[Cites 10, Cited by 0]
Orissa High Court
Ashis Mitra vs Rama Mitra And Ors on 29 November, 2025
Author: Sanjeeb K Panigrahi
Bench: Sanjeeb K Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT,
CUTTACK
Date: 01-Dec-2025 16:25:20
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No.633 of 2012
(An appeal under Section 299 of the Indian Succession Act, 1925)
Ashis Mitra .... Appellant (s)
-versus-
Rama Mitra and Ors. .... Respondent (s)
Advocates appeared in the case through Hybrid Mode:
For Appellant (s) : Mr. Samir Kumar Mishra, Sr. Adv.
Along with Associates
For Respondent (s) : Mr. Biplab Mohanty, Adv.
Ms. Tamanna Patnaik, Adv.
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING:-12.11.2025
DATE OF JUDGMENT:-29.11.2025
Dr. Sanjeeb K Panigrahi, J.
1. In the current appeal, the Appellant seeks a direction from this Court to
set aside the judgment dated 09.11.2012 passed by the learned District
Judge, Puri in C.S. No.6/12 of 2007/2006, hold the holograph will dated
19.01.1990 as duly proved, declare it the testator's last valid testament,
and consequently grant probate in his favour.
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case are as follows:
(i) The Appellant filed an application under Section 276 of the Indian
Succession Act seeking probate of a handwritten will dated 19.01.1990,
purportedly executed by the testator, Hridaya Ranjan Mitra. The
probate application concerned the estate described in the plaint and
was supported by affidavit.
(ii) The Appellant is the son of late Kamal Kumar Mitra from his first wife,
Sudha Mitra. After the death of the petitioner's mother, Kamal Kumar
Mitra remarried O.P. No. 1 and had children, including a son, Abas
Mitra, and daughters, including Sanjukta Bose. Abas Mitra died on
16.02.1990, leaving behind his legal representatives, O.P. Nos. 2 and 3.
O.P. Nos. 5 to 11 are the near relatives of the family.
(iii) The testator, Hridaya Ranjan Mitra, was a bachelor who acquired land
at Puri Town by way of a lease. The property was recorded in his name
in the Record of Rights published on 29.10.1987. The petitioner claims
that during the testator's old age, he and his wife looked after him, and
the testator allegedly executed a will on 19.01.1990 in his own
handwriting, in the presence of attesting witnesses.
(iv) The testator died on 17.12.1994 at Puri. Following his death, the
petitioner instituted probate proceedings with respect to the will dated
19.01.1990.
(v) Most of the near relatives of the testator did not contest the probate
proceedings. However, O.P. No. 12, Murali Rout (since deceased), and
subsequently his legal heirs, O.P. Nos. 12A to 12G, entered appearance
and contested the case by filing objections.
(vi) The contesting opposite parties asserted reliance on another will
executed by the testator dated 29.09.1994 under Ext. A. The said
document related to land measuring Ac. 0.50 decimals under Plot No.
331/425, Khata No. 269, which they claimed was part of the property
which has also been described in Ext.1.
(vii) During evidence, the Appellant examined two attesting witnesses,
P.W.1 and P.W.2, who stated that they witnessed execution of the
holograph will dated 19.01.1990. The contesting opposite parties
examined three witnesses, including attesting witnesses to the will
dated 29.09.1994, and relied on Ext. A as the last will of the testator.
(viii) The Appellant relied on the Supreme Court judgment in Joyce
Primrose Prestor v. Vera Marie Vas1 to support his contention that a
holograph will requires minimal formal proof. The respondents relied
on judicial precedents including Daulat Ram v. Sodha2, Pentakota
Satyanarayana v. Pentakota Seetharatnam3, and to challenge the
validity of the petitioner's case.
(ix) The learned District Judge, on evaluation of the oral and documentary
evidence, recorded findings that the petitioner failed to prove Ext. 1 as
the last will of the testator and proceeded to dismiss the probate
petition by judgment dated 09.11.2012.
II. SUBMISSIONS ON BEHALF OF THE APPELLANT:
3. Learned counsel for the Appellant earnestly made the following
submissions in support of his contentions:
AIRONLINE 1996 SC 55.
AIR 2005 SUPREME COURT 233.
AIR 2005 SUPREME COURT 4362.
(i) The impugned judgment is erroneous, illegal, and against the weight of
the evidence. The appellant asserts that the learned court below
wrongly disbelieved the genuineness of the will dated 19.01.1990 under
Ext. 1.
(ii) The attesting witnesses P.W.1 and P.W.2 categorically testified that
they witnessed the execution of the will and that it was executed in
their presence, including in the presence of respondent Murali Rout.
The appellant contends that this satisfies Section 68 of the Indian
Evidence Act, and the court ought not to have discredited the execution
or validity of the will despite the non-examination of the respondent.
(iii) The appellant submits that P.W.1 and P.W.2 affirmed having no
knowledge of any subsequent will executed by the testator. Further, in
absence of material produced by respondents establishing the existence
of another valid will after Ext. 1, the court erred in holding that the
appellant failed to prove that Ext. 1 was the testator's last will.
(iv) The appellant stresses that Ext. 1 is a holograph will, written in the
testator's own handwriting, duly attested, with signatures of the
testator and witnesses. Parties having a caveatable interest did not raise
objections to probate of Ext. 1, and the court should have accepted the
genuineness of the document.
(v) The appellant contends that given the lapse of twelve years between
execution of the will and testimony of witnesses, minor discrepancies
in recollection are natural and cannot discredit the core evidence of
execution or genuineness.
(vi) The appellant urges that considering the ethical circumstances of the
will and timing of probate, along with the testator's death on
17.12.1994, the court ought to have held Ext. 1 as genuine and
admissible to probate.
(vii) The appellant challenges the reasoning that absence of an explanation
as to how the will came into possession of the appellant undermines its
authenticity. The appellant argues that he and his family, though
residing in Burdwan, frequently visited and cared for the testator at
Puri, who remained in good health until his death, and such
circumstances do not justify disbelief of the will.
(viii) The appellant maintains that the trial court committed grave illegality
in doubting the holograph will under Ext. 1 and prays that Ext. 1 be
held as genuine and probate be granted.
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 respondents contended that the petitioner deliberately avoided
examining himself despite being the propounder and having exclusive
knowledge concerning circumstances of execution, mental state of the
testator, and custody of the will. They argued that this omission is
critical, especially since the will surfaced for production only two years
after the testator's death, creating a presumption of manipulation or
suppression of facts.
(ii) They maintained that the attesting witnesses examined by the
petitioner were unconvincing, contradictory, and lacked knowledge of
vital aspects of the will's text and circumstances. They emphasized that
P.W. 2 failed to explain contents of the will and both witnesses
confirmed that the testator resided in Puri while the petitioner resided
in Burdwan, occasionally visiting, which contradicted the petitioner's
tale of continuous caregiving and emotional closeness with the testator.
(iii) Respondents claimed that Ext. 1 was fraudulently procured, without
proof of genuine affection or testamentary reasoning, while Ext. A was
a more natural will executed in favour of the caretaker, Murali Rout,
who looked after the testator. They argued Ext. A was the last will
dealing with a portion of the same property, and the petitioner's
inability to establish continuous care, proximity, or any rational
motivation behind the testator's preference undermined the legitimacy
of Ext. 1.
IV. ANAYSIS OF THE JUDGEMENT OF THE DISTRICT COURT:
5. The District Court held that despite the will under Ext. 1 being a
holograph will, mere scribing by the testator does not exempt the
propounder from establishing genuineness with cogent, credible
evidence. The Court observed that the petitioner's reliance solely on
attesting witnesses, without personal testimony, failed to dispel
suspicious circumstances, especially concerning the unclear manner in
which the will came into his possession and absence of proof that he
actually supported and cared for the testator during his old age.
6. The Court found substantial contradictions in the evidence of P.W. 1
and P.W. 2, noting their inability to explain either the detailed contents
of the will or the circumstances of its creation, and their admissions
that the petitioner was not residing with the testator. The Court
therefore concluded that the holograph nature of the will did not
automatically confer authenticity, and the petitioner had not
discharged the legal burden of proof required of a propounder under
probate law.
7. Regarding Ext. A, the Court held that respondents also failed to
establish its genuineness beyond suspicion, noting absence of
signatures' dates, vague and incomplete recitals, lack of proof of scribe,
inconsistent testimonies of attesting witnesses, and contradictions
regarding whether the document was typed or handwritten.
Ultimately, while finding Ext. A suspicious and invalid, the Court still
determined that Ext. 1 was unproven as the valid last will of the
testator, leading to dismissal of the probate proceeding.
V. JUDGMENT AND ANALYSIS:
8. Heard Learned Counsel for the parties and perused the documents
placed before this Court.
9. Having considered the record and the rival contentions, this Court note
that the propounder (appellant) bears the onus of proving due
execution and genuineness of the holographic Will dated 19.1.1990
(Ext.1) under Section 276 of the Succession Act.
10. It is settled that, in the absence of any suspicious circumstances, proof
of the testator's testamentary capacity and the signature is sufficient to
discharge this onus. However, if suspicious circumstances surround
the execution (such as unusual family arrangements, unexplained
delays or propounder's active participation), the propounder must
remove those doubts by clear evidence before the Will can be accepted.
This stance was affirmed in plethora of judicial precedents including
the Supreme Court's case of Shashi Kumar Banerjee and Ors. v. Subodh
Kumar Banerjee4 wherein it was held as follows:
"4...The mode of proving a will does not ordinarily differ
from that of proving any other document except as to the
special requirement of attestation prescribed in the case of a
will by S. 63 of the Indian Succession Act. The onus of
proving the will is on the propounder and in the absence of
suspicious circumstances surrounding the execution of the
will, proof of testamentary capacity and the signature of the
testator as required by law is sufficient to discharge the
onus. Where however there are suspicious circumstances,
the onus is on the propounder to explain them to the
satisfaction of the Court before the Court accepts the will as
genuine. Where the caveator alleges undue influence, fraud
and coercion, the onus is on him to prove the same. Even
where there are no. such pleas but the circumstances give
rise to doubts, it is for the propounder to satisfy the
conscience of the Court. The suspicious circumstances may
be as to genuineness of the signature of the testator, the
condition of the testator's mind, the dispositions made in
the will being unnatural improbable or unfair in the light of
relevant circumstances or there might be other indication
in the will to show that the testator's mind was not free. In
AIR 1964 SUPREME COURT 529
such a case the Court would naturally expect that all
legitimate suspicion should be completely removed before
the document is accepted as the last will of the testator. If
the propounder himself takes part in the execution of the
will which confers a substantial benefit on him, that is also
a circumstance to be taken into account, and the
propounder is required to remove the doubts by clear and
satisfactory evidence. If the propounder succeeds in
removing the suspicious circumstances the Court would
grant probate, even if the will might be unnatural and
might cut off wholly or in part near relations. It is in the
light of these settled principles that we have to consider
whether the appellants have succeeded in establishing that
the will was duly executed and attested."
11. The law also recognizes that holographic wills carry a strong
presumption of due execution. As the Supreme Court held in Joyce
Primrose Prestor (Supra), a Will wholly in the testator's handwriting
raises strong presumption of its regularity and of its being duly
executed and attested. On these facts there is hardly any suspicious
circumstance attached to this will and it requires very little evidence to
prove due execution. The relevant excerpts are produced below:
"As stated by this court in Shashi Kumar Banerjee's case
(supra), it is in this background, the evidence in the case
including that of the attesting witnesses should have been
examined and what was required was only to formally
prove the Will, and very little evidence to prove due
execution and attestation of the will, was alone called for.
The High Court totally ignored the above vital aspects."
12. Section 63 of the Succession Act permits the Will to be purely
holographic, and Section 68 of the Evidence Act mandates that at least
one attesting witness must prove execution. Here Ext.1 is in the
testator's hand, signed and attested by two witnesses (of whom both
have been examined). Thus the basic formal requirements are met.
Once the propounder shows the testator signed and had testamentary
capacity, the law presumes due execution. There is no doubt that the
Will is holographic and in the testator's handwriting; this alone entitles
it to the heightened presumption emphasized by the Supreme Court.
13. The respondents counter that suspicious circumstances have been
established. These include the unexplained delay in production of the
Will (it surfaced only after the testator's death), the propounder's not
examining himself despite being the sole beneficiary, and the fact that
the appellant lived far away (in Burdwan) while the testator resided in
Puri. It is true that where a beneficiary stands to gain a "substantial
benefit" and is involved in procurement of the Will, courts scrutinize
the evidence closely.
14. Here the appellant, as sole legatee under Ext.1, has a material interest.
The witnesses P.W.1 and P.W.2 confirmed they saw the testator sign in
their presence, but admitted not knowing many details (the contents of
the Will) after many years. However, as courts have repeatedly held,
the attesting witnesses need not recall the entire text; their role is to
attest the act of signing and the testator's capacity at that time. The
critical question is whether all legitimate suspicion has been removed.
15. This Court observes that the attesting witnesses' evidence, although
eliciting minor inconsistencies, was essentially that the testator did sign
the Will in their presence. The natural forgetfulness of events occurring
twelve years earlier does not ipso facto render their testimony
incredible.
16. The Supreme Court has cautioned that mere variations in peripheral
details should not override the core proof of execution. In fact, the
Supreme Court in the case of Pentakota Satyanarayana (Supra), for
example, it was held that mere exclusion of a natural heir or minor
irregularities are not suspicious circumstances invalidating a will. The
relevant excerpt are produced below:
"We are unable to countenance the said submission. The
circumstances of depriving the natural heirs should not
raise any suspicion because the whole idea behind the
execution of the will is to be interfered in the normal line of
succession and so natural heirs would be debarred in every
case of the Will. It may be that in some cases they are fully
debarred and some cases partly. This is the view taken by
this Court in Uma Devi Nambiar and Others vs.
T.C.Sidhan (Dead) (2004) 2 SCC 321"
17. Similarly, the witnesses here uniformly stated that they witnessed the
signing, and none alleged any coercion or fraud. Crucially, they denied
any knowledge of a later Will, and the respondents have not produced
evidence of a valid substitute Will executed after Ext.1.
18. This Court notes that the District Court found the respondents' alleged
subsequent Will (Ext. A) to be suspicious and invalid on several
grounds, lack of clear attestation, contradictions, etc. That finding is not
challenged on appeal. In the absence of a proved later testament, Ext.1
remains the prima facie instrument. The burden never shifted to the
appellant to prove absence of another Will; he need only establish that
Ext.1 is a genuine final Will. Given Ext.A fails on its own, the focus is
rightly on Ext.1 alone.
19. Applying the settled legal principles to the facts, we find no valid basis
to discredit Ext.1. There is no direct proof of forgery or undue
influence, and the attesting witnesses' testimony, taken at face value,
shows due execution. The Joyce Prestor (Supra) Court admonished that
a high court should not lightly disregard the presumption in favour of
a hand-written Will when the lower court's appreciation of witness
credibility is not perverse.
20. Here, save for minor mismatches in memory, there is nothing
inherently implausible or unnatural about the Will's terms (it provided
for the Appellant, who cared for the testator in his old age). The District
Judge disbelieved the witnesses on grounds that this Court finds
unpersuasive in light of the principles.
21. Finally, Section 68 of the Evidence Act required that at least one attestor
be produced, indeed two were, and their evidence went unchallenged
by any direct contradiction on the point of signing. The non-
examination of the propounder himself, while unusual, is not fatal
where competent attesting evidence is available. The law does not
mandate that the beneficiary must testify; he did choose not to, but that
does not of itself invalidate the Will. Absent evidence of deliberate
fabrication, we should give effect to the written testament.
VI. CONCLUSION:
22. For these reasons, this Court concludes that the appellant has
discharged the legal burden to the satisfaction of this Court. Ext.1 is
hereby held to be the valid last Will and Testament of the deceased.
23. The appeal is allowed. The judgment dated 09.11.2012 passed by the
learned District Judge, Puri in C.S. No.6/12 of 2007/2006 is set aside and
probate of the Will dated 19.1.1990 (Ext.1) shall be granted in due
course.
24. Interim order, if any, passed earlier stands vacated.
(Dr. Sanjeeb K Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 29th November, 2025
