The Gauhati High Court has held that production of the original Will by itself is not sufficient for grant of probate unless the Will is proved in accordance with law, observing that mere exhibition of a certified copy or production of the original without proving its execution and due attestation cannot sustain a probate. [2026 LiveLaw (Gau) 91]

Justice Mridul Kumar Kalita, presiding over the case observed, “The documentary evidence is required to be proved in accordance with law. Mere admission of a document in evidence and marking the same as Exhibit does not amount to proof thereof. The court has an obligation to decide the question of admissibility of a document in secondary evidence before acting on the said document.”

“As such, the signature appearing in the will as well as the will itself cannot be said to have been proved,” Justice Kalita added.

The observations were made while allowing an Intest. Case, preferred under Section 299 of the Indian Succession Act against the judgment of the District Judge, Barpeta granting probate of the Will.

The respondents had sought probate under Section 276 of the Indian Succession Act in respect of a registered Will. Since the original Will was lying in the office of the Sub-Registrar, only a certified copy was filed along with the probate petition. The Probate Court eventually granted probate in favour of the respondents.

The appellant contended that the Probate Court could not have relied upon the certified copy of the Will without the respondents first satisfying the requirements of Section 65 of the Indian Evidence Act. It was further contended that the attestation of the Will could not be proved within the meaning of Section 63(c) of the Indian Succession Act, 1925 or Section 3 of the Transfer of Properties Act, 1882, by the respondents and the trial court had erred in granting Probate to the present respondents.

The High Court held that as the petitioner (respondents) have adduced evidence of all the four attesting witnesses in the probate proceedings, non-compliance of the provisions contained in Section 281 of the Indian Succession Act, 1925 would not vitiate the proceedings and same shall have to regarded as directory in nature.

However, the Court found merit in the appellant's challenge regarding proof of the Will. It noted that although the original Will was subsequently produced before the Probate Court, it was never exhibited through any witness or confronted to the attesting witnesses. The Court observed, "the respondents have not adduced any evidence before the Probate Court as to why the original will could not be produced before it at the time of examination of witnesses... Mere admission of a document in evidence and marking the same as Exhibit does not amount to proof thereof."

The Court further held, "though the original will was also produced before the Probate Court, however, it was merely submitted along with an application and it was not exhibited by any of the witnesses neither it was confronted to any of the witnesses. As such, the signature appearing in the will as well as the will itself cannot be said to have been proved."

The High Court also found that the evidence of the attesting witnesses did not establish due attestation as required under Section 63(c) of the Indian Succession Act. Referring to their testimony, the Court observed, "none of the witness has specifically deposed that they have signed on the will in presence of the testator."

Emphasising that probate can be granted only after strict compliance with the statutory requirements, the Court observed, "Since, the consequence of grant of probate of a will may, in some cases, result into deprivation of a due share to the natural heir of the testator, the probate has to be granted only upon satisfactory proving of the fact of attestation of the will as required by law and in this case, the respondents have failed to do so."

Holding that the respondents had failed to prove due attestation of the Will, the Court concluded, "This Court is of considered opinion that the attesting witnesses have failed to satisfy due attestation of the will within the meaning of Section 65 (C) of the Indian Succession Act, 1925 read with Section 3 of the Transfer of Property Act, 1882."

The High Court accordingly set aside the judgment granting probate and allowed the appeal.

Case Name: Sri Shibu Thakur v. Kanti Devi & Ors.

LL Citation: 2026 LiveLaw (Gau) 91

Case Number: Intest. Cas. No. 2 of 2016

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