Patna High Court
Saurabh Kumar vs Gayatri Devi on 18 August, 2025
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.1225 of 2016
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1. Saurabh Kumar Son of Upendra Kumar Shahi, Resident of Village
Kodihara, Police Station Khijar Sarai and District Gaya Presently residing at
Mohalla Katari Hill Road, Bhagirath Bhawan, Saketpuri, Gaya.
2. Ankit Kumar Son of Upendra Kumar Shahi, Resident of Village Kodihara,
Police Station Khijar Sarai and District Gaya Presently residing at Mohalla
Katari Hill Road, Bhagirath Bhawan, Saketpuri, Gaya.
... ... Appellant/s
Versus
Gayatri Devi, Wife of Sri Niranjan Singh, D/o of late Dr. Ramchandra Prasad
Singh, Resident of Village Mahmadpur, P.O. Vansh Gopal, Amba, P.S.
Sirdala, District- Nawada.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Pushkar Narain Shahi, Sr. Advocate.
Mr. Mrigendra Kumar, Advocate.
For the Respondent/s : Mr. Mayank Bilochan, Advocate.
======================================================
CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
C.A.V. JUDGMENT
Date : 21-08-2025
Heard both the parties.
2. This Miscellaneous appeal has been filed under
Section 299 of The Indian Succession Act, 1925 for setting aside
the judgment/order dated 20.08.2016 passed by learned District
Judge, Gaya in Probate Case No. 56 of 2015 wherein he has
dismissed the application of the appellants/applicants for grant of
probate.
3. The case of appellants/applicants' in brief is that
Dr. Ramchandra Prasad Singh (the testator), son of late Bhagirath
Prasad Singh, was an eminent doctor who settled in London,
U.K., in 1965 and resided there till his death on 24.11.2014. His
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wife predeceased him, and he left behind only one married
daughter namely Gayatri Devi (respondent/opposite party),
settled at her matrimonial home in Village Mahmatpur, District
Nawada. Out of his personal income, the testator purchased the
Schedule-1 property by a registered sale deed dated 29.03.1972
from Bibi Rabiya Khatoon and constructed a house thereon. He
was the full brother of late Babu Ramanuj Singh, grandfather of
the appellants/applicants. The appellants/applicants, during their
minority, were brought up and educated in the said house, which
was provided for the residence of their father. In October 1992,
during a visit to Gaya, the testator, being of sound mind and free
from coercion, executed a unregistered Will on 22.10.1992
bequeathing the Schedule-1 property to the appellants/applicants,
in the presence of attesting witnesses namely Ramanuj Singh and
Rakesh Kumar (AW-2). The original Will is in the custody of the
appellants/applicants, who are also named as joint executors. The
testator died at his residence in the U.K., where he was cremated,
with subsequent religious rites performed at Gaya. Proof of death
has been filed. The appellants/applicants claim possession of the
property after his death and seek probate of the Will dated
22.10.1992
in favour of appellants jointly with respect to
Schedule-I of the petition thereafter filed Probate Case No. 56 of
2015 under Section 276 of the Indian Succession Act, 1925 for
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grant of probate. The citation was issued and served on the
deceased and general public.
4. Respondent Gayatri Devi who is sole daughter/
legal heir of the testator filed her written statement and supported
the case of the appellants and further stated that O.P. has no
objection in grant of probate to the appellants/applicants.
5. In support of the probate case, the
appellants/applicants have examined altogether four witnesses
and the respondent has examined two witnesses. In toto six
witnesses were examined who supported the probate case filed
by the appellants/applicants.
Applicant Witness Names
AW-1 Upendra Kumar Shahi
AW-2 Rakesh Kumar
AW-3 Ankit Kumar
AW-4 Saurabh Kumar
Opposite Party Witness Names
OPW-1 Gayatri Devi
OPW-2 Manish Kumar
6. Following documentary evidence were produced
and exhibited.
Exhibits Documents
Ext-1 Original Will
Ext-1/A Signature of Rakesh Kumar on Will
Ext-1/B Signature of Ram Anuj Singh on Will
Ext-2 Registered sale deed dated 29.03.1992 in
favour of Ram Chandra Prasad Singh by
Bibi Rabiya Khatoon
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Mark ‘X’ Death certificate showing death of Dr. Ram
Chandra Prasad Singh on 24.11.2014
Ext-A Certificate of Gayatri Devi (Respondent/
daughter of Ram Chandra Prasad Singh)
issued by Anugrah Narayan Middle School,
Gaya.
7. The learned Trial Court on the basis of the
aforesaid oral and documentary evidence on record came to
conclusion that the applicants/appellants have failed to prove the
death of the deceased Dr. Ramchandra Prasad Singh.
Furthermore, it was concluded that, Gayatri Devi (O.P.) although
supported and corroborated the case of the applicants/appellant
but she has not filed certificate of matriculation or intermediate
to show that she is daughter of the deceased Dr. Ramchandra Pd.
Singh on these grounds the learned Trial Court rejected the
probate case.
8. Learned Counsel appearing on behalf of the
appellant has submitted that the learned Trial Court committed an
error to conclude that the applicants/appellants have not proved
the death of Dr. Ramchandra Prasad Singh. It is submitted that
despite the fact that OPW No.1, Gayatri Devi, and OPW No.2,
Manish Kumar, supported the case of the appellants/applicants,
the learned Trial Court failed to properly appreciate their
depositions. Moreover, the learned Trial Court failed to
appreciate the fact that the OPW No. 1, Gayatri Devi is daughter
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of the deceased Dr. Ramchandra Prasad and had not consider the
documentary evidence adduced by her.
9. Learned counsel for the respondent submitted that
Respondent/ O.P. who is sole daughter of testator has supported
and corroborated the case of appellants and she has no objection
in grant of probate in favour of appellants.
10. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the parties before the
learned Trial Court.
11. AW-1, Upendra Kumar Shahi who is father of
the appellants/applicants, has deposed that the testator (Dr.
Ramchandra Prasad Singh) was his uncle and after his medical
degree he shifted to London (England) for work and spent the
rest of his life there. The wife of Dr. Ramchandra Prasad Singh
died leaving behind their daughter Gayatri Devi (respondent). He
further deposed that Dr. Ramchandra Prasad Singh purchased 6
kattha of residential land on 29.03.1972 through registered sale
deed bearing khata no.27, plot no. 41, holding no. 1878/02 in
Mohalla- Alamgirpur, Gaya wherein he constructed a residential
house. He was fond of both the appellants/applicants (sons of
AW-1) and he was worried about their education and upbringing.
For better education and a wholesome development of both the
applicants/ appellants Dr. Ramchandra Prasad Singh had
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permitted them to reside in the aforesaid house where they
continued staying till his death and he used to express his wish to
give the aforesaid land and building to the appellants to which
his daughter Gayatri Devi had also agreed. Further more he
deposed that when Dr. Ramchandra Prasad Singh came to India
in October, 1992 he called his brother (father of AW-1) and
relative Rakesh Kumar and on 22.10.1992 he on his own accord
and free Will executed a Will in presence of above two witnesses
bequeathing his house along with land at Gaya to appellants.
Since they were minor in 1992. He handed over the Will to AW-1
and asked to hand it over to appellants after his death. Dr.
Ramchandra Prasad Singh died on 24.11.2014 in England where
no family members were present but his rites were performed by
sons of AW-1 at Gaya. Thereafter, AW-1 handed over the Will
dated 22.10.1992 to his sons/appellants. He further stated that
this probate case is true.
12. AW-2, Rakesh Kumar is relative of the testator
and the appellants/applicants and he has also supported the
probate case brought by the appellants. He has deposed that
Gayatri Devi is the daughter of Dr. Ramchandra Prasad Singh
and he married her in an affluent family, thereafter he started
living in England. He further deposed that Dr. Ramchandra
Prasad Singh often used to discuss with his daughter, brother and
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well-wishers that he was willing to give the house at Mohalla-
Alamgirpur Katari Hill Road, Gaya to the applicants/appellants.
On 22.10.1992 Dr. Ramchandra Prasad Singh, in presence of
AW-2, his brother Ramanuj Singh, and the father of the
applicants/appellants (AW-1) typed and executed a Will in favour
of the applicants Saurabh Kumar and Ankit Kumar with his free
will and being fully satisfied marked his signature on each page
of the Will. It has further been deposed that he along with the
brother of Dr. Ramchandra Prasad Singh namely Ramanuj Singh
signed as witnesses on the aforesaid Will. Since the
applicants/appellants were minors, the Will was handed over to
Upendra Kumar Shahi with the instruction to hand over the
original documents to the applicants after the death of Dr.
Ramchandra Prasad Singh. On 24.11.2014 Dr. Ramchandra
Prasad Singh died in England and his last rites were performed
there itself, but his Shradh was performed in Gaya by the
applicants. He deposed that he recognizes the signature marked
by Dr. Ramchandra Prasad Singh as he was witness to it.
13. AW-3 and AW-4, Ankit Kumar and Saurabh
Kumar, respectively are the applicants themselves in whose
favour Dr. Ramchandra Prasad Singh executed the Will dated
22.10.1992. Both of them have supported the versions of AW-1
and AW-2 and deposed that he and his brother (Saurabh Kumar)
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are full owners of the said property bequeathed to them by Dr.
Ramchandra Prasad Singh through Will dated 22.10.1992 and
there is no legal complexity or hurdle in the aforesaid property,
therefore probate may be granted to them.
14. OPW-1, Gayatri Devi is the sole daughter of the
testator Dr. Ramchandra Prasad Singh. She deposed that her
education was all done living with her uncle Ramanuj Singh in a
joint family. She used to study in Anugrah Kanya Vidyalaya. She
further deposed that she was married at a young age and left her
education. She further deposed that her father purchased a land
from his independent income at Mohalla- Alamgirpur, Katari,
Ward no.9, Gaya wherein he constructed a residential house and
he executed the Will dated 22.10.1992 in favour of the
applicants/appellants which was in her knowledge and she does
not has any objection on probate in favour of the
applicants/appellants. Moreover, her father, Dr. Ramchandra
Prasad Singh died on 24.11.2014 in England and she, being the
sole heir of her father, does not have any objection on the Will
dated 22.10.1992.
15. OPW-2, Manish Kumar, who is the son of
OPW-1 has deposed that his maternal grandfather died in
England and his mother (OPW-1) is the only heir of Dr.
Ramchandra Prasad Singh. He further deposed that the property
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situated in Mauja- Rampur, Ward no.9 old, Mohalla- Alamgirpur,
Gaya was given to the applicants/appellants through Will of
which his mother had knowledge. The applicants/appellants
have right over the aforesaid property after the death of his
maternal grandfather on 24.11.2014.
16. Now, I shall deal with what are the true legal
position in matter of proof of Will. In the case of H.
Venkatachala Iyengar v. B.N. Thimmajamma & Ors. reported
in AIR 1959 SC 443, which has been treated as the locus
classicus on the subject, the Hon’ble Supreme Court observed as
under:
“The party propounding a Will or other wise
making a claim under a Will is no doubt seeking to
prove a document and, in deciding how it is to be
proved, reference must inevitably be made to the
statutory provisions which govern the proof of
documents. Sections 67 and 68 of the Evidence Act
are relevant for this purpose. Under S.67, if a
document is alleged to be signed by any person, the
signature of the said person must be proved to be in
his handwriting, and for proving such a
handwriting under Ss. 45 and 47 of the Act the
opinions of experts and of persons acquainted with
the handwriting of the persons concerned are made
relevant. Section 68 deals with the proof of the
execution of the document required by law to be
attested; and it provides that such a document shall
not be used as evidence until one attesting witness
at least has been called for the purpose of proving
its execution. These provisions prescribe the
requirements and the nature of proof which must be
satisfied by the party who relies on a document in a
Court of law. Similarly, Ss. 59 and 63 of the Indian
Succession Act are also relevant. Thus the question
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proved to be the last Will of the testator has to be
decided in the light of these provisions. It would
prima facie be true to say that the Will has to be
proved like any other document except as to the
special requirements of attestation prescribed by
S.63 of the Indian Succession Act. As in the case of
proof of other documents so in the case of proof of
Wills it would be idle to expect proof with
mathematical certainty. The test to be applied
would be the usual test of the satisfaction of the
prudent mind in such matters.
However, there is one important feature which
distinguishes Will from other documents. Unlike
other documents the Will speaks from the death of
the testator, and so, when it is propounded or
produced before a Court, the testator who has
already departed the world cannot say whether it is
his Will or not; and this aspect naturally introduces
an element of solemnity in the decision of the
question as to whether the document propounded is
proved to be the last Will and testament of the
departed testator. Even so, in dealing with the proof
of Wills the court Will start on the same enquiry as
in the case of the proof of documents. The
propounder would be called upon to show by
satisfactory evidence that the Will was signed by the
testator, that the testator at the relevant time was in
a sound and disposing state of mind, that he
understood the nature and effect of the dispositions
and put his signature to the document of his own
free Will. Ordinarily when the evidence adduced in
support of the Will is disinterested, satisfactory and
sufficient to prove the sound and disposing state of
the testator’s mind and his signature as required by
law, Courts would be justified in making a finding
in favour of the propounder. In other words, the
onus of the propounder can be taken to be
discharged on proof of the essential facts just
indicated.”
17. This Court in Vikas Singh & Ors. v. Devesh
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Pratap Singh reported in 2001 SCC OnLine Pat 75 on the point
of proof in testimony case relied and quoted the passage from the
decision in the case of Surendra Pal v. Dr. (Mrs.) Saraswati
Arora reported in (1974) 2 SCC 600 relating to burden of proof
in probate proceeding is as under:-
“The propounder has to show that the Will was
signed by the testator, that he was at the relevant
time in sound disposing state of mind, that he had
understood the nature of disposition, that he put his
signature to the testament of his own free will and
that he had signed it in the presence of the two
witnesses who attested it in his presence and in the
presence of each other. Once these elements are
established, the onus which is placed on the
propounder is discharged.”
18. It can be concluded that Court has to consider
following points:
i. Whether the testator had signed the Will?
ii. Whether he understood the nature and effect of
the dispositions contained therein? and
iii. Whether he affixed his signature to the Will
with full knowledge of its contents?
Broadly stated, the determination of these aspects
governs the finding as to the due proof of a Will. It is now well
settled that a Will, like any other document, is required to be
proved in accordance with law, subject however to the special
requirements of attestation as mandated under Section 63 of the
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certainty cannot be insisted upon; rather, the test to be applied is
whether the evidence on record satisfies a prudent mind as to the
genuineness of the Will.
19. On perusal of the impugned judgment it appears
that the learned Trial Court had not considered the settled
principle of law that proof of death is not confined to the
production of a death certificate alone. Under Section 108 of the
Indian Evidence Act, a presumption of death arises where a
person has not been heard of for a period of seven years by those
who would naturally have heard of him. Apart from this statutory
presumption, Sections 59 and 60 of the Indian Evidence Act also
recognize oral testimony as admissible evidence in regard to
facts relating to the last illness, cremation or burial of the
deceased. Therefore, the evidence of witnesses acquainted with
the deceased, who had personal knowledge of his death or
cremation, carries evidentiary value and cannot be brushed aside
merely for want of a formal certificate. The law does not
mandate that a death certificate is the sole or exclusive mode of
proving death. What is required is credible evidence which, upon
consideration, satisfies the conscience of the Court that the death
has indeed occurred. Thus, in view of the aforesaid legal
position, it would be incorrect to hold that the death of Dr.
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Ramchandra Prasad Singh has not been proved, unless credible
evidence to the contrary is placed before the Court.
20. It is well settle law that in probate case, the main
issue is proof of due execution and validity of the Will, not strict
proof of death by official certificate if death is otherwise
established through oral evidence or surrounding circumstances.
The Trial Court in probate proceedings must emphasized that
probate proceedings are not adversarial in the strict sense as in
ordinary civil suits, rather proceedings are in the nature of a
solemn enquiry where the Court’s primary duty is to satisfy its
judicial conscience regarding the genuineness and due execution
of the Will. The Judge must be reasonably satisfied that the Will
is genuine and validly executed and the proceeding is essentially
in the nature of a “satisfaction of conscience of the Court”.
Moreover, the court must not stick on hyper-technicalities or
insistence on strict proof of facts in the same manner as in
contentious civil litigation should not defeat the very object of
probate jurisdiction. The burden of proof lies initially on the
propounder of the Will, but once prima facie proof of execution
and attestation is given, the Court must consider surrounding
circumstances, conduct of parties, and probabilities to arrive at
its satisfaction. Thus, the oral and circumstantial evidence
establishes the death of the testator and supports the case of the
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propounder, the Court should not reject the probate petition. The
Trial Court erred while considering the evidence available on
record, and had not applied the law while considering the probate
case.
21. In the instant case, there is no objection or
dispute with regard to the genuineness of signature of the testator
on the Will. It is also not in dispute that execution of Will was
voluntary without any fraud, coercion, undue influences or the
like. There is no such pleading on record by any Objector. The
law is well settled that even if such case had been pleaded by the
Objector, the burden of proof would have been upon him to
establish the same. The applicants who were minor at the time
execution of Will did not apparently play any role in the
execution of the Will. The Will was handed over to AW-1 with
direction to hand over the same to applicants after death of
testator. The sole daughter of the testator has already supported
the case of appellants and she stated that she had knowledge with
the execution of Will and she has no objection for grant of
probate in favour of appellants.
22. It is evident from the record that the O.P. No.1,
Gayatri Devi has supported the case of the applicants/appellants
and stated in her evidence by way of affidavit that she was
married in childhood and her study was left. She also filed an
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affidavit that she is non-matriculate. She has produced the
certificate issued by her school where she studied and in the
certificate (Ext.A) it is categorically certified that Gayatri Devi
daughter of Shri Ram Chandra Prasad Singh had taken admission
in school on 21.01.1974 and her date of birth is recorded as
09.01.1964. In such situation the law relating to probate
emphasizes substantial justice over technical deficiencies, and
Courts have consistently held that hyper-technical objections
cannot be permitted to frustrate the true intent of the testator. The
testimony of an interested witness, such as O.P. No. 1, Gayatri
Devi who claims to be the daughter of the deceased is supported
by reliable, oral and documentary evidence which cannot be
discarded. Section 118 of the Indian Evidence Act recognizes the
competency of all persons to testify, irrespective of their personal
interest, so long as their testimony is found to be credible and
trustworthy upon judicial scrutiny.
23. The appellants have proved the Will, its due
execution, in a sound state of mind by the testator, in any absence
of any suspicious circumstances surrounding the execution, the
appellants must be held entitled to grant of probate.
24. Accordingly, this appeal is allowed.
25. The impugned Judgment and order dated
20.08.2016 of the Learned Trial Court is set aside and the
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application for grant of probate is allowed.
26. Accordingly, the Learned Trial Court is directed
to grant the probate of Will in favour of appellants.
27. Let the Trial Court Record be returned to the
court concerned forthwith.
(Sunil Dutta Mishra, J)
Ritik/-
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