The central legal point established in the judgment is that the execution and attestation of a Will must comply with the provisions of Section 63 of the Indian Succession Act, 1925, and Sections 67 and 68 of the Indian Evidence Act, 1872.

JUDGMENT :

Shekhar B Saraf, J.

This testamentary suit T.S. No. 6 of 2007 arises from a Probate application being P.L.A. No. 309 of 1996. P.L.A. No. 309 of 1996 has been registered at the instance of Debabrata Bhattacharjee, seeking for the grant of probate of the last Will and Testament of his deceased father, Nani Gopal Bhattacharjee. Nani Gopal Bhattacharjee had executed his last Will and Testament on 2nd September, 1993 in respect of his properties.

2. P.L.A. No. 309 of 1996, was filed for grant of probate by the executor. Court through an order issued special citations upon Smt. Ruchira Bhattacharyya and Ms. Priyanka Bhattacharyya. Thereafter, an Affidavit-in-support of the caveat was filed on 1st April, 1998 by Smt. Ruchira Bhattacharyya and the probate application stood converted to a Testamentary Suit being T.S. No. 6 of 2007. As such the present proceeding is taken up as an undefended suit pursuant to an order dated 16th September, 2008 passed by this Court.

3. A Will, which is a testamentary document, has to be proved as per the provisions contained in Section 63 of the Indian Succession Act, 1925, read with Sections 67 and 68 of the Indian Evidence Act, 1872. Thus, a bare inspection of the said section would indicate the manner in which a Will has to be executed for it to be recognized as a valid Will, which includes that the testator shall sign the Will in a manner to give effect to the said Will and the said Will shall be attested by two or more witnesses, each of them being the witness that the testator had signed the said Will.

4. A coalesce reading of Sections 67 and 68 of the Indian Evidence Act, 1872 shows that if a document is alleged to be signed by the person, the signature is to be proved to be of that person and the attestation of the Will has to be proved through at least one attesting witness.

5. The present Will has been proved by the said Executor Mr. Debabrata Bhattacharyya and also by one of the attesting witness of the Will Mr. Shubhendu Sen as the same would appear from the examination-in-chief. The attesting witness Mr. Subhendu Sen had stated during his examination that Nani Gopal Bhattacharjee had testamentary capacity at the time of execution of his Last Will and Testament dated 2nd September, 1993. The witness has also proved the execution and attestation of the Will of Nani Gopal Bhattacharjee and the Will is marked as Exhibit "A" and the signature of the testator, Nani Gopal Bhattacharjee on the Will is marked as Exhibit "A-1". The witness also identified and proved the signature of the other attesting witness, Nabanita Chakraborty on the said Will and her signature is marked as Exhibit "A-2" and the signature of the attesting witness is marked as Exhibit "A-3". The attesting witness identified his signature in his declaration appearing at page 10 of the probate petition which is marked as Exhibit "B". Affidavit of Mr. Subhendu Sen stating that he was one of the attesting witnesses of the last will and testament dated 2nd September, 1993 of Nani Gopal Bhattacharjee is tendered and marked as Exhibit "C". The attesting witness stated in his evidence that the testator was physically and mentally fit at the time of execution of the Will and signed the Will.

6. The executor Mr. Debabrata Bhattacharyya had stated in his evidence that he had prayed for grant of probate of the last Will and Testament of his deceased father, Nani Gopal Bhattacharjee and identified his signature on the petition. He has further stated that he had filed an affidavit of assets declaring the assets of his father, Late Nani Gopal Bhattacharya. He had also produced the original Deed of sale dated 9th October, 1993 between Nilima Biswas as Vendor and Nani gopal Bhattacharya as Purchaser in respect of a vacant land admeasuring 278.43 sq. mtr. of premises No. 64/11C, Suren Sarkar road, Beliaghata, Kolkata 700010. The original Deed was shown to the witness and upon verification with the original, the photocopy of the said Deed is t