It is a well-settled proposition of law that the mode of proving the Will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1925.
The onus to prove the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the Will alleges undue influence, fraud or coercion, the onus Will be on him to prove the same.
As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case. For this see H. Venkatachala Iyengar vs. B.N. Thimmajamma and Ors. (1959) 1 Suppl. SCR 426 and the subsequent judgments Rama-chandra Rambux vs. Champa-bai and Ors. (1964) 6 SCR 814; Surendra Pal Ors. vs. Dr. (Mrs.) Saraswati Arora and Anr. (1974) 2 SCC 600; Smt. Jaswant Kaur vs. Smt. Amrit Kaur and Ors. (1977) 1 SCC 369; and Meenakshiammal (Dead) thr. L.Rs. and Ors. vs. Chandra-sekaran and Anr. (2005) 1 SCC 280.
Categories: Judicial Dictionary