 One form of affirmative proof is to establish that the will was read over by, or to, the

testator when he executed it. If a testator merely casts his eye over the will, this may
not be sufficient.
 Courts have to evaluate evidence pertaining to the circumstances under which the will
was prepared. If a will is prepared and executed under circumstances which raise a
well-grounded suspicion that the executor did not express his mind under the will,
probate would not be granted unless that suspicion is removed.
 hat the Rules set out in Practice Directory make it obligatory for the Petitioners to
support his application for probate with an affidavit of at least one attesting witness.
 The question is if the subsequent Will has been admitted between the parties
including by the petitioners, then can probate be granted of an earlier Will, assuming
it to be an admitted Will? The answer to this question is in the negative in view of the
clear provisions of Section 276 of the said Act which mandates that a probate can be
granted only of the last Will and testament of the deceased.
Praveer Chandra vs Aprajita & Ors on 31 October, 2019
The Probate Court has been conferred with exclusive jurisdiction to grant probate of
the Will of the deceased annexed to the petition (suit); on grant or refusal thereof, it has to
preserve the original will produced before it. The grant of probate is final subject to appeal,
if any, or revocation if made in terms of the provisions of the Succession Act It is a judgment
in rem and conclusive and binds not only the parties but also the entire world. The award
deprives the parties of statutory right of appeal provided under section 299. Thus the
necessary conclusion is that the Probate Court alone has exclusive jurisdiction and the Civil
Court on original side or the Arbitrator does not get jurisdiction, even if consented to by the
parties, to adjudicate upon the proof or validity of the Will propounded by the executrix, the
appellant"
The observations of the Supreme Court in Chiranjilal (supra) that the Probate Court alone
has exclusive jurisdiction to grant a probate and a Civil Court would not be entitled to
examine the validity of the Will is obviously in the context of a petition seeking probate of
a Will. A civil court cannot examine the validity of a Will for the purpose of granting
a probate of the Will, but the scope of the issues to be determined in a probate petition is
limited. In a civil suit where the Will is called in issue, the Court can look at various
surrounding circumstances, including allegations relating to suspicious circumstances if any,
genuineness of the Will, whether there were Wills prior to or subsequent to the Will relied
upon etc., - which issues may not arise in a Probate petition. The scope of proceedings in a
partition suit are broader than that in a probate petition.

(i) Atula Bala Dasi and Ors. vs. Nirupama Devi and Ors; AIR 1951 CAL "8. We may in this
connection consider the powers & the jurisdiction of a probate court for safeguarding the
interest of all concerned, & particularly to protect the properties which are the subject matter
of the testamentary disposition.
As indicated in Nirod Barani Debi v. Chamatkarini Debi‟, 19 C.W.N. 205 though for certain
purpose, a probate proceeding is not a suit, in which there is a property in dispute, as
contemplated under O. XXXIX, R. 1 of the CPC, the only question in controversy being as to
who is to represent the estate of a deceased person, & there being no question of title
involved in those proceedings, the court of probate is not thereby wholly incompetent to grant
a temporary injunction even in extreme cases; such order of injunction is to be issued only in
aid of & in furtherance of the purpose for which a grant is made by a probate court. It is,
therefore, open to the probate court not only to appoint an administrator pendente lite, but
also to issue an order of injunction, temporary in character, pending the appointment of an
administrator pendente lite. If such powers are exercised in probate cases by a probate court,
there is no reasonable chance of any property being dissipated, pending the actual grant of a
probate or the appointment of an administrator.
Inderjeet Singh Amardeep Singh Chadha vs. Davinder Kaur Amardeep Singh Chadha; 2019
SCC OnLine Bom 702.
"25. From the phraseology of the aforesaid Section, it becomes evident that it incorporates an
enabling provision and invests the testamentary Court with power to appoint an administrator
pendente lite. The text of aforesaid section does not, in terms, spell out the circumstances in
which an administrator pendente lite may be appointed. Undoubtedly, the testamentary Court,
in the backdrop of the facts and circumstances of the given case, ought to be satisfied as to
the necessity for appointment of an administrator pendente lite. The object of conferring
jurisdiction upon the testamentary Court to appoint an administrator pendente lite is implicit.
The object appears to be to ensure that the estate of the testator is effectively managed and
securely preserved for the benefit of the persons who are ultimately found to be entitled to
succeed to it. This broad object subsumes in its fold a situation wherein it is brought on
record that the act and conduct of the person in possession of the estate of the testator are
detrimental to the protection and preservation of the estate. The afore-extracted section gives
ample discretion to the Court as to the person who can NEUTRAL CITATION
NO:2022/DHC/005814 be appointed as an administrator pendente lite. There is no apparent
prohibition for appointment of a party to the testamentary proceedings as an administrator
pendente lite. However, the provision expressly puts two limitations on the powers of the
administrator pendente lite: (i) he has no right to distribute the estate; and (ii) he is subject to
the immediate control of the Court and shall act under its direction."

(v) Amar Deep Singh vs State & Ors.; 2005 (85) DRJ 179.
"8. The legal position which has emerged from the above decisions is that a probate Court
seized with a petition for grant of probate of Will or Letters of Administration is not a Civil
Court within the meaning of the term under the provisions of the Code of Civil
Procedure though the proceedings of the Probate Court in relation to the granting of Probate
and Letters of Administration is to be regulated, so far as the circumstances of the case may
permit, by the Code of Civil Procedure 1908. Once a probate Court is considering a
petition for grant of probate or Letters of Administration in respect of a Will, that
Court alone is competent to decide on the question of execution and/or validity or
otherwise of the Will in question.

Sundariya Bai Choudhary vs. Union of India & Ors.; 2008 (2) MPLJ 321.
"25. The question now hinges whether the Will Ex. P/1 which is a registered document
has been duly proved and its attestation has also been proved in terms of section 63(c) of
the Act. Merely because the Will is a registered Will it cannot be said that the same
stands proved or it is not required to be proved on account of its registration. There is
no law as such. The Will (either registered or unregistered) is required to be proved in
accordance with the law. On going through the provision of section 63(c) of the Act, we
find that a Will is required to be attested at least by two witnesses or more each of
whom has seen the testator signing the Will and they have also signed the Will in
presence of the testator. On the touchstone of the criteria laid down under section
63(c) of the Act we are required to examine the statement of the attesting witness in
order to ascertain whether the attestation of the Will has been duly proved or not."

Importance of Evidence:
The Supreme Court has consistently reiterated that a will's validity must be proven
through evidence, not just by its registration. The person presenting the will (the
propounder) bears the burden of demonstrating its genuineness, which includes proving the
testator's signature, testamentary capacity, and understanding of the dispositions,
according to the Indian Evidence Act and the Indian Succession Act.

 Supreme Court. While examining the facts at hand and the legal provisions pertaining
to Wills, the Supreme Court held that the essentials to prove a Will are as follows:
 Section 68 of the Evidence Act states that 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.
 Section 63 of ISA states that a Will may be executed by (a) the testator signing the
Will or affixing their mark to the Will; (b) the signature or mark so placed shall appear
that it was intended thereby to give effect to the writing as a Will; and (c) the Will
shall be attested by two or more witnesses, each of whom has seen the testator sign or
affix their mark to the Will and each of the witnesses shall sign the Will in the
presence of the testator.
Basis the facts in the present case, the Supreme Court noted that following discrepancies
in the Will:
While the Will was transcribed in English, the Testator affixed her signature in Hindi;
The witness signatures are not on all the pages of the Will and only at the bottom of the last
page. Moreover, the witnesses have signed differently: one on top of his name and one below
his name; and
The witness signatures appear at the back side of the first page. One witness signed on the left
side of the page and the other on the right, with the Testator signing in the middle.
Moreover, while the first witness claimed that he was present at the time of registration of the
Will and that the Tehsildar explained the Will to the Testator and she understood and had
willingly signed the Will, the second witness claimed that he had met the Nephew at which
point the Nephew had informed the second witness that his signature was required on some
papers. The second witness signed the papers without being aware of the contents of the same
and neither were the contents explained to him by the Nephew. The second witness stated that
he did not see the first witness sign in his presence and neither had he witnessed the Testator
signing the Will in his presence.

Hence, considering the abovementioned discrepancies and taking the above requirements of
law into consideration, the Supreme Court held that the Nephew failed to prove the validity
of the Will. Even though the first witness claimed that the Testator signed the Will in his
presence and in the presence of the second witness, the same was categorically denied by the
second witness. Besides, the first witness never stated that he affixed his signature to the Will
in the presence of the Testator.

Hence, the Will in question failed to meet the requirements laid down by the law in relation to
proving a Will and was held to be invalid. Hence, the Sole Heir, being the only legal heir as
determined under the applicable intestate succession laws, was entitled to succeed to the
estate of the Testator.

Suspicious circumstances
 shaky or doubtful signature of the testator
 feeble or uncertain mind of the testator;
 an unfair disposition of property
 an unjust exclusion of the legal heirs and particularly the dependants

The law of testamentary succession is codified under the Indian Succession Act. Chapter
VI of Part VI of the Act (Sections 74 to 111)
Part IX of the Act deals with the grant of Probate/Letter of Administration.
H Venkatachala Iyengar v. BN Thimmajamma,
wherein the Court laid down a few tests to determine the genuineness of the Will. These
included: “Has the testator signed the Will? Did he understand the nature and effect of the
dispositions in the Will? Did he put his signature to the Will knowing what it contained”?

Ajay Malhotra v. State, (2019) 260 DLT 488.

"16. The court would also like to record that notwithstanding the fact that the question of
title is not involved in testamentary proceedings, the Court is not NEUTRAL CITATION
NO:2022/DHC/005814 wholly incompetent to grant a temporary injunction in extreme
cases. Such order of injunction is issued in aid of and in furtherance of the purpose for
which a grant is made by a probate Court. Section 247 of the Indian Succession Act, gives
the Court such power. The said provision reads as under:
"247. Administration pendente lite.-Pending any suit touching the validity of the will of a
deceased person or for obtaining or revoking any probate or any grant of letters of
administration, the Court may appoint an administrator of the estate of such deceased
person, who shall have all the rights and powers of a general administrator, other than the
right of distributing such estate, and every such administrator shall be subject to the
immediate control of the Court and shall act under its direction."

Jeyrani v. Murugurajan, CRP(MD) No 1052/2021 (Mad HC)

"3. Pending Probate Original Petition, the petitioner has filed a petition in I.A.No.115 of
2019 seeking orders for appointing an "administrator pendent lite" till the disposal of the
original petition to administer the schedule mentioned properties and the learned trial
Judge, after enquiry, has passed the impugned order dismissing the said petition.

Section 59
of the Succession Act provides that every person of sound mind, not being a minor, may
dispose of his property by Will.
Section 61
Will or any portion thereof, the making of which has been caused by fraud or coercion or
by any such importunity that has taken away the free agency of the testator, is declared to
be void under Section 61 of the Succession Act; and

Section 62
Section 62 of the Succession Act enables the maker of a Will to make or alter the same at
any time when he is competent to dispose of his property by Will.

What is to be treated as Suspicious Circumstances? (Kavita Kanwar vs

Mrs. Pamela Mehta on 19 May, 2020, Supreme Court of India)

15.2. However, thereafter, the Trial Court took into account various circumstances which
appeared to be suspicious. In the first place, the Trial Court referred to the decisions in H.
Venkatachala Iyengar v. B.N. Thimmajamma: AIR 1959 SC 443, Indu Bala Bose v.
Manindra Chandra
Secondly, the Trial Court was of the view that the exclusion of the only son from the
immovable property was also a suspicious circumstance
In Kavita Kanwar vs Mrs. Pamela Mehta on 19 May, 2020, Supreme Court of India, Trial
Court formed following questions
The Trial Court framed the following issues for determination of the questions involved in
the matter: -
“1. Whether the Will dated 20-5-2003 of Smt. Amarjeet Mamik is proper and valid? OPP
2. Whether the Will dated 20-5-2003 of Smt. Amarjeet Mamik is forged and fabricated?
OPR-3
3. Whether the petitioner is entitled to the grant of Probate/Letter of Administration in
respect of Will dated 20-5- 2003 of Smt. Am

Mere proof of signatures on the Will was not sufficient to prove its due execution
In a Division Bench decision of Madras High Court in J. Mathew and Ors. v. Leela
Joseph : (2007) 5 MLJ 740 and observed that as per settled law, mere proof of signatures
on the Will was not sufficient to prove its due execution; and it was the duty of the party
seeking probate to satisfy the conscience of the Court as regards due execution of the Will
by the testator and for that matter, the Court can probe deeper into the matter to satisfy its
conscience that the testator/testatrix had duly executed the Will after understanding its
contents
Bose: (1982) 1 SCC 20 and Surendra Pal v. Dr. Saraswati Arora: (1974) 2 SCC 600 and
observed that if propounder of the Will takes an active part in the execution of the Will and
receives substantial benefit under it, then such a circumstance is generally treated as
suspicious one