The Gauhati High Court has set aside a probate order granted in respect of a registered will, holding that the legal requirements for proving the document were not properly fulfilled. The Court ruled that while procedural defects in a probate petition may not always invalidate proceedings, the execution and attestation of a will must be proved in the manner required by law before probate can be granted.
Background of the Case
The appeal arose from an order of the District Judge, Barpeta, which had granted probate of a will allegedly executed by the deceased property owner. The probate applicants claimed that the will had been registered shortly before the testator's death and sought recognition of their rights under it.
The appellant challenged the probate order on several grounds. It was argued that the original will had not been exhibited before the trial court, only a certified copy had been relied upon, and the legal conditions for admitting secondary evidence had not been satisfied. It was also contended that the evidence of the attesting witnesses did not establish proper attestation of the will as required under the Indian Succession Act.
Court's Observations
Justice Mridul Kumar Kalita examined whether the probate proceedings complied with the requirements of the Indian Succession Act and the Evidence Act.
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The Court first held that the requirement under Section 281 of the Indian Succession Act, requiring verification of the probate petition by an attesting witness, is directory rather than mandatory. Since all four attesting witnesses had later appeared before the probate court and the objection had not been raised at the trial stage, the Court found that this procedural issue alone could not invalidate the proceedings.
However, the Court reached a different conclusion regarding proof of the will itself.
The bench observed,
“The documentary evidence is required to be proved in accordance with law. Mere admission of a document in evidence and marking the same as Exhibit does not amount to proof thereof.”
The Court noted that although the original will was eventually produced before the probate court, it was never formally exhibited through any witness. Nor were the witnesses confronted with the original document to identify their signatures. As a result, the will itself remained unproved in accordance with law.
The High Court further found that the testimony of the attesting witnesses was legally insufficient. While they stated that they had witnessed the execution of the will, none specifically deposed that they had signed the will in the presence of the testator an essential requirement under Section 63(c) of the Indian Succession Act.
The bench observed that probate, which may affect the rights of natural heirs, can be granted only after strict compliance with the statutory requirements governing proof of execution and attestation of a will.
Decision
Holding that the will had not been proved in the manner required by law, the Gauhati High Court set aside the probate order passed by the trial court. The appeal was allowed, with the Court directing that each party would bear its own costs.
The trial court records were ordered to be returned along with a copy of the judgment.
Case Details
Case Title: Shibu Thakur v. Kanti Devi & Others
Case Number: Intest. Cas./2/2016
Judge: Justice Mridul Kumar Kalita
Decision Date: 22 June 2026
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