Will — Suspicious circumstances — Attestation of Will Succession Act, S. 63.

[Smt. Subasini
Choudhary v. Smt. Bisakha Kar & Ors., AIR 2010 Orissa 174.]

The petitioner had filed
the said case for probate of a Will u/s.276 of the Indian Succession Act. The
case of the petitioner was that the residential house site over plot No. 3 in
Unit-III, Bhubaneswar City belongs to late Rama Chandra Kar, S/o. Late
Banchhanidhi Kar of Dargha Bazar, Cuttack. The said Rama Chandra Kar died on
5-3-1996. Before his death, he executed his last Will and testament in favour
of the petitioner on 14-11-1995 in presence of witnesses. When the matter was
pending before the Court below, a finding has been recorded in the impugned
order that in spite of sufficiency of service of notice, the opp. parties, who
were arrayed as parties, did net appear in the said case, except the State of
Orissa. The lower Court below, ultimately dismissed the Probate Misc. Case.
The Court observed that there is nothing in law which requires the
registration of a Will and Wills are in a majority of cases not registered at
all. The Supreme Court in the case of Ishwardeo Narain Singh, AIR 1954 SC 280
held that to draw any inference against the genuineness of the Will on the
ground of its non-registration was wholly unwarranted.

In the instant case, there
are materials appearing on the face of the Will that the testator was
neglected by all his kith & kin which by implication includes his daughter
also. It was therefore, more fortified that no suspicious circumstances can be
presumed as because, the testator had only one daughter who was debarred by
execution of the Will. It is well settled in law that the mode of proving the
Will does not ordinarily differ from that of proving any other document except
as to the special requirement of attestation prescribed in the case of a Will
in S. 63 of the Indian Succession Act. The onus of proving the 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 is sufficient to discharge the onus. Slight
discrepancy in their evidence is plausible when they are giving evidence after
a gap of eight or nine years.