1

TITLE OF THE RESEARCH PAPER

PROBATE MATTERS – EVIDENCE AND PROOF

By

Name of the Student Sk. Roshan

Roll No. 2018 LLb083

Semester: 5th

Name of the Program: 5 year (B.A., LL.B. / LL.M.)

Name of the Faculty Member Dr. NANDINI C.P Ma’am

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM, VISAKHAPATNAM - 531035
ANDHRA PRADESH, INDIA

Date of Submission: 14-01-2021

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ACKNOWLEDGEMENT

I would sincerely forward my heartfelt appreciation to our respected Law of Evidence

professor, Prof. Dr. Nandini C.P Ma’am for giving me a golden opportunity to take up this
Research project regarding “PROBATE MATTERS – EVIDENCE AND PROOF”. I have
tried my best to collect information about the Research project in various possible ways to
depict clear picture about the given research project topic.

Sk.Roshan
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TABLE OF CONTENTS

1. INTRODUCTION……………………………………………………………….04
2. PROBATE MATTERS-EVIDENCE AND PROOF…………………………..05
3. PROBATE-INDIAN SUCCESSION ACT……………………………………..06
3.1 SECTION-2(f)………………………………………………………………..06
3.2 SECTION-2(h)………………………………………………………………..06
3.3 SECTION-57………………………………………………………………….06
3.4 SECTION-213…………………………………………………………………06
3.5 SECTION-223………………………………………………………………….07
3.6 SECTION-276………………………………………………………………….07
4. EVIDENTIARY PROOF OF PROBATE……………………………………….08
4.1. SECTION-
68…………………………………………………………………..08
4.2. SECTION-
69………………………………………………………………….09
4.3. SECTION-
70………………………………………………………………….11
4.4. SECTION-
71………………………………………………………………….12
4.5. SECTION-
72………………………………………………………………….13
4.6. SECTION-
73………………………………………………………………….13
5. PROBATE OF A WILL………………………………………………………………14
6. IS A PROBATE MANDATORY…………………………………………………….16
7. CHALLENGES TO WILLS AND PROBATE CLAIMS…………………………17
8. CREATING A TESTEMENTARY TRUST……………………………………….17
9. GROUNDS UNDER WHICH A WILL AFTER A PROBATE CAN BE
CONTESTED…………………………………………………………………………19
10. DOCUMENTS REQUIRED FOR PROBATE…………………………………….20
11. CONCLUSION……………………………………………………………………….21
12. BIBLIOGRAPHY……………………………………………………………………21
13. PLAGARISM REPORT…………………………………………………………….22
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INTRODUCTION

The Evidence Act plays a major role in proving the act which was committed by the accused.
The Evidence plays a major role during the Trail and the Evidence must be convincing
evidence which will pave the way in proving the guilty of accused. Evidence is the only
possible way by which the court can make inferences to render a decision. The definition of
evidence explains that evidence is the proof of any fact in issues so without evidence there
will be no possibilities to prove any fact in issues or even to establish any facts in the cases. It
is very obvious that it is not much difficult task to obtain trust through violating the basic
structure of law but in the course of protecting those rights Evidence, Law comes into the
picture. Evidence Law tells the basic principles and rules regarding collection. So the process
of evidencing any facts or proof should be governed by a well-established law in order to
achieve speedy and fair justice.

The law of evidence is not just a fundamental principle governing the process of proof rather
it also has a multidimensional purpose of governing the rules relating to the process of proof
in court proceedings. While it’s moral dimension is a special asset in criminal trials as it
endeavours in protecting the innocent and highlighting the guilty person to administer
complete and fair justice. On the other hand, the evidence rules also have the capability to
hide and prevent the truth to be disclosed in the public domain to protect the mass public
interest.

This Research paper is limited to the two Indian Statues. This Research Paper mainly deals
with the concept of Probate which is mainly explained in the Indian Succession act, 1925 and
also how the evidence plays major role in Probate as mentioned in Indian Evidence Act,
1872. Relevancy of Probate is explained with the help of Case Laws by establishing the
relationship between the Indian Succession Act and Indian Evidence Act.
 5

PROBATE MATTERS – EVIDENCE AND PROOF

The Probate is a process by which the will is proved to be valid or not. Probate means the
copy of a will which is certified under the seal of a court of competent jurisdiction with a
grant of administration of the estate of the testator. The probate can be granted in those cases
where the executor was appointed under the will. The role of Probate is important in the cases
for the immovable assets in multiple states.

A Probate Caveat is a document that is filed in the court of law to prevent the executors or
administrators of a deceased person’s estate from getting permission to administer the estate
assets.  A probate caveat is used to challenge a Will itself. For example, where someone
believes that the Will was forged or was not written and approved by the deceased person. If
someone files a Probate Caveat in the wrong circumstances, the court may order that person
to pay the costs incurred by the other party in dealing with the caveat.

A probate caveat must be filed shortly after a deceased person's death and before probate are
granted by the court. If someone has concerns about someone's Will, it is very important that
person should seek legal advice as soon as possible after the testator/ testatrix dies, so as to
make sure that person starts the proceedings within time and on the correct basis.

Necessity of a Probate in certain cases: As per the provisions of the Indian Succession Act,
1925 ("Succession Act") the provisions of testamentary succession are applicable to the Will
if:

i. Made by Hindu, Buddhist, Sikh or Jain on or after the first day of September, 1870,
within the territories which at the date were subject to the Lieutenant-Governor of
Bengal or within the local limits of the ordinary original civil jurisdiction of the High
Courts of Judicature at Madras and Bombay or
ii. Made the Will outside those territories and limits, so far as relates to immovable
property situate within those territories or limits.
 6

Further, no right as an executor or legatee can be established in any Court of Justice, unless a
Court of competent jurisdiction in India has granted Probate of the Will under which the right
is claimed. However, this provision applies only to the cases, which are referred above.
Therefore, a Probate of Will is compulsorily required, only if the Will is made in any one of
the aforesaid two cases, otherwise, it is not compulsorily to Probate the Will.

Even otherwise, it would be advisable to seek Probate of Will in case of:

i. When there are problems with an existing Will

ii. When the beneficiaries have predeceased the testator and such other cases.

PROBATE- INDIAN SUCCESSION ACT:

SECTION-2f: (definition of probate)
Probate means the copy of a will which was certified along with the seal of the Court having
a competent jurisdiction and by granting the administration to the estate of the testator.1
SECTION-2(h): (definition of Wills)
Will” means the legal declaration of the intention of a testator with respect to his property
which he desires to be carried into effect after his death.2

SECTION-57 OF INDIAN SUCCESSION ACT, 1925:

The provisions of this Part which are set out in Schedule III shall, subject to the restrictions
and modifications specified therein, apply—
a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the
first day of September, 1870, within the territories which at the said date were subject
to the Lieutenant-Governor of Bengal or within the local limits of the ordinary
original civil jurisdiction of the High Courts of Judicature at Madras and Bombay;
and
b) to all such Wills and codicils made outside those territories and limits so far as relates
to immoveable property situate within those territories or limits;
c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the
first day of January, 1927, to which those provisions are not applied by clauses (a)
and (b) Provided that marriage shall not revoke any such Will or codicil.

1
The Indian Succession Act, 1925, §2(f), No. 39, Acts of Parliament, 1925
2
The Indian Succession Act, 1925, §2(h), No. 39, Acts of Parliament, 1925
 7

SECTION-213 OF INDIAN SUCCESSION ACT:

No right as executor or legatee can be established in any Court of Justice, unless a Court of
competent jurisdiction in 1[India] has granted probate of the Will under which the right is
claimed, or has granted letters of administration with the Will or with a copy of an
authenticated copy of the Will annexed. This section shall not apply in the case of Wills made
by Muhammadans [or Indian Christians], or and shall only apply—
i. in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are
of the classes specified in clauses (a) and (b) of section 57; and
ii. in the case of Wills made by any Parsi dying, after the commencement of the Indian
Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within
the local limits of the ordinary original civil jurisdiction of the High Courts at
Calcutta, Madras and Bombay, and where such Wills are made outside those limits,
in so far as they relate to immoveable property situated within those limits.

SECTION-223 OF INDIAN SUCCESSION ACT:

According to section 223 of the Indian Succession Act, 1925, Probate cannot be granted to
any person who is a minor or is of unsound mind. Neither it can be granted to an association
of individuals unless it is a company which satisfies the conditions prescribed by rules to be
made by notification in the Official Gazette by the State Government in this behalf.
SECTION-276 OF INDIAN SUCCESSION ACT, 1925: (petition for probate)
1. Application for probate or for letters of administration, with the Will annexed, shall
be made by a petition distinctly written in English or in the language in ordinary use
in proceedings before the Court in which the application is made, with the Will or, in
the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the
contents thereof, annexed, and stating—
a. the time of the testator’s death,
b. that the writing annexed is his last Will and testament,
c. that it was duly executed,
d. the amount of assets which are likely to come to the petitioner’s hands, and
e. when the application is for probate, that the petitioner is the executor named in the
Will.
2. In addition to these particulars, the petition shall further state,—
 8

a. when the application is to the District Judge, that the deceased at the time of his
death had a fixed place of abode, or had some property, situate within the
jurisdiction of the Judge; and
b. when the application is to a District Delegate, that the deceased at the time of his
death had a fixed place of abode within the jurisdiction of such Delegate.
3. Where the application is to the District Judge and any portion of the assets likely to
come to the petitioner’s hands is situate in another State, the petition shall further state
the amount of such assets in each State and the District Judges within whose
jurisdiction such assets are situate.

EVIDENTIARY PROOF FOR PROBATE:

The validity of the proof can be proved with the help of the attestation and with the help of
attesting witness and based on its execution. The probate can be filed when there are some
ambiguities in the will and it was well explained in the sections of Evidence Act i.e., Section-
68 to Section-73.
SECTION-68 OF INDIAN EVIDENCE ACT:
If a document is required by law to be attested, it shall not be used as evidence until one
attesting witness at least have been called for the purpose of providing its execution , if there
be an attesting witnesses alive and subject to the process of the court and capable of giving
evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of
any document, not being a will, which has been registered in accordance with the provisions
of the Indian Registration Act, 1908 unless its execution by the person by whom it purports to
have been executed is specifically denied.3
One of the requirements of due execution of will is its attestation by two or more witnesses
which is mandatory. Section-68 speaks of as to how a document required by law to be
attested can be proved. It flows from the section-68 that if there be an attesting witness alive
capable of giving evidence and subject to the process of the Court has to be necessarily
examined before the document required by law to be attested can be used.4

3
The Indian Evidence Act, 1872, §63, No. 01, Acts of Parliament, 1872
4
Janaki Narayan Kadam, AIR 2003 SC 761
 9

Syed Askari Hadi Ali Augustine Imam and Ors. vs. State (Delhi Admn.) and Ors 5 Effect
of pendency of a probate proceeding vis-à-vis a criminal case involving allegations of forgery
of a Will is the question involved in the appeal. It was held that the pendency of two
proceedings whether civil or criminal, however, by itself would not attract the provisions of
Section 41 of the Evidence Act. The judgement has to be pronounced. The genuineness of the
will must be gone into. Law envisages not only genuineness of the Will but also explanation
to all the suspicious circumstances surrounding thereto besides proof thereof in terms of
Section 63(c) of the Indian Succession Act, and Section 68 of the Evidence Act.Appeal
dismissed.

In Om Prakash and Ors. vs. Mishri Lal (Dead) represented by his LR. Savitri Devi and
Ors6 however maintained that the Will, on the basis of which the Appellants claimed joint
ownership had not been proved, as required Under Section 63 of the Indian Succession Act,
1925 and Section 68 of the Indian Evidence Act, 1872. Besides, it also expressed its
reservation with regard to the authenticity and genuineness of this document. The suit was
thus dismissed by upturning the decree of the Trial Court. Apart from the fact, that no
evidence is forthcoming to attest the requirements and the construction of his own house
elsewhere as is evident from the record.

M.B Ramesh by L.Rs v. K.M. Will has to be proved in terms of Section 63(c) of Indian
Succession Act read with Section 68 of Evidence Act--No dispute that requirement of Section
68 of Evidence Act is satisfied--Fact that Will signed by testator in presence of attesting
witness (P.W. 2) on 24.10.1943 proved--P.W. 2 signed in her presence also proved--No
specific statement by P.W. 2 that he had seen other attesting witness sign Will in presence of
testator. In this case there is no dispute that the requirement of section-68 of the Evidence Act
is satisfied as there is only one attesting witness in proving the execution of the will. The will
was proved to be valid.

SECTION-69 OF INDIAN EVIDENCE ACT:

If no attesting witness can be found or if the document purports to have been executed in the
United Kingdom it must be proved that the attestation of one attesting witness at least is in

5
AIR2009SC3232
6
AIR2017SC1597
 10

his handwriting and the signature and that the signature of the person executing the document
is in the hand-writing of that person.7

V. Kalyanswamy by L.Rs and Ors v. L. Bakthavatsalam by L.Rs and Ors 8 , the probate
was filed as to find the validity of the will. Here the will which is in question is an
unprivileged will. The section-69 of the evidence act manifests the departure from the
requirement embodied in section-68 of the evidence act. The will must be executed according
to the procedure which was mentioned under section-63 of the Indian Succession Act and the
will can be proved when the attesting witness was alive. The requirement in Section 69 would
be if the signature of the person executing the document is proved to be in his handwriting,
then attestation of one attesting witness is to be proved to be in his handwriting. In other
words, in a case covered Under Section 69 of the Evidence Act, the requirement pertinent to
Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by
examining at least one attesting witness, is dispensed with.

Arvind Kumar and Ors. vs. State of U.P. and Ors 9 Sections 9 and 48--Indian Succession
Act, 1925--Section 63--Indian Evidence Act, 1872--Sections 68 and 69--Entries--In revenue
record--Expunction of name of petitioners directed by Deputy Director of Consolidation from
revenue record--Private respondents set up their claim on strength of registered will whereas
petitioner on unregistered--Execution of deed proved beyond suspicion by witness--
Petitioners had not discharged their onus by showing any suspicious circumstances in
execution of Will--Due execution thereof without undue influence or coercion
unambiguously proved--Will as found was product of free will--Testator had full knowledge
and understanding as regards contents thereof--Writ petition dismissed.
Jeevan Bahadur Samaddar vs. Govind Charan Samaddar and Ors 10 Whether Section 90
of Indian Evidence Act, 1872 was attracted to 'Will' registered and held, it was not in dispute
that except filing certified copy of 'Will' sometime, Plaintiff adduced no witness to prove
attestation or execution of 'Will' and since there was no attempt to prove 'Will' as required
under Section 63 and Section 90 of Act having no application in case in hand, it was obvious

7
The Indian Evidence Act, 1872, §69, No. 01, Acts of Parliament, 1872

8
2020(6)BLJ1
9
 2017(6)ADJ220
10
2013(7)ADJ140
 11

that 'Will' remained disproved and had rightly been held so, by Courts below - It could not be
said that Courts below have erred in rejecting 'Will', made basis by Plaintiff, for his entire
claim - Appeal dismissed.

SECTION-70 OF INDIAN EVIDENCE ACT11

The admission of a party to an attested document of its execution by himself shall be
sufficient proof of its execution as against him, though it be a document required by law to be
attested.
Jaswant Kaur vs. Amrit Kaur and Ors 12 Section 70 of Succession Act, 1925 and Section
68 of Indian Evidence Act, 1872 and the dispute is related to validity of Will. High Court
held that Will duly established and excludes plaintiff as sharer in testator's estate and appeal
was made in Supreme Court. whether evidence led by propounder of Will such as to satisfy
conscience of Court that Will duly executed by testator and explanation of defendant that he
found Will by chance while going through papers of grandfather was patently lame and
unacceptable - no evidence led as to who drafted Will and typed it - it does not show where it
was executed and contains no description whatsoever of extensive properties bequeathed to
defendant - attesting witnesses in cross-examination admitted that they knew nothing about
testator's family or family affairs - utter improbability of testator accosting strangers for
getting Will attested and fundamental contradictions in their evidence render it impossible to
hold that they attested Will at instance of testator - defendant failed to discharge onus of
explaining that document which he propounded was last Will and testament of grandfather.

Hira Devi and Ors. vs. Himi and Ors,13 In case of a document required by law to be
attested, admissible by a party to it of its execution dispenses with necessity of proving its
execution as against him; but as against persons other than party making admission,
document is not admissible in evidence until it has been proved by attesting witnesses in
manner prescribed by Section 68 - Section 70, which was an exception to general rule, must
be held to mean that an examination of an attesting witness will not be necessary for purpose
11
The Indian Evidence Act, 1872, §70, No. 01, Acts of Parliament, 1872
12
AIR1977SC74
13
 ILR1988 17 HP 352
 12

of proving execution of a document required by law to be attested if executants admits

execution, but this proof must be considered as confined in its operation only to person
making admission - In absence of evidence establishing elements relating to proof of Will, it
could not be held that Will had been duly proved in a case - It was incumbent upon Plaintiffs
to prove execution thereof in accordance with law - Courts below were in error in decreeing
suit
SECTION-71 OF INDIAN EVIDENCE ACT
If the attesting witness denies or does not recollect the execution of the document, its
execution may be proved by the other evidence.14
 Section-71 is in the nature of a safeguard to the mandatory provisions of section-68
to meet a situation where it is not possible to prove the execution of the will by
calling attesting witnesses though alive. Aid of section-71 can be taken only when the
attesting witnesses, who have been called, deny or fail to recollect the execution of
the document to be proved it by other evidence.15
 Section-71 is meant to lend assistance and came to the rescue of a party who had
done his best, but driven to a state of helplessness and impassibility cannot be left
down without any other means or proving due execution by other evidence as well.

Jagdish Chand Sharma vs. Narain Singh Saini and Ors 16Applicability of Section 71 does
not attract--Suspicious circumstances attendant on the disposition, do militatively impact
upon the inalienable imperatives of solemnity and authenticity of any bequest to be effected
by a testamentary instrument--High Court has appropriately appreciated the law and the facts
in the right perspective--Impugned decision does not call for any interference. Evidence of
the witness does not exhibit either denial of the execution of the Will or their failure to
recollect the phenomenon.
Raj Kumari and Ors v. Surinder Pal Sharma 17 Section 63 of the Indian Succession Act,
1925/Act; Sections 68 and 71 of Evidence Act, 1872(Evidence Act) - Appellants had
14
The Indian Evidence Act, 1925, §71, No.1, Acts of Parliament, 1872
15
Pentakota Satyanarayana v. Pentakota Seetharatnam, AIR 2005 SC 4362
16
 AIR2015SC2149 The will was executed by the Deceased/ testator was versed only in Urdu and the will was
drafted in English. On the same day he executed 2 more wills involve different properties. The history of the
past litigation between the testator and the appellant involving allegations of his unauthorised acts and misuse of
power and it was stated that it was unlikely that the testator out of love bequeath the property to the person other
than his children.
17
2020 (141) ALR 738
 13

preferred present appeal before with a prayer that, preliminary decree of partition passed by
trial Court should be restored and impugned judgment of High Court should be set aside -
Whether in facts of present case Will was validly executed. In light of Section-71 of the
Evidence Act the Will should be treated as proved as the same was registered and the
presumption under section-114 of the Indian Evidence Act would apply.
Babu Singh and Ors v. Ram Sahai 18Proof of due execution--One attesting witness already
dead--Other attesting witness stated to be won over by O.P. and had gone abroad--Whether
statement of counsel made in that behalf before appellate court could be taken into
consideration for purpose of Section 69?--Held, "no"--Purported statement, not as witness,
but through counsel--Cannot be said to be evidence--First appellate court committed serious
legal error--Section 69 wrongly invoked to hold Will as proved--Impugned judgments
unsustainable--And set aside. In this type of case where the attesting witnesses are not before
the Court Section-71 of the Evidence Act got no application.

SECTION-72 OF INDIAN EVIDENCE ACT:

An attested document not required by law to be attested may be proved as if it was attested.

SECTION-73 OF INDIAN EVIDENCE ACT:

In order to ascertain whether a signature, writing or seal is that of the person by whom it
purports to have been written or made, any signature writing, or seal admitted or proved to
the satisfaction of the Court to have been written or made by that person may be compared
with the one which is to be proved, although that signature, writing, or seal has not been
produced or proved for any other purpose.
The court may direct any person present in Court to write any words or figures for the
purpose of enabling the Court to compare the words or figures so written with any words or
figures alleged to have been written by such person.

Power of Court:
 The court is entitled to make comparison of disputed and admitted signature for just
conclusion as a rule of prudence expert opinion can be obtained. Reasons necessary to
reach conclusion.19

18
AIR2008SC2485
19
Ashok Kumar Uttam Chand Shah v. Patel Mohmad Asmal Chanchad, AIR 1999 Guj 108
 14

 It is within jurisdiction of court to instruct a party to submit his writing or signature,

enabling court to compare and decide a case, if te instructions are not followed court
is free to presume what is most clear to the justice.20
 It is not open for court to compete a handwriting and or signature of its won sevices of
experts are liable to be taken for his purpose.21
 Under the law the court has power to compare signatures/hand-writing strengthening
its finding based on other cogent material and evidence on record.22
State of Himachal Pradesh v. Kanwar Singh Rawat and Ors 23, The language of S. 73 does
not permit a Court to give a direction to the accused to give specimen writings for anticipated
necessity for comparison in a proceeding which may later be instituted in the Court. Further,
S. 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court.
Would it be open to a person to seek the assistance of the Civil Court for a direction to some
other person to give sample writing under S. 73 of the Evidence Act on the plea that it would
help him to decide whether to institute a Civil Suit in which the question would be whether
certain alleged writings are those of the other person or not? Obviously not. If not, why
should it make any difference if the investigating agency seeks the assistance of the Court
under S. 73 of the Evidence Act?

Sukhvinder Singh and Ors. vs. State of Punjab 24 Though, Section 73 does not specifically
say as to who could make such a comparison but reading Section 73 as a whole, it is obvious
that it is the Court which has to make the comparison and it may form the opinion itself by
comparing the disputed and the admitted writings or seek the assistance of an expert, to put
before the Court all the material, together with reasons, which induce the expert to come to a
conclusion that the disputed and the admitted writings are of one and the same author so that
the court may form its own opinion by its own assessment of the report of the expert based on
the data furnished by the expert. The function of a handwriting expert is to opine after a
scientific comparison of the disputed writing with the admitted (specimen) writing with
regard to the points of similarity and dissimilarity in the two set of writings.

20
Shyam Sundar Chowkani v. Kajal Kanti Biswas, AIR 1999 Gau 101
21
Shyam Sundar Chowkani v. Kajal Kanti Biswas, AIR 1999 Gau 101
22
Satish Jayanthilal Shah v. Pankaj Mashruwala, (1997) 2 Crimes 203 (Guj)
23
2014(II)ShimLC985
24
1994 (31) ACC 552
 15

PROBATE OF A WILL
It is pertinent to understand the process of obtaining the Probate of a Will. A Probate is
granted by the High Court with the court seal and a copy of the Will attached. For seeking a
Probate, the executor of the Will, as a Petitioner is required to file the petition (after making
payment of applicable court fees depending upon the value of the assets) before the
competent court (a pecuniary jurisdiction may require a higher court to issue a probate for
high-value immovable assets) through an advocate. Thereafter, the court usually asks the
Petitioner to establish the proof of death of the testator, as well as proof that the Will has been
validly executed by the testator, and that it is the last Will and testament of the deceased.
After receiving the petition for a Probate, the court issues a notice to the next of kin of the
deceased to file objections, if any, to the granting of the probate and it also directs the
publication of a citation on board to notify the general public. If there is no objection, on the
other hand, if the next of kin of the deceased files their respective consent to the grant of
Probate, then court grants the Probate, however, if the next of kin of the deceased files their
respective objections to the grant of Probate, then the Probate Petition becomes the
testamentary suit, to enable parties to lead evidence in the matter.

In M.V.P. Rama Rao and Ors. vs. To whomsoever it may concern 25 the attesting witness
of will stated that testator executed will in his presence and in presence of other attesting
witness and that they signed in will - As requirement of proof under Section 68 of Evidence
Act read with Section 63(3) of the Act have been complied with, there was no justification
for trial court to entertain doubt and dismiss application - In will Appellants are referred to
and would be deemed to have been appointed as executors and consequently they are entitled
to probate - Impugned orders were set aside - Appeal allowed.

In Sushila Yadav and Ors v. Yadvendra Singh Yadav and Ors 26, This fact was also
admitted by PW1 in her statement - When deceased was able to sign then why she put her
thumb impression on Ex.P/3. These circumstances too make will suspicious and incredible -
Letters "A/1 to A/6" produced by Appellants indicated that there were some differences
between them - Nevertheless on basis of said letters it could neither be inferred that will
Ex.P/3 was executed by deceased nor did they corroborate execution of will Ex.P/3 -
Applicants had utterly failed to prove execution of will Ex.P/3 by deceased in their favour -
However findings of Trial Court regarding title of disputed house were set-aside as Trial
25
1993(2)ALT187
26
AIR2014MP5
 16

Court had no jurisdiction to exercise power in deciding question of title in proceeding of

probate - Taken into account recorded evidence, no flaw had been found in findings rendered
by Trial Court regarding execution of will. Burden of Proof that will have been validly
executed and is a genuine document is on propounded.

In Lokdeep Roy v. Nihar Kumar Roy,ṣ One attesting witness stated that testator executed
alleged Will after reading contents thereof in presence of attesting witnesses - Testator was
physically fit and mentally alert at time of execution of alleged Will - Execution of alleged
Will by testator and attestation thereof by attesting witnesses in accordance with mode as
prescribed in Section 63(c) of Act was duly proved by one of attesting witnesses - Therefore,
Will was valid and order refusing to grant of probate of Will was set aside and probate of
Will was granted.

The legal position of executor is that of legal representative of testator and the properties of
testator vested upon him because of the death of a testator. Here the limitation runs against
the cause of action which survives testator and the executor cannot claim exclusion of time
which passes between death of testator and grant of probate executor can file suit without
waiting for grant of probate.27

IS A PROBATE MANDATORY?

There is gross unawareness among the public at large, about the circumstances under which a
Will is mandatory. Under the Indian Succession Act, 1925, a probate is mandatory when a
Will is made in a place which was under the rule of the Lieutenant-Governor of Bengal or
within the local limits of the ordinary original civil jurisdiction of the High Courts of
Judicature at Madras and Bombay. The provisions refer to the places as were known at the
time of enactment of the Indian Succession Act, 1925. These can be understood to mean the
state of West Bengal and municipal limits of metro cities of Chennai and Mumbai,
respectively, in present days. The above rule of mandatory probate is applicable, in case the
Will is made by a Hindu, Jain, Sikh or Buddhist. It may be interesting to note that a probate is
mandatory if the Will is within the geographical limits of these places, even if the Will does
not deal with any immovable property.
So, unless covered by any of these three cases, a probate of a Will is not mandatory. However
there is no restriction in law to get a probate of a Will, even if it is not mandatory. Obtaining

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Mohanlal Gungarmal Futnami v. Vishanji Dungarmal Futnami and Ors, AIR2001Cal122
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a probate is advisable, in cases where there is a probability of the validity of the Will being
contested in future on any ground.

Many housing societies do not insist on a probate, for the transfer of flats in the name of
persons to whom the flats have been bequeathed, as the office bearers are not aware that a
probate of a Will is mandatory in these places. However, for the properties situated in the
above three territories, the housing societies or the authorities who are entrusted with
registering the names of the owners, may insist on the production of a probate, for transfer of
properties.

CHALLENGES TO WILLS AND PROBATE CLAIMS

It can be difficult task to challenge a Will. In most of the cases, courts stick stringently to
Wills, since the testator is no longer there to defend himself. However, if you have an interest
in the Will, you can challenge it, and if you are successful in convincing the court, then the
Will can be voided in its entirety or in part. It is advisable to seek an advice from a practicing
lawyer before challenging the Will, since the law surrounding challenges to a Will is
complicated, plus, the facts of each case are unique. The Will can be challenged on any of the
following grounds:

Lack of due execution: A valid Will has to be in writing and signed by the testator in the
presence of two witnesses, who must also attest the Will. If the process is not followed to the
hilt, the Will can be challenged in the court of law. Lack of testamentary intention: Here, the
person has to prove that the testator had no intention to make a Will, however, this plea is
rarely used, as it is difficult to prove.

Lack of testamentary capacity: The law requires that people above 18 years can make a
Will. Adults are presumed to have a testamentary capacity, and therefore, the Will can be
challenged on the basis of senility, dementia, insanity, or that the testator was under the
influence of a substance, or in some other way lacked the mental capacity to make a Will.
Basically, to challenge a Will based on mental capacity, the challenger of Will must show
that the testator (the person who created the will) did not understand the consequences of
making the will at the time of its creation.

Adults are presumed to have testamentary capacity. When litigation arises that challenges an
adult's testamentary capacity, it is usually on the basis that the adult has senility, dementia,
insanity, was under the influence of a substance, or in some other way lacked the mental
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capacity to form a will. Basically, to challenge a will based on mental capacity, you must
show that the testator (the person who created the will) did not understand the consequences
of making the will at the time of the will's creation. More specifically, the person must
understand:

 The extent and value of the property;

 Who he or she is expected to provide for and who the beneficiaries of the will are;
 The disposition he or she is making and what a will means; and
 How these elements relate in order to form a distribution of property.

Lack of knowledge or approval, Undue influence, Fraud or forgery : Challenger of Will

can take the ground that the testator did not, in fact, know what was in the Will when he
signed it. You can challenge a will by showing that the will was procured by fraud, forgery,
or undue influence. This usually involves someone manipulating a vulnerable person into
leaving all or much of the property to the manipulator. The term "undue influence" merely
means that the person lacked the free will to bargain because of the manipulator. Challenger
of Will can challenge a Will by showing that the Will was procured by fraud, forgery, or
undue influence, i.e. lack of own free will or without adequate attention as to the
consequences of bequests so made under the Will. The burden of proof would be on the
challenger of the Will to establish that the Will was forged (not signed by the testator) or was
made as a result of fraudulent act.

Sufficient and Appropriate witnesses:

A typed hard copy of the will must be dated and signed by the testator in the presence of at
least two adult witnesses. Vermont requires three witnesses. Most states require that the
witnesses not be people who are named as heirs in the will. If in one of these states, a witness
is named in the will; his or her gift may be voided, but not the rest of the will.

About half of the states do allow handwritten, witnessed wills. These are called "holographic"
wills and they must be written and signed entirely in the testator's handwriting and in some
states, they must be dated. Holographic wills are the easiest wills to challenge, because there
are no witnesses. In the case of a holographic will, the court must be convinced that the entire
thing is in the testator's handwriting and that it was created to serve as a will of the testator.
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Claims by family: A family member can challenge a Will on the grounds that they were not
provided for adequately in the Will.

Revocation of earlier Will: A Will, although registered can be challenged in the court of
law. The mere fact that a Will has been registered (not mandatory under the law to register
the Will) will not, by itself, be sufficient to dispel all suspicions regarding it. A registered
Will may not be the last testament. A new Will made, even if unregistered, if valid, will
trump the registered Will. If there are any suspicious facts, the court will scrutinize the Will
even if it is registered.

CREATING A TESTEMENTARY TRUST

To create a testamentary trust in a Will, the testator must designate a trustee and specify the
beneficiaries. As mentioned above, a testamentary trust comes into effect not until the testator
dies. Thus, the testamentary trust must be contained in the testator last (final) Will, so the
trust can be created upon the testator death. A testamentary trust is not automatically created
upon the demise of the testator. While other types of trusts may avoid probate, a testamentary
trust must go through the probate process. The testamentary trust will come into effect upon
the completion of this process. A trustee, chosen by the testator, will manage the trust
property or funds in the trust until the trust is dissolved and the same is distributed to the
beneficiaries.

GROUNDS UNDER WHICH A WILL AFTER A PROBATE CAN BE

CONTESTED
The Succession Act provides for certain grounds on which a Probate of a Will may be
revoked, however such revocation can only be effected if the person challenging the Probate
is able to convince the competent court that it is necessary to revoke the Probate 'for just
cause'. Further for challenge of a probate, the law of limitation must also be abided by, as
probate operates as a 'right in rem' granted by the competent court, operates from the date of
grant of the probate, therefore a challenge which is hopelessly barred by limitation cannot be
entertained by any court of law. Further, an order of revocation of the Probate would operate
prospectively and such revocation does not obliterate bona fide transactions entered into by
the executor during the pendency of the Probate. The challenger can challenge the Probate of
Will on the following grounds:
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1. The proceedings to obtain the grant of Probate were defective in substance; or

2. The grant of Probate was obtained fraudulently by making a false suggestion, or
suggestion, or by concealing from the court something material to the case; or
3. The grant of Probate was obtained by means of an untrue allegation of a fact essential
in point of law to justify the grant, though such allegation was made in ignorance or
inadvertently;
4. The grant of Probate has become useless and inoperative through circumstances; or
5. The person to whom the grant of Probate was made has willfully and without
reasonable cause omitted to exhibit an inventory or account in accordance with the
provisions of Chapter VII of this Part, or has exhibited under that Chapter an
inventory or account which is untrue in a material respect.

DOCUMENTS REQUIRED FOR PROBATE

Whenever the probate application was filed before the court of law there are certain
documents which must be submitted to the Court. They are:
1. The Genuine Will and also it must be made by the testator lastly
2. The proof of death of the testator
3. That the will validly executed in clear conscience of the testator.
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CONCLUSION:
However, it is not possible to change the witnesses of a Will after the registration process,
since the witness is one who has witnessed the signature of the testator on the Will and has
affixed his/her signature as a witness to the Will (as a witness to the signature of the testator).
Under section 63 of the Indian Succession Act, 1925, a Will is required to be attested by two
or more witnesses in the presence of the testator, each of whom have seen the testator sign or
affix his mark to the Will or have received personal acknowledgement from the testator that
he himself has signed the Will.
Subsequently, at the time of obtaining probate, the attesting witnesses, or one of them is
required to depose to this fact. This is because as per section 68 of the Indian Evidence Act,
1872, if a document is required by law to be attested, it shall not be used as evidence until
one attesting witness at least has been called for the purpose of proving its execution, if there
be an attesting witness alive, and subject to the process of the court and capable of giving
evidence.
But people can go for the probate even though there are no ambiguities in the will. Basically the
concept of probate comes in the cases of testamentary succession where the will plays a major role in
the dispute. The Evidence Act plays a major role in proving the validity of the will. Without the
concept of Evidence it becomes very difficult for proving the validity of the will and also it will be
difficult for examining the attesting witnesses.

BIBLIOGRAPHY:

BOOKS:
1. PROF. G.C.V. SUBBA RAO, FAMILY LAW IN INDIA (10th ed)
2. SARKAR, LAW OF EVIDENCE( 17th ed., 2010)
3. RATANLAL AND DHIRAJLAL, LAW OF EVIDENCE (20th ed)
STATUTES:
1. INDIAN EVIDENCE ACT, 1872
2. INDIAN SUCCESSION ACT, 1925
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