Patna HC refuses probate: literate woman who signed an FIR nine days earlier left thumb marks on her will

Justice Ramesh Chand Malviya reversed a Begusarai probate grant for a 1994 will by which an elderly childless widow left her entire estate to two nieces. Nine days before the will she had signed a police complaint that her signature and mark had been taken on blank papers at a registry office. The will bore only thumb impressions at the top of each page, every witness came from the beneficiaries circle, and the propounders own explanation that she was weak and disturbed left her capacity unproved.

On 8 December 1994 Sabujwati Kunwari, an elderly widow from Sakhmohan village in Samastipur, lodged an FIR at Teghra police station, signing it herself, stating that three days earlier she had been made to sign and put her mark on plain and stamped papers at the Teghra registry office and that these could be misused. Nine days later, on 17 December 1994, she is said to have executed an eight-page will leaving everything to her brother’s two daughters. It carried no signature, only a thumb impression at the top right of every page. On 29 October 2026 the Patna High Court held that gap between the signed FIR and the thumb-marked will to be one the propounders never bridged. Justice Ramesh Chand Malviya allowed First Appeal No. 128 of 2017, set aside the Begusarai trial court’s grant of probate of 5 July 2017, and refused probate of the will.

A will in favour of two nieces, and an objector from the husband’s side

Ruma Devi and Prabha Devi, daughters of Bijali Prasad Singh, filed Probate Case No. 1 of 1995 under Section 276 of the Indian Succession Act, 1925 on 14 March 1995, less than two months after the testatrix died on 20 January 1995. Sabujwati Kunwari was Bijali Prasad Singh’s full sister. Her husband, Haribansh Narayan Singh, had died in 1920 leaving her as sole heir, and her limited estate had become absolute under the Hindu Succession Act, 1956. The petition said she had no children and no surviving relations on her husband’s side, that she relied on her maternal family to manage her property, and that she treated the two nieces as her own daughters. Ruma Devi sought probate for the Schedule I property, Prabha Devi for Schedule II, and both jointly for Schedule III. The will was attested by Uday Shankar Kumar of Binodpur, Krishnadeo Prasad Singh of Pakra in Bhagalpur and Dr Binoy Kumar; Bijali Prasad Singh identified his sister’s thumb impression. The petition explained that she was literate but her hands trembled with age, so she used her thumb.

On 25 July 1995 Baban Devi alias Rukmini Devi, claiming to be the full sister of the testatrix’s husband, sought to be impleaded and opposed the grant. After her death her daughter Shanta Sinha carried on as objector, and after Shanta Sinha’s death the appeal was pursued by her son Jayant Vishnu Prabhakar Bhardwaj and husband Surya Narayan Singh. The objector pleaded that the petition did not comply with Sections 280 and 281 of the Act, that the will was forged, fabricated and antedated, that it contravened Section 16(2)(iii) of the Bihar Land (Ceiling) Act while Ceiling Case No. 10 of 1994-95 was pending before the Collector, Samastipur, who had refused to implead Ruma and Prabha but had made Baban Devi a party, and that even if the thumb impression were genuine it might have been obtained by the nieces’ father after the testatrix’s death. Her case, built on her own deposition and the FIR of 8 December 1994, was that Bijali Prasad Singh had got his sister’s land sold through eight registered sale deeds by fraud and coercion, pocketed the proceeds, and taken her thumb impression on blank paper at Teghra, later converting it into the will. The probate case became Title Suit No. 2 of 2007.

Seven witnesses deposed on each side. For the propounders: Abhishek Kumar, the attesting witnesses Uday Shankar Kumar and Dr Binoy Kumar, the scribe Radhey Shyam Prasad, Bijali Prasad Singh and the two nieces. For the objector: Narayan Paswan, Satto Paswan, Tribhuwan Rai, Binda Singh, Gopi Prasad Singh, Shanta Sinha herself and the advocate commissioner who recorded her evidence. The objector also produced the FIR, the order sheet of a 2007 ceiling case, and the order sheet and application in Probate Case No. 27 of 1979, in which the District Judge, Bhagalpur had on 2 March 1988 rejected a will dated 15 April 1977 that the same two sisters had set up over the property of their grandmother Jagdamba Devi.

How the trial court granted probate

The VIIIth Additional District Judge, Begusarai rejected the technical objections. The petition was signed and verified by both applicants and by Bijali Prasad Singh; non-registration was no bar to probate under a Division Bench ruling of the Patna High Court reported in 1979 BBCJ 16; and territorial jurisdiction lay in Begusarai under Section 17 of the Code of Civil Procedure once the matter became a title suit. On the merits, the judge found that the thumb impression was identified by the brother and the execution supported by both attesting witnesses and the scribe, that the use of a thumb impression by a literate but elderly woman lent little support to a forgery charge, and that the propounders’ burden had been lightened because the objector and four of her witnesses themselves said the testatrix’s thumb impression had been taken by Bijali Prasad Singh on papers. The fraud story was unbelievable, the trial court reasoned, because the FIR made no complaint against the brother; and Bijali Prasad Singh, with married daughters and sons of his own, would not have grabbed property for his daughters rather than himself. The Collector had no jurisdiction over a will’s genuineness, and the 1979 probate episode was not a cogent ground for doubt. Probate was granted on 5 July 2017.

Gunpoint at the registry, strangers as witnesses, a habit of wills

Mr Jitendra Prasad Singh, Senior Advocate, with Mr Varun Krishna Singh, argued for the appellants that on 5 December 1994 Bijali Prasad Singh took his ailing sister to the Teghra registry office on the pretext of a doctor’s visit at Begusarai, where she was forced at gunpoint to sign documents and blank papers while he signed as witness; she returned to Sakhmohan in shock and lodged Teghra P.S. Case No. 198 of 1994 on 8 December, signing the FIR herself. It was wholly improbable, he said, that within twelve days of that incident she would voluntarily leave her estate to the daughters of the very brother involved, at the house of a beneficiary in Begusarai, surrounded by their relatives, with a scribe and witnesses who were strangers to her. The will did not satisfy Section 63: a literate woman who had signed the FIR days earlier put thumb impressions at the top right of all eight pages; it was unregistered though the Begusarai registry was within a kilometre of Ruma Devi’s house; the scribe was unlicensed; Uday Shankar Kumar admitted in cross-examination that he was the business partner of Ruma Devi’s husband Ajay Kumar; Dr Binoy Kumar was Ajay Kumar’s brother-in-law; the third attesting witness died before deposing; and no one from the testatrix’s own village took part. The 1977 will over the grandmother’s property, rejected in 1988, showed a pattern. Counsel relied on the Patna High Court’s decision in Smt. Bimla Devi v. Uma Devi, M.A. No. 145 of 2013, on the Supreme Court’s ruling in Pazhanathal v. Alamathal, 2026 INSC 860, and on Malli Bewa v. Natabar Naik, AIR 1980 Orissa 34.

Mr Shri Nandan Prasad Singh, Senior Advocate, with Mr S.P. Singh, answered for the nieces that the complaints about the thumb impression, its position and non-registration were never pleaded and could not be raised for the first time in appeal, citing Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242. Signing in the blank right margin was normal practice even for registered deeds. Sections 280 and 281 were complied with, the verification having been made by both applicants, by Ruma Devi’s advocate and by Bijali Prasad Singh. The thumb impression stood admitted by the objector and her witnesses. The FIR concerned a kidnapping by other persons and accused the brother of nothing; after it the testatrix became mentally and physically weak and her hands trembled, which explained the thumb mark. And the trial court had rightly found no motive for Bijali Prasad Singh to engineer a will for married daughters when he had sons of his own.

Unpleaded suspicion still counts when it is written into the document

Justice Malviya began with the settled framework from H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443: the propounder must prove execution under Section 63 of the Succession Act and Section 68 of the Evidence Act, show that the testator was of sound disposing mind and understood the dispositions, and where suspicious circumstances exist remove every legitimate doubt, especially where the propounder took a prominent part in a will that benefits him. S.R. Srinivasa v. S. Padmavathamma, (2010) 5 SCC 274, and Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369, add that registration alone does not dispel suspicion and that each suspicious circumstance needs a cogent explanation. Once a probate petition is contested, Section 295 turns it into a regular suit, and a grant operates in rem, binding people not before the court, which calls for exacting scrutiny.

The pleadings objection was rejected. The objector had pleaded forgery and had pleaded that even a genuine thumb impression might have been misused by the nieces’ father, so how the mark came to be on the paper was in issue from the start, both sides led evidence on it, and the trial court itself had discussed why a thumb impression was used and why the will was unregistered. No prejudice was caused. More fundamentally, Section 63(a) and (b), which require the testator to sign or affix a mark placed so as to show an intention to give effect to the writing as a will, are ingredients the propounder must prove, not defences the contestant must plead; the judge cited paragraph 51 of Pazhanathal. Following Derek A.C. Lobo v. Ulric M.A. Lobo, 2023 SCC OnLine SC 1893, a suspicious circumstance inherent in the document must be dispelled even if the contestant never pleaded it. The thumb impression, its position, the witnesses’ ties to a beneficiary and the absence of registration were all inherent in the will and in the propounders’ own evidence. The respondents’ reliance on Chitturi Subbanna v. Kudapa Subbanna, AIR 1965 SC 1325, was misplaced because the passages cited came from the dissent; the majority allowed a new ground on facts already on record.

The judge then addressed capacity. Section 63 is mandatory, and testamentary capacity forms part of the propounder’s burden whether or not incapacity is pleaded; Issue IV before the trial court, which asked whether the will was executed in a fit state of mental and physical health, had put it squarely in issue, and the trial court erred in treating it as outside the enquiry. The propounders’ own written notes explained the thumb impression by saying that after the kidnapping the testatrix became mentally and physically weak and a bit disturbed. A submission is not evidence, the judge said, but having advanced that case they could not ask the court to presume she was in full command of her faculties twelve days later. If she was too weak to sign, that was contradicted by the FIR she signed nine days earlier; if she was disturbed, capacity and understanding remained unproved. Either way, “the explanation deepens the doubt and does not remove it”. The court did not find that she lacked capacity; it found the propounders had failed to prove that she had it and understood the will.

The FIR the trial court read as an alibi

The trial court had treated the FIR as helping the propounders, because it accused Bijali Prasad Singh of nothing; it recorded that the testatrix and her brother were kidnapped by one Dani Rai and his group, that eight kewalas were taken from her, and that her brother was forced to sign as identifying witness. Reading the original, Justice Malviya found that the testatrix also stated that on 5 December 1994 she was made to sign and put her mark on several plain and stamped papers at the Teghra registry office and that these could be misused. The High Court did not decide whether the brother had any part in those events. It was enough that nine days before the will she had herself recorded that her mark had been taken on papers whose contents she did not know. On that record the possibility that a mark taken then was later used for another purpose was not fanciful, and the trial court had never asked the question.

The thumb impression itself was the next problem. The trial court had found that the testatrix was literate and habitually signed; the FIR appeared to bear her signature; yet the will disposing of her entire estate carried no signature anywhere. The explanation that her hands trembled was a pleading, not evidence, and could not be reconciled with a complaint signed nine days earlier. “A person who could sign a complaint to the police could sign her Will.” Under Smt. Guro v. Atma Singh, (1992) 2 SCC 507, a propounder must satisfactorily explain why a literate testator used a mark, and the nieces had not. Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, which cautions against adverse inferences from a literate person’s thumb impression, was distinguished: there the thumb mark was the executant’s habitual mode, the deed was registered and expert evidence supported it, none of which was true here. The position of the marks mattered too. Signing in the margin is not illegal, but Section 63(b) requires the mark to be placed so as to authenticate the writing, which is why it ordinarily sits at the close of the text; a mark at the head of each page is also where a mark is taken in advance on papers later written upon, which was precisely the objector’s case, and no witness explained why the marks were taken that way.

The trial court’s reasoning that the objector had admitted the thumb impression and so lightened the propounders’ burden was rejected. The objector’s case was that the mark was taken on blank paper and converted into a will, or obtained after death. “That is a denial of the Will and not an admission of it.” Shanta Sinha’s own statement was a surmise, prefaced by the words it appears, and the four village witnesses only repeated what the testatrix had told them. Even if the mark were hers, execution of this will with knowledge of its contents and proper attestation still had to be proved, and the weakness of the defence could not supply that proof.

Bijali Prasad Singh’s role was a recognised suspicious circumstance under Guro: brother of the testatrix and father of both beneficiaries, he identified her mark, signed in the execution portion of the first page and as a witness on the second, verified the probate application and swore an affidavit in its support. The law does not ask what such a person might have preferred, the judge observed, but whether independent evidence removes the suspicion, and there was none. The attesting witnesses were a business partner and a brother-in-law of Ruma Devi’s husband; the scribe was unlicensed; the trial court had treated Dr Binoy Kumar as respectable because he was a doctor, which said nothing about independence, and had not examined independence at all. Nobody from Sakhmohan spoke to the testatrix’s condition or intention. The whole evidence of execution came from the beneficiaries’ circle. The propounders had pleaded that no one survived on the husband’s side while the objector’s genealogy showed Baban Devi as his full sister, and the trial court made no finding; a bequest to nieces was not unnatural, but where a will excludes those through whom the property came, the evidence must show that exclusion was the testatrix’s own conscious decision. And although registration is optional, a woman who had been taken to the Teghra registry on 5 December and complained of it three days later executed, twelve days after that, an unregistered will with no reason offered.

The technical grounds went the other way. Section 281’s requirement of verification by a witness to the will applies only when procurable and has been treated as directory in Nand Kishore Rai v. Mst. Bhagi Kuer, AIR 1958 All 329; after a full trial any defect was a curable irregularity, though verification by the beneficiaries’ father added no independent assurance. The Bihar Land Ceiling objection and the Collector’s refusal to implead the nieces went to the legality of the bequest and title to land, which a probate court does not decide; the trial court was right that the Collector had no jurisdiction over the will’s genuineness.

Order

The High Court held that the trial court had asked only whether the mark was the testatrix’s, answered it from the weakness of the defence, and thereby reversed the burden the law places on a propounder; it treated a surmise as an admission, filled gaps with conjecture about the brother’s motive, and did not examine the witnesses’ independence, the thumb impression or the FIR. Because the findings rested on documents and inferences rather than demeanour, the appellate court was equally placed to draw them. The findings on Issues III and IV, that the will was the testatrix’s last testament duly executed in a fit state of health, were set aside. The finding on Issue I was upheld only to the extent that the probate case was not liable to be dismissed at the threshold on technical objections; Issue II, on cause of action, was left undisturbed; Issue V, entitlement to probate, was answered against the nieces. The judgment of the VIIIth Additional District Judge, Begusarai dated 5 July 2017 in Title Suit No. 2 of 2007 was set aside, probate of the will dated 17 December 1994 was refused and the probate case dismissed. The court recorded that its observations concern only whether the will was proved and do not decide title to the properties, which is to be determined in accordance with law. The judgment is approved for reporting.