Inconsistent testimony regarding execution dates and witness presence fails to dispel suspicious circumstances, vitiating due execution of a Will.

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

Following the Testator's death on June 3, 2005, the Plaintiff sought probate.

The Defendants (other children of the Testator) contested the Will, alleging it was a product of undue influence and fraud

Crucially, they argued the Testator lacked testamentary capacity because the properties belonged to his father's estate (Adhar Kumar Mitra), in which the Testator held only a life interest

Procedurally, the court had to resolve discrepancies regarding the date of execution: the Will was dated February 28, 2001, but the registration records showed it was registered on February 27, 2001

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

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

3. Whether the Plaintiff is entitled to a grant of probate?

The court primarily 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 or received a personal acknowledgment of the signature

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

The court applied the "suspicious circumstances" doctrine established in *H. Venkatachala Iyengar v. B.N. Thimmajamma*, which shifts the burden to the propounder to remove all legitimate doubts regarding the Will's genuineness

It also cited *Shivakumar v. Sharanabasappa* regarding the test of judicial conscience

and *Meena Pradhan v. Kamla Pradhan* for the rule that if one attesting witness fails to prove due execution, the other must be called

The Court found that while the Testator possessed general mental capacity

, the Plaintiff failed to establish "due execution" under Section 63 of the Succession Act.

The primary suspicious circumstance was the date of execution.

The Will was dated February 28, 2001, and PW-1 (the Solicitor) repeatedly testified it was executed on that date

However, official records proved the Will was registered on February 27, 2001—a day prior

This contradiction rendered PW-1’s testimony untrustworthy.

Furthermore, PW-1 could not confirm the presence of the second attesting witness, Gobinda Lal Mitra, on the actual registration date of February 27

Since the testimony of the first witness was contradictory and failed to prove that both witnesses saw the Testator sign (or vice versa), the Plaintiff was legally obligated to call the second attesting witness to supplement evidence; his failure to do so resulted in an adverse inference

Consequently, because the suspicious circumstances regarding the date and the presence of attesting witnesses were not dispelled, the Plaintiff is not entitled to probate

The grant of probate was refused, and the suit (TS/1/2007) was disposed of accordingly

The related suit (CS/90/2008) was released to the appropriate Bench