Valmiki J. Mehta, J. (Oral)

1. This first appeal is filed under Section 299 of the Indian Succession Act, 1925 against the impugned judgment of the probate court below dated 14.7.2003 by which the probate petition filed by respondent no.1 herein (Sh. Raj Kumar) has been allowed. Probate has been granted for the Will dated 11.9.1973, Ex.PW2/1, executed by late Sh. Amolak Ram. Sh. Amolak Ram died on 14.6.1979.

2. Sh. Amolak Ram had married twice. His first wife was Smt. Nainawanti who died in about 1940. Probate petition is filed by one son of Smt. Nainawanti, namely Sh. Raj Kumar, and who is supported by his two other real brothers who are the beneficiaries under the Will. Sh. Amolak Ram had nine children from the first wife Nainawanti i.e six sons and three daughters. Three sons who would have benefitted if the probate of the Will is granted are Sh. Raj Kumar, Sh. Deputy Lal and Sh. Babu Lal. These three sons of the first wife claim that the second wife Smt. Raj Kaushalaya only had a life estate in the property bearing no. 20-A/1-AB situated in Tilak Nagar, New Delhi which belong to the testator and they were to be the owners of the property after the death of Kaushalyawanti. The probate petition was opposed by the second wife of Sh. Amalok Ram namely Smt. Raj Kaushalaya @ Kaushalayawanti and her four daughters.

3. The probate court below has granted probate of the Will by holding that the same is duly executed and attested and that there are no suspicious circumstances to discard the Will.

4. Let us firstly turn on to the aspect as to whether the probate court below is correct in arriving at conclusion that the Will has been proved to be duly executed and attested. The Will is stated to have been executed by Sh. Amolak Ram on 11.9.1973. The will is stated to be registered with the sub-Registrar on 17.9.1973.

5. It is settled law in terms of the very language of Section 63 of the Indian Succession Act, 1925 that it has to be proved by credible evidence that the signatures on the Will are of the testator; the testator signed in the presence of the attesting witnesses and the attesting witnesses signed in the presence of the testator. And, if none of the attesting witnesses depose then, the signatures of the attesting witnesses must also be shown indubitably to be those of the attesting witnesses in addition to the aspect that the signatures of the testator have to be proved as that of the testator.

6. In the present case, none of the attesting witnesses have come to depose because they had expired. Will is sought to be proved as executed and attested through the petitioner Sh. Raj Kumar. Sh. Raj Kumar as PW-3, with respect to execution of the Will by the testator and attestation of the attesting witnesses has only given the following deposition which is relevant:-

“Sh. Mulak Ram was my father. My father had executed a will in my presence which was got written by him from S.Harnam Singh Bindra. I can identify the signatures of my father as I have seen him writing and signing. He used to sign in Urdu. I have seen the will dated 11.9.1973 which is in Urdu language Ex.PW2/1. I identify the signatures of my father at point A on the same. The attesting witnesses of the will had signed the will in my presence. Both of them have since died. I can identify the signatures of the witnesses One of the signatures are of Sardar Sunder Singh advocate at point C while those of Sardar Gurbachan Singh appear at point B. The will was got registered by my father………..”

7. A reading of the aforesaid para shows that even if we liberally apply the language of Section 63 of the Succession Act, there is no deposition of the petitioner Sh. Raj Kumar (respondent no.1 herein) that the testator signed the Will in presence of the attesting witnesses or the attesting witnesses signed in the presence of the testator. What has already been deposed to are the existence of the signatures of the testator and existence of the signatures of the attesting witnesse