Probate proceedings may be remanded to permit examination of available attesting witnesses and proof of the will.

The appellant sought probate of a registered Will allegedly executed by his sister, Smt. Manchamma, in his favour in respect of her self-acquired property.

The VII Additional District and Sessions Judge, Mysuru, dismissed the petition because the appellant had not examined either attesting witness to prove the Will.

In appeal, the appellant submitted that the witnesses were alive and available, and that their non-examination resulted from inadequate legal assistance.

1. Whether the trial court’s dismissal of the probate petition for failure to examine an attesting witness should be set aside and the matter remitted to provide the appellant an opportunity to lead that evidence.

2. Whether the High Court should determine the merits of the probate claim at the appeal stage.

Section 63 of the Indian Succession Act, 1925, prescribes requirements for execution and attestation of a Will; Section 68 of the Indian Evidence Act, 1872, requires proof of an attested document by at least one attesting witness where such a witness is available.

The appeal was brought under Section 299 of the Indian Succession Act, and the probate petition had been filed under Sections 222 and 272 of that Act.

The Court applied no cited precedent and stated no further general rule; it remitted the matter to allow the appellant to adduce evidence, without expressing an opinion on the merits.

The trial court had dismissed the petition because no attesting witness had been examined, and the appellant acknowledged that omission while asserting that the witnesses were available and could be examined.

Given the absence of respondents before either court and the Court’s view that another opportunity would cause no hardship or inconvenience, it set aside the dismissal and remitted the matter for reconsideration after the appellant had an opportunity to lead evidence.

It left the legal and factual merits open for the trial court.

It expressed no opinion on the merits and kept the appellant’s contentions open.