The Patna High Court has set aside a trial court judgment granting probate of a will dated 17 December 1994, holding that the propounders failed to discharge their burden of proving due execution and testamentary capacity. The testatrix, Sabujwati Kunwari, had signed a first information report nine days before the will but affixed only a left thumb impression on each page of the will. The court found the explanation for this departure unconvincing, noted the absence of independent attesting witnesses, and held that suspicious circumstances inherent in the document and the propounders' own case remained unremoved.
Background & Facts
The Dispute
The dispute concerns the last will and testament of Sabujwati Kunwari, wife of late Haribansh Narayan Singh, resident of village Ratanpurawali alias Sakhmohan, District Samastipur. The testatrix died on 20 January 1995. Her nieces, Ruma Devi and Prabha Devi (daughters of her brother Bijali Prasad Singh), filed Probate Case No. 01 of 1995 on 14 March 1995 seeking probate of a will dated 17 December 1994 (Exhibit 3) bequeathing properties in Schedules I, II and III to them. The properties were allegedly acquired by the testatrix from her husband, who died in 1920, with her rights becoming absolute after the Hindu Succession Act, 1956.
Key Facts
- The testatrix was literate and habitually signed documents.
- On 5 December 1994, she was taken to the Teghra Registry Office on the pretext of medical treatment and allegedly forced to sign blank papers.
- She lodged FIR (Exhibit A) on 8 December 1994 at Teghra Police Station (Case No. 198 of 1994), signing it herself, stating her signature and mark had been taken on papers whose contents she did not know and fearing misuse.
- The will (Exhibit 3) is dated 17 December 1994, nine days after the FIR, and bears the testatrix's left thumb impression (L.T.I.) at the top right of each of its eight pages, but no signature.
- The will was attested by Uday Shankar Kumar (PW-2), Krishnadeo Prasad Singh (deceased before deposition), and Dr Binoy Kumar (PW-5); the scribe was Radhey Shyam Prasad (PW-3).
- Bijali Prasad Singh (PW-4), father of the beneficiaries and brother of the testatrix, identified the L.T.I. and verified the probate application.
- The objector, Baban Devi @ Rukmini Devi (sister of the testatrix's husband), later substituted by her daughter Shanta Sinha, opposed probate alleging forgery, fabrication, and that the L.T.I. was obtained on blank papers at the registry office.
- Land Ceiling Case No. 10 of 1994-95 was pending before the Collector, Samastipur, regarding the same properties; the plaintiffs' impleadment was rejected.
- The probate proceeding was converted to Title Suit No. 02 of 2007.
Procedural History
- 14.03.1995: Probate application filed by Ruma Devi and Prabha Devi (Probate Case No. 01 of 1995).
- 25.07.1995: Baban Devi filed petition to implead and oppose probate.
- 05.07.2017: Trial Court (VIIIth Additional District Judge, Begusarai) granted probate, deciding Issues I, III, IV, and V in favour of plaintiffs.
- 2017: First Appeal No. 128 of 2017 filed by defendant/objector before Patna High Court.
- 29.10.2026: High Court judgment delivered by Justice Ramesh Chand Malviya.
Relief Sought
The appellant sought setting aside of the judgment dated 05.07.2017, refusal of probate of the will dated 17.12.1994, and dismissal of the probate case.
The Legal Issue
The central questions were: (1) Whether objections regarding non-compliance with Sections 280 and 281 of the Indian Succession Act, 1925, contravention of Section 16(2)(iii) of the Bihar Land (Ceiling) Act, and the appellants' objection to the will on grounds not pleaded before the trial court are tenable; (2) Whether the will dated 17.12.1994 was duly executed and attested by the testatrix in accordance with Section 63 of the Act, and is genuine, or whether it was created in suspicious circumstances.
Arguments Presented
For the Appellant
Learned counsel submitted that the testatrix, aged about 90, was taken to the Teghra Registry Office on 5 December 1994 on a false pretext and forced at gunpoint to sign blank papers. She lodged an FIR on 8 December 1994 signing it herself. It is improbable that she would voluntarily bequeath her entire estate to her brother's daughters nine days later. The will bears L.T.I. on every page despite her literacy and recent signature on the FIR. The attesting witnesses are not independent: PW-2 is business partner of plaintiff 1's husband; PW-5 is brother-in-law of plaintiff 1's husband; the scribe was unlicensed; the third attesting witness died. The L.T.I. was identified by the father of the beneficiaries. Reliance was placed on Pazhanathal v. Alamathal (2026 INSC 860) on the three distinct acts for proving a will, and Smt. Bimla Devi v. Uma Devi (M.A. No. 145 of 2013) on thumb impressions at the top of pages raising suspicion.
For the Respondent
Learned counsel submitted that the appeal is devoid of merit. The objections regarding L.T.I. placement and non-registration were never pleaded before the trial court and cannot be raised for the first time in appeal, relying on Ram Swarup Gupta v. Bisun Narayan Inter College (AIR 1987 SC 1242). The L.T.I. placement at the top right margin is normal practice. The trial court correctly found Sections 280 and 281 complied with. The defendant and her witnesses (DW-1 to DW-4, DW-6) admitted the L.T.I. might have been obtained by Bijali Prasad Singh, which lightens the propounders' burden. The attesting witnesses and scribe proved execution. The testatrix's hands trembled due to age and trauma from kidnapping. Bijali Prasad Singh had no motive to benefit his married daughters over his own sons. The earlier will of the grandmother (Exhibits C and D) was irrelevant.
The Court's Analysis
The court restated the governing principles from H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443): a will must be proved per Section 63 of the Indian Succession Act and Section 68 of the Evidence Act; the propounder must show the testator signed or affixed mark voluntarily, with sound mind and understanding; where suspicious circumstances exist, the onus becomes heavier and the propounder must remove all legitimate suspicions. These principles were reaffirmed in S.R. Srinivasa v. S. Padmavathamma ((2010) 5 SCC 274), which holds that registration does not by itself remove suspicion and a cogent explanation is required for each suspicious circumstance.
On the plea of unpleaded grounds, the court held that the defendant had pleaded forgery and that the L.T.I. might have been obtained on blank papers. How the testatrix's mark came on the paper was in issue from the outset. Section 63(a) and (b) require the testatrix to sign or affix her mark with intention to give effect to the writing as a will - these are ingredients of due execution the propounder must prove, not defences the contestant must plead. Citing Derek A.C. Lobo v. Ulric M.A. Lobo (2023 SCC OnLine SC 1893), the court held that where suspicious circumstances are inherent in the document, the propounder must dispel them regardless of pleadings.
The court found the respondents' explanation self-defeating. They contended the testatrix became "mentally and physically weak and disturbed" after the kidnapping, hence the thumb impression. But she signed the FIR nine days earlier, giving a detailed coherent account. If fit to sign the FIR, no reason exists for the mark on the will. If disturbed, capacity and understanding remain unproved. The propounders failed to adduce satisfactory evidence that she understood the nature and effect of the dispositions, knew the property and beneficiaries, and that the contents were read over and explained to her.
The court distinguished Lachhmi Narain Singh v. Sarjug Singh (AIR 2021 SC 3873), where the thumb impression was the executant's habitual mode and the deed was registered with expert evidence. Here, the testatrix habitually signed, the will was unregistered, and no expert evidence was adduced.
The placement of the L.T.I. at the top right margin of each page, while not illegal, does not serve the purpose of closing and authenticating the testamentary text per Section 63(b). It is consistent with the defendant's case that marks were taken in advance on blank papers. No witness explained why marks were taken in this manner.
The court rejected the trial court's finding that the defendant's witnesses admitted the L.T.I. The defendant's case was that the mark was taken on papers at the registry office and later converted into the will - a denial of the will, not an admission. DW-6's statement was a surmise; DW-1 to DW-4 repeated hearsay. Even if the mark is genuine, execution under Section 63 requires proof that she affixed it on this will with knowledge of contents and proper attestation.
Bijali Prasad Singh, father of both beneficiaries and brother of the testatrix, took a prominent part in execution (identified L.T.I., signed execution portion, witnessed, verified probate application, swore affidavit). This is a recognised suspicious circumstance per Smt. Guro v. Atma Singh ((1992) 2 SCC 507). The attesting witnesses were interested: PW-2 business partner of plaintiff 1's husband; PW-5 brother-in-law of plaintiff 1's husband; scribe unlicensed; third witness deceased. No person from the testatrix's village was examined. The entire execution evidence came from the beneficiaries' circle.
The court held that the trial court reversed the burden by asking whether the mark was the testatrix's and answering from the weakness of the defence, rather than whether the propounders proved she executed the document as her will with full knowledge and free will. The findings on Issues III and IV were set aside.
The Verdict
The appeal is allowed. The judgment dated 05.07.2017 passed by the VIIIth Additional District Judge, Begusarai in Title Suit No. 02 of 2007 (arising out of Probate Case No. 01 of 1995) is set aside. Probate of the will dated 17.12.1994 (Exhibit 3) is refused, and the probate case is dismissed. The finding on Issue I (maintainability) is upheld only to the extent that the probate case was not liable to be dismissed in limine on technical objections. Issue II (cause of action) is undisturbed. Issue V (entitlement to probate) is answered against the plaintiffs. The observations concern only proof of the will and do not decide title to the properties.
What This Means For Similar Cases
Propounder's Burden Is Non-Delegable
The judgment reinforces that the burden of proving due execution, testamentary capacity, and understanding rests squarely on the propounder and cannot be shifted to the caveator. Even where the contestant's case is weak or unproven, the propounder must independently satisfy the court's conscience. Practitioners must ensure their clients adduce affirmative evidence of the testator's state of mind, knowledge of contents, and voluntary execution - not merely rely on the opponent's failure to prove forgery.
Suspicious Circumstances Inherent in the Document Require Explanation
Where a literate testator who recently signed a document uses a thumb impression on the will, the propounder must provide a cogent, evidence-backed explanation. A bare pleading or counsel's submission is insufficient. The court will not presume capacity where the propounder's own case describes the testator as "weak and disturbed." Lawyers should obtain contemporaneous medical evidence, evidence of reading over and explanation, and independent witness testimony when such circumstances exist.
Independence of Attesting Witnesses Is Critical
The court scrutinised the relationships of attesting witnesses to beneficiaries. While relationship does not disqualify a witness, their evidence must be examined with care, and independent corroboration becomes essential. Practitioners should, where possible, secure at least one attesting witness with no connection to the beneficiaries, and ensure the scribe is licensed or at least independent. The absence of any witness from the testator's own community or family (other than beneficiaries) was noted as a significant gap.
FIR as Contemporaneous Evidence of State of Mind
The testatrix's own FIR, lodged nine days before the will, became powerful evidence of her state of mind and the circumstances surrounding her mark/signature. In will disputes, contemporaneous documents created by the testator for unrelated purposes can critically undermine or support testamentary capacity. Lawyers should search for and produce all such documents - complaints, letters, bank documents, medical records - from the relevant period.
