IN THE HIGH COURT OF JHARKHAND AT RANCHI M. A. No. 274 of 2018

1. Khiru Mahto 2. Nokhi Mahto Both sons of Puran Mahto, resident of Mawardih village Baradih, P.S.

Nimiaghat, P.O. Nagri, District-Giridih.

.... .... Appellants Versus

1. Khemia Devi daughter of Ledo Mahto.

2. (i) Nirmal Mahto (ii) Dhaneshwar Mahto Both sons of late Tejlal Mahto, R/o village-Baradih, P.O. Nagri, P.S.

Nimiaghat, District-Giridih (iii) Shovia Devi, W/o Sri Nandakishore Mahto, R/o village-Atki, P.O. Atki, P.S. Madhuban District-Giridih (iv) Mohni Devi wife of Sri Chandra Deb Mahto, resident of village-

Telaiyatand, P.O. Saharia, P.S. Nawadih, District-Bokaro.

(v) Kunti Devi wife of Bhuneshwar Mahto resident of village-Tangtone, P.O.

Tangtone, P.S. Kashmar, District-Bokaro.

(vi) Daleshwari Devi wife of Sri Kaleshwar Mahto, resident of village-

Makan, P.O. Pordag, P.S. Nimiaghat, District-Giridih.

3. (i) Parbati Devi.

(ii) Bhuneshwar Mahto, No.(i) widow and (ii) son of late Durga Charan Mahto, both resident of village-Baradih, Police Station- Nimiaghat, P.O. Nagri, District-Giridih.

(iii) Dhaneshwari Devi daughter of late Durga Charan Mahto, now wife of Uday Mahto, resident of village Asurbandh, Police Station-Nimiaghat, P.O. Nagri, District-Giridih. 4. (i) Lalita Devi (ii) Diwakar Mahto (iii) Duspat Mahto Nos. (i) widow, Nos. (ii) and (iii) sons of late Lilo Ram Mahto, All residents of village-baradih, P.O. Nagri, P.S. Nimiaghat, District-Giridih … …. Respondents CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Appellants :Mr. Sachinandan Das, Advocate Mr. Om Prakash Singh, Advocate For the Respondents : Mr. R. N. Sahay, Sr. Advocate Mr. Aditya Aman, Advocate Ms. Pratyaksha Bhaskar, Advocate ------

Order No. 18 / Dated : 11.12.2025.

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 itse