Karnataka HC Gives Late Probate Petitioner’s Heirs Fresh Chance To Prove Will After No Attesting Witness Was Examined

In brief

The question

1. Whether the probate petition should be reconsidered where the Will had been dismissed as unproved because neither attesting witness was examined, and the appellants sought an opportunity to adduce that evidence.

The court held

The appeal was allowed, and the order dated 24 August 2024 in P. & S.C. No. 63/2020 was set aside.

It also directed

The matter was remanded to the trial court for fresh consideration, with an opportunity for the appellants to adduce evidence and for the respondents to defend the case in accordance with law.

The parties were directed to appear before the trial court on 11 November 2026, and the High Court made no determination on the merits of the Will or probate claim.

01Facts

The original petitioner, Smt. Mangamma, sought probate of a registered Will dated 23 December 2015, said to have been executed by Venkatamma in her favour.

The respondents were served and a newspaper citation was published, but they did not appear before the trial court.

Although the trial court answered the framed points in the petitioner’s favour, it dismissed the petition because neither attesting witness to the Will had been examined; it noted that the petitioner had examined the scribe but had not stated whether the attesting witnesses were alive.

p. 5

Mangamma’s legal representatives appealed.

The respondents appeared in the appeal and sought an opportunity to contest the probate petition.

pp. 6–9

02Issues

i.1. Whether the probate petition should be reconsidered where the Will had been dismissed as unproved because neither attesting witness was examined, and the appellants sought an opportunity to adduce that evidence.

pp. 5–7

ii.2. Whether the respondents, who had not appeared before the trial court, should be given an opportunity to contest the petition on its merits.

pp. 7–9

03Law Applied

The Court referred generally to the Indian Evidence Act, 1872 and the Indian Succession Act, 1925, observing that examination of an attesting witness is necessary to establish and prove a Will in accordance with law.

p. 7

It also applied the procedural principle that a matter may be remanded for fresh consideration where the parties should have an opportunity to adduce evidence and contest the case, without the appellate court expressing a view on the merits.

pp. 8–10

Provisions in the judgment · 1 · Linked ones open on LawLens

Indian Succession Act, 1925 Section 299

04Reasoning

The trial court had dismissed the probate petition on the ground that no attesting witness had been examined, despite answering the framed points in the petitioner’s favour.

pp. 5–6

The appellants sought a remand to prove the Will through attesting-witness evidence, while the respondents sought leave to file objections and defend the petition.

pp. 6–8

In light of both requests, the High Court considered fresh consideration appropriate, directing that the appellants be allowed to adduce evidence and the respondents be allowed to contest the matter.

pp. 8–10

It expressly left the merits undecided.

pp. 8–10

05Holding

The appeal was allowed, and the order dated 24 August 2024 in P. & S.C. No. 63/2020 was set aside.

pp. 9–10

The matter was remanded to the trial court for fresh consideration, with an opportunity for the appellants to adduce evidence and for the respondents to defend the case in accordance with law.

pp. 9–10

The parties were directed to appear before the trial court on 11 November 2026, and the High Court made no determination on the merits of the Will or probate claim.

pp. 9–10

LawLens.Karnataka High Court

Original Court PDF