The execution of a Will can be proved by the evidence of one attesting witness, and the non-examination of all the attesting witnesses does not lead to an adverse inference against the propounder of the Will, unless the examined witness fails to prove the due execution of the Will.

Nishita Mhatre, J.

1. The appeal is directed against the decision of the Trial Court refusing to grant to the appellant, probate of the Will executed by his father, Bibhuti Mukherjee.

2. Bibhuti Mukherjee allegedly executed a Will on 27th of September, 1995. That Will was registered. The Appellant, who is the son of Bibhuti Mukherhjee, was appointed as the sole Executor of the Will. Bibhuti Mukherjee expired on 8th October, 1997. The Appellant preferred a petition for grant of probate on 5th July, 2007 before the District Judge, North 24-Parganas at Barasat, being Miscellaneous Case (P) No. 255 of 2007 (P).

3. A written statement was filed on behalf of Gouri Roy, Smt. Krishna Singh and Mita Kar, the Respondent Nos. 3, 5 and 7. They contended that their father was very ill prior to his death and was immobile. The Respondents further pleaded that the Appellant had managed to secure a Will in his favour in order to deprive them of their father's property. They also contended that the Appellant never bothered about their father during his life-time and that though the Respondents were the married daughters of the deceased, they looked after him.

4. Evidence was led before the Trial Court. The propounder of the Will, the Appellant herein, examined himself and one of the attesting witnesses, Pradip Chatterjee. The Respondents did not step into the witness box at all to rebut the appellant's evidence.

5. The Trial Court, after considering the pleadings and the evidence on record, dismissed the application for probate. The Trial Court was of the view that the execution of the Will was shrouded in suspicious circumstances as the testator could not have executed it on his own and out of his free will and consent. The Trial Court, however, found that the signature of the testator had not been challenged by the Respondents. No witness had been examined by them before the Court. The Trial Court then observed that the Will had been proved. However, the Trial Court concluded that because it could not be said that it was executed voluntarily and without duress, a cloud was cast upon the execution of the Will.

6. Mr. Ghosh, the learned Counsel appearing for the Appellant, submits that the Trial Court has erred in refusing the probate by ignoring the evidence on record. He submits that for the purpose of obtaining the probate of the Will, the propounder was only required to prove that the testator had executed the Will and that the attesting witnesses had signed the same in presence of the testator. According to Mr. Ghosh, all the necessary formalities required under section 63 (c) of the Indian Succession Act, had been complied with and, therefore, the Trial Court was duty bound to grant the probate.

7. The learned Counsel has relied on the judgments in the case of Saktipada Chatterjee v. Annakali Debya, AIR 1953 Calcutta 462, Vidhyadhar v. Mankikrao and Another, 1999 SC 1441, Smt. Baby Dey v. Birendra Kr. Dutta & Anr., (2009) 3 Calcutta Law Times 381 (HC) and K.M. Varghese v. K.M. Oommen, 1994 Kerala, 85 in support of his submission.

8. Mr. Sinha, the learned Counsel, appearing on behalf of the Respondent Nos. 1 and 2, submits that his clients do not have any objection if the probate is granted in favour of the Appellant.

9. The learned Counsel for the Respondent Nos. 3, 4, 5 and 7 submits that all the attesting witnesses have not been examined by the propounder of the Will. According to him, although the phrase "at least one witness" has been used in Section 63 of the Indian Succession Act, all the attesting witnesses must be examined to prove the execution of the Will. The learned Counsel further submits that the testator was not capable of making a Will as he was mentally unfit and physically unstable. The learned Counsel also submits that the Trial Court had correctly formed an opinion that the making of the Will was shrouded in suspicious circumstances and, therefore, the will could not be accepted as genuine. He has relied on the judgm