Failure to record produced attesting witnesses’ evidence warrants remand for an effective opportunity.

The appellant filed an application under Section 276 of the Indian Succession Act, 1925, seeking probate of a Will dated 23.12.2003 concerning Khasra No. 119/1, measuring 0.809 hectare.

The IIIrd District Judge, Singrauli, rejected the application on 03.09.2022, holding that the appellant had failed to examine the attesting witnesses despite several opportunities.

Before the High Court, the appellant contended that both attesting witnesses had in fact been produced, but the Trial Court failed to record their evidence.

On examination of the order-sheets, the High Court found that attesting witness Ramkripal was present on 04.01.2022 but his evidence was not recorded, and that attesting witness Kherai Shah was present on 28.07.2022 with his examination-in-chief affidavit already on record, yet neither his examination nor cross-examination was recorded before the evidence was closed.

Whether the Trial Court was justified in rejecting the probate application for non-examination of the attesting witnesses when the record showed that the witnesses had been produced before it but their evidence was not recorded?

Whether the appellant was entitled to one effective opportunity to examine the attesting witnesses and have the probate application decided on merits?

The Court applied Section 276 of the Indian Succession Act, 1925, governing applications for grant of probate.

It further applied the procedural principle that a party should receive a reasonable and effective opportunity to lead relevant evidence, particularly where the failure to record evidence is attributable to circumstances reflected in the court record rather than deliberate default by the party.

The Court also emphasized that the matter should be decided on its merits after affording due opportunity to both sides, while leaving the Trial Court to determine the probate claim independently and in accordance with law.

The High Court distinguished between a party’s failure to produce witnesses and the court’s failure to record the evidence of witnesses who were actually present.

The order-sheets demonstrated that Ramkripal was present on 04.01.2022 and Kherai Shah was present on 28.07.2022, with his examination-in-chief affidavit already filed; nevertheless, their evidence was not recorded and the appellant’s evidence was closed.

In these circumstances, rejection of the probate application solely for non-examination of the attesting witnesses deprived the appellant of an effective opportunity to establish the Will.

The Court therefore held that the matter required reconsideration from the stage of recording the witnesses’ evidence, subject to the respondents’ right of cross-examination and the appellant’s obligation to avoid unnecessary adjournments.

The matter was remanded for fresh consideration from the stage of recording the evidence of the attesting witnesses.

The appellant was granted one effective opportunity and directed to produce the witnesses on 14.10.2026; the respondents were permitted to cross-examine them.

The appellant was directed to pay costs of Rs. 5,000 to the respondents within ten days of receiving the certified copy of the order, and the Trial Court was directed thereafter to decide the application under Section 276 on its merits and in accordance with law.

The High Court expressly clarified that it had not expressed any opinion on the merits of the probate claim.