Testimony of attending witness and supporting affidavit of deceased attesting witness can prove a Will. In this appellate judgment, the Court addressed the refusal of probate for a Will where the original attesting witnesses had died before they could testify in person. The lower court had previously rejected the Will, citing "suspicious circumstances" and a lack of direct testimony from the attesting witnesses as required by standard procedure. Upon review, the High Court determined that the legal requirements for proving a Will were satisfied through alternative means. Specifically, the Court relied on the testimony of an "attending witness" who was present during the signing, as well as a formal affidavit previously sworn by one of the now-deceased attesting witnesses. The Court clarified that when attesting witnesses are unavailable, the combination of eyewitness testimony and existing documentary evidence can establish both the execution of the document and the testamentary capacity of the deceased. Consequently, the High Court overturned the lower court's decision and granted the probate. Would you like a summary of a different segment or a discussion on the specific statutes mentioned in this ruling?

The appellants challenged a Single Judge's order dated April 23, 2025, which refused probate of the registered Will of late Rama Datta Gupta.

The testatrix, a Hindu governed by the Dayabhaga School, executed her Will on June 2, 1995, and passed away in 2008.

The probate application was supported by an affidavit from an attesting witness who died before the trial.

At trial, one propounder (P.W.-1) and an attending witness (P.W.-2) testified to the Will's execution.

The Single Judge denied probate, citing "suspicious circumstances" because the Will was "unnatural"—leaving nothing to the testatrix’s four children—and finding the execution unproven due to the absence of attesting witnesses’ testimony.

Section 63 of the Indian Succession Act, 1925, which mandates that a Will must be signed by the testator and attested by at least two witnesses who saw the testator sign.

Section 68 of the Indian Evidence Act, 1872, requiring at least one attesting witness to testify if alive and capable.

Section 69 of the Indian Evidence Act, 1872: if no attesting witness can be found, execution must be proved through the handwriting of at least one witness and the testator.

Section 71 of the Indian Evidence Act, 1872, allows execution to be proved by other evidence if an attesting witness denies or does not recollect the execution.

The Court found that the Trial Court overlooked critical evidence from P.W.-2, an attending witness who was present during the execution.

Although P.W.-2 was not a formal attesting witness, the testimony confirmed that the testatrix and both attesting witnesses signed in each other's presence while the testatrix was in a sound mental state.

The Court noted that the unavailability of the deceased attesting witnesses necessitated the use of alternative proof under Sections 69 and 71 of the Evidence Act.

The Court determined that the affidavit from the deceased attesting witness, filed with the probate petition, further corroborated the execution.

The Bench rejected the Trial Court's finding of "suspicious circumstances," implying that a Will is not invalid simply because it is not "natural" or excludes legal heirs.

It held that the appellants successfully proved the Will in accordance with the legal standards for cases where attesting witnesses are deceased.

The Court granted probate in terms of the original application and disposed of the matter without costs.