The main legal point established in the judgment is the requirement of testamentary capacity, attestation of the will, and provisions for the beneficiaries as outlined in the Succession Act, 1925.

Prakash Chandra Jaiswal, J.

Heard learned counsel for the appellant and learned counsel for the respondent no.1 on this miscellaneous appeal. None turned up on behalf of respondent nos.2 to 5 to advance the argument in the case, despite service of notice and putting appearance in the case.

2. This miscellaneous appeal has been preferred against the judgment dated 16.12.2013 passed by the 1st Additional District Judge, Gaya in Title Suit No.04 of 1992, whereby the learned lower Court allowed the probate petition of respondent no.1 to grant probate of will dated 04.05.1984 finding the same as genuine.

3. The factual matrix of the case is that respondent no.1 filed petition to grant probate in respect of will dated 04.05.1984 executed by Sheo Barat Singh in his favour with the case that the said Sheo Barat Singh had executed a will in his favour on 07.05.1984. The said Sheo Barat Singh had died on 07.07.1984 during course of treatment. He has executed the said will out of his sweet will and fully understanding the same in his good health and mind. The said will is his last will. Appellant who happens to be one of the daughters of Sheo Barat Singh and respondent nos.2 to 5 filed written statement against the said petition with the case that Sheo Barat Singh has not executed any will in favour of the respondent no.1. Said will is forged, fabricated and antedated and had never seen the light of the day much less during the life time of Sheo Barat Singh. Sheo Barat Singh has died leaving behind the appellant, his widow, unmarried and married daughters. The said will is regarding the entire agricultural land of village Bahera admeasuring 67 decimals which also includes the residential house of the appellant, his widow and daughters and they are living therein but no provision for living of the appellant and widow and other daughters of Sheo Barat Singh has been made in the said will which make the will suspicious because a prudent man could not part with the entire land and residential house in favour of grandson of his brother excluding his widow and daughters and leaving them helpless. The said act of Sheo Barat Singh is most unnatural and unbecoming of a prudent man. As a matter of fact Sheo Barat Singh was ill in the year 1984 and his treatment was going on in Ranchi hospital. The executor and his father were present in the said hospital on the pretext of looking after him and they had taken his signature on plain paper in absence of appellant and other heirs of Sheo Barat Singh and on the pretext of his better treatment might have converted the same into will.

4. In buttress of his case, respondent no.1 examined three witnesses, namely, Sri Mistry who happens to be one of the attesting witness, Brahmlal Singh and respondent no.1 himself. While the appellant and other respondents after filing the written statement disappeared and did not adduce any ocular or documentary evidence in buttress of their case.

5. After hearing the parties and perusing the record, the learned lower Court allowed the aforesaid petition vide impugned judgment.

6. Being aggrieved and dissatisfied with the impugned judgment one of the defendants of the said suit has filed this miscellaneous appeal.

7. It is submitted by learned counsel for the appellant that there are three attesting witnesses of the will but only one attesting witness has been examined by the respondent no.1 in proof of the will. It is further submitted that the said attesting witness has also not deposed about the testamentary capacity of the testator at the time of execution of the will. Further submission is that the testator has died leaving behind his widow and three daughters who have been living in the said house but no provision for their living and earning has been made in the said will and excluding them the will has been executed in favour of the grandson of the brother of the testator. The said act of testator is quite unnatural and unbecoming of a prudent man and the said a