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IN THE HIGH COURT OF JHARKHAND AT RANCHI
GAUTAM KUMAR CHOUDHARY
Khiru Mahto – Appellant
Versus
Khemia Devi daughter of Ledo Mahto – Respondent
Order :
GAUTAM KUMAR CHOUDHARY, J.
1. The legatee of the WILL is in appeal under Section 299 of the Indian Succession Act, 1925 against the dismissal of application for grant of probate of WILL.
2. As per the case of Applicant the WILL was executed and registered by Dego Mahto in his life time on 06.01.1979. The testator died on 03.03.1984 and probate application was filed in 2002 after 18 years.
3. Learned Probate Court dismissed the probate application on the ground that no attesting witness which was required to be examined in terms of Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act was examined.
4. It is argued by the learned counsel on behalf of the appellants that requirement of the attesting to be examined is dispensed with on his death, or where he cannot be found, does not apply. Further, the WILL being a registered WILL carries a presumptive value with regard to its due execution. It was for the objectors to have led evidence to rebut the presumption of its due execution. Reliance is placed on (2021) 11 SCC 277, Shivakumar Vs. Sharana basappa & Ors.
5. Learned senior counsel appearing on behalf of the respondents has defended the impugned order.
A registered WILL that is over 30 years old carries a presumption of due execution, and requirements around attesting witnesses may not be fatal if the document is adequately proved otherwise.
Non-compliance with the attestation requirements under Section 63 of the Indian Succession Act invalidates a Will, necessitating proper evidence for testamentary intentions.
The validity of a will hinges on its proper execution and the capacity of the testator, not merely on subsequent claims of incapacity or vague assertions.
The examination of at least one attesting witness is adequate to establish a probate case, as per the provisions of the Indian Succession Act and the Indian Evidence Act.
The central legal point established in the judgment is the significance of complying with the formalities for the execution and attestation of Wills, as mandated by the Indian Succession Act. The cou....
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