Page No.# 1/4 GAHC010163822025 2025:GAU-AS:10539 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Test.App./8/2025 KRISHNANAND TIWARY S/O SRI RAMPRABHAT TIWARY, R/O VILL. GANAGAPUR,P.O. BADRIPAR, PH. SONAPUR, P.S. SILCHAR, DIST. CACHAR, PIN 788009, ASSAM. VERSUS RAMPRABHAT TIWARY AND 3 ORS S/O LATE SRINATH TIWARY, R/O VILL. GANAGAPUR,P.O. BADRIPUR, PH SONAPUR, P.S. SILCHAR, DIST. CACHAR, PIN 788009, ASSAM. 2:ROMESH TIWARY S/O LATE SRINATH TIWARY R/O VILL. KISHUNPUR P.O. DODSAR P.S. MARDAL DIST. GAZIPUR UTTAR PRADESH PIN 233226 3:SURESH TIWARY S/O LATE SRINATH TIWARY R/O VILL. CHHAPANHAL P.O. ARCHUTTIPORE P.S. UDHARBOND DIST. CACHAR PIN 788009 4:SMTI GIRIJA TIWARY W/O SRI PAPPU TIWARY Page No.# 2/4 R/O VILL. CHANDPUR P.O. CHOURABHOJ P.S. BIMO DIST. GAZIPUR UTTAR PRADESH PIN 23330 Advocate for the Petitioner : MR. A DHAR, MD F FARIDI Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 11.08.2025 Heard Mr. A. Dhar, learned counsel for the appellant. 2) This appeal, under Section 299 of the Indian Succession Act, 1925, read with Section 96 of the Code of Civil Procedure, 1908, is directed against the order dated 31.05.2025, passed by the learned District Judge, Cachar, Silchar in Misc. (Probate) Case No. 16/2020. 3) It is to be noted here that vide impugned order dated 31.05.2025, the learned District Judge, Cachar, Silchar had dismissed the application filed by the appellant Krishnanand Tiwary for grant of probate, on the ground of failure to prove the execution of the Will in accordance with law, particularly for not examining any attesting witness. 4) Mr. Dhar submits that the appellant herein filed one Probate Case, being Probate Case No. 16/2020, for grant of Probate, in respect of last Will and testament dated 05.02.2002, executed by the grand-father of the petitioner, who suffered demise on 18.03.2002 and after the demise of the testator, the appellant herein had filed a Probate Case for execution of the Will, supported by an affidavit of one attesting witness, who has Page No.# 3/4 been arrayed as opposite party No. 2 in the probate proceeding. 4.1) Mr. 4.1) Mr. Dhar further submits that thought he opposite parties in the said Probate case had not contested the said case and that there were no suspicious circumstances surrounding the execution of the Will, but the learned District Judge had dismissed the application only on the ground that the attesting witness was not examined by the petitioner/appellant herein, as required under Section 68 of the Evidence Act, and that the said attesting witness was arrayed as opposite party No. 2 in the Probate proceeding, and he is ready to adduce evidence, and as such, Mr. Dhar submits that an opportunity may be granted to the appellant herein to examine the opposite party No. 2 as attesting witness, before the learned District Judge, Cachar, Silchar. 5) Having heard the submission of Mr. Dhar, learned counsel for the appellant, I have carefully gone through the petition and the documents placed on record, and also perused the impugned order dated 31.05.2025. 7) It appears that in the said order, the learned District Judge, Cachar, Silchar had observed that Section 68 of the Indian Evidence Act, 1872 provides that a Will must be proved by examining at least one attesting witness, and unless such witness is dead or cannot be found; and in the instant case, although the name of the attesting witness (Shri Romesh Tiwary, O.P. No. 2) is mentioned in the petition, he was not examined by the petitioner and in absence of such examination, the execution of the Will cannot be held to be true and thereafter, dismissed the same. 8) Taking note of the submission of Mr. Dhar, learned counsel for the appellant and also considering the facts and circumstances on record, this Court is of the view that an opportunity has to be given to the appellant to establish his case. 9) Under such circumstances, this Court is inclined to allow this appeal at its motion stage itself. 10) The impugned order dated 31.05.2025, stands set aside and quashed. 11) Consequently, the learned District Judge, Cachar, Silchar, is directed to restore the case to his file thereafter, to afford an opportunity to the appellant herein, to examine the Page No.# 4/4 opposite party No. 2 as attesting witness, and thereafter, to dispose of the same in accordance with law. 12) In terms of the above, this Testimony Appeal No. 8/2025 stands disposed of. JUDGE Comparing Assistant