Inconsistent Evidence and Failure to Examine Available Attesting Witnesses Negate Proof of Due Execution

The Testator, Gour Lal Mitra, allegedly executed a registered Will dated 28th February 2001, appointing his son (the Plaintiff/Propounder) as the Executor

Following the Testator’s death on June 3, 2005, the Plaintiff applied for probate

The Defendants (the Testator's other children) contested the Will, alleging it was obtained through undue influence, coercion, and that the Testator lacked the capacity to bequeath the properties as he only held a life interest derived from his father Adhar Kumar Mitra's Will

Critically, the Will bore the date 28th February 2001, but evidence from the Registrar of Assurances showed it was registered on 27th February 2001

1. Whether the Testator had the mental capacity and physical ability to execute the Will?

2. Whether the Will was executed in terms of the mandatory requirements of Section 63 of the Indian Succession Act, 1925?

3. Whether the Plaintiff, as the propounder, was able to dispel the suspicious circumstances surrounding the execution of the Will?

The court applied Section 63 of the Indian Succession Act, 1925, which mandates that a Will must be signed by the testator and attested by at least two witnesses who saw the testator sign

It further relied on Section 68 of the Indian Evidence Act, 1872, requiring at least one attesting witness to prove execution

The court followed the landmark principles in *H. Venkatachala Iyengar v. B.N. Thimmajamma* [AIR 1959 SC 443] regarding the propounder’s burden to remove "legitimate suspicions"

and *Meena Pradhan v. Kamla Pradhan* [(2023) 9 SCC 734], which establishes that if one attesting witness fails to prove due execution, the other must be called

The court also noted that while probate courts cannot decide on the title of the property, they must be satisfied with the "judicial conscience" regarding the genuineness of the document

The court found the Testator possessed the requisite mental capacity based on witness testimony

However, it held that the execution was shrouded in "real and valid" suspicious circumstances that the Plaintiff failed to dispel

The primary witness (PW-1, the Solicitor) repeatedly insisted the Will was executed on 28th February 2001, yet the registration records proved it was registered on 27th February 2001

PW-1’s testimony was deemed untrustworthy as he could not definitively confirm the presence of the second attesting witness, Gobinda Lal Mitra, on the actual date of registration (27th February)

Since the Will could not have been executed *after* its registration, and the Propounder failed to call the second available attesting witness to clarify this discrepancy, the court held that the statutory requirement of attestation—specifically that the witnesses saw the Testator sign—was not proved

The Court held that the Plaintiff failed to establish the due execution of the Will in accordance with Section 63 of the Indian Succession Act, 1925, due to contradictory evidence and the failure to dispel suspicious circumstances

Consequently, probate was refused, and the suit was disposed of

The connected suit (CS No. 90 of 2008) was released to be placed before the appropriate Bench