A clause in a deed of gift expressing the desire of the donor to bequeath certain properties to his sons can be considered a valid will if it satisfies the characteristics of a will under Section 2(h) of the Succession Act, 1925, and is duly attested by witnesses as required under Section 63 of the Act.

ALOK KUMAR BASU, J.

( 1 ) THE judgment and order passed by the learned Addiuonal District Judge, 1st Court. Howrah in L. O. A. Case No. 1 of 1995 is the subject of attack in the present appeal.

( 2 ) THE present respondent Bimal Kr. Das submitted an application for grant of letter of administration to the will executed by his father Amulya charan Das before the District Delegate, Howrah in the year 1990 and that application was registered as L. O. A. Case No. 321 of 1990. The said application of Bimal Kr. Das became a contentious one since the filing of objection by the present appellant Tarapada Das and the application of Bimal Kr. Das was transferred to the file of Additional District Judge, 1st Court, Howrah for disposal with new registration number as L. O. A. Case No. 1 of 1995.

( 3 ) BIMAL Kr. Das in his application for grant of letter of administration has stated that the properties comprising in Dag Nos. 1608 and 1610 of Khatian No. 134, Mouza-Kona, P. S. Liluah belonged to his father amulya Charan Das who died on 16. 5. 1987. Amulya Charan Das during his life time executed a deed of gift in favour of his eldest son Chandra sekhar Das on 3rd September, 1984 and in the said deed of gift Amulay charan Das expressed his desire to bequeath a portion of the said property in favour of appellant Tarapada Das and also a portion of the property in favour of respondent Bimal Kr. Das. Amulya Charan Das during his life time executed a 'will' in favour of Tarapada Das as per his desire expressed in the deed of gift. Bimal Kr. Das after the death of Amulya charan Das has prayed for grant of letter of administration on the basis of certified copy of the deed of gift as the original deed of gift is in custody of his brother Chandra Sekhar Das.

( 4 ) THE present appellant filed a written objection challenging the prayer of Bimal Kr. Das in the matter of granting of letter of administration on the ground that no portion of the deed of gift can be treated as the 'will' of Amulya Charan Das and that apart, it would appear from surrounding circumstances that Amulya Charan Das had no intention to bequeath any part of his property in favour of Bimal Kr. Das as alleged.

( 5 ) THE learned Additional District Judge after framing of necessary issues on the basis of petition and written objection and after considering evidence adduced by the parties and on hearing submissions of the learned Advocates of both the sides, finally, came to the conclusion that. in fact. "will of Amulya Charan Das is a part of the deed of gift and there is no ground to raise any question regarding valid execution of the said Will" which has been duly attested by witnesses and the scribe of the said 'will" also acted as an attesting witness as per requirement of law. The learned Additional District Judge, thus, rejected the contention of the present appellant and granted the prayer for issue of letter of administration in favour of petitioner Bimal Kr. Das.

( 6 ) TARAPADA Das being aggrieved by and dissatisfied with the judgment and order of the learned Additional District Judge has preferred this appeal contending inter alia that the learned Additional District Judge erred in law in interpreting the deed in question and the learned Judge has also failed to consider that the "will' alleged to have been executed by Amulya Charan Das was not properly proved as required under the law by any attesting witness, because, the scribe of the Will. who has been examined on behalf of the petitioner cannot be considered to be an attesting witness in the eye of law. The appellant has also submitted that the petition for grant of letter of administration has been filed long after the statutory period of limitation without any sufficient explanation and hence, the learned Judge should have held that the petition was not maintainable being barred by limitation.

( 7 ) AT the time of hearing of the appeal, the learned Advocate for the appellant has challenged the impugned judgment

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