Aunt’s FIR Said Her Signature And Marks Could Be Misused; Patna HC Refuses Probate Of Will Dated 9 Days Later To Nieces

Ruma Devi and Prabha Devi sought probate of an unregistered Will dated 17 December 1994, allegedly executed by Sabujwati Kunwari in their favour.

The objector, later represented by her daughter Shanta Sinha, alleged that the Will was forged and fabricated and that the testatrix’s mark had been misused.

The Trial Court granted probate after finding the Will duly executed and attested.

The objector’s successors appealed under Section 299 of the Indian Succession Act, 1925.

Section 63 of the Indian Succession Act, 1925 requires the testator to sign or affix a mark intended to give effect to the Will, and requires attestation by at least two witnesses; Section 68 of the Indian Evidence Act, 1872 requires proof through an attesting witness.

Under H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, the propounder must prove due execution, testamentary capacity and understanding; where suspicious circumstances arise, the propounder must remove them to the Court’s satisfaction.

Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369, and S.R. Srinivasa v. S. Padmavathamma, (2010) 5 SCC 274, reaffirm that the propounder bears the initial burden and must offer a cogent explanation for legitimate suspicions; registration alone does not dispel them.

A contested probate proceeding is tried as nearly as may be in the form of a regular suit under Section 295 of the Indian Succession Act, while the probate court determines whether the instrument is the testator’s duly executed Will, not title to the property.

Sections 280 and 281 concern the application and its verification; Section 281’s verification requirement is directory and any defect may be curable after a full trial.

The Court held that the challenge to execution was within the pleaded case of forgery and misuse of the testatrix’s mark, and that the circumstances apparent from the Will could be considered despite not being pleaded in detail.

The testatrix’s FIR, signed nine days before the Will, recorded that her signature and mark had been taken on papers whose contents she did not know and might be misused.

Yet the unregistered Will bore only her thumb impression, placed at the top of each page, although she was literate and had signed the FIR shortly beforehand; the propounders did not satisfactorily explain this departure or establish that she understood the Will’s contents and dispositions.

The asserted admissions by the objector and her witnesses established, at most, that the mark might be the testatrix’s—not that she affixed it to this Will knowingly and voluntarily.

The beneficiaries’ father played a prominent role, while the attesting witnesses were connected to a beneficiary and the execution evidence came from the beneficiaries’ circle; the Trial Court had not adequately assessed these circumstances or the testatrix’s capacity and understanding.

The Court rejected the technical objections to the probate application and held that the ceiling proceedings concerned title or legality of the bequest, matters outside the probate court’s determination.

The High Court set aside the Trial Court’s judgment, held that the propounders had not proved the Will as the testatrix’s duly executed last testament, refused probate of the Will dated 17 December 1994 and dismissed the probate case.

The judgment did not determine title to the properties, which remained to be decided in accordance with law.