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Niranjan Umeshchandra Joshi .. ... vs Mrudula Jyoti Rao & Ors. .. Respondents on 15 December, 2006
cites
Sridevi & Ors vs Jayaraja Shetty & Ors on 28 January, 2005
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 discharged.
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 the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2
SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8 SCC 784].
Subject to above, proof of a Will does not ordinarily differ from that of
proving any other document.
H. Venkatachala Iyengar vs B. N. Thimmajamma & Others on 13 November, 1958
We may, however, hasten to add that there exists a distinction where
suspicions are well founded and the cases where there are only suspicions
alone. Existence of suspicious circumstances alone may not be sufficient.
The court may not start with a suspicion and it should not close its mind to
find the truth. A resolute and impenetrable incredulity is demanded from the
judge even there exist circumstances of grave suspicion. [See Venkatachala
Iyengar (supra)]
Even if we apply the tests laid down by this Court in large number of
decisions, including the ones referred to hereinbefore, we are of the opinion
that no case has been made out to interfere with the findings of both the
learned Single Judge as also the Division Bench of the High Court.
Management Committee T. K. Ghosh'S ... vs T. C. Palit & Ors on 9 April, 1974
[See H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors., AIR 1959 SC
443 and Management Committee T.K. Ghosh's Academy v. T.C. Palit &
Ors. AIR 1974 SC 1495]
We may not delve deep into the decisions cited at the Bar as the
question has recently been considered by this Court in B. Venkatamuni v.
C.J. Ayodhya Ram Singh & Ors. [2006 (11) SCALE 148], wherein this
Court has held that the court must satisfy its conscience as regards due
execution of the Will by the testator and the court would not refuse to probe
deeper into the matter only because the signature of the propounder on the
Will is otherwise proved.
Madhukar D. Shende vs Tarabai Aba Shedage on 9 January, 2002
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 discharged.
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 the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2
SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8 SCC 784].
Subject to above, proof of a Will does not ordinarily differ from that of
proving any other document.
The Code of Civil Procedure, 1908
Section 63 in The Indian Evidence Act, 1872 [Entire Act]
B. Venkatamuni vs C.J. Ayodhya Ram Singh & Ors on 19 October, 2006
In Venkatamuni (supra), this Court has also opined that the appellate
court while exercising its jurisdiction would ordinarily not interfere with the
finding of fact arrived at by the learned Trial Judge if the view taken by it is
reasonable. We, therefore, agree with the conclusions arrived at by the High
Court.
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