Orissa High Court
(An Appeal Under Order Xliii Rule 1 Of The ... vs Prakash Chandra Routray & Ors on 24 December, 2025
Author: Sanjeeb K Panigrahi
Bench: Sanjeeb K Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT,
CUTTACK
Date: 09-Jan-2026 17:01:41
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No. 442 of 2022
(An appeal under Order XLIII Rule 1 of the Code of Civil Procedure,
1908.)
Benudhar Routray & Ors. .... Appellant(s)
-versus-
Prakash Chandra Routray & Ors. .... Respondent(s)
Advocates appeared in the case through Hybrid Mode:
For Appellant(s) : Mr. Sudeep Kumar Sarangi, Sr. Adv.
along with associate
For Respondent(s) : Mr. Laxmikanta Sahoo, Adv.
(for R-2 to 5)
Mr. B. Baral, Adv.
(for R-1)
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING:-28.11.2025
DATE OF JUDGMENT:-24.12.2025
Dr. Sanjeeb K Panigrahi, J.
1. The appellant in the present appeal assails the order dated 19.09.2022 passed by the learned District Judge, Khurda at Bhubaneswar in Test Case No.02 of 2017.
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case as called out from the brief are as follows: Page 1 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 09-Jan-2026 17:01:41
(i) The appellants, as petitioners, filed Test Case No. 02 of 2017 under Section 276 of the Indian Succession Act, 1925 before the learned District Judge, Khurda at Bhubaneswar seeking probate of a Will alleged to have been executed by the testator in their favour.
(ii) It was pleaded that the appellants and respondent nos. 1 to 5 are the sons and daughters of the testator respectively, and that respondent nos.
2 to 5 are married daughters residing at their respective matrimonial homes.
(iii) It was further pleaded that during the minority of respondent no. 1, the testator had purchased certain landed properties in the name of respondent no. 1 with the intention of securing the welfare of the family as a whole. According to the appellants, notwithstanding that the properties stood in the name of respondent no. 1, all family members were enjoying the same and respondent no. 1 had not asserted any exclusive ownership thereover.
(iv) It was alleged that subsequently, disputes arose among the family members, pursuant to which respondent no. 1 declined to share the said properties with the appellants.
(v) In the above circumstances, it was pleaded that the testator executed a registered Will proposing disposition of the schedule properties in favour of the appellants. It was further pleaded that the properties purchased in the name of respondent no. 1 were also stated to have been bequeathed in favour of the appellants, though the same were not included in the schedule to the Will.
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(vi) According to the appellants, the Will was scribed by one Kailash Chandra Nanda as per the instructions of the testator, and the contents thereof were read over and explained to the testator in the presence of the witnesses. It was pleaded that respondent no. 1 was present at the time of execution of the Will and was one of the signatories thereto.
(vii) It was further pleaded that the Will was attested by one Bharat Senapati, who, according to the appellants, owing to advanced age, was unable to sign the document.
(viii) On the basis of the above pleadings, the appellants filed the probate proceeding apprehending prejudice to their claimed interests in view of the emerging inter se disputes.
(ix) The respondent no. 1, despite due service of summons, did not enter appearance in the proceeding and was accordingly set ex parte. Respondent nos. 2 to 5 entered appearance and filed their written statement supporting the claims and contentions of the appellants.
(x) In order to substantiate their case, the appellants examined two witnesses. One of the appellants, Benudhar Routray, examined himself as P.W.-1, and Nrusingh Charan Dash was examined as P.W.-2.
(xi) The appellants exhibited seven documents, including certified copies of the Record of Rights, the death certificate of the testator, and the Will.
(xii) On behalf of the respondents, Gitanjali Baral, respondent no. 2, was examined as O.P.W.-1. No documentary evidence was exhibited on behalf of the respondents.
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(xiii) Upon consideration of the pleadings and evidence on record, the learned District Judge dismissed the probate proceeding by the impugned order dated 19.09.2022.
(xiv) Being aggrieved by the aforesaid order dated 19.09.2022, the appellants have preferred the present appeal.
II. SUBMISSIONS ON BEHALF OF THE APPELLANTS:
3. Learned counsel for the appellants earnestly made the following submissions in support of their contentions:
(i) The impugned order passed by the learned Court below is arbitrary, erroneous, and contrary to the settled principles of law, and is therefore liable to be set aside.
(ii) The learned Court below erred in law in rejecting the evidence of P.W.-2 merely on the ground that he is an Advocate and in holding that his testimony was not sufficient to prove the execution of the Will. Such a finding is untenable in law and is liable to be set aside.
(iii) The pleadings on record disclose sufficient and cogent reasons for the non-examination of the attesting witnesses, which are covered by Section 68 of the Indian Evidence Act. The pleadings indicate that respondent no. 1 was not maintaining cordial relations with the appellants and, despite due process of law, did not participate. Further, the attesting witness, namely Bharat Senapati, though alive, was not capable of giving evidence owing to his extreme old age, confinement to bed, and loss of memory. In such circumstances, the reasons assigned by the learned Court below, both de facto and de jure, for discarding the appellants' case are unsustainable in law and are liable to be set aside. Page 4 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 09-Jan-2026 17:01:41
(iv) The learned Court below failed to take note of the scope and import of Section 71 of the Indian Evidence Act while scrutinising the pleadings and evidence on record to infer the circumstances amounting to denial or non-availability of the attesting witnesses, namely Bharat Senapati, who owing to extreme old age and mental incapacity was unable to depose, and Prakash Chandra Routray, who was not maintaining cordial relations with the appellants. In such circumstances, the evidence of P.W.-2 was sufficient and ought to have been considered for the purpose of proving the execution of the Will.
(v) The learned Court below erred in refusing probate on account of an alleged discrepancy in the date of execution of the Will. The reference in the pleadings to the date as 26.02.2012 instead of 26.02.1992 was an inadvertent mistake. The Will, as proved through the testimony of P.W.-
2, clearly discloses the correct date of execution and registration as 26.02.1992. Such an inadvertent error in the pleadings ought not to have been treated as fatal, particularly when the document itself and the supporting oral evidence were available on record, and when such error is capable of being corrected by way of amendment in accordance with law.
(vi) In the above circumstances, the learned Court below ought to have examined the Will in conjunction with the evidence of P.W.-2 and assessed the due execution on the basis of the material available on record. The conclusion that the Will was not proved, and consequently that it could not be treated as the last Will of the testator, is therefore legally unsustainable and liable to be set aside. Page 5 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 09-Jan-2026 17:01:41
(vii) The Will is a registered instrument. Although a Will does not require compulsory registration under Section 17 of the Registration Act, 1908, its registration is permissible under Section 18(e) thereof and is subject to scrutiny in terms of Sections 34 and 35 of the said Act. While registration by itself does not dispense with proof of execution, it nevertheless constitutes a relevant circumstance to be taken into consideration while appreciating the evidence on record. In the present case, the Will was executed in the year 1992, whereas the testator died on 13.01.2012, more than two decades thereafter. The long interval between the execution of the Will and the demise of the testator, coupled with the absence of any challenge during his lifetime, was a relevant factor indicating that the testator had executed the Will consciously and with a settled intention. The learned Court below failed to take this circumstance into consideration and ought to have drawn support therefrom while the testator was in a sound and disposing state of mind. The finding to the contrary is therefore erroneous and unsustainable in law.
(viii) For the aforesaid reasons, the impugned judgment passed by the learned Court below is perverse and contrary to the settled principles of law, and is therefore unsustainable in law and liable to be set aside. Consequently, the probate petition filed by the appellants deserves to be allowed.
III. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.1:
4. Learned Counsel for the respondent No.1 earnestly made the following submissions in support of the contentions raised:
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(i) The appellants/petitioners have failed to prove the Will by adducing evidence as required under law in a probate proceeding. None of the attesting witnesses to the Will were examined. The Advocate, who was examined as a witness, is not a competent attesting witness for the purpose of proving the execution of the Will, particularly when the attesting witnesses were alive but were not examined to prove the execution of the Will by the testator in accordance with law.
(ii) It is further submitted that in order to prove a Will, it is essential to establish that at the time of its execution, the testator was hale and hearty, possessed a sound disposing state of mind, and executed the Will voluntarily of free will. Such facts can be proved only through the testimony of the attesting witnesses if they are alive, or, in the event of their death or unavailability, through other legally recognised modes of proof.
(iii) In the present case, the essential legal requirements for grant of probate have not been duly proved. Consequently, it is submitted that the learned District Judge rightly dismissed the test case, and the order passed therein is legal and valid and does not warrant interference.
IV. SUBMISSIONS ON BEHALF OF THE RESPONDENT NOS.2 TO 5:
5. Learned Counsel for the respondent Nos2 to 5 earnestly made the following submissions in support of their contentions:
(i) Once the drafting of the Will and its execution are proved through admissible evidence, compliance with the requirements of law for proving the Will stands satisfied. It is further submitted that the Will in the present case was a registered instrument, registered before the Page 7 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 09-Jan-2026 17:01:41 Registering Officer, Balipatna, where the testator was identified by the son, namely Prakash Chandra Routray, respondent no.1.
(ii) Both parties adduced evidence in support of their respective cases. In such circumstances, there was no legal impediment for the learned Trial Court to grant probate, particularly when a considerable period had elapsed since the date of execution of the registered Will.
(iii) The learned Court below could have granted liberty to the parties to examine the attesting witness, namely Bharat Senapati, through an Advocate Commissioner or by adopting any other legally permissible mode. However, no such opportunity was afforded. In the circumstances, it is submitted that the learned District Judge passed the impugned order mechanically, despite sufficient material being available on record to allow Test Case No. 02 of 2017. In the facts and circumstances of the case, it is submitted that the appeal deserves to be allowed and Test Case No. 02 of 2017 be decreed in accordance with law.
V. FINDINGS OF THE DISTRICT JUDGE, KHURDA:
6. Upon consideration of the pleadings, the learned Court framed issues, inter alia, as to whether the testator had executed the Will on 26.02.2012 in a sound and disposing state of mind, whether the Will was duly executed and attested in accordance with law, and whether it constituted the last Will of the testator.
7. The learned Court recorded that the petitioners examined P.W.-1, one of the sons of the testator, and P.W.-2, the Advocate in whose office the Will was drafted, and exhibited the Will along with the Record of Rights and the death certificate of the testator. Respondent no. 1, though one of Page 8 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 09-Jan-2026 17:01:41 the attesting witnesses, was set ex parte, while respondent nos. 2 to 5 contested the proceeding and examined respondent no. 2 as O.P.W.-1.
8. On appreciation of the evidence of P.W.-1, the learned Court found that he was not present at the time of execution of the Will and that the two attesting witnesses to the Will, namely Prakash Chandra Routray and Bharat Senapati, were admittedly alive but had not been examined to prove its execution.
9. The learned District Judge further noticed a material discrepancy between the pleadings and the document relied upon, inasmuch as the petitioners had pleaded that the Will was executed and registered on 26.02.2012, whereas the Will itself disclosed the date of execution and registration as 26.02.1992.
10. While considering the testimony of P.W.-2, the learned Court held that he had been examined in his capacity as an Advocate and not as an attesting witness, and that his evidence could not substitute the statutory requirement of examining at least one attesting witness when such witnesses were alive and available.
11. The learned Court, upon an analysis of Sections 63 of the Indian Succession Act, 1925 and Sections 68, 69 and 71 of the Indian Evidence Act, 1872, held that the benefit of Sections 69 or 71 of the Evidence Act was not available to the petitioners, as no credible material had been brought on record to show that the attesting witnesses were incapable of giving evidence, could not be found, or had denied execution of the Will.
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12. It was further observed that P.W.-2 had not specifically deposed regarding the sound mental condition of the testator or the voluntary nature of execution of the Will at the relevant time, and that the pleadings were also silent regarding the role of P.W.-2 in the execution of the Will.
13. In view of the aforesaid findings, the learned District Judge concluded that the due execution and attestation of the Will had not been proved in accordance with law and that, once attestation was not established, the question of treating the document as the last Will of the testator did not arise.
14. On the above reasoning, the learned District Judge dismissed Test Case No. 02 of 2017 by judgment and order dated 19.09.2022. VI. COURT'S REASONING AND ANALYSIS:
15. Heard learned counsel for the parties and perused the material on record.
16. The present appeal arises from an order passed by the learned District Judge in a probate proceeding instituted under Section 276 of the Indian Succession Act, 1925.
17. The scope of appellate interference in an appeal arising out of a probate proceeding is necessarily guided by the statutory requirements governing proof of a Will under the Indian Succession Act, 1925 and the Indian Evidence Act, 1872. At the same time, the appellate court is required to examine whether the procedure adopted by the court below has resulted in a fair and complete adjudication of the claim in accordance with law.
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18. It is well settled that in order to prove a Will, the propounder must establish not only the factum of execution but also due attestation in the manner prescribed under Section 63 of the Indian Succession Act, 1925.
19. Section 68 of the Indian Evidence Act, 1872 lays down the mandatory mode of proof for documents required by law to be attested. It stipulates that such a document shall not be used as evidence unless at least one attesting witness has been examined for the purpose of proving its execution, provided such witness is alive, subject to the process of the Court, and capable of giving evidence.
20. In the present case, the Will in question discloses two attesting witnesses, namely Prakash Chandra Routray and Bharat Senapati. It is not in dispute that both the said attesting witnesses were alive at the time of trial.
21. The appellants did not examine either of the attesting witnesses to prove the execution of the Will. The explanation pleaded for such non- examination was that Prakash Chandra Routray, one of the attesting witnesses, was not maintaining cordial relations with the appellants and had been set ex parte, and that the other attesting witness, Bharat Senapati, owing to advanced age and ill-health, was not in a position to depose.
22. The learned District Judge, upon appreciation of the evidence on record, held that the mandatory requirement under Section 68 of the Indian Evidence Act had not been satisfied and that the testimony of P.W.-2, who was examined as the drafting Advocate and not as an attesting witness, could not substitute the examination of an attesting witness. Page 11 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 09-Jan-2026 17:01:41 The learned Court further held that the benefit of Sections 69 or 71 of the Indian Evidence Act was not available to the appellants.
23. The legal position so stated by the learned District Judge, namely that a drafting Advocate who is not an attesting witness cannot prove execution of a Will in place of an attesting witness, does not call for interference and is in consonance with the settled principles governing proof of Wills.
24. However, what requires examination by this Court is whether, in the facts and circumstances of the present case, the probate proceeding was disposed of without a complete consideration of whether the procedural requirements for proof of the Will could still be satisfied by affording an opportunity to the parties to adduce evidence strictly in accordance with law.
25. The appellants had specifically pleaded circumstances explaining the non-examination of the attesting witnesses. While such pleadings by themselves do not dispense with the statutory mandate under Section 68 of the Indian Evidence Act, they nevertheless required consideration for the limited purpose of determining whether the appellants ought to have been directed to take appropriate procedural steps to comply with the said mandate.
26. From a perusal of the impugned judgment, it is evident that the learned Court below proceeded to dismiss the probate proceeding on the ground of non-examination of attesting witnesses, without examining whether, in the factual context pleaded, the appellants should be afforded an Page 12 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 09-Jan-2026 17:01:41 opportunity to take steps permissible in law to satisfy the requirement of proof.
27. A probate proceeding is a proceeding in rem, and the consequence of dismissal is final so far as the propounder's claim to probate is concerned. In such proceedings, while strict compliance with statutory requirements cannot be diluted, the Court is equally required to ensure that a claim is not non-suited without affording a fair opportunity to comply with such requirements where the defect is potentially curable.
28. This Court is of the view that the learned District Judge ought to have considered whether, in the facts pleaded, the appellants should be directed to adduce further evidence in accordance with law before finally rejecting the probate claim.
29. In the absence of such consideration, this Court is satisfied that the matter requires reconsideration by the learned District Judge after affording the parties an opportunity to adduce evidence strictly in accordance with the statutory framework governing proof of Wills.
30. Accordingly, the impugned judgment and order dated 19.09.2022 are set aside, and Test Case No. 02 of 2017 is remanded to the learned District Judge, Khurda at Bhubaneswar for fresh disposal in accordance with law.
VII. CONCLUSION:
31. In view of the foregoing discussion, this Court is of the considered opinion that the impugned judgment and order dated 19.09.2022 passed by the learned District Judge, Khurda at Bhubaneswar in Test Case No. 02 of 2017 cannot be sustained.
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32. Accordingly, the impugned order dated 19.09.2022 is set aside, and Test Case No. 02 of 2017 is remanded to the learned District Judge, Khurda at Bhubaneswar for fresh disposal in accordance with law, after affording the parties an opportunity to adduce evidence strictly in accordance with the statutory requirements governing proof of Wills.
33. The learned District Judge shall endeavour to dispose of Test Case No.02 of 2017 as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this judgment.
34. The appeal is allowed to the extent indicated above. No order as to costs.
(Dr. Sanjeeb K Panigrahi) Judge Orissa High Court, Cuttack, Dated the 24th Dec., 2025 Page 14 of 14