Probate Cannot Be Granted Without Proof of Due Attestation of Will, Holds Gauhati HC [Read Judgment]

Gauhati: The Gauhati High Court has set aside the grant of probate of a will on the ground that the propounders failed to prove its due attestation, holding that attesting witnesses must specifically depose that they signed the will in the presence of the testator. 

Justice Mridul Kumar Kalita was hearing an appeal under Section 299 of the Indian Succession Act, 1925, filed against a judgment of the District Judge, Barpeta, granting probate of a will executed by one Jotai Thakur in favour of the respondents.

The respondents, along with one Ganesh Thakur who died during the pendency of the proceedings, had approached the Probate Court under Section 276 of the Indian Succession Act seeking probate of a will under which the testator had bequeathed a plot of land to them. The original will, registered before the Sub-Registrar, Sarbhog, was not annexed to the probate application, the petitioners stating that it remained with the registering office at the time of filing. A certified copy was instead exhibited as evidence, and the original was produced before the trial court only later, pursuant to an order dated 29.04.2015.

The appellant, a son of the testator who had filed a written objection before the trial court, challenged the grant of probate on several grounds: that the original will was never exhibited or proved as required under Section 65 of the Indian Evidence Act, 1872, before secondary evidence in the form of a certified copy could be relied upon; that the probate application had not been verified by an attesting witness as required under Section 281 of the Indian Succession Act; and that the attesting witnesses had failed to prove due attestation under Section 63(c) of the Act, having deposed only to seeing the testator execute the will, without stating that they signed it in his presence.

The respondents countered that the non-production of the original will at the outset was adequately explained and permissible under Sections 237 to 240 of the Indian Succession Act, that Section 281 was a directory rather than mandatory provision, particularly since the appellant had not raised any objection on that count before the trial court, and that all four attesting witnesses had been examined and had deposed to the execution of the will.

On the question of Section 281, the Court agreed with a coordinate Bench's earlier view that the provision was directory in nature, noting additionally that the appellant had not raised the objection before the trial court and that all four attesting witnesses had in any case been examined.

On the non-production of the original will, the Court held that Sections 237 to 240 of the Act permitted probate applications to proceed on a copy pending production of the original, and found the respondents' explanation, that the original lay with the Sub-Registrar's office, acceptable. However, it held that proving the certified copy as secondary evidence still required compliance with Section 65 of the Evidence Act, and that merely marking a document as an exhibit did not amount to its proof. The Court noted that even after the original will was produced before the trial court, it was never exhibited or put to the attesting witnesses to prove their signatures.

“On a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence...The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original,”

the Court noted, extracting the Supreme Court's ruling in H. Siddiqui (Dead) by Lrs. v. A. Ramalingam.

Turning to the central issue of attestation under Section 63(c) of the Indian Succession Act and the analogous definition in Section 3 of the Transfer of Property Act, 1882, the Court held that proof of due attestation requires evidence not merely that a witness saw the testator sign the will, but that the witness also signed the will in the testator's presence. Examining the depositions of all four attesting witnesses, the Bench found that while each stated they were present at the time of execution, none specifically deposed that they signed the will in the presence of the testator.

Observing that a probate, once granted, may deprive a natural heir of his rightful share, the Court held that the law requires satisfactory proof of attestation before probate can be granted, and that the respondents had failed to meet this standard. Finding the impugned judgment unsustainable, the Court set it aside and allowed the appeal, with the parties directed to bear their own costs and the trial court records to be sent back along with the judgment.

Appearances: Mr. N. Haque, Advocate, for the appellant; Mr. S.K. Ghosh, Advocate, for the respondents.

Case Title: Shibu Thakur vs. Kanti Devi & Others

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