Bombay High Court Grants Probate of 1998 Will Despite Nine-Year Delay; Finds Due Execution, Sound Mind and Rejects Forgery and Suspicious Circumstances Challenge as Unproved
Bombay High Court Upholds 1998 Will Despite Nine-Year Probate Delay; Holds Delay Explained and Cannot Defeat a Will Whose Execution Stands Proved
Facts
The suit concerned probate of the last Will and Testament dated 22 December 1998 of Rajalakshmi Gopal Ayengar @ Rajlaxmi Ayengar. The plaintiff, Dr. Govindaraja Venkatesh Iyengar, approached the Bombay High Court as the executor named in the Will.
Rajalakshmi was the wife of eminent BARC scientist Dr. A.R. Gopal-Ayengar. The couple had one son, who died unmarried in an accident. Dr. Gopal-Ayengar died on 8 September 1992. Under his 1992 Will, the bungalow situated at 73, Mysore Colony, Mahul Road, Chembur, Mumbai was bequeathed to Rajalakshmi, making her the full and absolute owner of the property.
During Rajalakshmi’s lifetime, an educational trust known as the A.R. Gopal-Ayengar Educational Trust was established in accordance with her husband’s wishes.
Rajalakshmi died on 2 February 2002. Her disputed Will dated 22 December 1998 was stated to have been executed in the presence of R.K. Ramanathan and Dr. P.T.V. Nair as attesting witnesses.
Under the Will, her interest in the Chembur property was bequeathed to the plaintiff. The Will contemplated that he could enjoy it absolutely or, if he chose, dispose of it and utilise the proceeds for the A.R. Gopal-Ayengar Educational Trust.
The caveator, A.R. Sampathkumar, opposed probate. After his death, his legal heirs, including Prakash S. Iyengar, continued the contest.
The defendants alleged that:
- the Will was forged and fabricated;
- Rajalakshmi was critically ill and of unsound mind when it was allegedly executed;
- she was admitted to the ICCU at BARC Hospital on the relevant date;
- the plaintiff and other persons were attempting to usurp the estate;
- the handwriting/signatures were doubtful; and
- the probate petition had been filed after an unexplained delay of more than nine years following Rajalakshmi’s death.
The Court framed two core issues: whether the defendants proved that Rajalakshmi lacked a sound and disposing mind on 22 December 1998, and whether the plaintiff proved due execution of the Will. The Court ultimately answered the first in the negative and the second in the affirmative.
Issues
The principal issues before the Bombay High Court were:
- Whether Rajalakshmi was in a sound and disposing state of mind on 22 December 1998 when the Will was executed.
- Whether the plaintiff proved the due execution and attestation of the Will in accordance with Section 63 of the Indian Succession Act, 1925 and the applicable evidentiary requirements.
- Whether the circumstances surrounding execution of the Will created genuine suspicious circumstances requiring the plaintiff to discharge a heavier burden.
- Whether the defendants proved that the Will was forged or fabricated.
- What evidentiary value could be attached to the defendants’ handwriting expert report when it was prepared from a photostat copy of the Will and inadequate admitted signature samples.
- Whether Rajalakshmi had the legal authority to dispose of the Chembur bungalow by Will.
- Whether the delay of over nine years in instituting probate proceedings rendered the petition barred by limitation or otherwise justified refusal of probate.
- Whether the plaintiff had satisfactorily explained the delay in terms of Rule 382 of the Bombay High Court (Original Side) Rules, 1980.
Plaintiff’s Arguments
The plaintiff contended that the Will had been duly executed and attested and that his evidence had substantially remained unchallenged.
He relied particularly upon the testimony of R.K. Ramanathan (PW-2), one of the attesting witnesses. Ramanathan gave a detailed account of visiting BARC Hospital on 22 December 1998 and witnessing Rajalakshmi sign every page of the Will. He stated that both he and Dr. P.T.V. Nair thereafter signed the Will in Rajalakshmi’s presence.
The plaintiff emphasised that Ramanathan’s evidence concerning the actual execution, attestation and Rajalakshmi’s mental condition remained effectively unshaken in cross-examination.
He also relied on his handwriting expert, Yeshwant Datay (PW-3), who opined that the signatures appearing on the Will and admitted documents were written by the same person. The expert identified similarities in design, disconnections and signature patterns.
The plaintiff further argued that the defendants’ own evidence supported the Will.
Most importantly, Dr. P.T.V. Nair, who was called as a defence witness and was himself an attesting witness, admitted his signature on the Will and stated in cross-examination that Rajalakshmi had signed the Will in his presence.
The plaintiff also attacked an earlier affidavit allegedly made by Dr. Nair against the Will. When examined, Dr. Nair disowned paragraphs 2 to 6 of that affidavit and explained that he had signed the document at Prakash’s request on the understanding that it would not be used elsewhere.
As regards delay, the plaintiff explained that:
- he lived in the United States;
- several proceedings concerning the property were already being pursued;
- he believed those proceedings might resolve the dispute;
- he had received legal advice concerning the manner in which probate proceedings could be instituted;
- his earlier advocate stopped attending the matters; and
- ultimately he had to travel to India to institute probate proceedings personally.
Crucially, his sworn explanation for the delay was not challenged in cross-examination.
Defendant’s Arguments
The defendants maintained that the Will was bogus and fabricated.
They argued that Rajalakshmi was critically ill in December 1998 and had been admitted to BARC Hospital around the time of execution. According to them, her medical condition made it improbable that she possessed the physical and mental capacity to validly execute a Will.
They alleged suppression or destruction of original BARC Hospital records which, according to them, would have demonstrated that the testatrix was admitted to the ICCU and was seriously ill when the Will was allegedly signed.
They also questioned the signatures appearing on the Will and relied upon the evidence of handwriting expert Titiksha Desai-Kamble (DW-3).
The defendants further contended that:
- the plaintiff had failed to satisfactorily establish his relationship with Rajalakshmi;
- the defendant’s family had cared for Rajalakshmi and Dr. Gopal during their old age;
- the defendants had long occupied the Chembur property;
- the educational trust and Will had been used as devices to take control of the property; and
- the exceptionally long delay in seeking probate itself created suspicion regarding the genuineness of the Will.
Analysis of the Law
1. Will must satisfy Section 63 of the Succession Act and attestation requirements
The Court began with Section 63 of the Indian Succession Act, 1925.
For a valid Will, the testator must sign or acknowledge the signature and the Will must be attested by at least two witnesses. Each attesting witness must either see the testator sign or receive acknowledgment of that signature and must himself sign in the testator’s presence.
The Court noted that a Will carries particular solemnity because the testator is no longer available to explain the circumstances of its execution.
Therefore, the propounder must satisfy the judicial conscience that the document represents the genuine last testament of the deceased.
2. Suspicious circumstances increase the propounder’s burden
Relying on established Supreme Court jurisprudence, the Court held that ordinarily a Will is proved on the civil standard applicable to documents.
However, where suspicious circumstances exist—such as a shaky signature, feeble mental condition, unnatural disposition or dominant role of the beneficiary—the propounder carries a heavier burden and must remove all legitimate suspicions.
The Court nevertheless stressed that suspicious circumstances must be “real, germane and valid”, not merely speculative doubts or the “fantasy of the doubting mind.”
3. Direct testimony of both attesting witnesses established execution
The strongest evidence came from the two attesting witnesses.
Ramanathan unequivocally stated that Rajalakshmi signed the Will in his presence and in Dr. Nair’s presence and that both witnesses attested it at her request.
His testimony on these essential facts remained substantially unchallenged.
More significantly, Dr. Nair—though called by the defendants—also confirmed in cross-examination:
“Yes, she signed the Will in my presence.”
He further stated that Ramanathan and others were present.
Reading these accounts together, the Court considered the conclusion inescapable that Rajalakshmi had signed the Will before both attesting witnesses.
4. Defence affidavit of Dr. Nair collapsed during evidence
The defendants relied on a 2005 affidavit bearing Dr. Nair’s signature suggesting that Rajalakshmi was seriously ill and that his purported attestation of the Will was improper.
When examined, however, Dr. Nair said that the substantive paragraphs of that affidavit were incorrect and expressly disowned them.
He explained that Prakash had brought the document to him and he signed it in good faith on an understanding that it was for a personal purpose and would not be used elsewhere.
The Court consequently found that this affidavit could not displace Dr. Nair’s direct evidence concerning the Will.
5. Hospitalisation did not prove lack of testamentary capacity
Dr. Nair acknowledged that Rajalakshmi was receiving treatment at BARC Hospital during December 1998-January 1999.
However, he explained that she suffered from severe arthritis and morbid obesity, required assistance in walking, but was not seriously ill.
He also admitted his signature on the Will itself.
Thus, evidence of physical illness did not establish that Rajalakshmi lacked a sound and disposing mind.
The Court therefore rejected the defendant’s contention that hospital treatment or physical weakness by itself destroyed testamentary capacity.
6. Defendant’s own earlier evidence weakened the forgery case
The original defendant, Sampathkumar, had earlier testified in a City Civil Court proceeding.
In that evidence he had stated that while Dr. Gopal’s Will was allegedly tampered with, Rajalakshmi’s Will was not tampered with.
In the present suit, however, he maintained that Rajalakshmi’s Will was fabricated.
The Bombay High Court found this earlier admission significant when considered together with the direct evidence of both attesting witnesses.
Accordingly, once the plaintiff proved execution, the burden shifted to the defendants to establish their positive allegation of fabrication or forgery.
7. Handwriting opinion based on photocopy was unsafe
The defence handwriting report was seriously weakened by its evidentiary foundation.
The expert examined by the defendants was not herself the author of the report. The report had been prepared by her junior.
More importantly:
- only a photocopy of the disputed Will was supplied;
- adequate admitted signature samples were not provided;
- the expert never inspected the original Will in Court; and
- she herself accepted the possibility that the signatures on the Will could belong to Rajalakshmi.
The Court therefore considered it extremely unsafe to place reliance upon the defence handwriting opinion.
It reiterated that handwriting expert evidence is opinion evidence and ordinarily cannot displace stronger substantive evidence, particularly direct testimony of attesting witnesses.
8. Rajalakshmi had full power to dispose of the bungalow
The Court also rejected the suggestion that Rajalakshmi lacked dispositive power over the Chembur property.
Even leaving aside Dr. Gopal’s Will, Rajalakshmi was his sole surviving Class-I heir because their only son had predeceased him.
Therefore, whether under testamentary or intestate succession, the property would have devolved absolutely upon Rajalakshmi.
The defendants might have acquired a succession claim under Section 15(2)(b) of the Hindu Succession Act only if Rajalakshmi had died intestate.
That possibility did not restrict her right during her lifetime to dispose of her absolute property by Will.
9. Delay beyond three years does not automatically bar probate
The Court dealt separately with the nine-plus-year delay.
It recognised that Article 137 of the Limitation Act applies to probate proceedings, but rejected the simplistic proposition that limitation invariably begins to run immediately on the testator’s death.
Probate represents judicial recognition of the executor’s authority and the right to seek probate is in the nature of a continuing right so long as the testamentary obligation remains capable of performance.
Under Rule 382 of the Bombay High Court Original Side Rules, however, an application filed more than three years after death must explain the delay.
The Court held that delay must be explained, but delay is not an absolute bar. Once execution and attestation are satisfactorily proved, unexplained temporal suspicion assumes reduced importance.
10. Explanation for delay was accepted
The plaintiff had specifically pleaded and testified regarding his residence in the United States, other pending proceedings, legal advice received and difficulties in personally instituting the probate proceeding.
Those assertions were made on oath and went completely unchallenged because no relevant questions were put to him in cross-examination.
The Court further noted that the charitable trust remained in existence and the testamentary object remained to be carried out.
The executor’s duties therefore had not become exhausted merely because several years had passed.
Precedent Analysis
R. Venkatachala Iyengar v. B.N. Thimmajamma / Jaswant Kaur v. Amrit Kaur
These authorities supplied the foundational test for proving a Will.
A Will must ordinarily be proved like any other document, but because the testator cannot testify, the Court must be satisfied that it was validly executed.
Where suspicious circumstances exist, the propounder bears a heavier initial burden and must remove legitimate doubts before probate can be granted.
Sridevi v. Jayaraja Shetty
The Court referred to Sridevi for the proposition that the propounder must establish:
- the testator’s signature;
- sound disposing mind;
- understanding of the nature and effect of the disposition;
- voluntary execution; and
- proper attestation.
Once these ingredients are proved, the ordinary burden resting on the propounder stands discharged.
Daulat Ram v. Sodha
This decision reinforced the distinction between the propounder’s burden and the challenger’s burden.
Where forgery, fraud, undue influence or coercion is specifically alleged, the party making that allegation must prove it, although the propounder must still remove genuine suspicious circumstances.
Meena Pradhan v. Kamla Pradhan
The Court relied upon Meena Pradhan to reiterate that suspicious circumstances must be genuine and relevant rather than imaginary.
The judgment emphasised the testator’s awareness, soundness of mind and free choice, while placing the burden of proving positive allegations of fabrication or undue influence on the challenger.
Shivkumar v. Sharanabasappa
This precedent reiterated that suspicious features must be real, germane and valid.
Where suspicion legitimately arises, the propounder must remove it; where fraud or fabrication is affirmatively pleaded, the person alleging it carries the burden of proof.
S.P.S. Rathore v. CBI
The Court relied upon this decision while assessing handwriting evidence.
The Supreme Court had cautioned that the sole opinion of a handwriting expert ordinarily cannot substitute substantive evidence and should not normally form the sole foundation of a definitive finding concerning authorship.
Kunvarjeet Singh Khandpur v. Kirandeep Kaur / Vasudev Daulatram Sadarangani
These decisions were central to the limitation issue.
The Bombay High Court held that an application for probate is essentially an application for judicial recognition of the executor’s authority and involves a continuing right.
Although substantial delay must be explained, the right to seek probate does not automatically become barred three years after the testator’s death.
Wilma Levert Canuao v. Allan Sebastian D’Souza
The Division Bench decision was relied upon for the proposition that a probate or letters of administration proceeding seeks permission to perform a legal duty created by a Will.
So long as that duty and testamentary object survive, the cause remains continuing. Where execution and attestation are otherwise proved, delay alone should not lead to dismissal.
Sanjay Sharma @ Sanjay Bhardwaj v. Krishnadhan Khaware
The Court referred to the Supreme Court’s recent 2026 decision explaining the three purposes of probate:
- judicial approval of the genuineness of the Will;
- recognition of the executor’s appointment; and
- authority to the executor to act under the Will.
The Supreme Court had rejected the proposition that the limitation period for probate necessarily begins on the testator’s death.
Court’s Reasoning
The Court found that the case for probate was supported by unusually strong direct evidence.
Both attesting witnesses ultimately confirmed that Rajalakshmi signed the Will in their presence.
Ramanathan’s evidence remained substantially untouched in cross-examination, while Dr. Nair—despite having earlier signed an affidavit apparently assisting the defendants—expressly disowned the adverse portions of that affidavit and confirmed the actual execution of the Will.
The claim that Rajalakshmi was incapable of making a Will was also contradicted by her treating doctor. Though physically affected by arthritis and obesity, she was not shown to be mentally incapable or seriously ill in a manner destroying testamentary capacity.
The handwriting challenge was materially weaker because the defence report:
- was prepared by another person;
- relied on a photocopy rather than the original Will;
- lacked sufficient admitted specimens; and
- could not exclude the possibility that the signatures were genuine.
The Court further regarded the disposition itself as understandable rather than suspicious. Rajalakshmi and her husband had lost their only son, and the educational trust had been established during her lifetime. A desire to use the estate to advance that charitable purpose was therefore consistent with the surrounding family circumstances.
Finally, although the probate proceedings were instituted after substantial delay, the explanation was sworn to and never challenged. The continuing charitable object of the Will also remained capable of implementation.
The Court therefore concluded that the judicial conscience was satisfied regarding the genuineness, due execution and attestation of the Will.
Conclusion
The Bombay High Court decreed the testamentary suit and granted probate.
It concluded that:
- Rajalakshmi was the absolute owner of the Chembur property;
- the plaintiff proved due execution and attestation of the Will dated 22 December 1998;
- the testatrix was in a sound and disposing state of mind;
- both attesting witnesses supported execution;
- the defendants failed to establish forgery or fabrication;
- the defence handwriting report was unreliable;
- the circumstances relied upon as suspicious were insufficient to displace the direct evidence;
- the plaintiff satisfactorily explained the delay; and
- the probate proceeding could not be rejected merely because it was instituted several years after the testatrix’s death.
The Court expressly recorded that the defendants had failed to prove either forgery or lack of testamentary capacity.
Accordingly, the suit was decreed and probate was directed to be granted to the plaintiff with effect throughout India. Each party was directed to bear its own costs.
At Defendant No. 1B’s request, the Court stayed execution and operation of the decree for six weeks to enable him to file an appeal.
Case Details
Case: Dr. Govindaraja Venkatesh Iyengar v. A.R. Sampathkumar (Deceased) Through Legal Heirs
Court: High Court of Judicature at Bombay, Testamentary and Intestate Jurisdiction
Case Number: Testamentary Suit No. 42 of 2012 in Testamentary Petition No. 64 of 2011
Judge: Justice N.J. Jamadar
Date: 21 August 2026
Result: Suit decreed; probate of Rajalakshmi Gopal Ayengar’s Will dated 22 December 1998 granted throughout India; decree stayed for six weeks to permit appeal
