LexINDU BALA BOSE & ORS. versus MANINDRA CHANDRA BOSE & ANR.
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A uss B D E F INDU BALA BOSE & ORS. v, MANINDRA CHANDRA BOSE & ANR. 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, 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. 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 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 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 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 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 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 elev
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