H. Venkatachala Iyengar vs B. N. Thimmajamma & Others on 13 November, 1958
9. I will first address myself to the issue as to whether the will dated 28-2-1985
is true and valid. It is a well settled proposition that in a case where the propounder of the will is the beneficiary and he takes the active part the burden is upon him to remove the suspicious circumstances surrounding the will. It is also well established that the burden of proof of the will is on the propounder and that apart from the suspicious circumstances the propounder takes prominent role in execution of the wills which confers upon him substantial benefit, the burden is heavily upon him to remove those suspicions circumstances regarding the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It has been held by the Courts that the propounder has to satisfy the judicial conscience. The test emphasises that in determining the question as to whether an instrument produced before the Court is the last will of the testator the propounder of the will is under a greater obligation to prove by clear evidence that the will was executed by the testator and at the time of executing the will he was free and possessed of sound and disposing state of mind. The law is well settled that the 'onus probandi lies on the person who propounds the will and this onus is in general discharged by proof of capacity and the fact of execution from which the knowledge and assent to its contents by the testator will be assumed. Their Lordships of the Supreme Court have also considered the question of burden of proof of will in H. Venkatachala v. B.N. Thimmajamma, A!R 1959 SC 443. Their Lordships have observed thus: