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.

6. Having considered the submissions advanced on behalf of both sides, the main point for determination before this Court is whether the learned Probate court erred in dismissing the probate application on the ground that attesting witness was not examined despite the fact that the WILL was registered.

7. Law in this regard is not res-integra and as it has been settled by the Apex Court that although a presumption of due execution is there in favour of the registered WILL, but it does not relieve the propounder of WILL to prove as per the provision under Section 63 of the Succession Act and 68 of the Evidence Act.

8. It has been held by the Apex Court in (2009) 4 SCC 780, Yumnam Ongbi Tampha Ibema Devi Vs. Yunam Joykumar Singh & Ors. that proof of the execution of WILL by attesting witness is a mandatory requirement. Although the WILL is required to be attested by two witnesses, but at least one of them should have been examined. In the present case, not only the attesting witness has not been examined, but there is a whopping delay of 18 years in filing the probate application which itself creates a suspicious circumstance with regard to its due execution. The question of rebutting the presumption would have a reason only after one of the attesting witnesses had been examined. The initial onus was on the propounder of the WILL to prove it by adducing one attesting witness, only thereafter, a presumption of due execution with respect to the WILL could have been drawn.

9. In the present case, I do not find any infirmity in the impugned judgment.

Miscellaneous Appeal is accordingly dismissed.

Pending I.A., if any, stands disposed of.