The Bombay High Court has held that the non-verification of a probate petition by an attesting witness, as required under Section 281 of the Indian Succession Act, 1925, is a directory requirement and not a mandatory one. The Court clarified that such a procedural lapse constitutes an irregularity rather than an illegality and cannot lead to the automatic dismissal of a testamentary petition. Justice Sharmila U. Deshmukh passed this order while dismissing an interim application that sought the rejection of a long-pending testamentary suit.
Background
The case pertains to a Testamentary Petition filed by the Plaintiff, Bina Samir Telivala, on October 15, 2010. The Defendant/Applicant, Sunil Ijjatrai Shah, filed a Caveat in January 2011, leading to the conversion of the petition into Testamentary Suit No. 26 of 2011.
In 2026, during the evidentiary stage where the attesting witness (PW-1) was being examined, the Defendant moved an Interim Application seeking rejection of the petition. The primary grounds were the non-compliance with Section 280 and 281 of the Indian Succession Act and Rule 375 of the Bombay High Court (Original Side) Rules, as the petition was not accompanied by an affidavit of the attesting witness at the time of filing.
Arguments of the Parties
Applicant (Defendant): Counsel for the Applicant, Ms. Anita Castelino, argued that filing an affidavit of an attesting witness is a mandatory requirement. She contended that the use of the word “shall” in Rule 375 implies that the absence of such an affidavit must lead to dismissal. Furthermore, she invoked Rule 435, stating that since office objections were not removed within one year of filing, the petition should be treated as disposed of.
Respondent (Plaintiff): Mr. Sasi, appearing for the Respondent, argued that while the affidavits were affirmed in 2011, they had been misplaced from the record. He emphasized that once a Caveat is filed and a petition is converted into a suit, it remains “static” regarding office objections and cannot be rejected under Rule 435. He noted that the attesting witness’s evidence was already being recorded by the Court.
Court’s Analysis
The Court examined the statutory framework and judicial precedents to determine if the verification requirement is mandatory.
1. Directory Nature of Section 281: Justice Deshmukh referred to the Supreme Court’s decision in Vidyawati Gupta vs. Bhakti Hari Nayak, which held that procedural amendments under the CPC (referenced via Section 268 of the Succession Act) are directory. The Court observed:
“considering the above position under CPC… as the provisions are held to be directory, it is clear that non verification of probate Petition by an attesting witness cannot result in dismissal of the Petition.”
2. The “When Procurable” Clause: The Court cited the Division Bench ruling in Pralhad Ganpat Salgar vs Sunil Dilip Kakod, which noted that Section 281 includes the phrase “when procurable” in brackets. The High Court observed:
“This section cannot be held as mandatory for the reason that there are various contingencies which can arise if the attesting witness is not available… The word shall employed this provision has to be read as directory.”
3. Application of High Court Rules: Regarding Rule 375, the Court held that it provides for necessary accompaniments to a petition, but their absence only results in the non-issuance of a grant, not the dismissal of the petition itself. The Court noted that Rule 384 allows for “other evidence” to be produced if an attesting witness is unavailable, reinforcing the directory nature of the rule.
4. Conversion into Suit: The Court rejected the argument regarding Rule 435 (disposal for non-prosecution), noting that since a Caveat was filed in 2011, the petition was converted into a suit. Once converted, the procedure follows that of a civil suit, and the “status of the Petition as of date is that of Suit and no provision or Rule is demonstrated for dismissal of the Suit without trial.”
Decision
The Court concluded that since the affidavit of the attesting witness had already been filed on record by way of evidence, there was no merit in the prayer for dismissal.
“I am, therefore, not inclined to accept the submission that even when the proceedings are converted into Suit and the affidavit of the attesting witness is placed on record by way of evidence, the Testamentary Petition should be dismissed.”
The Interim Application was subsequently dismissed.
Case Details:
Case Title: Sunil Ijjatrai Shah vs. Bina Samir Telivala
Case No.: Interim Application No. 1592 of 2026 in Testamentary Suit No. 26 of 2011
Bench: Justice Sharmila U. Deshmukh
Date: May 8, 2026
