The Gauhati High Court has dismissed a probate application filed four years after the testator’s death, holding that delay beyond the three-year limitation period under Article 137 of the Limitation Act is fatal unless satisfactorily explained. The Court further found the alleged Will unproved due to material defects in attestation, reinforcing strict compliance with statutory requirements for testamentary validity.
Background & Facts
The Dispute
The dispute arose from an application for probate of the last Will of Late Surendra Gosai, who died on 08.06.2011 at his residence in Itkhola, Silchar. The Will, dated 12.08.2008, bequeathed his property to Sri Abhijit Goswami, a minor at the time, and appointed his mother, Smt. Sabitri Gosai (the appellant), as executor. The appellant sought probate to administer the estate, but the respondents - heirs of the deceased - contested the Will’s authenticity, alleging it was fabricated using blank signed sheets obtained during the testator’s post-stroke incapacity.
Key Facts
- The testator, Surendra Gosai, suffered a brain stroke in 2005, which reportedly impaired his physical and mental capacity.
- He was known to sign blank papers for use in pending litigations, which the respondents allege were misused to forge the Will.
- The Will was executed on green paper ("13-inch paper"), not on stamp paper as claimed by the appellant.
- The Will named two attesting witnesses: PW-2 (Sri Rohit Gosai) and an unexamined witness, Sri Rohit Gosai.
- The appellant, as executor, filed the probate application on 17.03.2015 - nearly four years after the testator’s death on 08.06.2011.
- The appellant claimed the delay was due to the beneficiary’s minority, but the executor was an adult and had contemporaneous knowledge of the Will.
- The testator had filed a civil suit as plaintiff after the Will’s execution and gave evidence on affidavit, indicating functional capacity.
- Two medical certificates (Exhibit A and B) were produced by respondents, showing orthopedic disability and hemiparesis, but no medical opinion on mental capacity.
Procedural History
- 12.08.2008: Testator executed the alleged Will.
- 08.06.2011: Death of testator, Surendra Gosai.
- 2015: Probate application filed as Misc. Probate Case No. 5/2015.
- 03.06.2024: Additional District Judge, Cachar, dismissed the probate application on grounds of limitation and failure to prove execution.
- 2024: Appeal No. 10/2024 filed before the Gauhati High Court.
- 20.03.2026: Judgment pronounced by the High Court.
The Parties' Positions
- Appellant (Sabitri Gosai): Argued that as executor, she was entitled to apply for probate; delay was justified due to beneficiary’s minority; Will was duly executed and attested.
- Respondents (Heirs of Surendra Gosai): Contended the Will was forged from pre-signed blank sheets; attestation was defective; no explanation for four-year delay; testator lacked testamentary capacity.
Relief Sought
The appellant sought grant of probate, recognition of the Will as valid, and authority to administer the estate valued at approximately Rs. 4,80,000. The respondents sought dismissal of the application with costs.
The Legal Issue
The central questions were: (1) Whether the application for probate was barred by limitation under Article 137 of the Limitation Act, and (2) Whether the Will was duly and validly executed in compliance with Section 63 of the Indian Succession Act and Section 68 of the Evidence Act?
Arguments Presented
For the Appellant
The appellant’s counsel argued that the beneficiary’s minority justified the delay in filing, and that the executor, being an adult, had full knowledge of the Will’s existence. Reliance was placed on Ramesh Nivrutti Bhagwat v. Dr. Surendra Manohar Parakhe (2020) 17 SCC 284, which held that Article 137 applies to probate applications. Counsel contended that PW-2’s testimony established due execution, and that minor inconsistencies in cross-examination could not invalidate the Will.
For the Respondent
The respondents’ counsel argued that the delay of over four years was unexplained and not covered by any exception under Section 5 of the Limitation Act. They emphasized that the Will was executed on non-stamp paper, contradicting witness testimony, and that the attesting witness PW-2 admitted signing before the testator - a clear violation of Section 63(c). They further argued that the testator’s physical and mental condition post-stroke, combined with the use of blank signed sheets in litigation, rendered the Will suspect. Reliance was placed on Dhani Ram v. Shiv Singh (2023) SC 1014 to argue that Section 71 of the Evidence Act could not cure a fundamental defect in attestation.
The Court's Analysis
The Court first addressed the issue of limitation. It held that Section 223 of the Indian Succession Act bars probate to minors or persons of unsound mind, but does not extend this protection to the executor. Since the executor, Smt. Sabitri Gosai, was an adult and had knowledge of the Will’s existence from its execution in 2008, the right to apply for probate accrued immediately upon the testator’s death on 08.06.2011. The application filed on 17.03.2015 was therefore beyond the three-year limitation period under Article 137 of the Limitation Act, and no application under Section 5 was filed to explain the delay. The Court affirmed the Trial Court’s finding that the suit was barred by limitation.
"The right to apply for probate accrued immediately upon the death of the testator, which occurred on 08.06.2011, whereas the application for probate was made on 17.03.2015, thereby that is, after a delay of about nine months, after expiry of the period of limitation for which there is no valid explanation."
On the issue of execution, the Court examined Section 63(c) of the Indian Succession Act, which mandates that a Will must be attested by two or more witnesses, each of whom must have seen the testator sign or acknowledge his signature in the presence of the testator, and each witness must sign in the presence of the testator. The Court emphasized that the sequence is critical: the testator must sign first, then the witnesses.
PW-2, the only examined attesting witness, admitted during cross-examination that he signed the Will before the testator. This directly contradicted the statutory requirement. The Court held that this was not a mere omission or oversight, but a material contradiction that could not be cured by Section 71 of the Evidence Act, which applies only when an attesting witness denies or does not recall execution - not when he gives contradictory testimony.
"It is not a case of omission to state a particular fact, which can be supplied by subsequent witnesses but a clear case of contradictory evidence."
The Court further noted that the Will was described as being on stamp paper by PW-2, but was physically on green paper - a discrepancy that heightened suspicion. The unexamined second attesting witness and the scribe’s conflicting testimony about presence further undermined the probity of the document. The Court concluded that the appellant failed to discharge the burden of proving due execution under Section 68 of the Evidence Act and Section 63 of the Indian Succession Act.
The Verdict
The appeal was dismissed. The Cross Objection was allowed. The Court held that the application for probate was barred by limitation under Article 137 of the Limitation Act and that the Will was not duly proved under Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. The order of the Additional District Judge dated 03.06.2024 was upheld. The Trial Court Record (TCR) was directed to be sent back.
What This Means For Similar Cases
Probate Applications Must Be Filed Within Three Years
- Practitioners must file probate applications within three years of the testator’s death, regardless of the beneficiary’s minority.
- The executor’s knowledge and capacity, not the beneficiary’s age, determine the accrual of the right to apply.
- Delay beyond three years requires a separate application under Section 5 of the Limitation Act; mere minority of the beneficiary is not a valid ground for condonation.
Attestation Must Strictly Follow Statutory Sequence
- An attesting witness who signs before the testator renders the Will invalid - no subsequent evidence can cure this defect.
- Section 71 of the Evidence Act cannot be invoked to rectify contradictions in the attesting witness’s testimony.
- The scribe’s testimony alone is insufficient to prove execution; at least one attesting witness must testify in compliance with Section 63(c).
Suspicious Circumstances Require Clear Proof
- Discrepancies in document medium (e.g., stamp paper vs. green paper), use of pre-signed blanks, and testator’s physical condition must be addressed with corroborative evidence.
- Courts will treat unexplained delays and material inconsistencies as red flags warranting rejection of the Will.
