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1 - 10 of 21 (0.34 seconds)The Indian Succession Act, 1925
Section 3 in The Indian Evidence Act, 1872 [Entire Act]
Section 41 in The Indian Evidence Act, 1872 [Entire Act]
Section 101 in The Indian Evidence Act, 1872 [Entire Act]
Section 63 in The Indian Succession Act, 1925 [Entire Act]
Benga Behera & Anr vs Braja Kishore Nanda & Ors on 15 May, 2007
18. The burden of proof that the Will has been validly executed and is a
genuine document is on the propounder. The propounder is also required to
prove that the testator has signed the Will and that he had put his signature
out of his own free will having a sound disposition of mind and understood
the nature and effect thereof. If sufficient evidence in this behalf is brought
on record, the onus of the propounder may be held to have been discharge.
But, the onus would be on the applicant to remove the suspicion by leading
sufficient and cogent evidence if there exists any. In the case of proof of
Will, a signature of a testator alone would not prove the execution thereof,
if his mind may appear to be very feeble and debilitated. However, if a
defence of fraud, coercion or undue influence is raised, the burden would
be on caveator. Reference is made Benga Behera and Anr. V. Braja Kisore
Nanda and Ors., VI ( 2007) SLT 252= III (2007) CLT 65 (SC)=
MANU/SC/7673/2007, Madhukar D. Shende V. Tarabai Shedage, I (2002)
SLT 137 = I (2002) CLT 81 (SC)= MANU /SC/0016/2002: and Sridevi and
Ors. v. Jayaraja Shetty and Ors., II (2005) SLT 38 = I (2005) CLT 162 (SC)
CS No. 45/14 & P. No. 01/14 page 20 of 32
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
= (2005) 8 SCC 784.
Sridevi & Ors vs Jayaraja Shetty & Ors on 28 January, 2005
18. The burden of proof that the Will has been validly executed and is a
genuine document is on the propounder. The propounder is also required to
prove that the testator has signed the Will and that he had put his signature
out of his own free will having a sound disposition of mind and understood
the nature and effect thereof. If sufficient evidence in this behalf is brought
on record, the onus of the propounder may be held to have been discharge.
But, the onus would be on the applicant to remove the suspicion by leading
sufficient and cogent evidence if there exists any. In the case of proof of
Will, a signature of a testator alone would not prove the execution thereof,
if his mind may appear to be very feeble and debilitated. However, if a
defence of fraud, coercion or undue influence is raised, the burden would
be on caveator. Reference is made Benga Behera and Anr. V. Braja Kisore
Nanda and Ors., VI ( 2007) SLT 252= III (2007) CLT 65 (SC)=
MANU/SC/7673/2007, Madhukar D. Shende V. Tarabai Shedage, I (2002)
SLT 137 = I (2002) CLT 81 (SC)= MANU /SC/0016/2002: and Sridevi and
Ors. v. Jayaraja Shetty and Ors., II (2005) SLT 38 = I (2005) CLT 162 (SC)
CS No. 45/14 & P. No. 01/14 page 20 of 32
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
= (2005) 8 SCC 784.
Subhra Mukherjee & Anr. C vs Bharat Coking Coal Ltd. & Ors on 8 March, 2000
It is noted that in this case the defendants not merely failed in
proving the execution of the Will, they also failed in proving the attestation
of the same. Moreover, there is no evidence on record to explain the
suspicious circumstances of excluding the plaintiff from bequeathed of the
suit property. The suspicious circumstances as discussed above remained
unexplained. The Will accordingly relied by the defendants cannot be held
to be proved in view of Section 68 of the Indian Evidence Act. The ratio of
the judgment reported as 211 (2014) DLT 448 is squarely applicable in the
facts and circumstances of this case. Keeping in view the aforementioned
circumstances and discussions, I am of the considered view that defendants
have failed to prove their case/defence on the basis of preponderance of
probabilities and failed to discharge the onus. The ratio of judgment
reported as 1982 (1) RCR 637 is squarely applicable in the facts of this
case. Further, as held in Subhra Mukharjee Vs. Bharat Coking Coal Ltd.,
AIR 2000 SC 1203, the party which makes the allegation must prove it.
The plaintiff failed to produce any oral or documentary evidence to prove
the contentions. Undisputedly, the burden lies on the defendants to
CS No. 45/14 & P. No. 01/14 page 26 of 32
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
establish such facts but they failed to discharge the onus and prove these
issues. The suit of the plaintiff is maintainable and defendants are not not
entitled for the relief as prayed in Probate Petition No. 01/14. The aforesaid
issues are accordingly decided against the defendants and in favour of the
plaintiff.