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BURDEN OF PROOF IN CASE OF WILL AND ITS CIRCUMSTANCES 1977 SC

FULL JUDGMENT
SETH BENI CHAND vs SMT. KAMLA KUNWAR AND OTHERS AIR 1977 SC 63, 1977 SCR (1) 578, The mere description of a signatory to a testamentary document as an attesting witness cannot take the place of evidence showing due execution of the document. An attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. ….. The onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. Where the circumstances surrounding the execution of the will are shrouded in suspi- cion, it is the duty and function of the propounder to remove that suspicion by leading satisfactory evidence, and by offering an explanation of auspicious circumstances which can satisfy a prudent mind.

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