JUDGMENT

Sanjay K. Agrawal, J. - This second appeal by the defendants was admitted on the following substantial questions of law:-

"(i) Whether the lower appellate Court erred in law in holding that the will dated 22.8.1977 (Ex.P-1) was proved in accordance with law?

(ii) Whether the plaintiff becomes the owner of the suit property to the extent of 1/2 share in it on the strength of will deed?"

(Parties hereinafter will be referred as per their status shown in the plaint before the trial Court.)

2. The suit property was originally held by Firtu who died on 24-12-1977. He died issue-less. He was said to have executed Will in favour of plaintiff Radha Bai on 22-8-1977 (Ex.P-1). Plaintiff Radha Bai is daughter of Kunwar Singh who was brother of Firtu. Kunwar Singh was defendant No.1 in the plaint, but later-on, on account of his death, he was substituted by his son Hemram and thus, the present defendant No.1 is son of Kunwar Singh and other defendants No.2,3 and 4 are sons of Hemram defendant No.1. After death of Firtu, the defendants got their names mutated in the revenue records leading to filing of suit for declaration of title, possession and permanent injunction in which the defendants set up a plea that the suit property was the joint Hindu family property of Firtu and Kunwar Singh both and there was no partition during the lifetime of Firtu among them and therefore undivided interest could not have been bequeathed in favour of plaintiff Radha Bai and if the Will is found to be proved then also, the Will is forged and fabricated and as such, the suit deserves to be dismissed.

3. The trial Court after appreciating oral and documentary evidence on record partly decreed the suit in favour of the plaintiff on the basis of succession holding that the plaintiff is entitled for half of the property and the sale deed executed by Kunwar Singh in favour of defendants No.2,3 & 4 is null and void. The first appellate Court in appeals preferred by both the parties i.e. the plaintiff as well as the defendants, though dismissed the appeals but reversed the finding of Will in favour of the plaintiff finding Will in her favour is established and also reversed the finding of declaring the sale deed as null and void, but eventually dismissed the appeals.

4. Now, only defendants No.2,3 & 4 have preferred second appeal in which the substantial questions of law framed are with regard to due execution and attestation of will and set-out in opening paragraph of this judgment.

5. Mr. Shobhit Koshta, learned counsel appearing for the appellants herein / defendants No.2,3 & 4, would submit that the Will has not been proved in accordance with law by the two attesting witnesses as per Section 63(c) of the Succession Act,1925 as such the judgment & decree of the first appellate Court deserve to be set aside.

6. Mr. R.N. Jha, learned counsel appearing for the plaintiff / respondent No.1 herein, would support the impugned judgment & decree.

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

8. The short question for consideration would be, whether execution and attestation of the Will Ex.P-1 has been proved and established by the plaintiff 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) 8 SCC 615 .

10. In order to consider the plea raised at the bar, it would be appropriate to notice Section 63 of the Indian Succession Act,1925 and Section 68 of the Evidence A