In probate proceedings, although the examination of an attesting witness is mandatory to prove the execution of a Will under the Indian Evidence Act, appellate courts may allow for remand to prevent a miscarriage of justice when such evidence was omitted due to inadvertence.

THIS MFA IS FILED U/S.299 OF THE INDIAN SUCCESSION ACT, 1925, AGAINST THE ORDER DT.21.12.2018 PASSED IN P AND SC NO.5011/2018 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, SIT AT ANEKAL, DISMISSING THE PETITION FILED U/S.264 AND 276 OF THE INDIAN SUCCESSION ACT.

THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

ORAL JUDGMENT

This Miscellaneous First Appeal is directed against the order dated 21.12.2018 in P&SC.No.5011/2018 on the file of the III Additional District and Sessions Judge, Bengaluru Rural District, Sitting at Anekal (‘Trial Court’ for short) whereby the petition filed under Sections 264 and 276 of the Indian Succession Act, 1925 (for short 'the IS Act, 1925') by the appellant/petitioner for grant of probate was dismissed.

Brief facts:

2. The appellant filed petition seeking grant of probate in respect of a registered Will dated 31.05.2014 said to have been executed by late Smt. Lakshmamma, who died on 23.01.2017. The appellant is the son of the sister of the deceased testatrix. It is the case of the appellant that the testatrix had two daughters, both of them died issueless, and her husband has been missing for more than seven years and was presumed dead.

3. The deceased Lakshmamma was residing and depending upon the appellant and his mother, who were taking care of her till her death. That the deceased during her life time, and while in sound disposing state of mind, executed a registered Will bequeathing the residential and agricultural properties in favour of the appellant. After the death of testatrix, when the appellant approached the revenue authorities for change of katha, he was advised to obtain probate and accordingly, filed the petition. Citation was issued to the general public and published in the newspaper, however, no person appeared to oppose the claim of the appellant.

4. The appellant examined himself as PW.1, however, no attesting witness was examined to prove the genuineness and execution of the Will, as contemplated under Section 68 of the Indian Evidence Act, 1872 (‘the Act of 1872’ for short) and Section 63 of the IS Act, 1925. The Trial Court dismissed the petition on the ground that the attesting witness to the Will were not examined.

5. Learned counsel for the appellant submits that the Trial Court failed to appreciate that the petition was uncontested and surrounding circumstances and the evidence of P.W.1 establish the genuineness of the Will. It is submitted that the dismissal by the Trial Court is solely based on non-examination of attesting witness, without granting an opportunity, resulting in miscarriage of justice. Learned counsel submits that the attesting witnesses are available and the appellant be provided an opportunity to adduce their evidence and that the Trial Court failed to adopt a liberal approach in probate proceedings, especially when there was no contest.

6. This Court has carefully considered the submission and perused the material on record. The point that arises for consideration is:

“Whether the impugned order passed by the Trial Court warrants any interference?”

7. It is frequently said that a ‘Will is one of the most solemn document known to law’. The Will must be proved like any other document. However, there is one important feature which distinguishes Will from other documents, unlike other documents, the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator, who has already departed the World, cannot say whether it is his Will or not, and this aspect naturally introduces an element