Orissa High Court
Sukanti Dash & Ors vs Pradip Kumar Dash & Ors on 18 July, 2025
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 18-Jul-2025 17:51:19
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No. 148 of 2019
(An appeal under Section 384 of Indian Succession Act.)
Sukanti Dash & Ors. .... Appellant (s)
-versus-
Pradip Kumar Dash & Ors. .... Respondent (s)
Advocates appeared in the case through Hybrid Mode:
For Appellant (s) : Mr. Bibekananda Bhuyan, Sr. Adv.
alongwith with associates
For Respondent (s) : Smt. Sujata Jena, Adv.
Mr. Debasis Panigrahi, Adv.
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-19.06.2025
DATE OF JUDGMENT:-18.07.2025
Dr. S.K. Panigrahi, J.
1. The Appellants are challenging the judgment dated 06.02.2019 passed
by the learned Civil Judge (Senior Division), Bhubaneswar in C.S.
No.8870 of 2018 (arising out of Probate Misc. Case No.02 of 2010),
whereby their application for probate was dismissed.
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case are as follows:
(i) The Appellants are the daughters-in-law of Late Jayakrishna Dash.
Respondent Nos. 1 to 4 are his sons, and Respondent Nos. 5 and 6 are
his daughters.
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(ii) According to the Appellants, although Late Jayakrishna Dash was
admitted to hospital on 21.02.2008, he remained in sound physical and
mental health and, acting of his own volition, executed a registered Will
bearing Registration No. 25 dated 23.02.2008, bequeathing his self-
acquired properties to them out of love and affection.
(iii) Late Jayakrishna Dash was discharged from the hospital on 26.02.2008
and passed away on 31.01.2009.
(iv) Thereafter, the Appellants filed a probate petition bearing Test
(Probate) Misc. Case No. 2 of 2010 before the District Judge, Khurda at
Bhubaneswar on 11.01.2010. Upon contest, the matter was renumbered
as C.S. No. 8870 of 2015 and transferred to the Court of the Senior Civil
Judge, Bhubaneswar.
(v) Respondent No. 5 appeared and opposed the grant of probate, alleging
that the Will was forged and fabricated and not executed by Late
Jayakrishna Dash.
(vi) The Senior Civil Judge dismissed the probate case on the grounds that
the Will was executed under suspicious circumstances and that the
testator lacked the competence to execute the Will in respect of the
scheduled properties.
(vii) Aggrieved by the aforesaid judgment, the Appellants have approached
this Court challenging the same and seeking that it be set aside.
II. SUBMISSIONS ON BEHALF OF THE APPELLANTS:
3. Learned counsel for the Appellants earnestly made the following
submissions in support of his contentions:
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(i) The Appellants contended that Late Jayakrishna Dash, while in sound
physical and mental health and in possession of the scheduled
properties, voluntarily executed and registered a Will dated 23.02.2008,
bequeathing the same in their favour.
(ii) The Appellants contended that Jayakrishna Dash was the recorded
owner of the properties mentioned in the Schedule. The property under
Khata No. 2024 of Mouza Goutam Nagar, Unit No. 28, Bhubaneswar,
was a leasehold on which he had constructed a residential house and
resided until his death. The property under Khata No. 1125/4 of Mouza
Cuttack Sahar, Unit No. 15, Choudhury Bazaar, stood recorded jointly
in his name pursuant to a judgment and decree in T.S. No. 222 of 1996
passed by the Civil Judge (Senior Division), First Court, Cuttack. He
had been allotted a share therein and remained in possession until his
demise.
(iii) The Appellants contended that Jayakrishna Dash had also acquired
additional properties during his lifetime, including land under Khata
No. 583 of Mouza Bhubaneswar Sahar, Unit No. 31, Laxmisagar 2;
House No. L-11 in Kapila Prasad under the staff housing scheme and a
portion of land measuring 10 ft × 20 ft in Plot No. 825 of Mouza Bapuji
Nagar, Bhubaneswar, which, although recorded in the name of his
wife, Ketaki Devi, had been purchased out of his own income.
(iv) The Appellants contended that the attesting witnesses as well as the
scribe did not depose that Late Jayakrishna Dash was mentally unstable
at the time of executing the Will. The scribe, in his deposition,
specifically stated that the contents of the Will were read over to the
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Testator, who then affixed his mark only after understanding its
contents.
(v) The Appellants contended that Section 63(a) of the Indian Succession
Act, 1925, does not mandate that a testator must sign the Will. The
Senior Civil Judge, however, presumed that Jayakrishna Dash, being
literate, ought to have signed instead of affixing his Left Thumb
Impression, and on that basis held that the Will was executed under
suspicious circumstances. The Appellants argued that such reasoning
is erroneous, as the mere absence of a signature does not invalidate a
Will where the intention of the testator is clear and the Will is otherwise
duly executed.
(vi) The Appellants contended that Section 17 of the Registration Act, 1908,
does not require the registration of a Will. Despite this, the Senior Civil
Judge framed and decided an issue on that aspect contrary to settled
law.
(vii) The Appellants submitted that the grant of probate is contingent upon
proving that the document is the last Will of the testator, executed while
of sound mind, and duly proved in accordance with Section 68 of the
Indian Evidence Act, 1872.
(viii) The Appellants contended that the endorsement on the Will by the
Registering Authority itself demonstrates due execution and
attestation, resulting in valid registration. A presumption of
genuineness under Section 114 of the Indian Evidence Act, 1872,
therefore applies.
(ix) The Appellants contended that the Respondents did not take any clear
stand regarding the testator's mental condition in their written
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statement, offering only vague and evasive denials. Although a medical
report was later produced, it was neither referred to in the pleadings
nor supported by any amendment. In the absence of such pleadings,
the Respondents were not entitled to lead evidence on that aspect, and
the Senior Civil Judge erred in relying upon it.
(x) The Appellants contended that the treating doctor clearly stated that
Jayakrishna Dash was mentally stable and not experiencing
hallucinations at the time of execution of the Will on 23.02.2008.
Nonetheless, the Senior Civil Judge placed undue reliance on a medical
report dated 23.11.2017, obtained during the pendency of proceedings,
which had diminished evidentiary value as a lis pendens document.
(xi) The Appellants contended that the Senior Civil Judge, while deciding
the probate application, ventured into the nature and character of the
property as though adjudicating a title suit. Such an approach is
impermissible since probate proceedings are limited in scope and
distinct from title disputes, and must be decided with due regard to the
last wishes of the testator.
(xii) The Appellants contended that the impugned judgment violates
Section 288 of the Indian Succession Act, 1925. As per the said
provision, where there is any contention or the District Delegate
believes probate should not be granted by him, the petition along with
all documents must be returned to the applicant for presentation before
the District Judge. In the present case, Respondent No. 5 had raised a
clear objection. The Senior Civil Judge, acting as a delegate, ought to
have referred the matter to the District Judge. Failure to do so renders
the impugned judgment procedurally flawed and liable to be set aside.
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III. SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
4. The Learned Counsel for the Respondents earnestly made the
following submissions in support of his contentions:
(i) The Will refers to four lots of property, including two immovable
properties described under Lot I. One is located in Mouza Goutam
Nagar, Bhubaneswar, and the other in Mouza Cuttack Sahar, Unit No.
15, Choudhury Bazar. The Will does not specify the Khata numbers for
either. The Goutam Nagar property is leasehold, held under a
registered lease deed issued by the Government of Odisha, which
under Clause (xiv) prohibits transfer or change of use without prior
written consent from the lessor. Since "disposition" includes any
transfer of property, the bequest of the leasehold without the lessor's
permission is not legally valid, rendering the Will ineffective to that
extent.
(ii) The property situated in Cuttack, as per the Records of Right, was not
the absolute property of the Testator. In T.S. No. 222 of 1996, the Civil
Judge, Senior Division, First Court, Cuttack, decreed that the Testator
was entitled to an area measuring Ac. 0.0193½ as part of ancestral
property. All Respondents, being Class-I legal heirs, have a legitimate
share therein. Appellant No. 1, therefore, cannot claim exclusive rights
over the Lot I (Ka) Schedule property, and the bequest made in its
respect lacks legal sanctity.
(iii) The property situated in Mouza Laxmisagar stood recorded in the
name of Ketaki Dash, wife of the Testator, as per the Records of Right
prepared by the Settlement Authority in 1988. Since the property stood
in her name, all legal heirs, including the Testator, inherited equal
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shares upon her death. The Testator had no authority to bequeath the
entire property to Appellant No. 2. The Will, insofar as it relates to the
Lot II (Kha) property, is not genuine, and no application for probate in
respect of that portion is legally maintainable.
(iv) The property in Mouza Bapuji Nagar, purchased by Ketaki Dash
through a registered sale deed dated 14.04.1980, was acquired from her
stridhan, as evident from the recitals. As the property remained solely
in her name, it devolved equally upon all legal heirs, including the
Testator, after her death. The Testator lacked the authority to
exclusively bequeath the entire property to Appellant No. 3.
Consequently, the claim for probate in respect of the Lot III (Ga)
property is untenable, as the Will does not reflect a valid and lawful
disposition.
(v) The property at Mouza Kapila Prasad stood in the name of Ketaki Devi
following a recorded transfer from Budhanath Rout, as confirmed by
Letter No. 18322 dated 24.11.2004 issued by the Orissa State Housing
Board. Upon her demise, all legal heirs, including the Testator,
succeeded jointly. The Testator could not lawfully dispose of the entire
property in favour of Appellant No. 4. As such, the bequest concerning
Lot IV (Gha) lacks legal validity, and the claim for probate in relation
thereto cannot be sustained.
(vi) Jayakrishna Dash was admitted as an indoor patient at Neelanchal
Hospital from 21.02.2008 to 26.02.2008. The Will was executed on
23.02.2008 and registered on 25.02.2008 during this period. Medical
records indicate that he was suffering from Metabolic Encephalopathy,
Lacunar Infarct in the Basal Ganglia, hypertension, and Parkinsonism,
Location: ORISSA HIGH COURT, CUTTACK
all of which impair cognitive and neurological function. The treating
physician deposed that the Testator exhibited altered sensorium prior
to admission and was administered medication for epilepsy,
hypertension, and prevention of cerebral clotting.
(vii) The Will contains only a Left Thumb Impression, without proper
attestation, and the impressions appear inconsistent across its pages. In
view of the Testator's medical condition at the relevant time and the
manner of execution, the Will cannot be held to be genuine. The
propounder failed to prove its validity to the satisfaction of the Court.
(viii) The question of the Testator's competence to bequeath the properties
must be considered in light of Section 30 of the Hindu Succession Act,
1956, which permits disposition only of property over which a Hindu
has exclusive right, title, and interest. Except for the property in Mouza
Goutam Nagar, the other properties described in the Will form part of
joint family property. In the absence of partition by metes and bounds,
each co-sharer retains an undivided interest in every portion of such
property. The Testator, having no exclusive ownership, was not legally
entitled to bequeath those properties in entirety.
(ix) P.W.1, Mamata Dash, admitted in cross-examination that only one of
the four suit properties was self-acquired, one was ancestral, and the
remaining properties stood in the name of Ketaki Devi. She could not
recall key details regarding her father-in-law's injury or the preparation
of the Will. Specifically, she did not remember who instructed its
drafting, who signed it, or who prepared the annexed sketch. She was
unaware of the attesting witnesses and could not confirm whether the
signature or Left Thumb Impression on the Will belonged to the
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Testator. She also acknowledged that the Will did not refer to existing
constructions on the suit properties. Notably, despite a certification by
P.W.2, the Will bears no signature of Jayakrishna Dash. These
admissions materially weaken the credibility of the Will and cast
serious doubt on its due execution.
(x) P.W.3 and P.W.4, the attesting witnesses to the Will, gave contradictory
statements. P.W.4, Rashmi Ranjan Mohanty, stated in cross-
examination that he visited Neelanchal Hospital on 23.02.2008 between
6.30 p.m. and 7.00 p.m. along with two others and found Jayakrishna
Dash asleep with a plastered leg due to a fracture. He further stated
that the Will was executed between 4.00 p.m. and 5.00 p.m., and that on
25.02.2008, he again visited the hospital with the Sub-Registrar for
registration. However, he could not say who wrote the presentation
part of the Will or who signed on its reverse. Notably, the treating
doctor made no mention of any leg fracture or plaster during the
Testator's hospitalization. This inconsistency between the attesting
witness and the medical evidence casts serious doubt on the
circumstances of execution and further undermines the credibility of
the Will.
(xi) P.W.3, Rabindra Kumar Sahu, stated that he went alone to Neelanchal
Hospital on 23.02.2008 and found Jayakrishna Dash on the bed along
with a few others. He claimed the contents of the Will were read over
and that the Testator read it himself while leaning due to a leg injury.
He admitted the Will mentions a signature, but in fact, the Testator
affixed his Left Thumb Impression. Though Jayakrishna Dash was a
government servant, the Will described him as a cultivator. P.W.3 could
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not say where or on what basis the Will was prepared. These
inconsistencies cast further doubt on the validity of the Will.
IV. FINDINGS OF THE SENIOR CIVIL JUDGE, BHUBANESWAR
5. The learned Senior Civil Judge, Bhubaneswar heard the parties and,
upon consideration of their respective pleadings and the evidence
adduced, framed the following issues for determination:
i. Whether the suit is maintainable?
ii. Whether there is no cause of action?
iii. Whether Late Jayakrishna Dash executed Will No. 25/08 dated
23.02.2008 in a free state of mind and health?
iv. Whether the said Will was executed and registered lawfully?
v. Whether the said Will is a genuine document?
vi. To what other reliefs, if any, are the parties entitled?
6. The learned Senior Civil Judge, Bhubaneswar observed that
Jayakrishna Dash was admitted to Neelanchal Hospital on 21.02.2008
and discharged on 26.02.2008. The Will was stated to have been
executed on 23.02.2008 and registered on 25.02.2008, during his
hospitalisation. The Court noted the absence of any explanation for the
sudden execution and registration of the Will while the Testator was
under medical care, and no material was produced to justify the timing
or necessity of such action.
7. Relying on the testimony of D.W.1 and the medical records, the Court
found that Jayakrishna Dash was suffering from advanced age-related
ailments, including Parkinsonism and cognitive disorders, and
concluded that he was not in a fit mental and physical state to
comprehend or execute a Will. It further opined that the execution and
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registration of the Will during hospitalisation appeared to be
orchestrated by the sons and daughters-in-law of the Testator to
exclude his daughters from succession.
8. It was further observed that the Will bore the Testator's Left Thumb
Impression rather than his signature, despite his being a literate person
and a retired Class-I Government officer. The Will also inaccurately
described him as a "cultivator" and referred to him as "Das" instead of
"Dash." While the Plaintiffs argued that these were inconsequential
and permissible under Section 63(a) of the Indian Succession Act, 1925,
the Court held that the inconsistencies created a strong presumption of
suspicious circumstances which remained unaddressed.
9. On overall scrutiny, the Trial Court held that Will No. 25/08 dated
23.02.2008 was not executed in a free state of mind and could not be
treated as a genuine testamentary instrument.
10. In light of these findings, the Court held that the suit was not
maintainable and that the Plaintiffs lacked cause of action to seek
probate.
V. COURT'S REASONING AND ANALYSIS:
11. Heard learned counsel for the parties and perused the material on
record.
12. The central controversy in the present appeal arises from the dismissal
of the probate petition filed by the Appellants, who claim to be the
beneficiaries under a Will dated 23.02.2008 executed by one Late
Jayakrishna Dash. The core question that arises for determination is
whether the Senior Civil Judge rightly rejected the prayer for grant of
probate by holding that the Will was executed under suspicious
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circumstances, and whether such a finding warrants appellate
intervention.
13. At the outset, it is pertinent to refer to the relevant provisions of law.
14. Section 2(h) of the Indian Succession Act, 1925 defines a "Will" as the
legal declaration of the intention of a testator concerning his property,
which he desires to be carried into effect after his death.
15. Section 59 of the Indian Succession Act, 1925 empowers every person
of sound mind, not being a minor, to dispose of his property by Will.
16. Section 63 prescribes the manner of execution of unprivileged Wills. It
mandates that the testator shall sign or affix his mark to the Will, and
that the same shall be attested by two or more witnesses.
17. Furthermore, in terms of Section 61, a Will or any part thereof that is
the result of fraud, coercion, or importunity that vitiates the free agency
of the testator is void.
18. It is well-established that the burden of proof lies on the propounder of
the Will to establish its due and lawful execution. Moreover, where
suspicious circumstances surround the creation of the Will, the onus
shifts to the propounder to dispel these doubts and satisfy the Court's
conscience by providing clear and convincing evidence.
19. In H. Venkatachala Iyengar v. B.N. Thimmajamma1, the Supreme
Court comprehensively addressed key principles fundamental to
determining the validity of a will. The following observations from the
case are particularly relevant in this regard:
"20. There may, however, be cases in which the execution
of the will may be surrounded by suspicious
1958 SCC OnLine SC 31.
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circumstances. The alleged signature of the testator may be
very shaky and doubtful and evidence in support of the
propounder's case that the signature, in question is the
signature of the testator may not remove the doubt created
by the appearance of the signature; the condition of the
testator's mind may appear to be very feeble and
debilitated; and evidence adduced may not succeed in
removing the legitimate doubt as to the mental capacity of
the testator; the dispositions made in the will may appear
to be unnatural, improbable or unfair in the light of
relevant circumstances; or, the will may otherwise indicate
that the said dispositions may not be the result of the
testator's free will and mind. In such cases the court would
naturally expect that all legitimate suspicions should be
completely removed before the document is accepted as the
last will of the testator. The presence of such suspicious
circumstances naturally tends to make the initial onus
very heavy; and, unless it is satisfactorily discharged,
courts would be reluctant to treat the document as the last
will of the testator. It is true that, if a caveat is filed alleging
the exercise of undue influence, fraud or coercion in respect
of the execution of the will propounded, such pleas may
have to be proved by the caveators; but, even without such
pleas circumstances may raise a doubt as to whether the
testator was acting of his own free will in executing the
will, and in such circumstances, it would be a part of the
initial onus to remove any such legitimate doubts in the
matter.
21. Apart from the suspicious circumstances to which we
have just referred, in some cases the wills propounded
disclose another infirmity. Propounders themselves take a
prominent part in the execution of the wills which confer
on them substantial benefits. If it is shown that the
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propounder has taken a prominent part in the execution of
the will and has received substantial benefit under it, that
itself is generally treated as a suspicious circumstance
attending the execution of the will and the propounder is
required to remove the said suspicion by clear and
satisfactory evidence. It is in connection with wills that
present such suspicious circumstances that decisions of
English courts often mention the test of the satisfaction of
judicial conscience. It may be that the reference to judicial
conscience in this connection is a heritage from similar
observations made by ecclesiastical courts in England
when they exercised jurisdiction with reference to wills;
but any objection to the use of the word "conscience" in
this context would, in our opinion, be purely technical and
academic, if not pedantic. The test merely emphasizes that,
in determining the question as to whether an instrument
produced before the court is the last will of the testator, the
court is deciding a solemn question and it must be fully
satisfied that it had been validly executed by the testator
who is no longer alive.
22. It is obvious that for deciding material questions of fact
which arise in applications for probate or in actions on
wills, no hard and fast or inflexible rules can be laid down
for the appreciation of the evidence. It may, however, be
stated generally that a propounder of the will has to prove
the due and valid execution of the will and that if there are
any suspicious circumstances surrounding the execution
of the will the propounder must remove the said suspicions
from the mind of the court by cogent and satisfactory
evidence. It is hardly necessary to add that the result of the
application of these two general and broad principles
would always depend upon the facts and circumstances of
each case and on the nature and quality of the evidence
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adduced by the parties. It is quite true that, as observed by
Lord Du Parcq in Harmes v. Hinkson [(1946) 50 CWN
895] "where a will is charged with suspicion, the rules
enjoin a reasonable scepticism, not an obdurate persistence
in disbelief. They do not demand from the Judge, even in
circumstances of grave suspicion, a resolute and
impenetrable incredulity. He is never required to close his
mind to the truth". It would sound platitudinous to say so,
but it is nevertheless true that in discovering truth even in
such cases the judicial mind must always be open though
vigilant, cautious and circumspect."
20. Reference can also be made to the principles enunciated in Jaswant
Kaur v. Amrit Kaur2 for dealing with a Will shrouded in suspicion,
which are as follows:
"9. In cases where the execution of a will is shrouded in
suspicion, its proof ceases to be a simple lis between the
plaintiff and the defendant. What, generally, is an
adversary proceeding becomes in such cases a matter of the
court's conscience and then the true question which arises
for consideration is whether the evidence led by the
propounder of the will is such as to satisfy the conscience
of the court that the will was duly executed by the testator.
It is impossible to reach such satisfaction unless the party
which sets up the will offers a cogent and convincing
explanation of the suspicious circumstances surrounding
the making of the will."
21. Turning to the specific facts of this case, it is essential to examine the
circumstances surrounding the execution of the Will dated 23.02.2008.
(1977) 1 SCC 369.
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22. The Appellants claim that the Will was executed by the testator, Late
Jayakrishna Dash, in sound physical and mental health and that he
voluntarily bequeathed his properties to them. The Will was registered
and executed in the presence of two witnesses. However, the
Respondents raised objections, primarily questioning the testator's
mental capacity at the time of execution and alleging that the Will was
forged.
23. The Senior Civil Judge, Bhubaneswar, focused on several key factors,
including the timing of the Will's execution during the testator's
hospitalization, and the use of a Left Thumb Impression instead of a
signature. The trial court noted these factors as contributing to
suspicion surrounding the Will's authenticity.
24. Additionally, discrepancies were noted in the Will, particularly in the
description of the testator's profession as a "cultivator" rather than the
more fitting "retired government officer," and the use of the surname
"Das" instead of his correct surname, "Dash." These irregularities,
coupled with the medical records indicating the testator's health issues,
led the Senior Civil Judge to conclude that the execution of the Will was
surrounded by suspicious circumstances.
25. Upon reviewing the facts and material placed on record, this Court
finds that the circumstances surrounding the execution of the Will raise
serious concerns about the testator's mental and physical state at the
time of its execution.
26. A perusal of the record reveals that the testator was hospitalized at
Neelanchal Hospital from 21.02.2008 to 26.02.2008 due to health
complications, including Metabolic Encephalopathy, Lacunar Infarct in
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the Basal Ganglia, Parkinsonism, and hypertension. These conditions
significantly impaired his cognitive and neurological functions. While
the mere fact of hospitalization does not automatically invalidate the
Will, the timing of its execution, during a period of serious health
challenges, raises doubts about the testator's capacity to understand
and voluntarily execute the Will.
27. Further, the use of a Left Thumb Impression instead of the testator's
signature raises significant concerns, especially given his established
literacy and position as a retired Class-I government officer. Such a
position, which would have required proficiency in signing official
documents, casts doubt on the legitimacy of the Will. This unusual
method of execution, when coupled with other discrepancies such as
referring to the testator as a 'cultivator' instead of his actual title as a
'retired government officer,' and the erroneous use of 'Das' instead of
the correct surname 'Dash,' further erodes the credibility of the Will.
These irregularities, far from being mere clerical errors, point to the
likelihood of a flawed or even fabricated document.
28. While the Appellants provided material supporting the execution of
the Will, including attesting witnesses and the registration of the Will,
the suspicious circumstances identified were not adequately
addressed. The Appellants have failed to dispel these suspicions with
sufficient clarity to satisfy the Court's conscience regarding the Will's
authenticity.
VI. CONCLUSION:
29. In light of the foregoing, this Court concurs with the trial court's finding
that the Will was executed under suspicious circumstances. The
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Appellants have not provided a satisfactory explanation for the timing
of the Will's execution, the discrepancies in the document, nor the use
of a Left Thumb Impression instead of the testator's signature. These
unresolved issues, coupled with the other irregularities, create
significant doubts as to the Will's authenticity and, by extension, its
validity.
30. Upon thorough review of the facts, evidence, and applicable law, this
Court finds no justification to interfere with the trial court's judgment.
31. Accordingly, the FAO is dismissed.
32. Interim order, if any, passed earlier stands vacated.
(Dr. S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 18th July, 2025
