Bombay High Court: Defect In Probate Petition Verification Is Curable, Not Fatal

In a significant ruling on testamentary procedure, the Bombay High Court held that a probate petition cannot be dismissed merely because it was not initially verified by an attesting witness under Section 281 of the Indian Succession Act, 1925. The Court clarified that such non-verification is only a procedural irregularity and can be corrected during the course of proceedings.

Justice Sharmila U. Deshmukh observed that Section 281 is directory and not mandatory, despite the use of the word “shall” in the provision. The Court noted that the law itself recognises situations where attesting witnesses may not be available, making strict compliance impractical. Therefore, failure to file an attesting witness’s affidavit along with the probate petition does not render the petition invalid from the outset.

The case arose from a testamentary dispute pending since 2010, where the caveator sought dismissal of the petition after fifteen years on technical procedural grounds. However, by the time the application was heard, the attesting witness had already entered evidence before the Court Commissioner.

Relying on precedents including Vidyawati Gupta v. Bhakti Hari Nayak, the Court reaffirmed that procedural rules should not defeat substantive justice. The interim application was ultimately dismissed, allowing the testamentary suit to proceed on merits.