Indermeet Kaur, J.:—

1. This appeal has impugned the order of the Single Judge dated 25.03.2009 wherein the probate petition filed by Rajesh Arora (hereinafter referred to as the ‘petitioner’) seeking probate of a Will dated 01.06.1995 (Ex. PW-4/3) executed by his late father Tilak Raj Akalgariah (hereinafter referred to as the ‘testator’) had been decreed.

2. Record shows that the testator had five children i.e. three sons and two daughters. His wife had predeceased him. The Will purported to have been executed by him had bequeathed his properties both moveable and immoveable in favour of the petitioner; his other two sons Nutan Kumar and Anil Kumar had been disinherited. This document had been signed by the testator; there is no dispute to this position. It also has the thumb impression and photograph of the testator. In the column of witnesses, two names have been mentioned namely Yashpal Singh and Advocate R.R. Bhardwaj. Both of them have also signed the said document. Signatures of Balbir Singh also appear on the right hand side of the document. The Will is a registered document. At the back page of Ex. PW-4/3 stamp of the Registrar is evident; it has certified ‘contents of the documents explained to the parties who understood the terms and admit them as correct’. The names of the testator Tilak Raj Akalgariah and the two attesting witnesses Yashpal Singh and R.R. Bhardwaj also find mention in this document.

3. The appellants before this Court are the two disinherited sons namely Nutan Kumar and Anil Kumar. They are aggrieved by the finding returned by the Single Judge decreeing the probate petition in favour of their brother/Respondent No. 1.

4. The submission of the learned counsel for the appellants is threefold.

(i) Section 63 (c) of the Indian Succession Act, 1925 (hereinafter referred to as the ‘Act’) has not been satisfied; the Single Judge has wrongly concluded that attestation of the Will stood proved from the testimony of PW-4. No effort was made to call Balbir Singh which fact should be read against the petitioner.

(ii) The registration of a Will is not per-se conclusive of the execution of the document; if a suspicious circumstance is raised as was so in the instant case; registration of the Will would not per-se suffice.

(iii) The subject matter of the Will i.e. property No. 18, State Bank Colony, G.T. Karnal Road, Delhi was an HUF property; the testator could not have bequeathed this property as it was held for the benefit of the other coparceners i.e. heirs of Chotey Lal and Goverdhan Lal who are deemed to be in constructive possession of the suit property.

5. Submissions have been countered.

6. We have perused the evidence adduced before the trial Court. PW-4 Yashpal Singh was the attesting witness. He had admitted his signatures at point ‘z’ on Ex. PW-4/3; he has also admitted that Ex.PW-4/3 bore the signatures of the testator and the second attesting witness when he had signed Ex. PW-4/3. Before the testimony of the witness could be concluded, he stopped appearing. On an application filed by the petitioner bailable warrants were ordered against him; thereafter on a prayer made by the petitioner PW-4 was declared hostile. On a categorical question put to this witness, he admitted that the second witness had signed Ex. PW-4/3 at the point which bore the stamp of R.R. Bhardwaj. Even in his cross-examination, on a specific suggestion given to him, he reiterated that his signatures appear on Ex. PW-4/3.

7. Section 63 (c) of the Act reads as under:-

“Execution of the unprivileged Wills

(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 acknowledgment 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, b