Probate cannot rest on an unproved copy: Section 65 foundation and strict proof of attestation under Section 63(c)

3.1 Precedents Cited

(a) H. Siddiqui (dead) by Lrs. -vs- A. Ramalingam (2011 (4) SCC 240)

This precedent was pivotal on the secondary evidence point. The High Court extracted and applied the Supreme Court’s articulation that:

• Secondary evidence is not automatically admissible merely because a copy exists or is “marked” as an exhibit; the proponent must first establish the factual conditions permitting secondary evidence under Section 65.
• The court has a duty to determine admissibility before acting on secondary evidence; “mere admission” or “marking” does not equal proof.

Applying this, the High Court held that the certified copy (Exhibit-2) could not substitute for proof of the original, because the respondents failed to explain through evidence why the original could not be produced when witnesses were examined, and failed to authenticate the copy through the legally required foundation.

(b) Kashibai -vs- Parwatibai ((1995) 6 SCC 213)

Though the High Court’s final reasoning turned on the witnesses’ failure to speak to signing “in the presence of the testator,” the appellant’s reliance on this authority aligns with the established proposition in probate law: strict compliance with attestation requirements is necessary, and evidence must satisfy the statutory elements, not merely suggest execution in a broad sense.

(c) Lalitaben Jayantilal Popat -Vs- Pragnaben Jamnadas Kataria & Ors. (2008 (15) SCC 365)

This authority is typically invoked for rigorous scrutiny of Will-proof, especially where circumstances create suspicion. In the present judgment, the High Court’s approach is consistent with the broader principle that probate cannot be granted unless the propounder discharges the affirmative burden of proving due execution and attestation.

(d) Nagulapati Lakshmamma -Vs- Mupparaju Subbaiah (AIR 1998 SC 2904)

This decision is frequently cited for the proposition that attestation must be proved in the manner required by law. The High Court’s insistence on evidence that witnesses signed in the testator’s presence reflects the same doctrinal insistence: probate is not a matter of inference from partial compliance.

(e) Bikash Chandra Prodhani Vs.On the death of Bhupesh Prodhani His legal heir Swapna Prodhani (2025 0 Supreme (Gau) 601)

This Gauhati High Court decision was determinative on Section 281. Relying on it, the Court held Section 281 to be directory rather than mandatory. The judgment thereby distinguishes between:

• procedural regularity in filing/verification of the petition, and
• substantive proof of the Will’s due execution and attestation.

Even though the respondents survived the Section 281 challenge, they failed on proof.

3.2 Legal Reasoning

(i) Section 281 is directory, but proof standards remain strict

The Court treated Section 281’s verification requirement as non-fatal where attesting witnesses were in fact examined. This prevents probate matters from being defeated solely by a curable procedural lapse. However, the Court simultaneously emphasized that such relaxation cannot dilute the core evidentiary burden to prove the Will.

(ii) Filing without the original Will may be permissible; proving a Will via secondary evidence is not automatic

The Court recognized that the Indian Succession Act contemplates scenarios (Sections 237 to 240, noted by the Court) where a petition may proceed on a copy until the original is produced. But it drew a crucial boundary: procedural acceptance of a petition is distinct from evidentiary proof at trial.

Once the copy is tendered to prove contents/execution, the Evidence Act governs admissibility. Therefore, without proof of loss/unavailability or other Section 65 conditions, the certified copy could not carry the case.

(iii) Production of the original without exhibiting/proving it is legally ineffective

A major practical holding emerges from paragraphs 24–25: the respondents later produced the original Will, but did not take the legally necessary steps to:

• have it marked/exhibited through a competent witness,
• prove signatures on the original (including those of attesting witnesses), and
• confront witnesses with the original where required.

The Court treated this omission as fatal because Exhibit-2 (certified copy) did not bear original signatures, and the original—though physically present—never became proved evidence.

(iv) Due attestation requires testimony that witnesses signed in the testator’s presence

The Court’s most outcome-determinative reasoning concerns Section 63(c) of the Indian Succession Act, 1925, read with the definition of “attested” in Section 3 of the Transfer of Property Act, 1882. The Court broke down attestation into two indispensable components:

1. Each attesting witness must have seen the testator sign/affix mark (or received acknowledgment), and
2. Each attesting witness must have signed the Will in the presence of the testator.

Even if witnesses stated they were present at execution, the Court found the evidence deficient because none specifically deposed that they signed in the testator’s presence. Given the gravity of probate—potentially disinheriting natural heirs—the Court insisted on compliance being proved, not presumed.

3.3 Impact

(a) Strong evidentiary discipline in probate trials

The decision reinforces that probate proceedings are not satisfied by “substantial” or “approximate” proof. Trial courts in Assam and the Gauhati High Court’s jurisdiction may read this judgment as a caution that:

• certified copies of Wills must pass the Section 65 gateway before they can be acted upon, and
• physical production of an original Will is meaningless unless it is formally proved and integrated into evidence.

(b) Practical consequences for litigants and drafting of evidence

The judgment highlights common failure points in probate litigation:

• Not laying foundation for secondary evidence (explaining unavailability and authenticity).
• Not recalling witnesses or confronting them with the original once it becomes available.
• Not eliciting the precise statutory language in testimony (“signed in presence of the testator”).

Future probate petitions may become more witness-scripted and document-protocol-driven to avoid dismissal.

(c) Section 281 challenges may reduce, but proof challenges will intensify

By adopting the “directory” view of Section 281 (via Bikash Chandra Prodhani Vs.On the death of Bhupesh Prodhani His legal heir Swapna Prodhani), the Court reduces the likelihood that probate will fail merely due to verification defects. But the judgment simultaneously signals that courts will not compromise on attestation proof and secondary evidence discipline.