A Will’s execution in attesting witnesses’ presence may prove Section 63(c) compliance despite technical omissions.

The appellants, Bibhuti Bhushan Goswami and Prasenjit Sharma, filed an application under Section 276 of the Indian Succession Act, 1925, seeking probate of an unregistered Will dated 10.12.2022 executed by Late Chaya Bhattacharjee.

The Will bequeathed a 520 sq. ft. flat and the corresponding undivided interest in the land to the appellants, who were also named as executors. It was allegedly attested by Ninmoy Sharma and Maya Rani Das, both of whom were examined as witnesses. Notices were served, no objections were filed, and the property valuation was accepted.

The District Judge, Cachar, nevertheless rejected the probate application by order dated 19.08.2025, holding that due attestation under Section 63(c) of the Indian Succession Act had not been sufficiently proved.

The appellants challenged that order under Section 384 of the Act.

1. Whether the attestation and execution of the Will were duly proved under Section 63(c) of the Indian Succession Act, 1925, despite the attesting witnesses not reproducing every statutory requirement in precise terms in their evidence?

2. Whether the appellants were entitled to probate of the Will dated 10.12.2022?

The Court applied Section 276 of the Indian Succession Act, 1925, under which probate may be sought by petition, and Section 63, particularly Section 63(c), which requires an unprivileged Will to be attested by at least two witnesses, each having seen the testator sign or acknowledge the signature and each signing the Will in the testator’s presence; no particular form of attestation is required.

The Court held that proof of execution need not reproduce the statutory language with mathematical or technical precision where the evidence, read fairly, establishes compliance with Section 63.

It also relied on Meena Pradhan v. Kamla Pradhan, (2023) 9 SCC 734, cited in support of a non-technical approach to proof of testamentary execution.

The attesting witnesses deposed that the deceased had made and published her last Will, that it was executed in their presence, and that they signed it as attesting witnesses. Their evidence remained uncontroverted because they were not cross-examined, and the Probate Court did not put questions to them.

The High Court construed the statement that the Will was “executed in their presence” as meaning that the testator signed the Will in their presence and that the witnesses attested it accordingly.

Since Section 63(c) does not prescribe any particular form of attestation, the omission to narrate each step under clauses (a), (b), and (c) in exact words was treated as insufficient justification for rejecting otherwise clear and unrebutted testimony.

The Court therefore concluded that execution and attestation of the Will had been duly proved.

The High Court held that the Will dated 10.12.2022 was the last Will of Late Chaya Bhattacharjee and had been duly executed, attested, and proved.

The District Judge was directed to grant probate in favour of the appellants upon payment of the requisite stamp duty, with a certified copy of the Will annexed to the grant.

The appellants were further directed to file a full and true inventory of the deceased’s property, credits, and debts within six months of the grant, in accordance with Section 317 of the Indian Succession Act.