In the leading case H. Venkatachala Iyengar v B.N. Tkimma-jamma, the Supreme Court has stated the manner and nature of proof required to prove a Will and the solemnity attached to the same which is as follows:
"What is the true legal position in the matter of proof of Wills? It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of Law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by Will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the Wilt or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained"? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
However, there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed 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 proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free Will. Ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated".
10. Thus the principle that is evolved by the Supreme Court in short is that "where circumstances exist which excite suspicion of the Court, the propounder has to remove such suspicion and prove affirmatively that the testator knew and approved the contents of the documents". But what are suspicious circumstances is difficult to illustrate exhaustively. It depends upon facts of each case. Broadly stated some of the prominent ones indicated by the Court in the said decision being "signature is doubtful, condition of the mind is very feeble and debilitated, the disposition made in the Will is very unnatural, unfair, improbable in the light of relevant circumstances". In a later decision in Smt. Indu Bala and Others v Manindra Chandra Bose and Another, the principles of Venkataehala's case, supra, has been reiterated and some of suspicious circumstances has been illustrated in a little more detail viz., "The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the disposition made in the Will being unnatural, improbable or unfair, in the light of relevant circumstances". The Court has however sounded a word of caution by stating "Needless to say that any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal as is not normally expected in a normal situation or is not expected of a normal person". Again in PPK Gopalan Nambiar v PPK Balakrishnan Nambiar and Others, it has been stated in order that the circumstances can be stated to be suspicious which should be removed by the propounder of the Will, it has stated "It is trite, that it is the duty of the propounder of the Will to prove the Will add remove all suspected features. But there must be real, germane and valid suspicious features and not fantasy of the doubting mind".
Thus what emerges from a reading of Section 59 of Indian Succession Act. Sections 67 and 68 of the Evidence Act; and the decisions referred to above is: That when a Will is sought to be probated by the propounder, and is charged or attacked by the caveator, the initial burden is on the propounder of the Will first to prove the Will by establishing that the executor or executrix as the case may be was not a minor, was of sound mind knew the contents and signed the Will in the presence and at least by two witnesses, and at least one of the attesting witness has to be examined as provided under Section 68 of the Evidence Act, and then remove from the mind of Court every circumstance of legitimate suspicion which is found to exist; but the suspicious circumstances must be real, germane to the case, but the approach to the question cannot be in the often quoted passage by the Supreme Court of Lord-da-pareq in Harmes v Hinksan:
"Where a Will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion a resolute and impenetrable incredulity. He is never required to close his mind to truth".
One other important factor that has also to be kept in mind is that Courts should also guard in not over emphasizing circumstances which may look suspicious (though on a closer look it may not be red) which may result in frustrating the 'intention of the testator'.
After the propounder removes the legitimate suspicion circumstances if any then the burden shifts on the person attacking the Will on any grounds viz., fraud, undue influence, coercion, mistake etc., which burden he has to discharge by proper plea and proof.
Equivalent citations: ILR 1999 KAR 1038, 1999 (6) KarLJ 357Bench: Justice H Rangavittalachar
