Unshaken testimony of one attesting witness suffices to prove a Will under Section 63(c).

The Plaintiffs instituted a Testamentary Suit seeking probate of a Will dated 20 April 1983, stated to be the last Will and Testament of Hilary Joseph DeSouza, who died on 19 October 1984.

Plaintiff No. 1, the Testator’s niece, was named both executor and beneficiary, while Plaintiff No. 2 was named as a co-executor.

The Will was attested by Francis Joseph Athaide, Advocate, and Owen D’Souza, Advocate, and was registered on 22 April 1983.

The Testator bequeathed the property known as “Patronage”, together with specified shareholdings and a telephone connection, to Plaintiff No. 1.

The Testator’s siblings, Doric Peter DeSouza and Juanita A. Ubale, opposed probate through caveats, alleging, inter alia, that the Will was bogus or fabricated and that the Testator lacked testamentary capacity; Doric died during the proceedings and his heirs were impleaded.

The Court examined one attesting witness for the Plaintiffs and one defence witness; the original caveators did not enter the witness box.

The Defendants’ application to lead additional evidence was dismissed after repeated non-appearance, and the suit proceeded to final hearing.

Whether the writing dated 20 April 1983 was the Testator’s last Will and Testament and was duly executed and attested in accordance with law.

Whether the Testator executed the Will while in a sound and disposing state of mind.

Whether the Defendants had a caveatable interest and were entitled to contest the probate proceedings.

Whether the Will was bogus, fabricated, or otherwise invalid on the grounds pleaded by the Defendants.

Whether the Plaintiffs were entitled to probate of the Will.

What order should be passed.

The Court applied Section 63 of the Indian Succession Act, 1925, requiring proof of the Testator’s signature or mark, execution intended to give effect to the writing as a Will, and attestation by at least two witnesses; examination of one available and competent attesting witness may suffice to prove execution and attestation.

It relied on Meena Pradhan v. Kamla Pradhan, (2023) 9 SCC 734, Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91, and Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433, on proof of Wills and the permissible dispensation with examining the second attesting witness.

Registration does not itself prove due execution, but may be a corroborative circumstance supporting the genuineness of the Will when considered with other evidence.

Testamentary capacity requires a sound and disposing state of mind at the time of execution, and allegations of fraud, coercion, undue influence, or misrepresentation must be supported by evidence connecting them with the making of the Will.

Section 114(g) of the Indian Evidence Act, 1872 permits an adverse inference where a party withholds material evidence within its power to produce.

Under Section 141 of the Succession Act, an executor-beneficiary may take the legacy upon proving the Will or otherwise manifesting an intention to act as executor; Sections 222 and 224 recognise grants of probate to appointed executors, including several executors.

The Court also applied the principle that a caveator must establish a legally relevant ground affecting the Will’s admissibility to probate.

The right to seek probate is a continuing right and is not automatically extinguished by delay.

The Court accepted PW-1’s direct and unshaken testimony that he saw the Testator sign the Will and that he and Owen D’Souza attested it, thereby satisfying Section 63(c); examination of the second attesting witness was unnecessary.

Registration of the Will and PW-1’s evidence regarding the Testator’s attendance before the Sub-Registrar further supported, though did not independently establish, due execution.

On testamentary capacity, the Court relied on PW-1’s evidence that the Testator was of sound mind and on PW-2’s evidence that the Testator’s stroke occurred only in May 1984, more than a year after execution; there was no medical or other reliable evidence proving incapacity on 20 April 1983.

The Defendants failed to prove fraud, coercion, undue influence, fabrication, or invalid execution. The original caveators did not testify, and DW-1’s evidence concerning the Testator’s health and the Plaintiffs’ conduct was largely based on assumptions and limited observations.

The Court therefore drew an adverse inference from the failure of the original caveators, particularly Juanita, to give evidence concerning matters within their claimed knowledge.

The delay objection failed because an earlier probate petition had allegedly been filed within two years of the Testator’s death and, in any event, the right to seek probate was continuing.

Plaintiff No. 1’s dual status as executor and beneficiary was not legally disqualifying; filing and prosecuting the probate proceedings manifested her intention to act as executor under Section 141.

Since the Defendants failed to establish any ground affecting the Will’s validity or admissibility to probate, the caveatable-interest objection did not assist them.

It held that the Will dated 20 April 1983 was duly executed and attested, was made while the Testator possessed testamentary capacity, and was neither bogus nor fabricated.

Testamentary Suit No. 39 of 1995 was decreed, and the Prothonotary and Senior Master was directed to issue probate of the Will in favour of the Plaintiffs upon compliance with the requisite formalities.

The grant was directed to be issued expeditiously; there was no order as to costs, pending applications were disposed of, and a drawn-up decree was dispensed with.