Dharmendra Ojha vs Chandra Mohan Ojha

IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL No.208 of 2019
======================================================
Dharmendra Ojha, son of Shri Kamleshwar Ojha resident of Village- Gundi,
P.S. Barahara, District- Bhojpur, at present resident of Krishna Garh, P.S.
Gundi, District- Bhojpur.
... ... Appellant/s
Versus
1. Chandra Mohan Ojha son of late Baikuntha Ojha resident of Village-
Barahara, District- Bhojpur.
2. Aam Public of Village- Gundi (Barhara), P.S.- Barhar, Distt.- Bhojpur.
... ... Respondent/s
Appearance :
For the Appellant/s : Mr.Aditya Narayan Singh.1, Advocate
Ms. Ojaswee Kumari, Advocate
Mr. Shivam Aniket, Advocate
For the Respondent/s : Mr. Kamleshwar Pandey, Advocate
Ms.Mayuri, Advocate
Mr. Raghwendra Sharan Pandey, Advocate
CORAM: HONOURABLE MR. JUSTICE RUDRA PRAKASH
MISHRA
C.A.V. JUDGMENT
Date : 02.07.2026
The present appeal is preferred by the appellant
against the judgment and order dated 22.08.2019 passed by the
learned Additional District Judge-III, Bhojpur, Ara, in Title Suit
(Probate) No. 01 of 1996 by which the testamentary suit filed by
the applicant-appellant has been dismissed.

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2. The facts of the case is that one late Baikuntha
Nath Ojha died on 12.03.1995 at village Gundi, P.S. Badhara,
District Bhojpur. He was survived by his younger son, namely
Chandramohan Ojha, and his grandson, Dharmendra Ojha, the
son of Kamleshwar Ojha, who was the head of the family. The
applicant-appellant, Dharmendra Ojha, instituted Probate Case
No. 23 of 1995 before the learned Sub- Judge-I seeking the
grant of Probate/Letters of Administration in respect of an
alleged registered Will dated 08.03.1995, purportedly executed
by the deceased four days prior to his death. According to the
applicant-appellant, the said Will constituted the last testament
of Baikuntha Nath Ojha, whereby he bequeathed his self-ac-
quired properties described in Schedule-A and his share in the
ancestral properties described in Schedule-B in favour of the ap-
plicant-appellant. It was pleaded that due to old age and illness,
the testator's right hand had become non-functional and, conse-
quently, he affixed his left thumb impression on the Will. The
document was stated to have been typed by L.V. Gupta, identi-
fied by Ram Ayodhya Singh and attested by Kameshwar
Pandey.
3. Upon notice of the proceeding, Chandramohan
Ojha, the younger son of the deceased, entered appearance and

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filed a caveat on 18.09.1995. Consequently, the probate pro-
ceeding became contentious and had been sent to the Court of
learned District Judge where it was converted into a testamen-
tary suit, being renumbered as Title Probate Case No. 01 of
1996 for adjudication and after its admission, the matter was
transferred to the file of learned Additional Sessions Judge-III,
Bhgojpur at Ara for consideration. The caveator opposed the pe-
tition on both legal and factual grounds. Besides raising objec-
tions regarding limitation, estoppel, acquiescence, etc., he
specifically challenged the genuineness of the Will contending
that it was a forged and fabricated document. According to the
caveator, the testator had lost his mental balance nearly six
months prior to his death and was incapable of understanding
the nature and consequences of any testamentary disposition. It
was further alleged that the thumb impression appearing on the
Will had been fraudulently obtained while the deceased was un-
conscious.
4. In this case, the Trail Court framed following six
issues for adjudication:
1. Whether the probate application, as framed, was
maintainable?
2. Whether the probate proceeding was barred by

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limitation, waiver, acquiescence, estoppel or other
analogous legal principles?
3. Whether the Will dated 08.03.1995 relied upon by
the applicant was a valid, genuine and legally en-
forceable testamentary document?
4. Whether the alleged Will dated 08.03.1995 was a
forged and fraudulent document, as alleged by the
objector?
5. Whether the objections raised by the objector in
respect of the properties of Late Bankuth Nath Ojha
were sustainable and entitled to consideration in the
probate proceeding?
6. Whether the applicant, Dharmendra Ojha, was
entitled to the grant of Probate or Letters of
administration on the basis of the alleged Will dated
08.03.1995?
5. In order to prove the due execution and genuine-
ness of the Will, the applicant-appellant examined five wit-
nesses, namely, Dharmendra Ojha (PW-1), Ram Ayodhya
Singh, (the identifier as PW-2), Kameshwar Pandey, (one of the
attesting witnesses as PW-3), Avadh Prasad (PW-4 ) and Ram
Prasad Rai (PW-5). The applicant-appellant further brought on
record the original Will, which was marked as Exhibit-1, along
with several sale deeds, receipts and copies of khatiyans in sup-
port of his claim. The caveator, however, did not adduce any
oral or documentary evidence in support of his objections and

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subsequently ceased to participate in the proceedings. In support
of the Will, the applicant-appellant principally relied upon the
testimony of PW-2, Ram Ayodhya Singh, who identified the tes-
tator, and PW-3, Kameshwar Pandey, one of the attesting wit-
nesses. Both witnesses deposed that the testator had voluntarily
executed the Will and affixed his thumb impression in their
presence, stating that his hands had become weak and tremulous
on account of old age and illness. The caveator through his
caveat, on the other hand, consistently maintained that the testa-
tor had lost his mental faculties nearly six months prior to his
death and was incapable of understanding the nature and conse-
quences of any testamentary disposition. It was further alleged
that the thumb impression appearing on the document had been
obtained fraudulently while the testator was unconscious shortly
before his death on 12.03.1995.
6. Upon an appraisal of the oral and documentary evi-
dence on record, the learned Trial Court found the circum-
stances surrounding the execution of the Will to be highly suspi-
cious. The Court noted that although the Will was alleged to
have been typed by L.V. Gupta but he had not been examined.
The Court further observed that the applicant-appellant's own
case was that the testator's hand had become tremulous due to

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illness, which was offered as the explanation for the use of a
thumb impression despite the admitted fact that the testator was
an educated person. The Court found that neither the pleadings
nor the evidence adduced by the applicant-appellant contained
any satisfactory assertion or proof regarding the mental condi-
tion and testamentary capacity of the testator at the time of exe-
cution of the Will. The Court also took note of the fact that the
testator died on 12.03.1995, merely four days after the alleged
execution of the Will on 08.03.1995, and that no convincing ex-
planation had been furnished regarding his physical and mental
condition during this crucial period.
7. Having regard to these circumstances, the Trial
Court concluded that the applicant-appellant had failed to dispel
the suspicious circumstances attending the execution of the Will
and had not established that the testator executed the document
while in a sound and disposing state of mind. The Court, there-
fore, found the genuineness of the Will to be doubtful and came
to a finding that the document was not a valid testamentary in-
strument. Consequently, Issues Nos. 3 and 4 were decided
against the applicant-appellant.
8. While considering Issue No. 2, the Court observed

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that neither party had adduced any substantial evidence in sup-
port of their respective pleadings concerning limitation, waiver,
acquiescence or estoppel. The issue was, therefore, decided
without recording any finding adverse to either party. Further, in
relation to Issue No. 1, the Court held that in view of its findings
on the validity and genuineness of the Will, the applicant-appel-
lant had failed to establish the foundation of his claim for pro-
bate, and accordingly the issue No. 1 was decided against him.
9. While dealing with Issue No. 5, the Court reiterated
the settled legal position that the jurisdiction of a probate court
is confined to examining the due execution, genuineness and va-
lidity of the testamentary instrument and does not extend to ad-
judication of disputes relating to title, ownership or possession
of the properties comprised therein. The rival claims of the par-
ties in respect of the estate of the deceased were, therefore, left
open for adjudication before a court of competent civil jurisdic-
tion.
10. Further, while deciding Issue No. 6, the Court
reaffirmed the well-established principle that the propounder of
a Will must succeed on the strength of his own evidence and
cannot derive any advantage from the weakness of the defense.

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The burden of proving the due execution of the Will and the tes-
tamentary capacity of the testator rested squarely upon the ap-
plicant-appellant. Since the applicant-appellant failed to dis-
charge that burden and failed to remove the suspicious circum-
stances surrounding the execution of the document, the Court
held that he was not entitled to the grant of Probate or Letters of
Administration. Accordingly, by judgment and order dated
22.08.2019, the learned Trial Court dismissed Title Probate Case
No. 01 of 1996.
11. Heard learned counsel for the appellant and
learned counsel for the respondent.
12. Learned counsel appearing on behalf of the Appel-
lant submitted that the impugned judgment is vitiated by serious
errors of law and fact and is liable to be set aside. According to
the Appellant, the learned court below failed to appreciate the
true scope of testamentary jurisdiction under the Indian Succes-
sion Act 1925 and proceeded to determine the probate proceed-
ing in disregard of the settled principles governing the grant of
Probate and Letters of Administration. He further submitted that
the entire approach adopted by the learned court below is funda-
mentally flawed inasmuch as it treated the allegations contained

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in the caveat petition as if they stood proved, notwithstanding
the fact that the respondent did not adduce any oral or documen-
tary evidence in support thereof. It was contended that mere
pleadings, however, strongly worded, do not constitute evidence
and cannot form the basis of judicial findings unless substanti-
ated by legally admissible material. In the present case, despite
the respondent having failed to enter the witness box, produce
any document, or subject the appellant's witnesses to any mean-
ingful challenge, the learned court below proceeded to accept
the allegations of fraud, fabrication and lack of testamentary ca-
pacity as established facts. Such an approach, it was submitted,
is contrary to the settled principles governing the law of evi-
dence.
13. Learned counsel for the appellant placing reliance
upon the decision of the Hon'ble Supreme Court in Raj Kumari
and Others v. Surinder Pal Sharma , reported in (2021) 14
SCC 500 , contended that where fraud, coercion, undue influ-
ence or suspicious circumstances are specifically alleged by an
objector, the burden of establishing such allegations rests upon
the objector himself. It was urged that once the propounder
proves the due execution and attestation of the Will and places
before the Court evidence demonstrating the testamentary ca-

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pacity of the testator, the burden shifts to the objector to sub-
stantiate the allegations raised in opposition to the Will. Since,
the Respondent in the present case failed to adduce any evi-
dence whatsoever, the learned court below committed a mani-
fest error in permitting unsupported allegations contained in the
caveat petition to outweigh the affirmative evidence adduced by
the Appellant.
14. Learned counsel for the appellant next submitted
that the Will dated 08.03.1995 is a registered testamentary in-
strument and that its execution stood duly established through
the testimony of the attesting witnesses. It was pointed out that
the witnesses examined on behalf of the Appellant consistently
deposed that the testator voluntarily executed the Will and af-
fixed his thumb impression thereon while being in a sound and
disposing state of mind. Their testimony, according to the appel-
lant, remained substantially unchallenged and unimpeached. It
was, therefore, contended that the learned court below acted
without any legal basis in discarding such evidence and in draw-
ing adverse inferences solely from the fact that the testator died
four days after the execution of the Will.
15. In this context, reliance was also placed upon the

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decision of the Hon'ble Supreme Court in Seth Beni Chand
(Since Dead) through LRs v. Smt. Kamla Kunwar and Others ,
reported in (1976) 4 SCC 554 , wherein a Will executed by an
aged testatrix merely five days before her death was upheld as
valid. Drawing support from the aforesaid decision, learned
counsel submitted that neither advanced age nor proximity be-
tween the execution of a Will and the death of the testator can,
by themselves, constitute suspicious circumstances sufficient to
invalidate an otherwise duly proved testamentary instrument.
According to the appellant, the learned court below has pro-
ceeded upon precisely such an impermissible assumption and
has thereby recorded findings contrary to binding precedent.
16. It was further submitted that the learned court be-
low gravely erred in treating the testator's physical infirmity as
indicative of lack of testamentary capacity. Learned counsel ar-
gued that the evidence on record merely disclosed that the testa-
tor's hands had become weak and tremulous owing to old age
and illness, necessitating the use of a thumb impression in place
of a signature. Such physical weakness, it was submitted, cannot
be equated with mental incapacity. No medical evidence was
produced by the Respondent to establish that the testator was in-
capable of understanding the nature and consequences of the

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disposition made by him. In the absence of any such evidence,
the conclusion reached by the learned court below that the
thumb impression had been fraudulently procured was wholly
speculative and unsupported by the record.
17. Learned counsel also emphasized that none of the
witnesses examined by the appellant were effectively challenged
by the respondent and that no contrary version of events was
brought on record. In these circumstances, it was submitted, the
learned court below ought to have accepted the testimony of the
attesting witnesses unless there existed compelling reasons to
reject the same. Instead, the Court chose to rely upon allegations
which remained unproved throughout the proceeding. Such an
approach, according to the appellant, has resulted in a complete
miscarriage of justice.
18. On the aforesaid premises, learned counsel sub-
mitted that the impugned judgment and decree are founded upon
conjectures, surmises and unproved pleadings rather than evi-
dence legally brought on record. It was, therefore, urged that the
appeal be allowed, the judgment and decree dated 22.08.2019 be
set aside, and the appellant be granted the relief of Probate/Let-
ters of Administration as prayed for.

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19. Per contra, learned counsel appearing on behalf of
the respondent supported the judgment and decree under appeal
and submitted that the same represents a correct application of
the principles governing proof of Wills and exercise of probate
jurisdiction. According to the respondent, the findings recorded
by the learned Trial Court are based upon a careful appreciation
of the evidence and surrounding circumstances and call for no
interference.
20. Learned counsel submitted that in proceedings re-
lating to the grant of Probate, the burden squarely rests upon the
propounder of the Will to establish not only its formal execution
and attestation but also the testamentary capacity of the testator
and the voluntary nature of the disposition. It was contended
that this burden never shifts merely because the objector fails to
adduce evidence. According to the respondent, unless the judi-
cial conscience of the Court is satisfied that the Will truly repre-
sents the free and conscious act of the testator, probate cannot be
granted.
21. It was further submitted on behalf of the respon-
dent that the Will in question was surrounded by several suspi-
cious circumstances which cast a heavy burden upon the Appel-

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lant to dispel every legitimate doubt regarding its authenticity.
Particular emphasis was placed upon the fact that the alleged
Will was executed only four days prior to the death of the testa-
tor; that the testator was admittedly suffering from old age and
illness; that despite being an educated person he did not sign the
document but merely affixed a thumb impression; that the typist
of the Will was not examined, and that no independent or medi-
cal evidence was produced to establish the sound mental condi-
tion of the testator on the date of execution. According to the re-
spondent, these circumstances were neither adequately ex-
plained nor satisfactorily removed by the Appellant.
22. Learned counsel for the respondent also submitted
that the learned Trial Court was fully justified in scrutinizing the
testimony of the attesting witnesses with caution. The mere fact
that such witnesses were not effectively contradicted did not
compel the Court to accept their testimony as gospel truth.
Where suspicious circumstances surround the execution of a
Will, the Court is duty-bound to independently assess whether
the evidence inspires confidence and satisfies the judicial con-
science. It was also submitted that the registration of a Will does
not dispense with the requirement of proving its due execution
and genuineness. Registration, according to the respondent, is

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only one circumstance to be taken into consideration and cannot
by itself cure doubts arising from the surrounding facts and cir-
cumstances.
23. Learned counsel for the respondent lastly con-
tended that the learned Trial Court correctly appreciated the evi-
dence and rightly concluded that the Appellant had failed to es-
tablish that the testator executed the Will while in a sound and
disposing state of mind. The finding that the suspicious circum-
stances remained unexplained is a finding of fact based on the
evidence on record and does not warrant appellate interference.
It was, therefore, prayed that the appeal be dismissed and the
judgment and decree dated 22.08.2019 be affirmed.
24. Having heard the submissions advanced on behalf
of the parties and upon a careful perusal of the memorandum of
appeal, the grounds urged therein, the records transmitted from
the learned Trial Court, as well as the judicial precedents relied
upon, the main points for consideration before this Court is that
whether Issue Nos. 3, 4 and 5 (relevant issues) were rightly de-
cided by the Court in accordance with law and order of the
Court below is just, valid and proper or any interference is re-
quired by this Court.

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25. Before adverting to the rival contentions advanced
by the parties, it would be appropriate to first consider the rele-
vant statutory provisions governing the controversy and the
principles of law laid down by the Hon’ble Supreme Court
which presently hold the field.
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…..
[(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) ….XXXX…….
(b) …XXXXX…..

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(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
necessary.
Section 68. Witness not disqualified by interest or by
being executor . -No person, by reason of interest in,
or of his being an executor of, a will, shall be
disqualified as a witness to prove the execution of the
will or to prove the validity or invalidity thereof.
The Bharatiya Sakshya Adhiniyam, 2023 (for short
‘B.S.A.,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

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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.
26. Thus, from a bare perusal of the above statutory
provisions, it is clear that Will is defined in Section 2(h) of the
Indian Succession Act, 1925. Further, as per Section 63(c) of
Indian Succession Act, Will shall be attested by two or more
witnesses and each of whom has seen the testator sign or affix
his mark to the Will. As per Section 67 of B.S.A., 2023, 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.
27. The Hon’ble Supreme Court in H. Venkatachala
Iyengar Vs B.N. Thimmajamma and Others (1958 SCC
OnLine SC 31) held as under in paragraphs 18,19,20 and 21:
“18. What is the true legal position in the matter of
proof of wills? It is well-known that the proof of wills
presents a recurring topic for decision in courts and
there are a large number of judicial pronouncements
on the subject. The party propounding a will or
otherwise making a claim under a will is no doubt
seeking to prove a document and, in deciding how it
is to be proved, we must inevitably refer to the
statutory provisions which govern the proof of

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documents. Sections 67 and 68 of the Evidence Act
are relevant for this purpose .Under Section 67, if a
document is alleged to be signed by any person, the
signature of the said person must be proved to be in
his handwriting, and for proving such a handwriting
under Sections 45 and 47 of the Act the opinions of
experts and of persons acquainted with the
handwriting of the person concerned are made
relevant. Section 68 deals with the proof of the
execution of the document required by law to be
attested; and it provides that such a document shall
not be used as evidence until one attesting witness at
least has been called for the purpose of proving its
execution. These provisions prescribe the
requirements and the nature of proof which must be
satisfied by the party who relies on a document in a
court of law. Similarly, Sections 59 and 63 of the
Indian Succession Act are also relevant. Section 59
provides that every person of sound mind, not being
a minor, may dispose of his property by will and the
three illustrations to this section indicate what is
meant by the expression “a person of sound mind”
in the context. Section 63 requires that the testator
shall sign or affix his mark to the will or it shall be
signed by some other person in his presence and by
his direction and that the signature or mark shall be
so made that it shall appear that it was intended
thereby to give effect to the writing as a will. This
section also requires that the will shall be attested by
two or more witnesses as prescribed. Thus the

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question as to whether the will set up by the
propounder is proved to be the last will of the
testator has to be decided in the light of these
provisions. Has the testator signed the will? Did he
understand the nature and effect of the dispositions
in the will? Did he put his signature to the will
knowing what it contained? Stated broadly it is the
decision of these questions which determines the
nature of the finding on the question of the proof of
wills. It would prima facie be true to say that the will
has to be proved like any other document except as
to the special requirements of attestation prescribed
by Section 63 of the Indian Succession Act. As in the
case of proof of other documents so in the case of
proof of wills it would be idle to expect proof with
mathematical certainty. The test to be applied would
be the usual test of the satisfaction of the prudent
mind in such matters.
19. However, there is one important feature which
distinguishes wills from other documents. Unlike
other documents the will speaks from the death of the
testator, and so, when it is propounded or produced
before a court, the testator who has already departed
the world cannot say whether it is his will or not;
and this aspect naturally introduces an element of
solemnity in the decision of the question as to
whether the document propounded is proved to be
the last will and testament of the departed testator.
Even so, in dealing with the proof of wills the court
will start on the same enquiry as in the case of the

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proof of documents. The propounder would be called
upon to show by satisfactory evidence that the will
was signed by the testator, that the testator at the
relevant time was in a sound and disposing state of
mind, that he understood the nature and effect of the
dispositions and put his signature to the document of
his own free will. Ordinarily when the evidence
adduced in support of the will is disinterested,
satisfactory and sufficient to prove the sound and
disposing state of the testator's mind and his
signature as required by law, courts would be
justified in making a finding in favour of the
propounder. In other words, the onus on the
propounder can be taken to be discharged on proof
of the essential facts just indicated.
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

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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
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

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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 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”
28. Further, the Hon’ble Supreme Court in Indu Bala
Bose and others vs Manindra Chandra Bose and anothers
reported in (1982) 1 SCC 20, held as under in paragraph 7:
“7 . This Court has held that the mode of proving a
Will does not ordinarily differ from that of proving
any other document except to the special requirement
of attestation prescribed in the case of a Will by
Section 63 of the Succession Act. The onus of proving
the Will is on the propounder and in the absence of
suspicious circumstances surrounding the execution
of the Will, proof of testamentary capacity and the
signature of the testator as required by law is

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sufficient to discharge the onus. Where however there
are suspicious circumstances, the onus is on the
propounder to explain them to the satisfaction of the
court before the court accepts the Will as genuine.
Even where circumstances give rise to doubts, it is
for the propounder to satisfy the conscience of the
court. The suspicious circumstances may be as to the
genuineness of the signatures of the testator, the
condition of the testator's mind, the dispositions
made in the Will being unnatural, improbable or
unfair in the light of relevant circumstances, or there
might be other indications in the Will to show that the
testator's mind was not free. In such a case 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. If the
propounder himself takes a prominent part in the
execution of the Will which confers a substantial
benefit on him, that is also a circumstance to be taken
into account, and the propounder is required to
remove the doubts by clear and satisfactory evidence.
If the propounder succeeds in removing the
suspicious circumstances the court would grant
probate, even if the Will might be unnatural and
might cut off wholly or in part near relations.”
29. The Hon’ble Supreme Court in Madhukar D.
Shende Versus Tarabai Aba Shedag reported in (2002) 2 SCC
85 has held as under in paragraphs 8 and 9:
“8. The requirement of proof of a will is the same as

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any other document excepting that the evidence
tendered in proof of a will should additionally satisfy
the requirement of Section 63 of the Indian Succession
Act, 1925 and Section 68 of the Indian Evidence Act,
1872. If after considering the matters before it, that is,
the facts and circumstances as emanating from the
material available on record of a given case, the court
either believes that the will was duly executed by the
testator or considers the existence of such fact so
probable that any prudent person ought, under the
circumstances of that particular case, to act upon the
supposition that the will was duly executed by the
testator, then the factum of execution of will shall be
said to have been proved. The delicate structure of
proof framed by a judicially trained mind cannot stand
on weak foundation nor survive any inherent defects
therein but at the same time ought not to be permitted
to be demolished by wayward pelting of stones of
suspicion and supposition by wayfarers and way
layers. What was told by Baron Alderson to the jury in
R. v. Hodge' may be apposite to some extent:
"The mind was apt to take a pleasure in adapting
circumstances to one another and even in straining
them a little, if need be, to force them to form parts of
one connected whole, and the more ingenuous the
mind of the individual, the more likely was it,
considering such matters, to overreach and mislead
itself, to supply some little link that is wanting, to take
for granted some fact consistent with its previous
theories and necessary to render them complete."

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The conscience of the court has to be
satisfied by the propounder of will adducing evidence
so as to dispel any suspicions or unnatural
circumstances attaching to a will provided that there
is something unnatural or suspicious about the will.
The law of evidence does not permit conjecture or
suspicion having the place of legal proof nor permit
them to demolish a fact otherwise / proved by legal
and convincing evidence. Well-founded suspicion may
be a ground for closer scrutiny of evidence but
suspicion alone cannot form the foundation of a
judicial verdict positive or negative.
9. It is well settled law that one who propounds a will
must establish the competence of the testator to make
the will at the time when it was executed. The onus is
discharged by the propounder adducing prima facie
evidence a proving the competence of the testator and
execution of the will in the manner contemplated by
law. The contestant opposing the will may bring
material on record meeting such prima facie case in
which event the onus would shift back on the
propounder to satisfy the court affirmatively that the
testator did know well the contents of the will and in
sound disposing capacity executed the same. The
factors, such as the will being a natural one or being
registered or executed in such circumstances and
ambience, as would leave no room for suspicion,
assume significance. If there is nothing unnatural
about the transaction and the evidence adduced
satisfies the requirement of proving a will, the court

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would not return a finding of "not proved" merely on
account of certain assumed suspicion or supposition.
Who are the persons propounding and supporting a
will as against the person disputing the will and the
pleadings of the parties would be relevant and of
significance.”
30.The Hon’ble Supreme Court in Meena Pradhan
and Ors. Vs. Kamla Pradhan and Anr. 2023(9) SCC 734 after
considering and relying upon its earlier decisions in H.
Venkatachala Iyengar v. B.N. Thimmajamma , 1959 Supp (1)
SCR 426, Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135,
Janki Narayan Bhoir v. Narayan Namdeo Kadam , (2003) 2
SCC 91, Yumnam Ongbi Tampha Ibema Devi v. Yumnam
Joykumar Singh, (2009) 4 SCC 780, and Shivakumar v.
Sharanabasappa , (2021) 11 SCC 277 , crystallized and
reiterated the governing principles relating to the proof of due
execution and validity of a Will. The Apex Court deduced the
following legal propositions stated in paragraphs 10 and 11
which are required to be satisfied for establishing a Will in
accordance with law and the same are as under:—
“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

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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 re-
quired 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 pres-
ence and by his direction and the said signature or af-
fixation 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 signa-
tures;
(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;

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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 wit-
nesses 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 be-
fore it can be accepted as the testator's last Will. In
such cases, the initial onus on the propounder be-
comes 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; test-

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ator executed the Will while acting on his own free
Will;
10.10. One who alleges fraud, fabrication, undue in-
fluence etc. has to prove the same. However, even in
the absence of such allegations, if there are circum-
stances giving rise to doubt, then it becomes the duty
of the propounder to dispel such suspicious circum-
stances by giving a cogent and convincing explana-
tion.
10.11. Suspicious circumstances must be ‘real, ger-
mane 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 sus-
picious 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 re-
ceives 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.”

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31. This Court finds that the principal question arising
for determination under Issues Nos. 3, 4 and 5 is whether the ap-
pellant, as the propounder of the Will dated 08.03.1995, has suc-
cessfully proved its due execution and attestation in accordance
with law and whether the circumstances relied upon by the
learned Trial Court constituted such suspicious circumstances as
would disentitle him from the grant of Probate/Letters of Ad-
ministration. The legal principles governing proof of a Will are
no longer res integra . In H. Venkatachala Iyengar v. B.N.
Thimmajamma (supra) , Indu Bala Bose v. Manindra Chandra
Bose(supra) , Madhukar D. Shende v. Tarabai Aba Shedage
(supra) and, more recently, Meena Pradhan v. Kamla Pradhan
(supra) , the Hon’ble Supreme Court has consistently held that
the propounder must establish that the Will was executed by the
testator in a sound and disposing state of mind and in conform-
ity with the requirements prescribed by law. It is equally well
settled that while the propounder of the Will bears the initial
burden of dispelling legitimate suspicious circumstances sur-
rounding the execution of the Will, suspicion howsoever strong,
cannot take the place of proof and a judicial verdict cannot rest
upon conjectures or surmises.
32. Before examining the evidence on record, it is

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necessary to notice the statutory framework governing testa-
mentary succession. Section 63 of the Indian Succession Act,
1925 prescribes the mode of execution and attestation of an un-
privileged Will. Clause (c) thereof mandates that the Will shall
be attested by at least two witnesses, each of whom has either
seen the testator sign or affix his mark to the Will or has re-
ceived from him a personal acknowledgment thereof, and each
witness must sign the document in the presence of the testator.
The proof of such execution and attestation is governed by Sec-
tion 67 of the Bharatiya Sakshya Adhiniyam, 2023 hereinafter
referred as BSA, (corresponding to Section 68 of the Indian Evi-
dence Act, 1872), which requires the examination of at least one
attesting witness to prove a document required by law to be at-
tested. The combined effect of these provisions is that a Will can
be said to be duly proved only when both its execution and at-
testation are established in the manner contemplated by law.
33. In the present case, five witnesses were examined
in support of the Will, including PW-2 Ram Ayodhya Singh, the
identifier of the will, and PW-3 Kameshwar Pandey, one of the
attesting witnesses. PW-3 categorically deposed that the testator
affixed his thumb impression on the Will in his presence and in
the presence of the other attesting witness and that both attesting

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witnesses thereafter signed the document in the presence of the
testator. His testimony clearly satisfies the requirements of Sec-
tion 63(c) of the Indian Succession Act, 1925 and Section 67 of
the BSA, 2023. PW-2 corroborated the execution of the docu-
ment. The other attesting witness could not be examined since
he died. The original registered Will was produced and duly ex-
hibited during trial. From perusal of the evidence produced on
behalf of the appellant, it appears that the propounder of the
Will was examined himself who clearly stated that it was the
last Will of the testator and the testator was of sound mind at the
time of executing the Will. But from the other side, no cross-ex-
amination of the appellant’s witnesses was made nor any oral
and documentary evidence was given to contradict the evidence
of the appellant and only on the basis of presumption that since
testator was not sound mind, old age and just after four days
died, because of that reason Issue Nos. 3 and 4 was decided on
the basis of suspicious circumstance. In the case of suspicious
circumstance, although it is the duty of the propounder to prove
its case and remove any suspicious circumstance, if any. Every
circumstance is not suspicious circumstance. In this case, where
the propounder of the Will examined himself and one of the at-
testing witness who was alive got examined and as the will is

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registered, under such circumstance, the onus shifts to caveator
how the will is not genuine. Although the respondent entered a
caveat alleging fraud, fabrication, undue influence and absence
of testamentary capacity, he neither entered the witness box nor
adduced any oral or documentary evidence in support of such
allegations. The law is settled that allegations of fraud, coercion,
undue influence or fabrication are matters requiring strict proof.
Mere assertions contained in pleadings do not constitute evi-
dence. Once the appellant discharged the burden cast upon him
by proving due execution and attestation through an attesting
witness, the evidentiary burden shifted upon the respondent to
substantiate the allegations raised in the caveat. The respondent,
however, failed to discharge that burden. If the objector did not
avail to himself the opportunity to give any contra evidence and
did not also examine himself, no any oral or documentary evi-
dence, under such circumstance, the Will could not be doubted
and only on the basis of objection or caveat filed, presumption
cannot be raised that will is not genuine. Thus, the foundational
requirements relating to execution and attestation stand estab-
lished through legally admissible evidence.
34. Further, the learned Trial Court appears to have
doubted the genuineness of the Will principally on the grounds

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that the testator died four days after its execution, was advanced
in age, was suffering from illness and had affixed a thumb im-
pression instead of signing the document. In the opinion of this
Court, none of these circumstances, either individually or col-
lectively, can be treated as suspicious circumstances of such a
nature as would invalidate an otherwise duly proved Will. There
is no evidence on record to indicate that the testator was men-
tally incapacitated or incapable of understanding the nature and
consequences of the testamentary disposition. The witnesses ex-
amined on behalf of the appellant consistently deposed that the
testator was conscious, aware and acted voluntarily while exe-
cuting the Will. No medical evidence was produced by the re-
spondent to establish impairment of the testator’s mental facul-
ties. The learned Trial Court, therefore, erred in presuming ab-
sence of testamentary capacity solely on the basis of old age and
illness.
35. The mere fact that the Will was executed shortly
before the death of the testator cannot by itself constitute a sus-
picious circumstance. In Seth Beni Chand v. Kamla
Kunwar(supra) , the Hon’ble Supreme Court upheld a Will exe-
cuted merely five days before the death of the testatrix and held
that neither old age nor proximity of death invalidates an other-

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wise duly proved testamentary instrument. Therefore, the cir-
cumstance that the testator died four days after the execution of
the Will cannot, in law, furnish a valid ground for rejecting the
testamentary document.
36. Similarly, the fact that the testator affixed his
thumb impression instead of signing the Will does not create
any legal suspicion affecting its validity. What is material for the
purpose of Section 63(c) of the Indian Succession Act, 1925 is
whether the attesting witnesses saw the testator affix his mark to
the Will or received from him a personal acknowledgment
thereof and thereafter attested the document in his presence. The
evidence of PW-3 clearly establishes that the testator affixed his
thumb impression in the presence of the attesting witnesses and
that the Will was duly attested in accordance with law. Once the
requirements of Section 63(c) of the Indian Succession Act,
1925 stand satisfied, the mere use of a thumb impression, partic-
ularly by an aged and infirm testator, cannot be treated as a sus-
picious circumstance. In the absence of any evidence indicating
mental incapacity or lack of volition, no adverse inference can
be drawn merely because the testator chose to affix his thumb
impression rather than sign the document.
37. The non-examination of the typist, namely L.V.

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Gupta, is equally inconsequential. The statutory requirement is
proof of execution and attestation through an attesting witness.
Once an attesting witness has been examined and has proved the
Will in accordance with Section 63(c) of the Indian Succession
Act, 1925 and Section 67 of the BSA, 2023 the non-examina-
tion of the typist does not affect the validity or genuineness of
the testamentary instrument, particularly when no cogent chal-
lenge to its preparation or contents has been established by evi-
dence.
38. This Court further finds that the suspicious cir-
cumstances relied upon by the learned Trial Court were not sup-
ported by substantive evidence and were founded largely upon
assumptions arising from the age and physical condition of the
testator. As observed by the Hon’ble Supreme Court in Mad-
hukar D. Shende(supra) , suspicion may justify closer scrutiny
of evidence, but it cannot itself become the foundation of a judi-
cial determination. Courts are required to decide cases on the
basis of legal proof and not on conjectures or surmises.
39. The Testamentary Court is a Court of conscience
and not a court of suspicion. The Court should not start with the
presumption that the Will is not genuine, that it is a fraudulent
and the person who chooses to probate the Will must remove all

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suspicion even if they are not unreal but the Court should be
conscious while dealing with the evidence placed before them in
relation to execution and attestation of the Will as also disposing
state of mind of the testator. Any and every circumstance is not
suspicious circumstance.
40. In this case, where the propounder of the Will ex-
amined himself and one of the attesting witnesses who was alive
got examined, the Will is registered document, under such cir-
cumstance, the onus shifts on to caveator/objector to prove how
the Will is not genuine. Furthermore, if the objector did not
avail to himself the opportunity to give any contra evidence and
did not also examine himself any oral or documentary evidence,
under such circumstances, the Will could not be doubted and
only on the basis of objection or caveat filed, presumption can-
not be raised that Will is not genuine and the same is forged and
fabricated. In the case of Shri Naginder Singh Sood versus
State and Ors. reported in 2011 SCC Online Del 2589 , the
Delhi High Court held that where the propounder of the Will ex-
amined himself and also the witnesses in the Will, which had
been registered, the onus shifts to the objector to point out as to
how the Will is not genuine. If the objector did not avail to him-
self the opportunity to given any contra evidence and did not

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also examine himself, it was held that the Will could not be
doubted. Thus, this Court is in full agreement with the ratio laid
down in the aforesaid judgement of the Delhi High Court.
41. Further, it is also well settled that probate proceed-
ings are confined to examining the genuineness, due execution
and testamentary validity of the Will and do not involve adjudi-
cation of competing titles to the property covered by the testa-
mentary disposition. The sole enquiry before the Court is
whether the document propounded represents the last valid tes-
tamentary act of the deceased. Once due execution and attesta-
tion stand proved and no legitimate suspicious circumstances
survive, the testamentary intention of the deceased must be
given effect.
42. In the present case, the evidence adduced by the
appellant remained substantially unrebutted. The attesting wit-
ness proved the execution and attestation of the Will, the identi-
fying witness corroborated the same, the document was regis-
tered, and no evidence whatsoever was led by the respondent to
establish fraud, fabrication, coercion, undue influence or lack of
testamentary capacity. The learned Trial Court thus committed a
manifest error in law in treating unsubstantiated allegations con-
tained in the caveat petition as circumstances sufficient to disbe-

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lieve a duly proved Will.
43. Viewed in the light of the statutory provisions and
the principles laid down by the Hon’ble Supreme Court, this
Court is satisfied that the appellant has successfully proved the
due execution and attestation of the Will dated 08.03.1995 in ac-
cordance with Section 63(c) of the Indian Succession Act, 1925
read with Section 67 of the BSA, 2023 and has discharged the
burden cast upon him under law. The respondent having failed
to substantiate the allegations raised in the caveat, the Will can-
not be discarded on the basis of mere suspicion.
44. Accordingly, the findings recorded by the learned
Trial Court on Issues Nos. 3, 4 and 5 are unsustainable and re-
quire interference by this Court and thus it is hereby set aside. It
is held that the Will dated 08.03.1995 was voluntarily executed
by the testator while in a sound and disposing state of mind and
was duly attested and proved in accordance with law. Conse-
quently, the appellant is entitled to the grant of Probate in re-
spect of the estate covered by the said Will.
45. The appeal is, accordingly, allowed. The judgment
dated 22.08.2019 passed by the learned 3rd Additional District
Judge, Bhojpur at Ara in Title Probate Case No. 01 of 1996 is

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hereby set aside. There shall be no order as to costs.

Pankaj/- (Rudra Prakash Mishra, J)
AFR/NAFR AFR
CAV DATE 11.05.2026
Uploading Date 02.07.2026
Transmission Date