The court affirmed that the execution of a will must comply with statutory requirements regarding attestation, placing the burden of proof on those contesting its validity.

JUDGMENT :

Apurba Sinha Ray, J.

1. This Court has been called upon to decide these second appeals on the following Substantial Questions of Law:

(a) Whether both the Courts below were justified in dismissing the suit filed by the appellant claiming declaration of right, title and interest in respect of the subject property solely on the ground that the moment the will executed in respect of the said property by a person is found to be genuine, it creates a title into a beneficiary/legatee of the said Will ?

(b) Whether a probate granted in respect of a Will has any impact on the right title and interest in respect of the property to which either the testator/testatrix had fraction of title or no title thereof.?”

2. Mr. Jayapal, learned counsel for the appellant has strenuously argued that the learned Trial Court as well as the learned First Appellate Court did not consider that attestation of the alleged will was not done in terms of Section 3 of the Transfer of Property Act and Section 63 of the Indian Succession Act, 1925. The learned counsel has also pointed out that no issue regarding the voidability of the relevant Will was framed by the learned Trial Court. Furthermore, the averment in the plaint, incorporated therein after amendment, regarding unfit health condition, was not denied, nor challenged by the defendant by filing additional written statement. The theory of non traverse, therefore, supports the plaintiffs’ case that the testator was not in his sound state of mind and therefore on this ground alone the plaintiffs’ suit should have been decreed. The learned counsel has also drawn the attention of this Court to the averment of the impugned Will and has submitted that the testator did not mention the reasons for exclusion of other heirs to inherit his property in the said Will.

3. The learned counsel has further submitted that though the date of execution of the Will was shown to be on 26.08.2005 but the date of presentation of the said will to the Sub-Registrar was shown as 24.08.2025. The learned counsel, therefore, submits that there are sufficient reasons to believe that the impugned Will is not genuine rather it is a fabricated and forged one. Learned counsel has drawn the attention of this Court to the relevant portions of depositions of defence witnesses contending that the defendant No. 1, the alleged beneficiary, has admitted in her deposition that in the relevant registered will there was an interpolation of date. It is also argued on behalf of the appellant that the alleged attesting witnesses i.e. DW 2 and DW 3 did not say that they saw the testator to sign the document in their presence, nor they said that the testator had seen them to affix their signature on the impugned Will. There was no certificate in the said will that the contents of the said Will were read over and explained to the testator by his learned counsel or anybody else.

4. The learned counsel has further submitted that the requirement of ‘attestation’ on a will should not be treated as an empty formality. The provisions of law in this regard are to be complied with in letter and spirit.

5. Learned counsel has referred to several case laws in support of his contention. The learned counsel has referred the case of Ghanshyam vs Yogendra Rathi reported in (2023) 7 SCC 361 to support his view that when there is provision of statutory law, the same is to be complied with strictly. It has been held in