Physical Infirmity and Proximity of Death Do Not Invalidate a Registered Will If Due Execution Is Proved

The appellant, Dharmendra Ojha (grandson of the deceased), sought probate for a registered Will dated 08.03.1995, purportedly executed by late Baikuntha Nath Ojha four days before his death

The respondent, Chandra Mohan Ojha (younger son of the deceased), filed a caveat alleging the Will was forged, asserting the testator lacked mental capacity and that the thumb impression was fraudulently obtained while the testator was unconscious

The Trial Court dismissed the suit, finding the execution suspicious due to the testator's proximity to death, physical infirmity (using a thumb impression despite being educated), and the non-examination of the typist

The appellant challenged this dismissal in the High Court.

1. Whether the appellant proved the due execution and attestation of the Will in accordance with Section 63 of the Indian Succession Act, 1925, and Section 67 of the BSA, 2023

2. Whether the circumstances (proximity to death, old age, and use of thumb impression) constituted "suspicious circumstances" sufficient to invalidate the Will

3. Whether the burden of proof shifts to the caveator once the propounder establishes a prima facie case of execution of a registered Will

The Court applied Section 63(c) of the Indian Succession Act, 1925, regarding the mandatory attestation by two witnesses

Section 67 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), requiring at least one attesting witness to prove execution

H. Venkatachala Iyengar v. B.N. Thimmajamma, establishing that the propounder must satisfy the "judicial conscience" by removing legitimate suspicions

Seth Beni Chand v. Kamla Kunwar, which held that neither old age nor proximity of death per se invalidates a Will

Madhukar D. Shende v. Tarabai Aba Shedage, emphasizing that suspicion alone cannot replace legal proof

The High Court found that the appellant successfully proved the Will's execution through the testimony of an attesting witness (PW-3) and the identifier (PW-2), satisfying Section 63(c) of the Succession Act

The Court reasoned that the Trial Court erred by treating "unsubstantiated allegations" in the caveat as proved facts, despite the respondent failing to lead any oral or documentary evidence or effectively cross-examine the appellant's witnesses

The Court clarified that "suspicion" must be real and germane; the testator’s use of a thumb impression due to physical weakness does not equate to mental incapacity

Furthermore, since the Will was registered and the propounder examined himself and an attesting witness, the evidentiary burden shifted to the caveator to prove fraud or forgery, which he failed to do

It held that the Will dated 08.03.1995 was voluntarily executed by the testator in a sound state of mind and was duly proved

The Court granted Probate in favor of the appellant, concluding that the mere proximity of death (four days post-execution) and physical infirmity are not valid legal grounds to discard a registered testamentary instrument in the absence of medical evidence proving mental incapacity