M.S. SONAK, J.

1. Heard the learned counsel for the parties.

2. This appeal is directed against the judgment and order dated 9th June, 2016 disposing of Testamentary Suit No. 28 of 1995 in Testamentary Petition No. 41 of 1995 in relation to the will dated 4th July 1993 said to have been left by Shashikala Baburao Alandkar ("Shashikala").

3. Since, it was pointed out to us that the first respondent to this appeal is about 90 years of old, we had, by our order dated 28th August, 2018, made it clear that this appeal will be disposed of, finally at the stage of admission itself.

4. Accordingly, the appeal is admitted and with the consent of and at the request of the learned counsel for the parties, the appeal is taken up for final disposal.

5. The appellants are the original defendants and the respondents are the original plaintiffs in Testamentary Suit No. 28 of 1995. For the sake of convenience, we shall refer to the parties by their respective positions in the suit. Accordingly, the appellants will be referred to as the defendants and the respondents will be referred to as the plaintiffs, even though, one of the plaintiffs, i.e., Mr. Shantram V. Pikale, has already expired during pendency of this appeal.

6. The plaintiffs instituted Testamentary Petition No. 41 of 1995 seeking probate of will dated 4th July, 1993 said to have been left behind by Shashikala, who died on 27th February, 1994. In the will, the two plaintiffs were named as executors. Shashikala was unmarried and had no children. The defendants, who had filed caveat, are the children of Anuradha Bhagwat nee Alandkar, daughter of Shashikala's brother Padmakar Baburao Alandkar.

7. The execution of the will was said to be witnessed by Mr. R.G. Shenai and Mr. G.V.P. Desai. Mr. R.G. Shenai filed an affidavit in support of the Testamentary Petition, but died before the evidence would commence in the suit. The other attesting witness Mr. Desai did file an affidavit in lieu of examination-in-chief in the suit, however, he too died before his cross-examination could be recorded.

8. On behalf of the plaintiffs, the following came to be examined:

(a) Kirit Navnitlal Damania (PW1) - the plaintiff No.1 and one of the executors to the will;

(b) Narayan Hari Shibe (PW2) a watchman in the building where Shashikala lived;

(c) Prema Mazumdar (PW3) - Shashikala's neighbour in the same building and also one time Secretary of the Society which manages the affairs of the building.

9. No evidence was led on behalf of the defendants, even though, they were afforded opportunity to lead the same.

10. By the impugned judgment and order, learned Single Judge has held that the will was validly executed by Shashikala and the case of the defendants that Shashikala was under the control of the plaintiffs was not correct. Accordingly, the learned Single Judge decreed the suit and directed a probate to be issued having effect through out the State of Maharashtra.

11. Mr. Parashurami, the learned counsel for the appellant, submits that there is no legal evidence on record to prove the execution of will dated 4th July 1993 . He submits that none of the attesting witnesses were examined and the learned Single Judge erred in treating as evidence and taking into consideration the affidavit/affidavit in lieu of examination-in-chief of the attesting witnesses by relying upon the provision of section 32 of the Indian Evidence Act, 1872 (Evidence Act). Mr. Parashurami submits that such affidavits do not constitute evidence under section 3 of the Evidence Act. Further, since, the contents of such affidavits were never tested by cross-examination, the same could not have been relied upon to hold that the will in question was indeed and validly executed by Shashikala.

12. Mr. Parashurami submits that the learned Single Judge has failed to take note of all the suspicious circumstances attendant to the so called execution of the will. He points out that the evidence on record bears out that Shashikala died of severe bu