- 1 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2026 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA MISCELLANEOUS FIRST APPEAL NO. 1649 OF 2022 (ISA) BETWEEN: G M RAVI GANESH S/O. G N MUNIVENKATAPPA, AGED ABOUT 39 YEARS, R/AT: NO.1223, 21ST CROSS, 4TH MAIN ROAD, OPP. STATE BANK OF HYDERABAD, HSR LAYOUT, 7TH SECTOR, BANGALORE - 560 102. …APPELLANT (BY SRI. CHANNAKESHAVA B S.,ADVOCATE) AND: NIL …RESPONDENT THIS MFA IS FILED U/S.299 OF THE INDIAN SUCCESSION ACT, 1925, AGAINST THE ORDER DT.21.12.2018 PASSED IN P AND SC NO.5011/2018 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, SIT AT ANEKAL, DISMISSING THE PETITION FILED U/S.264 AND 276 OF THE INDIAN SUCCESSION ACT. Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA ORAL JUDGMENT This Miscellaneous First Appeal is directed against the order dated 21.12.2018 in P&SC.No.5011/2018 on the file of the III Additional District and Sessions Judge, Bengaluru Rural District, Sitting at Anekal (‘Trial Court’ for short) whereby the petition filed under Sections 264 and 276 of the Indian Succession Act, 1925 (for short 'the IS Act, 1925') by the appellant/petitioner for grant of probate was dismissed. Brief facts: 2. The appellant filed petition seeking grant of probate in respect of a registered Will dated 31.05.2014 said to have been executed by late Smt. Lakshmamma, who died on 23.01.2017. The appellant is the son of the sister of the deceased testatrix. It is the case of the appellant that the testatrix had two daughters, both of - 3 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 them died issueless, and her husband has been missing for more than seven years and was presumed dead. 3. The deceased Lakshmamma was residing and depending upon the appellant and his mother, who were taking care of her till her death. That the deceased during her life time, and while in sound disposing state of mind, executed a registered Will bequeathing the residential and agricultural properties in favour of the appellant. After the death of testatrix, when the appellant approached the revenue authorities for change of katha, he was advised to obtain probate and accordingly, filed the petition. Citation was issued to the general public and published in the newspaper, however, no person appeared to oppose the claim of the appellant. 4. The appellant examined himself as PW.1, however, no attesting witness was examined to prove the genuineness and execution of the Will, as contemplated under Section 68 of the Indian Evidence Act, 1872 (‘the - 4 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 Act of 1872’ for short) and Section 63 of the IS Act, 1925. The Trial Court dismissed the petition on the ground that the attesting witness to the Will were not examined. 5. Learned counsel for the appellant submits that the Trial Court failed to appreciate that the petition was uncontested and surrounding circumstances and the evidence of P.W.1 establish the genuineness of the Will. It is submitted that the dismissal by the Trial Court is solely based on non-examination of attesting witness, without granting an opportunity, resulting in miscarriage of justice. Learned counsel submits that the attesting witnesses are available and the appellant be provided an opportunity to adduce their evidence and that the Trial Court failed to adopt a liberal approach in probate proceedings, especially when there was no contest. 6. This Court has carefully considered the submission and perused the material on record. The point that arises for consideration is: - 5 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 “Whether the impugned order passed by the Trial Court warrants any interference?” 7. It is frequently said that a ‘Will is one of the most solemn document known to law’. The Will must be proved like any other document. However, there is one important feature which distinguishes Will from other documents, unlike other documents, the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator, who has already departed the World, cannot say whether it is his Will or not, and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. As the executant of the Will cannot be called to deny the execution or explain the circumstances, in which it was executed. It is therefore, essential that trustworthy and unimpeachable evidence should be produced before the Court to establish - 6 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 genuineness and authenticity of the Will. The Will has to be proved in terms of Section 63 of the IS Act, 1925 and Section 68 of the Act of 1872. 8. The Apex Court in the case of H VENKATACHALA IYENGAR Vs. B N THIMMAJAMMA AND OTHERS1 (VENKATACHALA IYENGAR) has held at paragraph Nos.18, 19, 20, 21 and 22 as under: “ 18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 1 AIR 1959 SC 443 - 7 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68- deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? - 8 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. 19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already, departed the world cannot-say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder - 9 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, Improbable or - 10 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. 21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has - 11 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word "conscience" in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. 22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove - 12 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect. (emphasis supplied) 9. The decision in the case of VENKATACHALA IYENGAR is a decision governing proof of Will and the Apex Court exhaustively explained the principles relating - 13 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 to proof of execution of a Will, burden on the propounder, suspicious circumstances, role of attesting witnesses and the satisfaction of the judicial conscience. The Apex Court observed that unlike ordinary document, the testator is not available to depose. Therefore, the Court must scrutinize the evidence carefully. The Apex Court observed that the propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the testament of his own free will. 10. The Apex Court in the case of KALYAN SINGH, LONDON TRAINED CUTTER, JOHRI BAZAR, JAIPUR Vs. SMT. CHHOTI AND OTHERS2 held at paragraph Nos.20 and 21 as under: “ 20. It has been said almost too frequently to require repetition that a will is one of the most 2 (1990) 1 SCC 266 - 14 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circum-stances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and con- tents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party. 21. In H. Venkatachala Iyengar v. S.N. Thimmajamma¹ Gajendragadkar, J., as he then was, has observed that although the mode of proving a will did not ordinarily differ from that of proving any other document, nonetheless it requires an element of solemnity in the deci-sion on the question as to whether the document propounded is proved as the - 15 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 last will and testament of departed testator. Where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the will could be accepted as genuine. Where there are suspicious circumstances, the court would naturally expect that all legitimate suspicions should be com-pletely removed before the document is accepted as the last will of the testator. These principles have been reiterated in the subsequent decision of this Court in Rani Purnima Devi v. Kumar Khagendra Narayan Dev and Indu Bala Bose v. Manindra Chandra Bose.” 11. Similarly in the case of JANKI NARAYAN BHOIR Vs. NARAYAN NAMDEO KADAM3, (JANKI NARAYAN BHOIR) the Apex Court held that one of the requirements of due execution of a Will is its attestation by two or more witnesses, which is mandatory and held at paragraph Nos.10 and 11 as under: “ 10. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said section, a document required by law to be attested shall not be 3 (2003) 2 SCC 91 - 16 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. It flows from this section that if there be an attesting witness alive capable of giving evidence and subject to the process of the court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the - 17 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a court of law by examining at least one attesting witness even though the will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of Section 63 viz. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by the other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness - 18 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act. 11. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling the attesting witnesses, though alive. This section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for reasons best known, have not been summoned before the court. It is clear from the language of - 19 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause (c) of Section 63 of the Succession Act, it cannot be said that the will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will. Yet another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the will is to avert the claim of drawing adverse inference under Section 114 Illustration (g) of the Evidence Act. Placing the best possible evidence, in the given circumstances, before the Court for consideration, is one of the cardinal principles of the Indian Evidence Act. Section 71 is permissive and an enabling section permitting a party to lead other evidence in certain circumstances. But Section 68 is not merely an enabling section. It lays down the necessary requirements, which the court has to observe before holding that a document is proved. Section 71 is - 20 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility, cannot be let down without any other means of proving due execution by "other evidence" as well. At the same time Section 71 cannot be read so as to absolve a party of his obligation under Section 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go-by to the mandate of law relating to the proof of execution of a will.” 12. The Apex Court in JANKI NARAYAN BHOIR’s case supra has observed that the propounder must prove execution and attestation strictly in the manner contemplated under Section 68 of the Act of 1872 and Section 63 of the IS Act, 1925. 13. In the present case, the Will in question, though was not contested by any rival claim, the propounder is required to establish and prove the execution and - 21 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 attestation of the Will in the manner contemplated under Section 68 of the Act of 1872 and Section 63 of the IS Act, 1925. 14. Learned counsel for the appellant specifically contended that the appellant due to absence of proper legal assistance and inadvertence, the attesting witnesses could not be examined before the Trial Court and that the appellant is ready to adduce such evidence, if an opportunity is granted. 15. Having regard to the nature of probate proceedings, this Court is of the considered opinion that the ends of justice would be met, by granting an opportunity to the appellant to examine the attesting witness and establish the Will in accordance with law and this Court is of the considered view that the matter requires to be remanded to the Trial Court for fresh consideration. Accordingly, the point framed for - 22 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 consideration is answered and this Court pass the following: ORDER i) The Miscellaneous First Appeal is allowed. ii) The impugned order dated 21.12.018 passed in P&Sc.No.5011/2018 on the file of the III Additional District and Sessions Judge, Bengaluru Rural District, sitting at Anekal, is hereby set aside. iii) The matter is remitted back to the trial Court for fresh consideration. iv) The appellant is permitted to: a. Examine attesting witness, b. Adduce additional evidence in accordance with law. v) The appellant shall appear before the Trial Court on 08.06.2026. - 23 - HC-KAR NC: 2026:KHC:22140 MFA No. 1649 of 2022 vi) The trial Court shall dispose of the P&SC.No.5011/2018 within a period of six(6) months from the date of receipt of certified copy of this order. The suit is to be heard from the stage of further evidence of PW.1. Sd/- _____________________ JUSTICE K.S. HEMALEKHA PHM List No.: 1 Sl No.: 15