1. The substantial questions of law involved, formulated and to be answered in the defendants' second appeal are as under: -

1. Whether the lower appellate court is right in holding that the execution of will (Ex.D-1) has not been proved?

2. Whether the lower appellate court was justified in reversing the judgment and decree passed by the trial court in view of the evidence of DW-2, Mohan, regarding execution of the will by its executor?

2. The plaintiffs/respondents herein filed a suit for declaration of title, partition and separate possession in respect of the lands described in Schedule A of the plaint stating inter alia that the suit property is self-acquired property of one Sukhdev who died prior to the Settlement of Surguja State. After his death, the suit land came in ownership and possession of his son, the only successor, namely Devmurat who also died in the year 1994. The settlement patta was prepared in the name of Devmurat, father of plaintiff No.3. Plaintiffs No.1 and 2 are sons of plaintiff No.3. It has been further pleaded that Devmurat was having three sons namely Shivnarayan, Mohan and Jagjit. After death of Devmurat, they got ?rd share in the entire property of Schedule A. Since the defendants have refused to give them the rights and partition in the said property and got their names mutated, the plaintiffs have filed the suit and alternatively, pleaded that the will in favour of the defendants is forged and fabricated.

3. Defendants No.1 to 4 filed written statement pleading inter alia that Devmurat has executed a registered will dated 22-10-1984 in favour of defendants No.2 to 4 as such, they are title holders of the suit land.

4. The trial Court found the will to be established which was reversed by the first appellate Court finding that the will has not been proved in accordance with law against which the second appeal has been preferred in which the substantial questions of law have been setout in the opening paragraph of the judgment.

5. Mr. A.K. Prasad, learned counsel appearing for the appellants/ defendants, would submit that the first appellate Court is absolutely unjustified in holding that the will Ex.D-1 was not duly proved in accordance with law, whereas it has been proved in accordance with law by examining Mohan Ram Sahu (DW-2), who has clearly stated that the testator has signed the will in his presence and he has also signed in presence of the testator and in cross-examination, he has also stated that other witness Mohd. Safique has also signed the will, as such, the requirement of Section 63 of the Succession Act, 1925 is duly met-out. He relied upon a decision of the Supreme Court in the matter of M.B. Ramesh (dead) by LRs. v. K.M. Veeraje Urs (dead) by LRs. and others (2013) 7 SCC 490, a decision of this Court in the matter of Dayashankar and others v. Jaishankar (since deceased) through his L.Rs. and others 2012(2) C.G.L.J. 518 and a decision of the Gauhati High Court in the matter of Damodhar Bordoloi v. Mrinalini Devi Trust Board and others AIR 1999 Gauhati 53 to buttress his submission.

6. None has appeared on behalf of the plaintiffs despite service of notice.

7. I have heard learned counsel for the appellants herein and considered their rival submissions made herein-above and went through the record with utmost circumspection.

8. The short question for consideration is whether the will Ex.D-1 has been proved and established by defendants No.2 to 4 in view of the provisions contained in Section 63 of the Succession Act, 1925 read with Section 68 of the Evidence Act, 1872.

9. It is trite law that a will as an instrument of testamentary disposition of property being a legally acknowledged mode of bequeathing a testator’s acquisitions during his lifetime, to be acted upon only on his/her demise, it is no longer res integra, that it carries with it an overwhelming element of sanctity. [See Jagdish Chand Sharma v. Narain Singh Saini (Dead) through Legal Representatives and others (2015)