1963 (9) TMI 51 - SC - Indian Laws

Whether the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no. suspicious circumstances? Held that - As it has not been established by the evidence of the expert that the signature at the bottom of the will could not be made on August 29 1943 as deposed to by the attesting witnesses. In the circumstances of this case the view taken by the District Judge of the evidence of the expert namely it would be indeed dangerous to base a decision upon such inconclusive data appears to us to be correct. We hold therefore on a review of the entire evidence that due execution and attestation of the will in dispute has been proved as alleged by the propounders and so the appellants are entitled to probate with a copy of the will attached. We therefore allow the appeal set aside the order of the High Court and restore that of the District Judge.

Issues Involved:
1. Is the will genuine?
2. Has the will been properly executed and attested?
3. Had the testator testamentary capacity at the time of the signing of the alleged will?
4. Was the execution of the will obtained by undue influence, fraudulent representation, and coercion?

Detailed Analysis:

1. Is the will genuine?
The District Judge found the will to be genuine, concluding that the testator retained a sound and disposing mind almost up to his death. The testator had executed many documents even after the purported date of the will, including one as late as March 3, 1947. The High Court, however, questioned the genuineness based on the handwriting expert's testimony, which suggested that the testator's signature on the will could not have been made in 1943 due to the presence of tremors indicative of a later date. The Supreme Court, however, found that the intrinsic evidence in the will itself, such as references to the testator's wife who died in 1945, supported the conclusion that the will was indeed signed in 1943.

2. Has the will been properly executed and attested?
The District Judge held that the will had been duly executed and attested. The High Court, however, disagreed, relying heavily on the handwriting expert's testimony. The Supreme Court noted that the principles governing the proving of a will are well-settled and that the onus is on the propounder to explain any suspicious circumstances. The Court found that there were no significant suspicious circumstances surrounding the will's execution and attestation. The evidence of the attesting witnesses, despite some minor discrepancies, was found to be reliable. The Supreme Court concluded that the will was duly executed and attested.

3. Had the testator testamentary capacity at the time of the signing of the alleged will?
The District Judge found that the testator had full testamentary capacity, a finding that was not contested in the High Court. The Supreme Court reaffirmed this, noting that the testator was in a sound and disposing state of mind and had executed many documents even after the purported date of the will. The testator's testamentary capacity was thus established beyond doubt.

4. Was the execution of the will obtained by undue influence, fraudulent representation, and coercion?
This issue was abandoned by the respondents in the District Court and was not pursued in the High Court. The Supreme Court noted that there was no evidence to support these allegations, and thus this issue was resolved in favor of the appellants.

Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's order, and restored the District Judge's order granting probate with a copy of the will attached. The Court found that the will was genuine, properly executed and attested, and that the testator had full testamentary capacity. The allegations of undue influence, fraudulent representation, and coercion were abandoned and unsupported by evidence. The appellants were entitled to their costs throughout.

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