Holding

The propounder bears the burden of proving a will; in the absence of suspicious circumstances, proof of testamentary capacity and a genuine signature is sufficient, and the appeal is dismissed.

Summary

The case concerned an application for probate of a will executed by the deceased Ranendra Chandra Bose in 1952. The executors sought probate, but the trial court refused on the ground of doubts about the testator's mental capacity and the authenticity of his signature. The High Court set aside that decision, granting probate, and the appellants challenged this order before the Supreme Court. The Court held that the burden of proving a will lies on the propounder and, absent suspicious circumstances, proof of testamentary capacity and a genuine signature suffices; where suspicious circumstances exist, the propounder must dispel them. After examining the alleged suspicions, the Court found none of them proved and affirmed the High Court's grant of probate, dismissing the appeal.

Issues considered

Whether the onus of proving the validity of a will lies on the propounder under Section 63 of the Hindu Succession Act.
Whether the circumstances alleged (testator's mental state, signature authenticity, benefit to propounder) constitute "suspicious circumstances" requiring the propounder to provide additional proof.
Whether the High Court erred in setting aside the trial court's refusal to grant probate.

Legislation cited

Subjects

probatewillonus of proofsuspicious circumstancestestamentary capacityattestationsuccession lawHindu Succession Act

Judgment

A uss
INDU BALA BOSE & ORS.
v,
MANINDRA CHANDRA BOSE & ANR.
B
November 18, 1981

[A. P. SEN AND BAHARUL ISLAM, JJ.]

Probate suit-Mode of onus of proof of a sale, explained-Hindu Succession
Act, section 63.

One Ranendra died unmarried on November 16, 1952 leaving the alleged
will (Exhibit-1) executed on November, 8, 1952. Ranendra left behind him three
brothers-Jitendra Chandra Bose, Gopendra and Manindra plaintiff No. l.
Manindra and Jogendra (Plaintiff No. 2) had been appointed executors of the
will. By the will Ranendra bequeathed one-half of his properties to his nephew,
D Bhabesh, who was the son of his younger brother, Phanindra, who had pre-
deceased him, and the remaining half to his younger brother Manindra for life,
and after Manindra's death to Bhabesh absolutely. The executors of the will as
aforesaid filed an application before the Subordinate Judge. Alipore, for probate
of a will executed by Ranendra. Jitendra entered caveat and filed a written
statement and contested application for probate. During the pendency of the
suit, Jitendra died and his heirs who were substituted, contested the suit.
E The contentions were that Ranendra was not in a physical or mental condi~
tion to execute a will; he was in a semi-conscious state of mind and had not the
te.stamentary capacity to execute the alleged wiJI and that the alleged wi1l was
brought into existence at the instance, and under the influence of the propounder
Manindra; that the signatures of Ranendra on the will were not genuine.

The trial court found that the signatures of the testator and the attesting
F witnesses were genuine and that the provisions of the will was neither unfair nor
unnatural. But the trial court dismissed the suit and refused to grant probate of
the will on the ground that there were certain "doubts and suspicions about the
condition of the testator's mind on 8-11-1952". In appeal before the High Court,
the decree or the trial court was set aside and the propounder was granted probate
of the will.

G Dismissing th~ appeal by certificate granted by the Calcutta liigh Court
under Article 133(1)(b) of the Constitution, the Court,

HELD : 1.1. The mode of proving a will does not ordinarily differ from
that of proving any other document except to the special requirement of attesta-
tion prescribed in the case of a will by section 63 of the Successions Act. (1191 DJ

1:2. The onus of proving the will is on the propounder and in the absence
of suspicious circumstances surrounding the execution or the will, proof of test-a
INDU BALA V. MANJNDRA CHANDRA 1I89

mentary capacity and the signature of the testator as required by Jaw is sufficient A
to discharge the onus. Where, however, there are suspicious circumstances, the
onus is on the propounder to explain them to the satisfaction of the court before
the court accepts the will as genuine. Even where circum!'tances !?ive rise to
doubts, it is for the propounder to satisfy the conscience of the ccurt. The suspi-
cious circumstances may be as to the genuineness cf 11-,e 5ignaturcs of tt.e testator,
the condition of the testator's mind, the dispositions made in the will being un-
natural, improbable or unfair in the light of relevant circun1stances, or there B
might be other indications in the will to show that the testatcr's mind was not
free. In such a case the court would naturally expect that all legitimate suspi..
cions should be completely removed before the document is accepted as the last
wiJI of the testator. If the propounder himself takes the promineut part in the
execution of the will which confers a substantial benefit on him, that is also a
circumstance to be taken into account, and the propounder is required to remove
the doubts by clear and satisfactory evidence. If the propounder ~ccceeds in
removing the suspicious circumstances the court would grant probate, even if the
c
will might be unnatural and might cut off wholly or in part near relations.
(1191 D-H 1192 A]

Shashi Kumar Banerjee & Ors v. Subodh Kumar Banerjee & Ors, A.I.R.
1964 S.C. 529; H. Venkatachala Iyengar v. B. N. Thimmajamma & Ors., (1959]
Supp. 1S.C.R.426; Rani Purnima Devi and Another v. Kumar Khagendra Narayan D
Dev and Another, [1962) 3 SCR 195 followed.

1:3. A circumstance would be "suspicious" when it is not normal or is
not normally expected in a normal situation or is not expected of a normal
person. (1192 A-Bl

1:4. A careful perusal of the eleven circumstance shows that they
are by no means suspicious circumstances and stand self-explained. On the con- E
trary the following circumstances lend strong support to the plaintiffs' case of
genuineness and valid execution of the will: (i) Gopendra one of the brothers, who
has not been given anything under the will had filed a written statement stating
that the "has no objection to the grant of probate inasmuch as the will is execut-
ed and attested according to law" ; (ii) the disposition under the will is quite fair
and there are no suspicious circumstances in it at all ; (iii) as there were litigations
between the two groups of the brothers, the will was the natural outcome to avoid F
further future litigation. [1194 F, 1196 B-C)

Barmes and Anr v. Hinkson, 50 C.W.N. 895, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. I 872 of
1970. G
From the judgment and decree dated the 24th December, I 969
of the Calcutta High Court in appeal from Original Decree No. 843
of 1966 (Probate)

S.S. Ray and S. Ghosh for the Appellant. H
V.S. Desai D.N, Mukherjee and N.R. Choudhar,v for the
Respondents.
1190 SUPREME COURT REPORTS (1982) l S.C.R

A The Judgment of the Court was .delivered by

BAHARUL ISLAM, J, This appeal by certificate granted by the
Calcutta High Court under Article 133(1) (b) of the Constitution is
from a decree dated December 24, 1969 and arises out of a probate
suit.
B
2. The material facts may be briefly stated as follows. One
Manindra Chandra Bose (original respondent No. I since deceased)
and Jogendra Nath Mitra (respondent No. 2 before us) filed an
application before the Subordinate Judge, Alipore, for probate of a
will alleged to have been executed by one Ranendra Chandra Bose
c on November 8, 1952, Jitendra Chandra base, a brother of the
testator entered caveat and filed a written statement and contested
the application for probate. The plaintiffs' case was that Renendra
died unmarried on November 16, 1952, leaving the alleged will
(Exhibit I) executed on November 8, 1952. Ranendra left beh;nd him
three brothers-Jitendra, aforesaid, Gopendra and plaintiff No. I.
D Manindra. Manindra and Jogendra (plaintiff No. 2) had been
appoimed executors of the will. By the will Ranendra bequeathed
one-half of his properties to his nep'.iew, B habesh, who was the son
of his younger brother, Phanindra, who had pre-deceased him, and
the remaining half to his younger brother Manindra for life, and
after his (Manindra's) death to Bhabesh absolutely. During the
E pendency of the suit, Jitendra died and his heirs who were substitu·
ted, contested the suit.

3. The contentions of the defendants were that Ranendra on
November 8, 1952, was not in a physical or mental condition to
execute a will; he was in a semiconscious state of mind and had not
F the testamentary capacity to execute the alleged will. They alleged
that the will was brought into existence at the instance, and under _,
-
the influence of, the propounder Manindra; that the signatures of
Ranendra on the will were not genuine and that must have been
obtained on blank papers by Manindra who was looking after the
properties of Ranendra as weJI as all litigations in which Ranendra
G was involved.

4. The trial court found that the signatures of the testator and
the attesting witnesses on the will were genuine, and that the provi-
sions of the will was neither unfair nor unnatural. But he dismissed
the suit and refused to grant probate of the will on the ground that
H
there were certain "doubts and suspicions about the condition of the
testator's mind on 8, 11.1954,"
INDU BALA v. MANINDRA CHANDRA (Bahmul lsiam, J.) 1191

5. The plaintiffs filed an appeal before the high Court. The A
High Court held that "there was no suspicious circumstance relating
to the will and whatever little suspicion there was has been satis·
factorily explained by the plaintiff", with the result that the High
Court set aside the decree of the trial court and granted probate of
the will. The judgment and decree of the High Court has been
challenged by the appellants before us. B

6. Mr. S.S. Ray, learned counsel appearing for the appellants
has not challenged the trial court's findings that the signatures of the
testator and the signatures of the attesting witnesses on the will were
genuine. In other words, the execution and the attestation of the
will have not been challenged before us. The only submission of c
learned counsel is that the "suspicious circumstances" surrounding
the execution of the will have not been satisfactorily explained by
the propounders.

7. This Court has held that the mode of proving a will does
l)
not ordinarily differ from that of proving any other document except
to the special requirement of attestation prescribed in the case of a
will by Section 63 of the Successions Act. The onus of proving the
will is on the propounder and in the absence of suspicious circum·
stances surrounding the execution of the will, proof of testamentary
capacity and the \signature of the testator as required by law is
s'1fficient to discharge the onus. Where however there are
E
s11spicious circumstances, the onus is on the propounder to explain
them to the satisfaction of the court before the court accepts the
will as genuine. Even where circumstances givo rise to doubts, it
is for the propounder to satisfy the conscience of the court.

- The suspicious circumstances miy be as to the genuineness of
the signatures of the testator, the condition of the testator's
mind, the disposition made in the will being unnatural, impro-
F

bable or unfair in the light of relevant circumstances, or there
might be other indications in the will to show that the testator's
mind was not free. In such a case the court would naturally expect
that all legitimate suspicions should be completely removed before
'->
..
the document is accepted as the last will of the testator. If the
propounder himself takes a prominent part in. the execution of the
will which confers a substantial benefit on him, that is also a circum-
stance to be taken into account, and the propounder is required to
remove the doubts by clear and satisfactory evidence. If the pro-
H
pounder succeeds in removing the suspicious circumstances the court
would grant probate, even if the will might be unnatural and might
1192 SUPREME COURT REPORTS ( 1982] l S.C.P..

A cut off wholly or in part near relations. (See AIR 1964 SC 529,
[1959] Suppl. l SCR 426 & [1962]3 SCR 195).

8. Needless to say that any and every circumstance is not a
'suspicious' circumstance. A circumstance would be 'suspicious'
when it is not normal or is not normally expected in a normal situa-
B tion or is not expected of a normal person.

Learned counsel relied on the decision of this Court in the
case of Rani Purnima Devi and Another v. Kumar Khagendra Narayan
Dev and Another('). In this case the will in question gave the entire

c property by the testator to a distant relation of his to the exclusion
of the testator's widow, sister and his other relations, and even his
daughter, who would be his natural heirs, but subject, of course,
-
to the condition that the legatee would maintain the widow and tbe
sister of the testator. The testator's signatures were not his usual
signatures, nor in the same ink as the rest of the will; the testator
used to sign blank papers for use in his cases in court and he used
D
to send them to his lawyer through his servants; the testator did not
appear before the Sub-Registrar for the purpose of registration of
the will but the Sub-Registrar sent only his clerk to the residence of
the testator for the purpose of registration; there were 16 atte ting
witnesses who attested the will, but of them, only 4 interested wit-
nesses were examined to the execution of disinterested witnesses.
E
The above are undoubtedly suspicious circumstances, c;rcumstances
creating doubt in the mind of the Court. Jn spite of these circum-
stances, it was held by the Trial Court that the will was duly executed
and attested. On appeal, the High Court affirmed the order of the
Trial Court. On further appeal, this Court held that the circum-
F stances were suspicious and were not satisfactorily explained and
hence held that "the due execution and attestation of the will were -
not proved."

9. As in the instant appeal, the judgment of the High Court
is one of reversal of the judgment of the Trial Court, we should also
G examine the law under which the order of the appellate court can be
or should be interfered with, inasmuch as learned counsel has cited
the two following decisions before us, and urged that the High Court
ought not to have interfered with the judgment of the Trial Court.
The first case cited is The Bank of India Ltd. and others v. Jamsetji
H
(I) (1962) 3 S.C.R,. 19$.
INl:>\J BALA V. MANlNDRA CHANDRA (Baharul Islam, J.) 1193

A. H. Chinoy and Messrs. Chinory and Co.(') In that case the A
Privy Council has held :

"The appellate Court would be reluctant to differ from
the conclusion of the trial Judge if his conclusion is based
on the impression made by a person in the witness box. If
however, the trial Judge based his finding and his opinion B
of the person on a theory derived from documents and a
series of inferences and assumptions founded on a variety
of facts and circumstances which, in themselves, offer no
\
direct or positive support for the conclusion reached, the
right of the appellate Court to review this inferential pro-
cess cannot be denied." c
The other case cited is Madho/a/ Sindhu of Bombay v. Official
Assignee of Bombay and others,( 2) in which the Federal Court
held :

"It is true that a Judge of first instance can never be 0
treated as infallible in determining on which side the truth
lies and like other tribunals he may go wrong on question
of fact, but on such matters if the evidence as a whole can
reasonably be regarded as justifying the conclusion arrived
at, the appeal Court should not lightly interfere with the ,
judgment." E
10. Keeping the above principles of law in view Jet us now
turn to the facts of the present case.

Learned counsel for the appellant has enumerated the follow-
ing I I 'suspicious' circumstances :

( i ) Attempt on the part of the propounder to conceal the
real nature of testator's illness.

(ii) The propunder failed to tell the date when the testator
went to his lawyer (P.W. 3s') house or when the draft G
was given by the lawyer to the testator.

(iii) The draft has not been produced and no explanation
has come forth as to what happened to the draft.

(l) [1950) P.C. 90.
(2) [1950] F .C. 21.
1194 SUPREME COURT REPORTS . [1982] l s.c.R.

A (iv) No date has been mentioned when the testator sent
for his lawyer trough Banqshidhar for corrections in
the draft.

(v) The diary of P.W. 3 has not been produced.

D (vi) The senior lawyer (Sudhangshu Babu) has not been
examined. The lawyer examined, namely P.W.3, is a
partisan witness.

(vii) Banqshidbar has not been examined as a witness al- (

c
though he was attending court during the trial of the
suit.

(viii) The statement of the propounder, Manindra, that he
-
knew about the will only three or four days after its
execution cannot be accepted as true when one of the
attesting witnesses, namely P.W. 5, had been told of it
D a month earlier.

(ix) No body knows what alterations were made in the
draft.

(x) The scribe and one of the attesting witnesses are emp-
E loyees, another witness (P.W.4) is a friend and the
other attesting witness (P. W.5) is a relation.

(xi) The evidence of the propounder, Manindra, is partly
false; he disavows all knowledge of the will.

F A careful perusal of the above circumstances shows that they
are by no means suspicious circumstances and stand self-explained.
Circumstances Nos. (ii} and (iv) are really test of memory. It may
-
be remembered that the witnesses were deposing thirteen years after
the execution of the will. It will be difficult for any witness after
such a long lapse of time to give the dates when the testator went
G to the house of his lawyer or when the draft was given by the lawyer
to the testator or when the testator sent fer the lawyer through
Banqshidhar for correction of the draft. With regard to circum-
stance No. (iii) there is no evidence to show that there was any
invariable practice that the draft of a will had to be preserved. No
question was put in cross-examination to the scribe (P.W. 1) who
H
perhaps might have been able to say what he had done with it.
Similar is the position with regard to the diary of P.W. 3. P.W. ~
JNDU BALA v. MANINDRA CHANDRA (Baharul Islam, J.) 1195

who deposed that his diary would show that he had drafted the will
was not asked in cross-examination as to whether he at all preserved
in 1965 the diary of 1952 or whether he could produce it. With
regard to grievances Nos. (vi) and (vii) we do not see any necessity
of calling the testator's employee Banqshidhar, as witnesses in the
case. So far as Sudhangshu Babu was concerned, Manindra was
not asked as to why he had not been called as a witness; possibly he B
had died as P.W. 3 spoke of him as "my late senior". With regard
to circumstance No. (ix), it may be said that there was no neces-
sity of knowing what alterations had been made in the draft. With
\

-
regard to the circumstance that the scribe and the attesting witnesses
were either employees, or friend or relation of the propounders'
group, the answer is simple. No body would normally invite a stran- c
ger or a foe to be a scribe or a witness of a document executed by
or in his favour; normally a known and reliable person, a friend or
a relation is called for the purpose. The same argument applies
to P.W.3 who is said to be a partisan witness for the reason that he
was the testator's advocate. But there is nothing to show that he
was not telling the truth in his deposition. With regard to the circum-
D
stances Nos. (viii) and (x) that Narendra was not telling the whole
truth, when he said that he had come to know of the will three or
four days after its execution the complaint may be correct, although
it was not impossible that he had not been taken into confidence in
the matter of the will in his favour, although P.W. 5 had been.
E
Another possibility is that Manindra deposed so in order to avoid
cross-examination. In any case this does not appear to be a suspi-
cious circumstance surrounding the execution of the will.

With regurd to circumstance No. (i), the submission is that the
testator, according to the medical evidence, was at the time of the F
execution of the will suffering from high blood pressure, diabetes,
acidosis, kidney trouble and that he had no food for two days be-
fore 8.1 J.1952. The evidence of P.W.2 Naresh C. Das Gupta who
is a medical practitioner is that "Ranen Babu was not taking his
meals and usual food", which means, he was taking sick diet with
'hydro·protien' prescribed by him. But P.W. 2 deposes in cross-exa-
G
mination that "the patient was not in coma ...... The patient had talks
with me on the last day" which was eight days after the execution of
the will when the testator "suddenly" died of coronary thrombosis
in the lap of his employee, Banqshidhar. There is no evidence that
H
Ranendra did not have the mental capacity to execute the will. Even
D.W. 2 Sailendra Bose who visited Ranendra during his illness, anc!
1196 SUPRE.\IE COURT REPORTS [19821 I s.c.l
A
D. W. I, Dr. Amal Chakravorty who deposed by perusing the pres-
criptions, did not depose that Ranendra was in coma or had lost his
mental faculty.
•,,..
__

12. On the contrary the following circumstances lend strong
8 support to the plaintiff's case of genuineness and valid execution
of the will. (I) Gopendra, one of the brothers, who has not
been given anything under the will had filed a written statement
stating that he "has no objection to the grant of prob.1te inasmuch
as the will is executed and attested according to law." (2) The dispo-

-
sition under the will is quite fair and there are no suspicious circum- {

c stances in it at all. (3) As there were litigations between the two
groups of the brothers, the will was the natural outcome to avoid
further future litigation.

13. We do not find any suspicious circumstance surrounding
the execution of the will. The circumstances pointed out by learned
D counsel are not only not suspicious but normal as pointed out above.
The rule, as observed by the Privy Council, is that "where a will is
charged with suspicion, the rules enjoin a reasonable septicism, not
as obdurate persistence in disbelief. They do not demand from the
judge, even in circumstances of grave suspicion, a resolute and impe-
netrable incredulity. He is never required to close his mind to the
E truth." (See 500 C.W.N. 895)

14. The trial court was wrong in holding that the circum-
stances in question were suspicious and the High Court was fully
justified in setting aside the judgment of the trial court. We are in
entire agreement with the judgment of the High Court.

In the result this appeal fails and is dismissed with costs.
F
S. R. Appeal dismissed.