Vijender Jain, J. (Oral)

( 1 ) SADA Nand Mittra and Laxmi Devi tiled a petition under Section 276 of Indian successfpp Act, 1925 for the grant of Probate to them of a registered Will dated 2nd may, 1977 excpuled by their deceased mother Chhinko Bai who expired on 5th May, , 1986. Chhinko Bai was survived by her three sons and two daughters. Arjan Dev Miltra filed objections against fhe said Will before the Trial Court. Trial Court framed an issue to tte following prfecf:- "whether Smt. Chhinko Bai executed a valid Will dated 2nd May, 1977 while in sound disposing mind ?" the above issue was decided in favour of the respondents. Aggrieved by the impugned order, the present appeal has been preferred by said arjan Rev Mittra.

( 2 ) MR, Aman Lekhi, learned counsel for the appellant has contended that Ex. PW 2/1 i,6, Will dated 2nd May, 1977, in view of two different inks having been used on the same Will ereate suspicion regarding 4s genuineness. He has contended that report of the hand-wrttlbg expert that the ink was different at point 04 and 05 of Ex. PW2/1, the trial Court ought to have given weightage to the testimony of band-writing PWtan (1could not have brushed aside the objections of the appellant. Another contention of learned counsel for the appellant was that Dr. S. K. Dutta who was an attesting witness, according to the propounder of the Will, has as a matter of fact, certified that the Testatrix was mentally sound and there was no second wit- ness in relation to Ex. PW2/1. What has been contended by Mr. Lekhi is that pursuant to Section 63 sub-clause (c) of Indian Succession Act, 1925, two witnesses are required to attest a Will and when there is only one witness attesting a Will, the same will not be a proper Will in the eyes of law. In support of his contention, he has relied on M. L. Abdul Jabbar Sahib Vs. M. V. Venkata Sastri and Sons and Others 1969 (1) SCC 573. In this case it was held as follows :

"it is to be noticed that the word "attested", the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 3 are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his purpose, e. g. to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness. "

( 3 ) YET another argument has been advanced by learned counsel for the appellant that there was contradiction in the statement of the attesting witnesses and in that regard he has relied on the testimony of Vinod Kumar Goyal-PW2 and Dr. S. K. Dutta-PW3. He has contended that PW2 in his statements has stated that Chhinko Bai was accompanied by only one doctor whose name I do not remember whereas PW3 dr. S. K. Dutta in his deposition has stated that he was called by PW2 in connection with the Will to be executed by Chhinko Devi. On the basis of the aforesaid statements, Mr. Lekhi, learned counsel for the appellant has contended that reasonable suspicion was created before the Trial Court and Trial Court ought not to have granted Probate of the Will.

( 4 ) NEXT argument of learned counsel for the appellant with regard to the proclamation of disinheritance issued by the deceased mother in relation of the appellant was that the respondent did not summon any person or witness from the office of newspaper i. e. , Indian Express to prove that the said notice of disinheritance was published at the instance of Testatrix. He has also contended that the best evidence by producing original copy of Indian

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