Secondary evidence of a Will is inadmissible without fulfilling Section 65 requirements and proving attestation in the testator's presence.

The respondents (petitioners below) sought probate of a registered Will dated 17.04.2010 executed by late Jotai Thakur, who died on 04.05.2010

The Will bequeathed a portion of land in Barpeta to the respondents, excluding the appellant (son of the deceased).

At the time of filing under Section 276 of the Indian Succession Act, the original Will was with the Sub-Registrar and not annexed

The appellant challenged the Will’s genuineness and the legality of the probate process.

The Trial Court granted probate on 04.08.2015 based on a certified copy and testimonies of four attesting witnesses

The appellant moved the High Court contending non-compliance with mandatory statutory provisions regarding verification and attestation

1. Whether the probate application was valid without verification by an attesting witness under Section 281 of the Indian Succession Act, 1925?

2. Whether the Court could grant probate using a certified copy of the Will without satisfying the requirements of Section 65 of the Indian Evidence Act?

3. Whether the execution and attestation of the Will were proven in accordance with Section 63(c) of the Indian Succession Act?

The Court applied Section 281 of the Indian Succession Act, 1925, noting that its requirement for witness verification is directory, not mandatory, especially if witnesses testify in court

Regarding evidence, the Court applied Section 65 of the Indian Evidence Act, which requires a factual foundation for admitting secondary evidence (certified copies)

Crucially, the Court relied on Section 63(c) of the Indian Succession Act and Section 3 of the Transfer of Property Act, 1882, which define "attestation"

These rules mandate that attesting witnesses must not only see the testator sign but must also sign the instrument in the presence of the testator

The Court found that while the procedural lapse under Section 281 was not fatal

the respondents failed on substantive evidentiary grounds. First, although the original Will was late-filed in 2015, it was never exhibited or confronted to witnesses to prove original signatures; thus, the Will was not legally "proved" despite being on record

Second, regarding attestation, the Court analyzed the testimonies of the four PWs. While they claimed to be present during execution, none specifically deposed that they signed the Will in the presence of the testator

This omission is a failure to meet the strict statutory definition of "attestation" under Section 63(c), which is intended to prevent fraud and protect the natural heirs' interests

The High Court set aside the Trial Court's judgment and order dated 04.08.2015. The appeal was allowed, and the grant of probate was revoked because the respondents failed to establish that the witnesses signed in the testator's presence as required by law