SUDHIR KUMAR SEN Vs. BIJOY KUMAR SEN

JUDGEMENT

(1.) I have read the well-versed judgement of my esteemed brother. With great humility, may I say, despite my best efforts I could not persuade myself to record my agreement with the finding of His Lordship.

(2.) IT is the golden rule that Court of law must honour the last wish of the testator. Hence, in a probate proceeding the propounder is always one up in the game as whenever a Will is produced in Court of law Court proceeds on prima facie presumption that it is the last Will and testament of the deceased and issues notice to all the natural heirs on intestacy inviting their objection, if any. The propounder is only to discharge his onus by proving the execution of the Will. Under the Evidence Act a document can well be proved by bringing the author of the document to the witness box. Unfortunately in a probate case it is not possible to produce the author. Hence the execution must be proved by the propounder. Once the execution is proved probate is the resultant consequence unless the caviator or caviatrix rebuts such presumption by clouding the circumstance under which the Will was sought to have been executed. Such cloud is called as "suspicious circumstance" in probate jurisprudence. Once the caviator or caviatrix is successful to cloud the onus shifts on the propounder to remove such cloud from the mind of the Court so that the Court can safely infer that the subject instrument was the last Will of the testator and it must be honoured.

(3.) THE procedure for execution of a Will is prescribed under Section 63 of the Indian Succession Act, 1925. Under the said provision any person can execute his Will by affixing his mark or signature to the Will or by getting it signed by some other person in his presence and by his direction and such signature and/or mark must appear to be intended to give effect to the writing as a Will. It is also provided that such Will shall be attested by two or more witnesses each of whom must be present at the time of execution of the Will by the author meaning thereby all three must be present at the time of signing the said document by each other. Under the Indian Evidence Act, 1872 execution of a document is required to be proved through the procedure laid down in Section 67, 68 and 69 of the said Act of 1872. Section 67 inter alia provides that if a document is alleged to be signed by a person, the signature must be proved to be of the same person, in case it is handwritten the said document can also be proved by proving the handwriting of the author. The attestation of a document is also to be proved by producing any attesting witness alive at that time and such production is a must in case of a Will. Under Section 69 if the attesting witness could not be found the signature of the attesting witness must be proved through other means.