The judgment emphasizes that technicalities should not obstruct the grant of probate if all steps have been taken to prove the Will, especially when the contesting respondents did not lead any evidence.

VALMIKI J. MEHTA, J.

1. This first appeal under Section 299 of the India Succession Act, 1925 is filed challenging the impugned judgment dated 28.10.2006 dismissing the probate petition filed by the present appellant.

2. The facts of the case are that the appellant filed the subject petition for grant of probate of the Will dated 17.8.1999 of Sh. Amar Singh in his favour. The appellant/petitioner is the grand-son of Sh. Amar Singh who expired on 6.12.2000. Late Sh. Amar Singh is said to have left behind his Will dated 17.8.1999 and which was duly registered in the office of the Sub-Registrar, Seelampur, Delhi vide document no. 24491 in Additional Book No. 3, Volume No. 2504 on pages 97 to 98. Objections to the probate petition were filed on behalf of respondent nos. 2 to 4 to the petition, and who are also the respondent nos. 2 to 4 in the appeal.

3. The probate court framed the sole issue as regards the due execution of the Will dated 17.8.1999. Appellant/petitioner examined two witnesses being himself as also one attesting witness Sh. Pawan Kumar as PW-2. Respondents however led no evidence.

4. The court below has dismissed the probate petition on the technical ground that Will cannot be said to have been proved as the attesting witness Sh. Pawan Kumar who appeared as PW-2 did not depose that the other attesting witness Sh. Pradeep Kumar signed the Will in the presence of the PW-2 or in the presence of the testator or that the testator signed in the presence of both the attesting witnesses.

5. On the first blush the observations of the probate court seem to be justified inasmuch as it is the requirement of law as per Section 63 of the Indian Succession Act that a Will must be proved as having been executed by the testator who signs in the presence of the attesting witnesses and the attesting witnesses sign in the presence of the testator and there is seemingly a lacunae in the evidence led by the attesting witness PW-2 as regards lack of deposition of the attestation of the Will by the second attesting witness. However, I may note at this stage that the finding of the court below that the attesting witness must sign in the presence of each other is not a legally correct statement because in Indian law all that is required is that the testator must sign in the presence of the attesting witness and the attesting witness must sign in the presence of the testator and it is not required that the attesting witnesses have to sign in the presence of each other.

6. (i) Let me at this stage reproduce the deposition of PW-2 and this deposition of PW-2 reads as under:-

“PW-2 Pawan Kumar S/o Sh. Rajinder Singh Aged 35 years R/o Village Bhuri District Sonepat, Farmer

On S.A:-

I know Amar Singh. In 1999, I accompanied Amar Singh to an advocate who prepared the Will. Thereafter, I went to the office of Sub Registrar where Amar Singh singed and thumb marked his Will and I also signed the Will as an attesting witness. I identify the signature of Amar Singh at point-A and thumb marked at point-B and I identify my signature at point-C on the Will.”

(ii) PW-2 has not been cross examined by the objectors.

7. Before I examine the deposition of PW-2 as to whether it amounts to proving of the subject Will, let me at this stage reproduce the ratio of a recent judgment of the Supreme Court in the case of M.B. Ramesh (Dead) by LRs. vs. K.M. Veeraje Urs (Dead) by LRs. and Others, (2013) 7 SCC 490. In this judgment facts were more or less similar to the facts of the present case inasmuch as it was found in the case before the Supreme Court that the evidence of the attesting witness who deposed was silent as regards the issue of execution of the Will by the testator in the presence of the second attesting witness and as to whether the second attesting witness signed as an attesting witness in the presence of the testator. The Supreme Court in the case of M.B. Ramesh (supra) however by reference to the provision of Section 68 of the Indian Evidence Act, 187