PRITHIRAJ PRASAD SAHA Vs. RAJKUMAR SAHA

JUDGEMENT

(1.) The appeal is arising out of a judgment and order dtd. 29/9/2007 in relation to grant of probate of one Radhika Debi, since deceased. The appellant Nos.1 and 2 are the sons and the appellant No.3 is a sister of the testatrix. The legal heirs of the said appellant No.3 are brought on record after the death of the original appellant No.3. The Will was contested by the two other sons of the testatrix, namely, Rajkumar Saha and Srikumar Saha. The learned Trial Judge refused to grant probate on the ground that the executors have failed to remove the suspicious circumstances surrounding the execution of the Will - suspicious circumstances are the mental and physical health of the testatrix and the involvement of one, Gopal Prasad Saha, the husband of one of the sisters of the testatrix as an attesting witness. The evidence shows that the testatrix was separated from her husband and she was suffering from Cancer for almost one and half year before the execution of the Will. She was unable to take food and, we presume that she has also difficulty in expressing her as it had an oncological problem. The Cancer had spread inside her mouth. Once such physical and mental condition have been established at the trial, it is for the propounder to prove that the testatrix at the relevant point of time was physically and mentally alert to execute the Will. The physical and mental alertness and consciousness of the testatrix could have been proved by the Doctor who was treating her and also by other witness and other evidence like prescription and medicine. These evidence would show that other brothers have not taken due care of their mother and it might justify bequeathing the property at least in his favour.

(2.) The appellants contended that it is a registered Will and, accordingly, a strong presumption should be attached to the due execution of the Will. There cannot be any dispute that a registered Will carries with it more weight of authenticity but unlike any other documents, the Will is required to be proved by the attesting witnesses in accordance with law and by the executor by removing all suspicious circumstances surrounding the execution of the Will. The registration of the Will by itself will not show that the testatrix carried with her the mind to execute this Will and bequeath the property in favour of two sons and one of her sister thereby excluding his other two sons.

(3.) The failure to prove the mental and physical condition of the appellant at the relevant point of time and that the testatrix was in a position to take an independent and impartial decision with regard to her disposition makes the execution of the Will vulnerable. Bharpur Singh & Ors., v. Shamsher Singh, reported in 2009 (3) SCC 687 at Paragraph 16 has stated the following three aspects that must be proved by a propounder: