Back
2026 Supreme(Gau) 1237
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Mridul Kumar Kalita, J.
Sri Shibu Thakur, S/O Late Jotai Thakur – Petitioner
Versus
Kanti Devi W/O Sri Prem Thakur – Respondent
Intest.Cas. 2 of 2016
Decided On : 22-06-2026
For the Appellant :Mr. N. Haque, Advocate
For the Respondent:Mr. S. K. Ghosh, Advocate
Probate is not sustainable if evidence fails to establish that attesting witnesses signed the document in the testator’s constant presence, as required by succession law, or if the foundational prerequisites for admitting secondary evidence of the testamentary document are not strictly fulfilled.
Headnote:(A) Indian Succession Act, 1925 - Sections 63(c), 237-240, 276, 281 - Indian Evidence Act, 1872 - Section 65 - Transfer of Property Act, 1882 - Section 3 - Execution and attestation of Will - Requirements for proof.
(B) Legal Principle - While procedural requirements like verification of a petition by an attesting witness may be regarded as directory, the substantive requirement of proving due execution and attestation of a will is mandatory. (Paras 20, 32)
(C) Secondary Evidence - Admissibility - The court must satisfy itself that the foundational evidence for the non-production of an original document exists before admitting secondary evidence. Mere submission of a copy without establishing these grounds is insufficient. (Paras 23-25)
Facts of the case:
The respondents sought probate of the deceased’s will. The original document was not initially annexed to the application because it was held in a public office. The appellant challenged the probate, citing, inter alia, the failure to perform statutory verification, the improper use of secondary evidence, and the failure of witnesses to attest the document in the testator’s presence.
Findings of Court:
The court found that although the verification requirement was directory and did not vitiate the proceedings, the burden of proving that witnesses signed in the testator's presence was not discharged. Furthermore, the court held that the respondents failed to establish why the original will was not produced or to link the secondary evidence to the original through proper foundational proof.
Issues: The main issues were the validity of the grant of probate despite the non-verification by an attesting witness, the legal propriety of accepting a certified copy as evidence without satisfying secondary evidence requirements, and the necessity of proving that attesting witnesses signed the will in the presence of the testator.
Ratio Decidendi: For a will to be duly proved, it must be established that at least two witnesses not only saw the testator sign but also signed the document themselves in the presence of the testator. Failure to adduce such evidence, combined with a lack of compliance with the foundational requirements for secondary evidence, warrants the setting aside of a grant of probate.
Result: Appeal allowed.
| Table of Content |
|---|
| 1. procedural context and factual background of the probate application. (Para 1 , 2 , 3 , 4 , 5) |
| 2. appellant's challenge regarding evidentiary compliance and attestation requirements. (Para 6 , 7 , 8 , 9 , 10) |
| 3. respondent's defense of procedural compliance and validation of the will. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17) |
| 4. section 281 of the indian succession act is directory, not mandatory. (Para 18 , 19 , 20) |
| 5. improper reliance on secondary evidence without meeting section 65 requirements. (Para 21 , 22 , 23 , 24 , 25) |
| 6. strict requirements of proving attestation under section 63 of indian succession act. (Para 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33) |
| 7. setting aside the impugned judgment due to failure to prove due attestation. (Para 34 , 35 , 36 , 37) |
JUDGMENT :
Mridul Kumar Kalita, J.
1. Heard Mr. N. Haque, learned counsel for the appellant. Also heard Mr. S. K. Ghosh, the learned counsel for the respondents.
2. This appeal under Section 299 of the Indian Succession Act, 1925, has been preferred against the judgment and order dated 4/8/2015, passed by the Court of learned District Judge, Barpeta in Title Suit (P) No. 1/2012, whereby the probate in respect of Will executed by late Jotai Thakur was granted in favour of the respondents.
3. The facts relevant for consideration of the instant appeal, in brief, are that the present respondents along with one Ganesh Thakur, approached the Court of learned District Judge Barpeta, by filing an application under Section 276 of the Indian Succession Act, 1925 for grant of probate of the will executed by late Jotai Thakur, who had expired on 4/5/2010. It was contended by the respondents before the Probate Court that the deceased Jotai Thakur executed his last will bequeathing a plot of land measuring 2 kathas, 10 lechas out of total land of 3 bighas, 4 kathas 6 lechas, covered by Dag No. 539 under Periodic Patta number 400 of Village-Barpeta Road Town, at Ward No. 2, Mouza- Gobardhana the district of Barpeta, in favour of the present respondents and the Ganesh Thakur. It was also contended that the last will executed by the deceased Jotai Thakur was also registered before the Office of Sub-Registrar, Sarbhog. It is pertinent to mention herein that at the time of filing of the application under Section 276 of the Indian Succession Act before the Probate Court, the original will was not submitted along with the petition, and it was mentioned in the application itself that since the original will, i.e. Will No. 296/2010 dated 17/04/2010, was lying in the Office of Sub-Registrar, Sarbhog at the time of filing of the aforesaid petition, same could not be annexed along with the probate application.
4. After receipt of the notice, Shibu Thakur (present appellant) and Prem Thakur filed a written objection taking general defence like belated filing of the application under Section 276 after more than 2 years of the execution of the said will and certain other general defences. The opposite parties also contended that they being Class 1 heirs of the deceased Jotai Thakur, cannot be debarred from inheriting the properties left by Jotai Thakur after his death. On the basis of Pleadings of both the parties, the Probate Court framed following issues:
i) Whether there is any cause of action for this case, instituted by the petitioners for grant of probate of will?
ii) Whether the petitioners can be the executors of the purported will by excluding the opposite parties who are the class-1 heirs of deceased being his sons?
iii) Whether the petitioners are entitled to get probate of will as prayed for?
5. In support of their respective cases, the petitioners (present respondents) adduced evidence of 6 (six) witnesses, whereas, the opposite parties (appellant) adduced evidence of only 1 (one) DW. Both the parties exhibited certain documents as documentary evidence. However, ultimately, by th judgment and order dated 4 August 2015, passed in Title Suit (Probate) No. 1/2012, the Court of learned
