MOOL CHAND GARG, J

1. The short point involved in this matter is as to whether the Will, subject matter of the probate alleged to have been executed by late Sh K.K.Grover, has been proved or not in accordance with law. The execution of a Will can be proved by following provisions contained under Section 68 of the Evidence Act which reads as under: “Section 68 - Proof of execution of document required by law to be attested If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: [Provided that it shall be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”

2. However, how a Will is to be executed is provided for under Section 63 of the Succession Act which reads as under:

“Section 63 - Execution of unprivileged Wills Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-

(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

3. A bare perusal of the aforesaid Section and in particular Section 63(c) shows that a Will has to attested by at least two witnesses who should see the testator putting their signatures on the Will in their presence and the testator to see attestation of the Will by the two witnesses named therein.

4. It is the submission of the appellant that despite proof of the execution of the Will in accordance with provisions contained under Section 63 of the Succession Act and Section 68 of the Evidence Act, the Court has not granted the probate and therefore has committed error. It is therefore requested that the order passed by the Addl. District Judge refusing to grant the probate be set aside.

5. On the other hand it is the case of the respondent that in this case the execution of the Will has not been proved by the appellant in accordance with law. It is stated that firstly the propounder of the Will has not been able to prove that the Will was attested by two witnesses. It is stated that even if it is presumed that one D.P.Singh also put his signatures on the Will, his putting signatures on the Will would not mean attestation of the Will as per the requirement of Section 66 (c) of the Act as the evidence of Champa Khanna as an attesting witness does not complete the requirement of Section 68 of Evidence Act as she has not stated about the attestation of the Will by the second witness or testator having signed in presence of both witnesses. Reference can be made to the statement made by PW1 who deposed as under: “PW1 Smt. Champa Khanna aged 70 years, Ram Pd. Khanna, housewife R/o B-226, Dorawala, Delhi. I do not know