Debendra Nath Phukan vs Birendra Nath Phukan
- Court
- Gauhati High Court
1
GAHC010012342022
2026:GAU-AS:15952
IN THE GAUHATI HIGH COURT
HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Test.App./2/2022
1. Debendra Nath Phukan
S/O Late Mohini Nath Phukan,
Resident of 19 Mortello Court,
Poranaraocte, Dublin, Ireland,
and also having resident at MC Baruah
Path Baruwari Guwahati,
Kamrup (M) Assam 781003
…..Appellant
-Versus-
1. Birendra Nath Phukan
S/O Late Mohini Nath Phukan
Resident of MC Baruah Path, Baruwari
Guwahati 781003,
Kamrup (M) Assam
……Respondent
For Appellant Mr. B. D. Das, Sr. Advocate
:
Mr. H. K. Sarma, Advocate
For Respondent Mr. S.P. Roy, Advocate
:
Date of Hearing 30.07.2026
:
15.10.2026
Date of Judgment :
Test.App./2/2022 Page 1
2
BEFORE
HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT AND ORDER
1. Heard Mr. B. D. Das, the learned senior counsel assisted by
Mr. H. K. Sarma, the learned counsel for the appellant. Also heard
Mr. S.P. Roy, the learned counsel for the respondent.
2. This appeal under Section 299 of the Indian Succession Act, 1925
has been filed by the appellant Sri Birendra Nath Phukan,
impugning the judgment and order dated 30.03.2021 passed by the
Court of learned Additional District Judge No. 2, Kamrup (Metro),
Guwahati in Probate Title Suit No. 10/2012. By the impugned
judgment, the Probate Court granted the probate in respect of the
last will dated 20.03.2009 of late Nripendra Nath Phukan in favor of
the respondent.
3. The facts relevant for consideration of the instant appeal, in brief,
are that late Mohini Nath Phukan, who was the father of the present
appellant, had three sons, namely, the appellant Debendra Nath
Phukan, the respondent Birendra Nath Phukan, and one Nripendra
Nath Phukan (since deceased). Late Nripendra Nath Phukan was the
second son of late Mohini Nath Phukan, and he remained unmarried
throughout his life.
4. The father of the appellant, late Mohini Nath Phukan, was the
absolute owner and possessor of a plot of land measuring about 1
Test.App./2/2022 Page 2
3
Bigha, 1 Katha, 17 Lechas (18.16 Are) covered by Dag No. 165
under KP Patta No. 240 of Ulubari Mouza, Sahar Guwahati Part-VII,
Guwahati in the District of Kamrup (Metro). On the said plot of land,
there is an Assam-type house standing thereon. After the death of
their father, the present appellant, respondent, and late Nripendra
Nath Phukan, being Class-I heirs, inherited the said property.
5. Late Nripendra Nath Phukan was residing at Bahoni Tea Estate
under Bahoni Police Station, Kharikatia, Moriani in the District of
Jorhat, and he died on 22.09.2009 at Jorhat, leaving behind the
present appellant and respondent as his legal heirs. The said
property at Guwahati is in possession of the respondent, and the
same is yet to be partitioned.
6. The deceased Nripendra Nath Phukan was also the exclusive owner
of a plot of land measuring 1 Bigha, 3 Kathas, 14 Lechas covered by
Dag No. 5457 (New) under Patta No. 129 (New) of Jorhat Town,
Block No. 3, and a house standing thereon. Besides the said landed
property, the deceased Nripendra Nath Phukan was also holding
seven numbers of shares, namely, share numbers 018 to 024, under
Bahoni Tea Company Private Limited.
7. During the lifetime of late Nripendra Nath Phukan, the present
appellant instituted a suit for partition of property at Guwahati. The
said suit was registered as Title Suit No. 24/2006. He also initiated a
partition case before the Circle Officer, Guwahati, which was
registered as Partition Case No. 362/2010–2011. The respondent,
while preparing the objection to be filed in the said partition case,
Test.App./2/2022 Page 3
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was searching for the documents relating to land at Guwahati, and
while doing so, he traced out a copy of the will dated 20.03.2009 in
the files of the deceased. The said will was executed by late
Nripendra Nath Phukan in respect of undivided one-third share of
land and house at Guwahati, as well as entire land and house at
Jorhat and shares of Bahoni Tea Estate in favor of the respondent
as executor of the will.
8. After finding the said will, the respondent filed an application under
Section 276 of the Indian Succession Act, 1925 before the Court of
learned Additional District Judge No. 2, Kamrup (Metro), praying for
grant of probate in respect of the last will dated 20.03.2009 of late
Nripendra Nath Phukan, by which the properties mentioned in the
will were bequeathed in favor of the respondent. The said case was
registered as Probate Misc Case No. 162/2012.
9. The present appellant, after receipt of notice of the aforesaid
Probate Misc Case, appeared before the Probate Court and filed his
written statement objecting to the grant of probate to the present
respondent. After filing of the written statement, the Probate Misc
Case No. 162/2012 was converted into Probate Title Suit No.
10/2012.
10. On the basis of the pleadings of the parties, the Probate Court
framed following issues:
(i) Whether the deceased/testator late Nripendra Nath Phukan
executed his last will dated 20.03.2009 while he was in a state
of sound disposing mind having capacity to execute will?
Test.App./2/2022 Page 4
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(ii) Whether the petitioner was appointed as executor in the
said last will dated 20.03.2009?
(iii) Whether the petitioner is entitled to get probate of the
last will dated 20.03.2009?
(iv) To what other relief/reliefs the parties are entitled to
under law and equity?
11. In support of his case before the Probate Court, the respondent
adduced the evidence of four witnesses, including himself as PW-1,
and two other attesting witnesses of the will, namely, Sri Mrinal Das
th
as PW-2 and Sri Siddhartha Dutta as PW-3, the 4 witness, namely,
Sri Rajendra Kumar Sarma did not turn up for cross examination,
hence, his testimony was not taken into consideration. Whereas, the
present appellant also adduced evidence of three defense
witnesses, including himself as DW-1, one Samirendra Nath Phuka
as DW-2 and one Kalyan Phukan as DW-3.
12. However, by the judgment and order which has been impugned in
this appeal, the Probate Court granted the probate in respect of last
will dated 20.03.2009 of deceased Nripendra Nath Phukan in favor
of the respondent Sri Birendra Nath Phukan.
13. Mr. B. D. Das, the learned senior counsel for the appellant has
submitted that the Probate Court has erred in granting probate to
the respondent without properly appreciating the evidence, which is
available on record in its true perspective. He submits that the
Probate Court failed to take into consideration that the present
respondent had failed before the Probate Court to prove that the
Test.App./2/2022 Page 5
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purported Will dated 20.03.2009 was executed by the deceased
Nripendra Nath Phukan in a sound, certain, and disposing state of
mind, and that it was free from all circumstances giving rise to
suspicion as regards the genuineness of the said Will.
14. He submits that the respondent has failed to prove due attestation
of the purported last Will of late Nripendra Nath Phukan by
adducing lawful evidence to that effect. The learned senior counsel
for the appellant submits that a bare perusal of the purported Will
dated 30.03.2021 shows that the signature of the testator appears
below the signatures of the attesting witnesses, which is normally
not the pattern in which Wills are drafted.
15. He submits that the Will has been written in a squeezed
handwriting, which gives rise to suspicion that the signatures of the
testator were taken on blank papers under duress and coercion, and
after his death, the aforesaid Will has been manufactured
wrongfully for illegal gain.
16. He submits that the Will in question is not the last Will of late
Nripendra Nath Phukan, and the same is a manufactured one in
collusion with the witnesses and writer of the aforesaid Will. He
submits that the writer, Rajen Kumar Sharma, whose evidence on
affidavit was initially submitted by the respondent before the
Probate Court, even did not turn up to face cross-examination,
which is a circumstance leading to an adverse presumption against
him as well as the case of the respondent.
Test.App./2/2022 Page 6
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17. The learned senior counsel for the appellant has submitted that the
Probate Court had failed to appreciate the testimony of the
respondent while he was cross-examined by the appellant's side,
wherein he has categorically deposed that the testator, late
Nripendra Nath Phukan, was suffering from epilepsy and he came to
the place of the respondent for his treatment. He submits that this
piece of evidence clearly indicates that the appellant was not in a
healthy and sound state of mind, as he was admittedly suffering
from an ailment.
18. The learned senior counsel for the appellant further submitted that
during cross-examination of PW-1, he had also deposed that his
brother, late Nripendra Nath Phukan, had come to his
(respondent's) house in the month of June/July 2009, and at that
time he was missing from home, and upon search, he was found in
a hotel at Paltan Bazar. The learned senior counsel for the appellant
submits that this indicates that late Nripendra Nath Phukan was not
in a sound state of mind at that point of time, and the said fact has
not been taken into consideration by the Probate Court while
granting probate in respect of the Will dated 30.03.2009 in favour of
the present respondent.
19. The learned senior counsel for the appellant has further submitted
that during cross-examination, PW-1 has stated that both the
attesting witnesses are friends of his son, Rajiv Phukan, and under
such circumstances, it is very strange that he was not informed
about the execution of the said Will by the deceased Nripendra Nath
Phukan, either by the deceased himself or even by the attesting
Test.App./2/2022 Page 7
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witnesses, who happen to be friends of his son, Rajiv Phukan. As
such, a suspicion arises regarding the execution of the Will by late
Nripendra Nath Phukan, and the respondent, as petitioner before
the Probate Court, had failed to dispel this suspicion, and the
Probate Court failed to take this fact into consideration while
granting probate to the respondent.
20. The learned senior counsel for the appellant further submits that
the Probate Court also failed to take into consideration that the
present respondent, being the beneficiary of the Will, took a
prominent part in the execution of the Will, inasmuch as the Will
was purportedly executed in his residence only, though, he has
pleaded ignorance about that fact.
21. The learned senior counsel for the appellant further submits that
the Probate Court also failed to take into consideration the
testimony of the witnesses for the defendant's side, wherein they
have categorically deposed that the testator was not in a sound and
disposing state of mind and health before his death, and was
mentally incapable of thinking rationally.
22. The learned senior counsel for the appellant submits that the
respondent has failed to dispel the doubts which arise due to
suspicious circumstances under which the Will is purported to have
been executed by late Nripendra Nath Phukan. As such, he submits
that the judgment of the Probate Court is liable to be set aside, and
this appeal may be allowed.
Test.App./2/2022 Page 8
9
23. In support of his submissions, the learned senior counsel for the
appellant has cited the following rulings:
a) Dhannulal & Ors. Vs. Ganeshram & Anr., reported in (2015) 12
SCC 301
b) Laxmi Vs. Gopi & Anr. [Judgment dated 15.07.2026 in Special
Leave Petition (Civil) No. 9510 of 2023]
c) Meena Pradhan & Ors. Vs. Kamla Pradhan & Anr. (Judgment
dated 21.09.2023 in Civil Appeal No. 3351 of 2014)
d) In the matter of goods of Late Shri Kishun Lal Vs. In the matter
of Petition for Probate, reported in 2006 SCC OnLine All 614
e) Kavita Kanwar Vs. Pamela Mehta & Ors., reported in (2021) 11
SCC 209
24. On the other hand, Mr. S. P. Roy, the learned counsel for the
respondent has submitted that the Probate Court has correctly
granted probate, in respect of the last Will dated 30.03.2009 of late
Nripendra Nath Phukan, in favour of the present respondent after
considering all the materials and evidence on record.
25. The learned counsel for the respondent has submitted that the
present appellant, who is the elder brother of late Nripendra Nath
Phukan, used to reside at Dublin (Ireland) and is a citizen of
Ireland, and was not in touch with the deceased Nripendra Nath
Phookan, whereas the respondent, who is the younger brother of
the deceased, used to keep good relationship with his deceased
brother. He submits that the appellant did not even come to attend
the shraddha ceremony of the deceased Nripendra Nath Phukan.
Test.App./2/2022 Page 9
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26. He submits that after the death of his brother, late Nripendra Nath
Phukan, the present appellant initiated a partition case bearing Case
No. 362/2010-11 before the Circle Officer, Guwahati Revenue Circle,
in respect of the landed property at Guwahati. He submits that the
present respondent, while searching for documents of land of
Guwahati for preparing the objection to be filed in the aforesaid
partition case, found the Will dated 20.03.2009 in the files of the
deceased.
27. He submits that the Will has a categorical recital that the present
respondent was extending all kind of help to the deceased testator
in his hard days, and as such, he has bequeathed all his properties
to the present respondent.
28. He submits that both the attesting witnesses, namely, Mrinal Das
and Siddhartha Dutta have deposed before the Probate Court and
have duly proved the attestation of the Will of which probate was
granted. He submits that on perusal of the Will in question, no
abnormality is noticed, it is written in a uniform handwriting. He
submits that only the recitals in the paragraph No. 2 of the said Will
have not been written in straight lines, which in itself does not
create a suspicious circumstance so as to question the genuineness
of the Will.
29. He submits that during cross-examination of the witnesses of the
petitioner's side before the Probate Court, the present appellant
could not bring out any infirmity in the execution or attestation of
the Will in question. He submits that even the present appellant,
while deposing as DW-2 before the Probate Court, has admitted
Test.App./2/2022 Page 10
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that the signature which appears in the Will is the signature of
deceased Nripendra Nath Phukan. As such, he submits that
execution of the Will has been duly proved by the present
respondent by adducing the evidence of both the attesting
witnesses before the Probate Court .
30. The learned counsel for the respondent submits that the present
appellant, while filing the written objection before the probate court,
has not complied with the requirements which are to be followed
while swearing an affidavit supporting the statements made in the
said affidavit. He submits that when a person submits an affidavit
before a court of law, as per the provisions of Civil Court Rules and
Orders of the Gauhati High Court, it should clearly express how
much is a statement of the declarant's knowledge and how much is
a statement made on his information or belief, and must also state
the source or grounds of information or belief with sufficient
particularity. However, in the affidavit filed by the present appellant
before the Probate Court supporting his written objections, he has
stated that all the statements made in paragraph Nos. 1 to 26 of
the said written statement are true to his knowledge, which is
apparently a wrong statement, and as such, the written objection
and the documents filed by the present appellant before the
Probate Court may not be taken into consideration. In support of his
submission, the learned counsel for the respondent has cited
following rulings:
a) Mira Borthakur Vs. Hiranath & Ors., (2011) 1 GLT
reported in
69;
Test.App./2/2022 Page 11
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b) Matadin Mour Vs. Prahlad Kumar Mour, reported in 1998 (2)
GLJ 173;
c) Dipak Deka Vs. Ganesh Deka , reported in 2022 (6) GLT 201.
31. The learned counsel for the respondent has further submitted that
even while the brother of the present respondent, late Nripendra
Nath Phukan, was alive, the present appellant had instituted a suit
against him as well as the present respondent, which was registered
as Title Suit No. 24/2006, and for the said fact, his deceased
brother was not having a good relationship with the present
appellant. He submits that under such circumstances, it is quite
normal for the deceased Nripendra Nath Phukan to bequeath his
property in favour of his younger brother, i.e., the present
respondent.
32. He further submits that though the deceased brother of the present
respondent, late Nripendra Nath Phukan, was a patient of epilepsy,
however, epilepsy is not an ailment which affects the patient when
he was not having fits of epilepsy and he further submits that the
Will in question was executed in the month of March, 2009, and
there is no evidence on record that while executing the said Will, he
was not of sound mind or was suffering from some ailment affecting
his cognitive faculties.
33. He submits that the incident when the late Nripendra Nath Phukan
came to the residence of the respondent in the month of July and
he went missing was much after the date of execution of the Will of
which probate has been granted, and as such, the said incident of
missing of late Nripendra Nath Phukan and subsequent finding him
Test.App./2/2022 Page 12
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in a hotel at Paltan Bazar has no connection with the Will in
question, which was executed more than three months prior to the
said incident.
34. He further submits that the fact that the attesting witnesses were
the friends of the son of the present respondent itself does not
make it mandatory that execution of the Will ought to have been
informed to the present respondent by the said witnesses, as no
duty of such a nature was imposed on them either by law or by the
testator.
35. The learned counsel for the respondent has submitted that both the
attesting witnesses have categorically deposed in their testimony
before the Probate Court that the testator has put his signatures on
the said Will in their presence, and same was done out of his free
will and volition, without being influenced by any coercion or
inducement from any quarter, and both the attesting witnesses have
also put their signatures in the Will as attesting witnesses. The said
testimony of the attesting witnesses could not be demolished during
their cross-examination. He submits that both the attesting
witnesses have categorically deposed that they signed in the
Exhibit-1 (Will) after signing by late Nripendra Nath Phukan.
36. He further submits that since in his deposition during cross-
examination, DW-1, i.e., the present appellant has admitted that he
does not dispute that signature on Exhibit-1 is the signature of
Nripendra Nath Phukan, the question of said signature being forged
one does not arise.
Test.App./2/2022 Page 13
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37. The learned counsel for the respondent further submits that the
evidence of DW-2 clearly shows that the deceased testator was the
in-charge of garden matters of the Bahoni Tea Company and he
used to oversee the workers of the garden, which itself indicates
that he was not suffering from any ailment affecting his mental
faculty, and he was working like a normal person, and therefore,
there is no materials on record to indicate that the deceased
testator was of unsound mind at the time of execution of the Will in
question.
38. The learned counsel for the respondent thus submits that there is
no material on record to interfere with the impugned judgment of
the Probate Court, whereby a probate was granted in respect of the
last Will dated 30.03.2009 of deceased Nripendra Nath Phukan in
favour of the present respondent. As such, he prays for dismissing
the instant appeal.
39. I have considered the submissions made by the learned counsel for
both sides and have gone through the materials available on record.
I have also gone through the rulings cited by the learned counsel
for both sides in support of their respective submissions.
40. The points to be determined in this appeal is as to whether the
Probate Court was right in granting probate of the Will dated
20.03.2009 executed by late Nripendra Nath Phukan in favour of the
present respondent. It is also to be determined that whether the
Will dated 20.03.2009, which has been exhibited as Exhibit-1 by the
respondent before the Probate Court, is his last Will and same was
Test.App./2/2022 Page 14
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executed by him in a state of sound disposing mind having capacity
to execute the said Will, and whether the present respondent has
been able to prove before the Probate Court that the Will in
question was not executed under any suspicious circumstances.
41. An unprivileged Will has to be executed in terms of the provisions
contained in Section 63 of the Indian Succession Act, 1925. Such a
Will is required to be attested by two or more witnesses. Under
Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, the manner
of proving execution of document which is required by law to be
attested has been provided. Said provision is in pari materia to
Section 68 of the Indian Evidence Act, 1872. For the sake of
convenience, the aforesaid statutory provisions are reproduced
hereinbelow:
Section 63 of the Succession Act, 1925:
― 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
Test.App./2/2022 Page 15
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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 necessary.‖
Section 67 of the Bharatiya Sakshya Adhiniyam,
2023
― 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.‖
42. In the case of Meena Pradhan Vs. Kamla Pradhan, reported in (2023)
9 SCC 734 , the Supreme Court of India, while discussing about the
principles required for proving the validity and execution of a Will,
has observed as follows:
“9. 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 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, stringent requisites for
Test.App./2/2022 Page 16
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the proof thereof have been statutorily enjoined to rule
out the possibility of any manipulation.
10. Relying on H. Venkatachala Iyengar v. B.N.
Thimmajamma [H. Venkatachala Iyengar v. B.N.
Thimmajamma, 1958 SCC OnLine SC 31 : 1959 Supp
(1) SCR 426 : AIR 1959 SC 443] (three-Judge Bench),
Bhagwan Kaur v. Kartar Kaur [Bhagwan Kaur v. Kartar
Kaur, (1994) 5 SCC 135] (three-Judge Bench), Janki
Narayan Bhoir v. Narayan Namdeo Kadam [Janki
Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2
SCC 91] (two-Judge Bench), Yumnam Ongbi Tampha
Ibema Devi v. Yumnam Joykumar Singh [Yumnam
Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh,
(2009) 4 SCC 780 : (2009) 2 SCC (Civ) 348] (three-
Judge Bench) and Shivakumar v. Sharanabasappa
[Shivakumar v. Sharanabasappa, (2021) 11 SCC 277]
(three-Judge Bench), we can deduce/infer the following
principles required for proving the validity and
execution of the will:
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 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;
Test.App./2/2022 Page 17
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(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;
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
Test.App./2/2022 Page 18
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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 et cetera 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 [Shivakumar v. Sharanabasappa, (2021)
11 SCC 277]‖. 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
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. 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.‖
43. In the instant case, after going through the evidence available on
record, it appears that the Will in question has been exhibited as
Exhibit-1 before the Probate Court by the witnesses for the
petitioner's side, and the attesting witnesses, namely, Sri Mrinal Das
and Sri Siddhartha Dutta, were examined as PW-2 and PW-3
respectively. It is there in evidence of the attesting witnesses that
Test.App./2/2022 Page 19
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late Nripendra Nath Phukan had signed the Will first and thereafter,
they signed there as witnesses. They have also deposed that late
Nripendra Nath Phukan was in a sound state of mind and he signed
the said Will in presence of both the attesting witnesses.
44. This testimony of the attesting witnesses could not be demolished
during cross-examination, and the present appellant could not bring
out anything which will cast any doubt regarding the fact that the
testator has signed the Will in the presence of the attesting
witnesses and the attesting witnesses have also signed the Will in
presence of the testator. As such, the primary requirement of
signing the Will by the testator and the attesting witnesses in each
other's presence has been fulfilled, and the mandate of Section 63
of the Indian Succession Act, 1925 has also been fulfilled in this
case.
45. Now let us discuss the suspicion raised by the appellant in execution
of the Will which has been exhibited as Exhibit-1.
46. It has been held by the Apex Court in the case of Shivakumar Vs.
Sharanabasappa (supra) , that suspicious circumstances must be
real, germane, and valid, and not merely the fantasy of the
doubting mind. In the instant case, the appellant, while deposing as
DW-1 before the Probate Court, has admitted that the signature
appearing in the Will which has been exhibited as Exhibit-1 is of late
Nripendra Nath Phukan. On perusal of the Exhibit-1, it appears that
the recital made in the said Will is in a uniform handwriting. It also
appears that the space between lines of the recital in the Will is also
more or less uniform. Only the space between lines in paragraph
Test.App./2/2022 Page 20
21
Nos. 1 and 2 of the said Will is comparatively lesser than the rest of
the paragraphs. However, the same may not be regarded as a
suspicious circumstance raising any question on the due execution
of the said Will.
47. Similarly, the fact that the signatures of the attesting witnesses are
taken above the signatures of the testator in the said Will, in itself,
may also not be regarded as a suspicious circumstance raising
doubt regarding due execution of the said Will, more so in view of
the uncontroverted testimony of the attesting witnesses, wherein
they have categorically deposed that the testator has, in a sound
state of mind, put his signatures as well as thumb impression in the
said Will in presence of the attesting witnesses.
48. Further, during cross-examination, the PW-3, Siddhartha Dutta,
though has answered in negative to a suggestive question that he
has signed as a witness in between the last line of the Will and
signature of the testator, however, the said answer does not wipe
out his testimony given by him in his examination-in-chief, wherein
he has categorically stated that the testator has put his signature on
the Will in his presence and that they signed on the Will after the
testator has put his signature on the same. As the relevant statute
does not prescribe any particular form of recital of the Will, hence,
merely because of the fact that the signatures of attesting witnesses
have been taken above the signature of the testator in the said Will,
the same does not create any legitimate suspicion with regard to
due execution of the said Will.
Test.App./2/2022 Page 21
22
49. As regards the fact that the testator, Late Nripendra Nath Phukan,
was missing when he came to the house of the respondent in the
month of June/July, 2009 and that he was found in a hotel at Paltan
Bazar, the said fact also is not much relevant regarding due
execution of the Will, inasmuch as the Will has been executed in the
month of March, 2009 and the incident in question is in the month
of June/July, 2009, i.e., after three months of the date of execution
of the said Will. Hence, even if it is assumed that in the month of
June/July, 2009, the conduct of the testator in staying in the hotel
at Paltan Bazar was abnormal, however, the Will in question was
executed much before the said incident. Hence, the said conduct
does not have any direct relation regarding the genuineness of the
Will in question.
50. As regards the admission of the respondent, while deposing as P.W-
1 during his cross-examination, that his brother (testator Nripendra
Nath Phukan) was suffering from epilepsy, the same also does not,
in itself, make the Will executed by the testator invalid, inasmuch as
epilepsy is a chronic neurological disorder characterized by recurrent
and unprovoked seizures. However, epilepsy is neither a contagious
nor a mental illness. It is a physical condition of the central nervous
system, and an overwhelming majority of people with epilepsy can
and do live normal, productive, and fulfilling lives. It is only when
they get seizure attacks, they are incapable of doing normal things.
However, there is nothing on record to show that when the Will
(Exhibit-1) was executed, the testator was having attacks of
epilepsy. Hence, this Court is of considered opinion that merely
Test.App./2/2022 Page 22
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because the testator was suffering from epilepsy, the said fact does
not make the Will (Exhibit-1) invalid.
51. As regards the witnesses of the defendant’s side is concerned,
though the present appellant, on the one hand, has alleged that the
signature of the testator has been forged by the respondent,
however, on the other hand, he also admits that the signature
appearing in the Will is the signature of Late Nripendra Nath
Phukan, thereby contradicting his own stand. Similarly, though the
other witnesses for the defendant have deposed that the testator
was not in sound and disposing state of mind and health before his
death, however, none of the defendant's witnesses has specifically
stated anything with regard to his state of health in the month of
March, 2009 when the said Will was executed. Moreover, this Court
also does not find it wrong on the part of the Probate Court in
relying on the testimony of DW-2 to arrive at a finding regarding the
state of health of Late Nripendra Nath Phukan, wherein he has
categorically deposed during his cross-examination that the testator
was in charge of garden matters of Bahoni Tea Company and he
used to oversee the workers of the garden.
52. In view of the discussions made and reasons stated in the foregoing
paragraph, this Court does not find any error or infirmity in the
Probate Court holding that the present respondent has been able to
prove due execution and genuineness of the Will executed by the
testator, Late Nripendra Nath Phukan, and that there is no
suspicious circumstance with regard to the execution of the Will. As
such, this Court does not find any error in the Probate Court
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granting probate in respect of the aforementioned Will in favour of
the respondent.
53. This appeal is, accordingly, found devoid of any merit and
dismissed.
54. The parties are left to bear their own costs.
55. Let the records of the Trial Court be sent back to the concerned
court with a copy of this judgment.
JUDGE
Comparing Assistant
Amita Sharma
2026.10.22 13:45:40
+05'30'
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