The central legal point established in the judgment is the requirement for clear and cogent evidence to establish the execution of a will, and the principles of testamentary law to guide the consideration of evidence in a testamentary case.

Pradeep Nandrajog, J.

1. Appellant filed a petition under Section 278 of the Indian Succession Act, 1925 for grant of Letters of Administration for the estate left behind by his mother late Smt. Krishna Pyari Nanda, who died in New Delhi on March 08, 1994. It was pleaded by the appellant that the deceased was survived by four sons and had died intestate. The three siblings were impleaded as respondents. They set up a will, Ex.R-1, dated November 05, 1987 as the last legal and valid testament executed by Krishna Pyari Nanda. They filed a receipt issued by ANZ Grindlays Bank Branch Connaught Place, New Delhi and pleaded that the will was in custody of the bank. A true English translation of the will propounded was filed with the reply.

2. Bank official being directed to be present with the will, appeared before the learned Single Judge on May 12, 1995. Receipt dated November 05, 1987 issued by the Chief Manager’s Office of the Branch was handed over to him to facilitate such docket which was received in the office of the Chief Manager to be located. On July 21, 1995, the officer informed that in spite of best efforts made the docket could not be located and at that junction the Court permitted the respondents to place on record a carbon impression of the will Ex.R-1, which shows that the matters scribed thereon is a carbon print with signatures of the executor and the witnesses penned in original.

3. On the pleadings of the parties, on October 09, 1995, the following three issues were settled in Test Cas. No.13/1994 filed by the appellant:-

“1. Whether the deceased, Smt.Krishna Pyari, had executed the Will dated 5.11.1987? OPR

2. In case issue No.1 is proved in the affirmative, whether the petitioner is still entitled to grant of Letter of Administration? OPP

3. Relief.”

4. At the trial the respondents sought to examine three witnesses : (i) H.K. Sondhi, brother of late Smt. Krishna Pyari Nanda; (ii) Sh. Madan Lal Khanna, Advocate; and (iii) Sh. Arvind Khanna, the son of Madan Lal Khanna, latter two being attesting witnesses to the will. As per the practice direction, affidavits by way of evidence of said three persons were filed.

5. The appellant filed IA No.10182/1998 raising an objection to the examination-in-chief of the three witnesses being by way of affidavits. Respondents agreed that the affidavits be ignored and the witnesses would be examined-in-chief orally.

6. The record of the proceedings before the learned Single Judge shows that Sh. H.K. Sondhi appeared as RW-2. He was examined in-chief. The appellant filed IA No. 10023 of 2001 praying that till the propounder of the will stepped into the witness box, cross-examination of Sh. H.K. Sondhi be deferred. Notice of the application was issued on October 30, 2001. No specific direction ultimately came to be filed in IA No. 10023 of 2001. It appears parties lost track of the fact that Sh. H.K. Sondhi was never summoned for being cross-examined. Sh. Arvind Khanna was not examined. The sole witness of the respondents was therefore Sh. Madan Lal Khanna. The propounders of the will i.e. the respondents did not examine themselves as a witness.

7. The appellant examined Sh. Ashok Kashyap, a hand writing expert, who opined that signatures of the deceased on the will were forged.

8. In the aforesaid backdrop of the evidence the impugned decision has been rendered by the learned Single Judge noting Sections 59 and 63 of the Indian Succession Act, 1925 as also Section 68 of the Indian Evidence Act, 1871. In relation to said statutory provisions the learned Single Judge has held that a will should be in writing and should bear the signature or the mark of the testator or of any person who is/was directed to sign on the document. This should be with an intention to execute the will. It must be attested by two or more witnesses who have seen the testator sign the will or alternatively have received a personal acknowledgment from the testator of having appended the signature or the mark