Gauhati HC Upholds Unmarried Man’s Will To Younger Brother: Epilepsy And A Later Hotel Episode Didn’t Show Incapacity At Signing

Late Nripendra Nath Phukan, who was unmarried, allegedly executed a will dated 20 March 2009 bequeathing his one-third share in Guwahati property, his Jorhat property, and shares in Bahoni Tea Company to his brother Birendra Nath Phukan, appointing him executor.

Birendra applied for probate. Their brother Debendra objected, alleging that the will was not duly proved, that the testator lacked sound disposing capacity, and that suspicious circumstances surrounded its execution.

The Probate Court granted probate; Debendra appealed under Section 299 of the Indian Succession Act, 1925.

Section 63 of the Indian Succession Act, 1925 requires an unprivileged will to be signed by the testator, with the signature intended to give effect to the will, and attested by at least two witnesses in the testator’s presence.

Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, which the Court noted is in pari materia with Section 68 of the Indian Evidence Act, 1872, requires at least one available attesting witness to be called to prove execution.

Applying Meena Pradhan v. Kamla Pradhan, (2023) 9 SCC 734, the Court stated that the propounder must prove execution and that the will was the testator’s last will; where genuine suspicious circumstances arise, the propounder must dispel them with cogent evidence.

Suspicion must be real, germane and valid, not merely conjectural.

Both attesting witnesses testified that the testator signed the will in their presence, that they signed in his presence, and that he was of sound mind; their evidence was not materially undermined in cross-examination.

The appellant admitted that the testator’s signature on the will was genuine.

The Court found that the handwriting and spacing, and the placement of the witnesses’ signatures above the testator’s, did not establish a legitimate suspicion in light of the attesting evidence.

The testator’s later episode of going missing occurred months after execution and did not show incapacity at the relevant time; nor did the evidence of epilepsy, without evidence of a seizure or impaired cognition when the will was executed, invalidate it.

The defence witnesses did not specifically establish incapacity in March 2009.

The appeal was dismissed, with the parties ordered to bear their own costs.