Non-filing of Affidavit of Attesting Witness Not Grounds for Dismissal, Rules Court
In a significant ruling, the Bombay High Court has clarified that the non-filing of an affidavit by an attesting witness at the time of filing a testamentary petition is not a ground for its dismissal. The judgment, delivered by Justice Sharmila U. Deshmukh, reinforces the directory nature of Section 281 of the Indian Succession Act, 1925, and Rule 375 of the Bombay High Court (Original Side) Rules.
The case involved an interim application seeking the rejection of a testamentary petition filed in 2010 by Sunil Ijjatrai Shah. The petitioner argued that the absence of an affidavit from an attesting witness should lead to the dismissal of the petition. However, the court found this argument unpersuasive, emphasizing that such procedural requirements are directory rather than mandatory.
Justice Deshmukh highlighted that Section 281 of the Indian Succession Act and corresponding rules do not mandate automatic dismissal for procedural lapses. The court further noted that such deficiencies can be rectified at a later stage without impacting the validity of the petition. The judgment also referenced previous decisions, including those by the Supreme Court and other high courts, which support the view that procedural rules should not obstruct substantive justice.
The ruling has implications for the administration of testamentary cases, ensuring that technicalities do not impede the judicial process. It underscores the court's commitment to a balanced approach, allowing for procedural corrections while safeguarding the rights of the parties involved.
The decision is expected to streamline the procedural aspects of testamentary petitions, providing clarity and guidance for future cases. It also reinforces the judiciary's role in interpreting procedural rules in a manner that facilitates, rather than hinders, access to justice.
Bottom line:-
Indian Succession Act, 1925 - Non-filing of affidavit of attesting witness at the time of filing of Testamentary Petition is not a ground for dismissal of the petition - Section 281 of the Act and Rule 375 of the Bombay High Court (Original Side) Rules are directory, not mandatory.
Statutory provision(s): Indian Succession Act, 1925 Section 281, Bombay High Court (Original Side) Rules Rule 375, Civil Procedure Code, 1908 Section 268, Order VI Rule 15.
