Heard, learned counsel for the parties.

1. The instant Misc. Appeal has been filed under Section 299 of the Indian Succession Act, 1925 against the grant of probate in favour of Respondent No.1–Bhawani Devi in Title Suit No.01 of 2008 [arising out of Probate Case No.01/2004].

2. As per the case of the applicant / Respondent No.1 [Bhawani Devi], Registered WILL was executed on 22.11.2000 by Biru Raut, who was her father-in-law with respect to property in the schedule of the WILL, measuring an area of three kattha, Plot No.362, Ward No.5, Jamabandi No.33/ 27 of Dumka Town.

3. Altogether 14 defendants were arrayed as a party(s), out of them, defendant Nos.1 to 6 are sons of the Testator, defendant no.7 is the wife of one Brajadhan and defendant Nos.8 to 14 are the heirs and descendants of Rabi Mahto.

4. The grant of probate was contested before the learned Trial Court by defendant Nos.2 to 6 and defendant Nos.8 to 14, inter-alia, on the ground that the said WILL was forged and fabricated document as the Testator was 90 years of age at the time of alleged execution of the WILL.

5. Testamentary capacity of the Testator to dispose of the property through WILL has also been questioned in the objection.

6. On contest, the probate case was converted into a Testamentary Suit and the following issues were framed :-

                  (i) Is the probate case is maintainable in its present form?

                  (ii) Whether Will dated 22.11.2000 alleged to be executed by one Biru Rout is valid and genuine?

                  (iii) Whether the properties covered under Will dated 20.11.2000 was joint family property of Biru Rout along with opposite parties and others?

                  (iv) Whether executant Biru Rout has any right to execute the Will in respect of suit land?

                  (v) Is the plaintiff entitled to get the said will probated?

                  (vi) Is the plaintiff is entitled to any relief as claimed for?

7. Altogether five witnesses were examined including the attesting witness (P.W.3- Lakhi Narayan Mandal) and scribe of the WILL i.e. P.W.2 (Sumeshwar Nath Singh).

8. The signatures of the attesting witnesses, Sumeshwar Nath Singh (P.W.3), Lakhi Narayan Mandal (P.W.2) and Krishna Chandra Mandal (P.W.4) on the WILL were proved and marked as Ext.1/1, Ext.1/2 and Ext.1/3.

9. Apart from this, the certified copy of the sale-deed No.2175 /1981 by which the land, in question, was acquired by the Testator has also been adduced and marked as Ext.3.

10. Learned Trial Court recorded a finding in favour of the legatee and consequently, the probate was granted vide order dated 17.03.2010 which is under-challenge in the instant Misc. Appeal.

11. Learned Sr. Counsel for the appellants while assailing the impugned judgment has submitted that the contents of the WILL has not been proved by any of the witnesses. Further, anchor-sheet witness of the applicant are A.W.2 (being a deed writer) and A.W.4 (being a typist) and both of whom are the attesting witnesses in the present case.

12. It is further submitted that A.W.2 has deposed in his examination- in-chief that the draft of the WILL was prepared on the instruction of the Testator. However, in his cross-examination at Para-3, it has been deposed by him that he does not know the Testator personally. Similar is the statement of the A.W.4 (being a Typist) as stated in Para-4 of his cross-examination. The testimonies of these witnesses create cloud on the execution of the WILL in a free and disposing state of mind. There is another witness, P.W.3- Lakhi Narayan Mandal who has stated that contents of the WILL has not been proved on his presence.

13. It is argued by learned counsel for the Respondents that attesting witness (A.W.2) has deposed that the draft of the WILL was prepared in his presence and was duly registered. It has also been deposed by him that the LTI mark was affixed by the Testator on the WILL in his presence as well as in presence of the Registrar. The identifier of the Testator has been examined as A.W.3 [Lakhi Narayan Mandal].

14. Having considered the submissions advanced on behalf of both the sides, it needs to be noted at the outset that Probate Court is a Court of conscience and it is bounden duty of the court to ascertain the real WILL of the testator, if any. The Court has to be satisfied with the due execution of the WILL and that it is aboveboard. The Court must remain the conscience keeper for the testator who does not remain in his/her mortal form before the Court.

15. Court sits in the armchair of the testator not to exercise its (Court’s) judgment as if it were hearing an appeal against the testator’s judgment. It sits in that armchair to look to the surrounding circumstances of the testator, which include the conduct of natural heirs towards the testator as also circumstances in which the natural heirs of the testator are placed so as to determine only the probability of the propounded WILL being that of the testator placed in those circumstances. If there being any prior WILL, they also operate as evidence of his intention at that point of time. Factors to be considered by the learner trial court in a probate case has been summed up in Gopal Krishan & Ors. v. Daulat Ram & Ors., (2025) 2 SCC 804 wherein it has been held,

                  “15. The principles as summarised by the former are reproduced as below : (Meena Pradhan case [Meena Pradhan v. Kamla Pradhan, (2023) 9 SCC 734 : (2023) 4 SCC (Civ) 449] , SCC pp. 737-38, para 10)

                  “10. … 10.1. The court has to consider two aspects : firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him;

                  10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.

                  10.3. A will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:

                  (a) The testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will;

                  (b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;

                  (c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;

                  (d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required;

                  10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;

                  10.5. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator;

                  10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with;

                  10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;

                  10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last will. In such cases, the initial onus on the propounder becomes heavier;

                  10.9. The test of judicial conscience has been evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the will while acting on his own free will;

                  10.10. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation;

                  10.11. Suspicious circumstances must be “real, germane and valid” and not merely “the fantasy of the doubting mind [Shivakumar v. Sharanabasappa [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] ]”. Whether a particular feature would qualify as “suspicious” would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit, etc.”

16. In the present case, the plea that the contents of the WILL have not been proved by the oral evidence is not tenable in view of provisions of Section 60 of the Indian Evidence Act, which specifically provides that the content of the document is not to be proved by oral evidence.

17. The will in question is duly registered, and like any other registered instrument, their lies a presumption of its due execution. This is for the reason that registered instrument bears the endorsement of the registrar under section 58 of the Registration Act. And there is a presumption of fact under section 114 (e) of the Evidence Act that official acts have been duly performed. WILL as such is not required to be registered, and even if registered it needs to be probated in terms of Section 63 of the Registration Act and Section 68 of the Evidence Act. Once as WILL is registered, there will be certainly a presumption of its due execution.

18. The WILL in the present case is a registered WILL and the original WILL has been proved and marked as Ext-2. Attesting witness as well the typist has been examined and proved its due execution. Mere fact that the attesting witnesses have candidly admitted that they were not acquainted with the Testator, is not a circumstance to raise doubt over its due execution. There is no requirement of law that attesting witness should be acquainted with the testator. Section 63(c) of the Indian Succession Act, 1925 stipulates that a Will must be attested by two or more witnesses. Each witness must have seen the testator sign or affix his mark to the WILL, or must have received a personal acknowledgment of his signature from the testator.

19. Under the aforesaid facts and circumstance, this court is of the view that there is no infirmity in the grant of Probate of WILL.

                  Miscellaneous Appeal accordingly stands dismissed. Pending I.A., if any, stands disposed of.