Mir Alfaz Ali, J.

1. This appeal is directed against the judgment and order dated 24.05.2013 passed by the District Judge, Dhubri in TS (Probate) No. 35/2008. The case of the plaintiff is that one Brojendra Saha and Joytsna Saha (since deceased) were the parents of the appellant, Bishnu Saha. Said Brojendra Saha and Joytsna Saha executed a WILL on 28.7.97, bequeathing their property mentioned in the schedule of the WILL in favour of the appellant Bishnu Saha. Bishnu Saha was also made the sole executor of the WILL. After the death of the testators, the plaintiff Bishnu Saha filed an application before the District Judge for granting probate in respect of the said WILL. Respondent Minati Saha is the wife of the elder brother of the appellant. Said Minati Saha resisted the petition for probate by filing an objection stating inter alia that the parents of the appellant did not execute the WILL and the same was a fraudulent one. It has also been contended that testators were mentally shocked after the death of their elder son and they were not mentally fit to execute the WILL. Taking advantage of serious physical and mental illness of the testators, the appellant in connivance with the attesting witness prepared the fraudulent WILL, which was never the last wish of the testators. Objections have also been raised that the petition was filed without appointing guardians of the minor children.

2. On the basis of the above pleadings, learned District Judge framed the following issues:

a. Whether the petition is maintainable?

b. Whether the WILL is valid document?

c. Whether the WILL is fraudulent as alleged and fraudulently execution?

d. Whether the WILL is fraudulently executed as alleged by the O.P.

3. Plaintiff examined three witnesses to prove the WILL. Defendant also examined two witnesses and after hearing the parties and on appreciation of evidence, learned District Judge dismissed the petition for probate.

4. Aggrieved by the judgment and order of the learned District Judge, the appellant has preferred the instant appeal.

5. I have heard Mr. P.K. Roy, learned counsel for the appellant and Mr. S.K. Goswami, learned counsel for the respondent.

6. Learned counsel for the appellant has submitted that despite, the execution of the WILL having been duly proved by adducing sufficient evidence by the plaintiff, leaned District Judge dismissed the suit erroneously on the ground of maintainability. Countering the submission of the learned counsel for the appellant, leaned counsel for the respondent relying on the decisions in Anil Kak v. Kumari Sharada Raje reported in (2008) 7 SCC 695 and Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria reported in (2008) 15 SCC 365, submitted that the plaintiff has failed to prove the execution of the WILL as per requirement of the law and therefore, learned Trial Court rightly dismissed the suit. Further contention of the learned counsel for the respondent was that the probate petition was not maintainable, as the same was not verified by one of the attesting witnesses as per the requirement of Section 281 of the Indian Succession Act.

7. Section 281 of the Indian Succession Act lays down that where the application is for probate, the petition shall also be verified by at least one of the witness to the WILL, when procurable. It is therefore amply clear from the language of the Section 281, that requirement of Section 281 is not mandatory and only directory. If an attesting witness is available or procurable at the time of filing the petition, there should be an additional verification of such attesting witness. Absence of additional verification by one of the attesting witness cannot render the proceeding not maintainable and therefore, the submission of Mr. Goswami, that the suit was not maintainable for want of verification as per Section 281 is not acceptable.

8. Section 63 of the Indian Succession Act provides the requirement of law which are to be satisfied for execution of a valid WILL,