as well as the surrounding
circumstances, the learned Trial Court found itself unable to
accept the Will as a genuine and valid testamentary instrument.
The Court took note of the fact that the Will was unregistered
and was allegedly executed on 09.09.2009, barely one day prior
to the death of the testatrix on 10.09.2009. It further observed
that the testatrix was about 94 years of age and had admittedly

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been suffering from prolonged illness since the year 2008. The
learned Court below also noticed that no medical evidence had
been adduced to establish that the testatrix was in a sound and
disposing state of mind at the time of the alleged execution of
the Will. In these circumstances, the Court below held that the
applicant had failed to satisfactorily prove the testamentary
capacity of the testatrix. The learned Court below further
observed that the above surrounding circumstances gave rise to
serious suspicion regarding the genuineness of the Will. It
recorded a finding that there was a strong probability that the
signature of the testatrix had been obtained on a blank paper and
that the Will had subsequently been prepared thereon. The Court
also attached significance to the fact that both the attesting
witnesses, namely Manoj Kumar and Shailesh Kumar, were
closely associated with the applicant, thereby requiring their
evidence to be scrutinized with greater caution. It was further
noticed that the other legal heirs of the deceased were neither
informed of the alleged Will nor impleaded at the appropriate
stage of the proceedings, which, according to the learned Trial
Court, constituted an additional suspicious circumstance. Upon
an overall appreciation of the evidence and the attendant
circumstances, the learned Court below concluded that the Will

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dated 09.09.2009 was a forged and fraudulent document and did
not represent the genuine and voluntary testamentary disposition
of the deceased. Accordingly, Issues Nos. 3 and 4 were decided
against the applicant.
7. While deciding Issues Nos. 1, 2 and 5, the learned Trial
Court held that, in view of its findings on core Issues Nos. 3 and
4, the other issues were decided against the applicant. The Court
below rejected the prayer of the applicant for grant of probate
and dismissed the probate suit vide judgment and order dated
09.12.2019.
8. Heard learned counsel for the appellant and learned
counsel for the Respondents.
9. Learned counsel for the appellant submitted that the
appellant has proved execution of the Will by attesting
witnesses, testamentary capacity of the testatrix and voluntary
nature of execution of the Will and despite such proof, the Court
below wrongly dismissed the probate petition. It was submitted
that the deceased voluntarily executed the Will in a sound state
of mind in favour of the appellant, who had been taking care of
her. Learned counsel contended that the requirements under
Section 63 of the Indian Succession Act and Section 68 of the
Evidence Act were fully complied with because the attesting

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witnesses proved with regard to execution of the Will. In this
regard, reliance was placed on H. Venkatachala Iyengar v. B.N.
Thimmajamma reported in (AIR 1959 SC 443) to emphasize
that suspicious alone cannot override clear proof of execution
and attestation.
10 Learned counsel for the appellant further argues that
mere old age, illness, or death shortly after execution of the Will
cannot invalidate it. In support of his argument, reliance was
placed on Pentakota Satyanarayana v. Pentakota
Seetharatnam, (2005) 8 SCC 67 , where the Hon’ble Supreme
Court observed that physical weakness or illness does not make
a Will suspicious if the testator understood its contents. In this
regard, reliance was also placed in the case of Jaswant Kaur v.
Amrit Kaur reported in (1977) 1 SCC 369 to argue that
suspicious circumstances must be proved with the evidence and
not mere assumptions.
11. Learned counsel for the appellant further submits that
exclusion of some legal heirs is not unnatural because the
appellant alone cared for the deceased. For this proposition,
reliance was placed on Sridevi v. Jayaraja Shetty (2005) 2 SCC
784 where the Hon’ble Supreme Court observed that exclusion
of heirs is not suspicious if there is a valid reason. The learned

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counsel for the appellant also argued that non-registration of the
Will does not affect its validity and relied on Rani Purnima
Debi v. Kumar Khagendra Narayan Deb reported in AIR 1962
SC 567 to emphasize that registration of a Will is optional and
an unregistered Will is optional and an unregistered Will can
still be genuine if properly proved.
12. Learned counsel for the appellant further submits that
the probate court exceeded its jurisdiction by examining title
dispute instead of only considering the genuineness of the Will.
For this proposition, reliance was placed on Krishna Kumar
Birla v. Rajendra Singh Lodha (2008) 4 SCC 300, where the
Supreme Court emphasized that probate courts are only
concerned with due execution and validity of the Will.
13. Learned counsel for the appellant also argues that the
Respondents failed to produce any medical, handwriting, or
independent evidence to prove forgery or undue influence. In
this regard reliance was placed in the case of Daulat Ram v.
Sodha reported in (2005) 1 SCC 40 to emphasize that once
execution of the Will is proved, the burden shifts to the objector
to prove allegations of fraud or coercion.
14. Finally, learned counsel for the appellant contended
that the Respondents could not rebut the appellant’s evidence

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through proper cross-examination and therefore the evidence
regarding execution of the Will remained unrebutted and that
the trial court wrongly dismissed the probate petition on
assumptions instead of legal evidence.
15. Per contra, learned counsel for the Respondents
submitted that the appeal filed against the rejection of the
probate petition is completely without merit and that the order
of the Court below in dismissing the Probate Case was correct
and does not require any interference by this Court as the
alleged Will is surrounded by several suspicious circumstances
and the appellant has failed to remove those suspicions as
required under law.
16. Learned counsel for the Respondents further submits
that the Will was not properly executed or attested. The witness
signed on different pages; there was no signature of attesting
witnesses at the end of the Will and the legal requirements under
the Indian Succession Act were not fulfilled and that the
testatrix was about 94 years old, seriously ill, and died just one
day after execution of the will, yet no proper medical evidence
was produced to prove that she was in a sound mental condition.
In support of his argument, reliance was placed on the case of
Sridevi v. Jayaraja Shetty, reported in (2005) 2 SCC 784 , where

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the Hon’ble Supreme Court had observed that when suspicious
circumstances exist, the propounder of the Will must clearly
prove the sound disposing state of mind of the testator. The
respondent further made emphasis that the appellant failed to
discharge this burden.
17. Learned counsel for the respondents also argues that
the Will unnaturally excluded the natural heirs without any
proper explanation. In this regard, reliance was placed on
Gurdial Singh v. Jagir Kaur reported in 2025 SCC OnLine SC
1466, wherein the Hon’ble Supreme Court observed that
unexplained exclusion of natural heirs becomes a suspicious
circumstance and tries to show that the disinheritance of lawful
heirs creates doubt about the genuineness of the Will. It is
argued that the beneficiary herself played an active role in the
execution of the Will and was the sole beneficiary. The
respondents further relied on Kavita Kanwar v. Pamela Mehta
(2020) SCC Online SC 464 to emphasise that active
participation of the beneficiary in preparation of the Will
increases suspicion and places a heavier burden on the
propounded.
18. Learned counsel for the Respondents finally relied on
H. Venkatachala Iyengar v. B.N. Thimmajamm reported in

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AIR 1959 SC 443 , where the Hon’ble Supreme Court observed
and held that the propounder must satisfy the conscience of the
court when suspicious circumstances surround a Will and that
the appellant failed to prove its genuineness and voluntary
proved the execution of the Will, therefore, the dismissal of the
probate petition does not require interference by this Court.
19 . Upon consideration of submissions of learned
counsel for the parties and on perusal of the records as well as
judgment of the Court below, the point for determination for this
Court is whether the judgment passed by the Court below is just,
proper, legal and in accordance with law or any interference is
required by this Court.
20. Before adverting to the merits of the case, it is
apposite for this Court to first examine the relevant statutory
provisions which are attracted and have a direct bearing upon
the adjudication of the present matter.
THE INDIAN SUCCESSION ACT, 1925
Section 2. Definitions.- In this Act, unless there is
anything repugnant in the subject or context,--
(a) …XXXX…
(b) ...XXXX…
[(bb)…XXXX….;]
(c) …XXXX…..
[(cc)…XXXX….;]
(d)…XXXX….;
(e) …XXXX….
(f)….XXXX…..

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[(g)….XXXX…..
(h) "will" means the legal declaration of the
intention of a testator with respect to his property
which he desires to be carried into effect after his
death.
Section 63 . Execution of unprivileged wills.- Every
testator, not being a soldier employed in an
expedition or engaged in actual warfare, or an
airman so employed or engaged,] or a mariner at
sea, shall execute his will according to the following
rules:--
(a) The testator shall sign or shall affix his mark to
the Will, or it shall be signed by some other person
in his presence and by his direction.
(b) The signature or mark of the testator, or the
signature of the person signing for him, shall be so
placed that it shall appear that it was intended
thereby to give effect to the writing as a Will.
(c) The will shall be attested by two or more
witnesses, each of whom has seen the testator sign
or affix his mark to the will or has seen some other
person sign the will, in the presence and by the
direction of the testator, or has received from the
testator a personal acknowledgment of his signature
or mark, or of the signature of such other person;
and each of the witnesses shall sign the will in the
presence of the testator, but it shall not be necessary
that more than one witness be present at the same
time, and no particular form of attestation shall be

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necessary.
The Bharatiya Sakshya Adhiniyam, 2023
Section 67 - Proof of execution of document
required by law to be attested .—“If a document is
required by law to be attested, it shall not be used as
evidence until one attesting witness at least has been
called for the purpose of proving its execution, if
there be an attesting witness alive, and subject to the
process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a will, which has been
registered in accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908), unless its
execution by the person by whom it purports to have
been executed is specifically denied.”
21. A bare reading of the abovementioned provisions
would show that the requirements enshrined under Section 63 of
the Indian Succession Act, 1925 had to be categorically
complied with for the execution of the Will to be proven in
terms of Section 67 of Bharatiya Sakshya Adhiniyam, 2023. A
Will is an instrument of testamentary disposition of property. It
is a legally acknowledged mode of bequeathing a testator’s
property during his lifetime to be acted upon on his/her death
and carries with it an element of sanctity. It speaks from the

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death of the testator. Since the testator/testatrix, at the time of
testing the document for its validity, would not be available for
deposing as to the circumstances in which the Will came to be
executed.
22. The Hon’ble Supreme Court in H. Venkatachala
Iyengar Vs B.N. Thimmajamma and Others (1958 SCC
OnLine SC 31) observed as under in paragraphs 20 and 21:
“20. There may, however, be cases in which the execution
of the will may be surrounded by suspicious
circumstances. The alleged signature of the testator may
be very shaky and doubtful and evidence in support of the
propounder's case that the signature, in question is the
signature of the testator may not remove the doubt
created by the appearance of the signature; the condition
of the testator's mind may appear to be very feeble and
debilitated; and evidence adduced may not succeed in
removing the legitimate doubt as to the mental capacity
of the testator; the dispositions made in the will may
appear to be unnatural, improbable or unfair in the light
of relevant circumstances; or, the will may otherwise
indicate that the said dispositions may not be the result of
the testator's free will and mind. In such cases the court
would naturally expect that all legitimate suspicions
should be completely removed before the document is
accepted as the last will of the testator. The presence of
such suspicious circumstances naturally tend to make the
initial onus very heavy; and, unless it is satisfactorily

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discharged, courts would be reluctant to treat the
document as the last will of the testator. It is true that, if a
caveat is filed alleging the exercise of undue influence,
fraud or coercion in respect of the execution of the will
propounded, such pleas may have to be proved by the
caveators; but, even without such pleas circumstances
may raise a doubt as to whether the testator was acting of
his own free will in executing the will, and in such
circumstances, it would be a part of the initial onus to
remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we
have just referred, in some cases the wills propounded
disclose another infirmity. Propounders themselves take a
prominent part in the execution of the wills which confer
on them substantial benefits. If it is shown that the
propounder has taken a prominent part in the execution
of the will and has received substantial benefit under it,
that itself is generally treated as a suspicious
circumstance attending the execution of the will and the
propounder is required to remove the said suspicion by
clear and satisfactory evidence. It is in connection with
wills that present such suspicious circumstances that
decisions of English courts often mention the test of the
satisfaction of judicial conscience. It may be that the
reference to judicial conscience in this connection is a
heritage from similar observations made by ecclesiastical
courts in England when they exercised jurisdiction with
reference to wills; but any objection to the use of the
word “conscience” in this context would, in our opinion,
be purely technical and academic, if not pedantic. The

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test merely emphasizes that, in determining the question
as to whether an instrument produced before the court is
the last will of the testator, the court is deciding a solemn
question and it must be fully satisfied that it had been
validly executed by the testator who is no longer alive.”
23. The Hon’ble Supreme Court in Meena Pradhan and
Ors. Vs. Kamla Pradhan and Anr . 2023(9) SCC 734 the
Hon'ble Supreme Court, after considering and relying upon its
earlier decisions in H. Venkatachala Iyengar v. B.N.
Thimmajamma, (supra) crystallized and reiterated the
governing principles relating to the proof of due execution and
validity of a Will. The Court deduced the following legal
propositions in paragraphs 10 and 11 which are required to be
satisfied for establishing a Will in accordance with law :—
“10.1 The court has to consider two aspects: firstly,
that the Will is executed by the testator, and secondly,
that it was the last Will executed by him;
10.2. It is not required to be proved with mathematical
accuracy, but the test of satisfaction of the prudent
mind has to be applied.
10.3. A Will is required to fulfil all the formalities
required under Section 63 of the Succession Act, that
is to say:-
(a) The testator shall sign or affix his mark to the Will
or it shall be signed by some other person in his

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presence and by his direction and the said signature
or affixation shall show that it was intended to give
effect to the writing as a Will;
(b) It is mandatory to get it attested by two or more
witnesses, though no particular form of attestation is
necessary;
(c) Each of the attesting witnesses must have seen the
testator sign or affix his mark to the Will or has seen
some other person sign the Will, in the presence and
by the direction of the testator, or has received from
the testator a personal acknowledgment of such
signatures;
(d) Each of the attesting witnesses shall sign the Will
in the presence of the testator, however, the presence
of all witnesses at the same time is not required;
10.4. For the purpose of proving the execution of the
Will, at least one of the attesting witnesses, who is
alive, subject to the process of court, and capable of
giving evidence, shall be examined;
10.5.The attesting witness should speak not only about
the testator’s signatures but also that each of the
witnesses had signed the will in the presence of the
testator;
10.6. If one attesting witness can prove the execution
of the Will, the examination of other attesting
witnesses can be dispensed with;
10.7. Where one attesting witness, examined to prove
the Will fails to prove its due execution, then the other
available attesting witness has to be called to
supplement his evidence;

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10.8.Whenever there exists any suspicion as to the
execution of the Will, it is the responsibility of the
propounder to remove all legitimate suspicions before
it can be accepted as the testator's last Will. In such
cases, the initial onus on the propounder becomes
heavier.
10.9 The test of judicial conscience has been evolved
for dealing with those cases where the execution of the
Will is surrounded by suspicious circumstances. It
requires to consider factors such as awareness of the
testator as to the content as well as the consequences,
nature and effect of the dispositions in the Will; sound,
certain and disposing state of mind and memory of the
testator at the time of execution; testator executed the
Will while acting on his own free Will;
10.10 One who alleges fraud, fabrication, undue
influence etc. has to prove the same. However, even in
the absence of such allegations, if there are
circumstances giving rise to doubt, then it becomes the
duty of the propounder to dispel such suspicious
circumstances by giving a cogent and convincing
explanation.
10.11 Suspicious circumstances must be ‘real,
germane and valid’ and not merely ‘the fantasy of the
doubting mind’. Whether a particular feature would
qualify as ‘suspicious’ would depend on the facts and
circumstances of each case. Any circumstance raising
suspicion legitimate in nature would qualify as a
suspicious circumstance for example, a shaky
signature, a feeble mind, an unfair and unjust

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disposition of property, the propounder himself taking
a leading part in the making of the Will under which
he receives a substantial benefit, etc.
11. It is further held that in short, apart from statutory
compliance, broadly it has to be proved that:-
(a) the testator signed the Will out of his own free Will,
(b) at the time of execution he had a sound state of
mind,
(c) he was aware of the nature and effect thereof and
(d) the Will was not executed under any suspicious
circumstances.”
24. While allegations of fraud, fabrication, or undue
influence must be proved by the person making them, the
propounder of the will must dispel any legitimate doubts
surrounding its execution. The Court clarified that suspicious
circumstances must be real and substantial, not based on mere
conjecture or imagination. Factors such as a shaky signature,
feeble mental condition of the testator, unnatural disposition of
property, or active involvement of a beneficiary in the
preparation of the will may raise suspicion, which must be
satisfactorily explained to establish the genuineness and validity
of the will.
25. It is well settled by the decisions of the Hon'ble
Supreme Court in H. Venkatachala Iyengar v. B.N.
Thimmajamma (supra) and subsequent judgments that while

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proof of execution and attestation is a statutory requirement,
where suspicious circumstances surround the Will, the burden
lies heavily upon the propounder to remove all legitimate
suspicions and satisfy the conscience of the Court that the
document truly represents the last free and voluntary testament
of the deceased.
26. In the present case, several circumstances emerge
from the record which create serious doubt regarding the
genuineness of the alleged Will. The testatrix was admittedly
about 94 years old and had been suffering from prolonged
illness since the year 2008. The Will is alleged to have been
executed on 09.09.2009, merely one day before her death on
10.09.2009. Despite such unusual circumstances, no
independent medical evidence has been produced to establish
that the testatrix was in a sound and disposing state of mind at
the time of execution. Although attesting witnesses were
examined, their testimony does not satisfactorily dispel the
doubts arising from the surrounding circumstances. The
witnesses admittedly had close association with the beneficiary.
The evidence led by the appellant is insufficient to inspire
confidence that the Will was executed voluntarily by the
testatrix after understanding its contents. Further the Will

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excludes several natural heirs from succession. Though,
exclusion of heirs by itself may not invalidate a Will but in the
facts of the present case such exclusion assumes significance
because no convincing explanation is forthcoming from the
propounder regarding the circumstances in which the entire
estate came to be bequeathed exclusively in favour of the
appellant. The beneficiary was admittedly interested in and
closely connected with the execution of the Will. The evidence
on record does not satisfactorily remove the suspicion arising
from such active involvement. Further, the contention of the
appellant that the objectors failed to adduce rebuttal evidence
cannot by itself advance her case. In probate proceedings, the
propounder must stand on the strength of her own evidence. The
burden of proving the Will and removing suspicious
circumstances never shifts unless the propounder first
establishes a genuine and valid testamentary document.
27. The reliance placed by the appellant on Pentakota
Satyanarayana v. Pentakota Seetharatnam (supra) and Rani
Purnima Debi v. Kumar Khagendra Narayan Deb (supra) is
of no assistance in the facts of the present case. There can be no
quarrel with the settled proposition that advanced age, illness,
proximity of death or non-registration of a Will do not, by

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themselves, invalidate a testamentary disposition. However, in
the present case, the Will has not been discarded on any one of
the aforesaid circumstances in isolation. Rather, it is the
cumulative effect of all the suspicious circumstances, which
have remained unexplained and that renders the alleged Will
unworthy of acceptance.
28. This Court is also conscious of the principle laid
down in several cases and other authorities that old age, illness
or proximity of death are not by themselves sufficient to
invalidate a Will. However, those circumstances cannot be
viewed in isolation. When considered cumulatively with the
advanced age of the testatrix, the execution of the Will one day
prior to death, absence of medical evidence regarding
testamentary capacity, exclusion of natural heirs and other
attendant circumstances, the suspicion surrounding the
document remains unresolved. Likewise, the reliance placed on
Krishna Kumar Birla v. Rajendra Singh Lodha (supra) is also
misconceived. The learned Trial Court has not entered into any
question relating to title or ownership over the estate of the
deceased. It has confined its enquiry strictly to the genuineness,
due execution and validity of the alleged Will, which squarely
falls within the jurisdiction of a Probate Court. The Probate

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Court has meticulously considered the evidence on record and
has assigned cogent reasons for doubting the genuineness of the
alleged Will. No perversity, illegality or material irregularity has
been pointed out which would warrant interference by this
appellate Court.
29. Upon an independent reappraisal of the oral and
documentary evidence, as is required in a first appeal under
Section 96 of the Code of Civil Procedure 1908, this Court finds
itself in complete agreement with the findings recorded by the
learned Probate Court. The conclusions arrived at are neither
perverse nor contrary to the evidence on record, nor do they
suffer from any error of law warranting appellate interference.
Thus, the Point for Determination is accordingly answered
against the appellant and it is held that the learned Probate Court
committed no error, either on facts or in law, in deciding core
Issues Nos. 3 and 4 against the appellant and in refusing the
grant of probate and thus no interference is required by this
Appellate Court.
30. Accordingly, this Court holds that the appellant has
failed to discharge the burden cast upon her under law. The
suspicious circumstances surrounding the execution of the Will
have not been satisfactorily explained. Consequently, the Will

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dated 09.09.2009 cannot be accepted as having been duly
proved in accordance with Section 63 of the Indian Succession
Act, 1925 read with Section 67 in Bharatiya Sakshya
Adhiniyam, 2023 (corresponding to section 68 Indian Evidence
Act,1872).
31. The appeal is, accordingly, dismissed. The judgment
and order dated 09.12.2019 passed by the learned 3rd Additional
District Judge, Bhojpur at Ara in Probate Suit No. 04 of 2018 is
hereby affirmed. There shall be no order as to costs.


(Rudra Prakash Mishra, J)
Pankaj/-
AFR/NAFR NAFR
CAV DATE 07.05.2026
Uploading Date 09.07.2026
Transmission Date