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1 - 4 of 4 (0.33 seconds)Rabindra Nath Mukherjee& Anr vs Panchanan Banerjee (Dead)By Lrs. & Ors on 9 May, 1995
10. The law is well settled that the burden of
establishing that at the time of the execution of the
Will the deceased was in a sound disposing mind is on
the petitioner who propounds the Will but this burden is
very light for the reason that there is a presumption of
soundness of mind in favor of every testator. Unless
there is some cogent material on record to doubt his
capacity to dispose, the Court must go by this
presumption. The propounder of the Will stands
discharged of the onus of establishing sound disposing
state of mind if he asserts that the testator was in
sound disposing mind and there is nothing on record to
show that the testator was not in a sound disposing
mind. It is also equally settled that mere depreviation
of the natural heirs in a Will by a testator should not
be taken as a suspicious circumstance because the whole
idea behind execution of the Will is to interfere with
the normal course of succession. Ordinarily in every
Will natural heirs are either debarred or their shares
are interfered with by a testator and, therefore, this
in itself cannot be taken as a suspicious circumstance.
A Will contains the last desire of a testator and as
such, the Courts should normally act in accordance with
the wishes of a testator. However, if a Will is clouded
by some suspicious circumstance and the propounder fails
to remove the suspicion, the Will should not be
propounded. The judgment of the Apex Court in Rabindra
Nath Mukherjee and Anr. v. Panchanan Banerjee and
Ors. , lays down
guidelines for the approach to be adopted by the Courts
in Probate petitions.
Surendra Pal & Ors vs Saraswati Arora & Anr on 9 August, 1974
In Pushpawati and Ors. v.
Chandraja Kanamba and Ors. , and Surendra Pal and Ors. v. Dr. (Mrs.)
Saraswati Arora and Anr. , , the Supreme Court of India held that the burden of
proving a Will is on the propounder and where there are
suspicious circumstances, the propounder of the Will has
to explain them away to the satisfaction of the Court.
It is, therefore, clear that only those suspicious
circumstances have to be explained which are brought to
the notice of Court. A Propounder is not expected to
presume them and then explain each and every imaginary
suspicious circumstance. A suspicious circumstance may
be as to the genuineness of the signatures of the
testator, condition of the testator's mind, the
unnaturalness of the disposition made in the Will or any
other indication to show that the testator's mind was
not free. Once the propounder is in a position to show
that at the relevant time the testator was in a sound
disposing state of mind and understood the nature and
effect of the disposition and signed the Will of his own
free volition in the presence of the two witnesses in
terms of Section 63 of the Indian Succession Act, the
onus on the propounder stands discharged and the burden
gets shifted to the objector who alleges something to
the contrary. It has to be reiterated that the mere
fact that the testator has chosen to divest a legal heir
in itself is not a suspicious circumstance. Keeping in
view the aforesaid guiding principles, this Court has to
find out as to whether at the time of execution of the
Will, Exhibit PW 1/2, the deceased testator was in a
sound disposing state of mind or not.
Section 276 in The Indian Succession Act, 1925 [Entire Act]
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