KESESWARI HAZARIKA Vs. PUSPALATA DEVI & ANOTHER

JUDGEMENT

(1.) Granting of probate is a solemn act inasmuch as it gives form and content of the last wish of a dead person. Unlike other documents, the will speaks from the death of a testator and so when it is propounded or produced before a Court, the testator who has already departed from the world cannot say whether it is his will or not, and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proceed to be the last will and testament of the departed testator. To take care of this, the courts have laid down that the onus of proving a will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law would be sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction on the Court before it accepts the will as genuine. These are well-settled principle of probate law and transpire from what was stated by the Apex Court in H. Venkatchala Vs. B.N. Thimmajama AIR 1959 SC 443, and Sashi Kumar Vs. Subodh Kumar" AIR 1964 SC 529, first of which is a rendering by a Division' Bench and the ' second by a Constitution Bench.

(2.) The propounder here is the second wife of the testator. The objector is a daughter of the deceased through his first wife. She challenged the genuineness of the will by stating that the signature on the so-called will was not that of the deceased. It was also alleged that the deceased was not of sound mind and health at the time of the alleged execution of the will. Some other pleas were also taken which led t the learned trial Court to frame the following issues:-

(3.) In support of her case the appellant examined herself and two other witnesses. The learned trial Court has answered issue No. 1 and the additional issue in favour of the plaintiff. Issue No. 4 also did not stand in the way. The appellant lost because Issues No. 2 and 3 were answered against her. The probate of the will was therefore refused. Feeling aggrieved, the propounder has preferred this appeal.