N.M. JAMDAR, J.

1. Heard finally by consent of the parties.

2. The Appeal is directed against the order passed by the learned Single Judge dated 1 March 2018 in Notice of Motion No. 228 of 2017 in Testamentary Suit No. 173 of 2017. The Appellant filed a Testamentary Suit No. 173 of 2017. The Respondent herein filed Notice of Motion No. 228 of 2017 in Testamentary Suit No. 173 of 2017 praying for following reliefs:-

“(a) That this Hon'ble Court be pleased to dismiss the present Testamentary Suit being Suit No. 173 of 2017 in accordance with the provisions of Section 281 of the Indian Succession Act, 1925.

(b) Ad-interim order in terms of prayer clauses (a) above.

(c) For cost of this Notice of Motion be provided for.

(d) Such other and further reliefs be granted in favour of the Applicant/Defendant as the nature and circumstances of the case may require.”

3. The Respondent herein pleaded in the affidavit in support of Notice of Motion that as the Appellant herein has failed to comply with the mandatory provisions of Section 281 of Indian Succession Act, 1925, the Probate Petition be dismissed. Paragraphs 3, 4 and 5 of the said affidavit in support of Notice of Motion is reproduced herein-below:-

“3. I say that on taking inspection of the original proceedings in this Hon'ble High Court as well as the purported Will dated 07.04.2007, which has been deposited in this Hon'ble Court at the time of filing of the Petition by the Plaintiff/Petitioner above-named, it was observed and noticed by me that the Petitioner has not filed the affidavit of any attesting witness along with the Petition as contemplated by Section 281 of the Indian Succession Act, 1925. The said Section squarely provides that when an application for Probate is made, the Petition shall also be verified by at least one of the attesting witness to the Will.

4. It is significant to note that the Plaintiff/Petitioner has not filed the affidavit of any of the attesting witnesses, viz. Mr. Mahesh Sadanand Redkar and/or S.M. Asgar who are the attesting witnesses to the purported Will dated 07.04.2007 of my deceased father which is being propounded by the Plaintiff/Petitioner.

5. It is settled position in law that in the absence of the verification by at least one witness to the Will, the Petition shall be liable to be dismissed for noncompliance of provisions of Section 281 of the Indian Succession Act, 1925. The said Section applies to the present Petition as the Plaintiff/Petitioner has not annexed the affidavit of any of the attesting witness along with the Petition. I crave leave to refer to and rely upon the papers and proceedings of the said Petition in support of my contention that in view of noncompliance of Section 281 of the Indian Succession Act, 1925, the present Petition/Suit is liable and ought to be dismissed with cost in the interest of justice, equity and fair-play.”

4. By order dated 1 March 2018, the learned Single Judge of this Court dismissed Suit No. 173 of 2017 by allowing the Notice of Motion filed by the present Respondent. The Testamentary Suit No. 2 of 2018 filed by the Respondent herein was directed to be taken up for trial by the learned Single Judge.

5. The learned Counsel appearing for the Appellant submitted that the provisions of Section 281 of the Indian Succession Act is not mandatory, but directory. It is not mandatory for the Appellant to verify the Petition by at least one of the witnesses to the Will in the manner so prescribed. The Appellant is entitled in law to lead evidence. The Counsel submitted that in fact the learned Single Judge in paragraph 3 of the order has held that non-filing of an affidavit by an attesting witness is not itself fatal to the Petition. Thus the Notice of Motion filed by the Respondent ought to have been dismissed. He submitted that the issue on which the learned Single Judge dismissed the Petition was not pressed into service by the Respondent. Even otherwise, according to the learned Counsel, the observati