The opinion of an expert on the identity of the testator's signature in a will is not relevant to determine the valid execution of the will, as the execution must be proved in accordance with S.63 of the Indian Succession Act.

1. The plaintiff in a suit for the grant of Letters of Administration of the will annexed to the plaint is the revision petitioner.

2. The trial of the suit, it is said, is virtually over. What remains to be done is to argue the matter. It was at this stage the petitioner moved I. A. 1384/88 for sending Exts. A3 and B1 alongwith Exts. XI to X8 to a hand-writing expert for his opinion, regarding the identity of the signature of the testator seen in Exts. B1 and A3, the two wills relied on by the parties in support of their respective contentions. Exts. XI to X8

are documents which, it is alleged, contain the signature of the testator.

3. The question arising for consideration is: Is the opinion of an expert as regards the signature of a testator relevant to decide the issue, whether a will has validly been executed? The point involved in the question is not covered by any direct authority, the learned counsel for the parties say, and therefore the point has to be decided on principle.

4. The answer to the question depends upon the construction of S.63 of the Indian Succession Act as also S.45, 68, 69, 70 and 71 of The Indian Evidence Act. S.63 of the Indian Succession Act provides that every testator, other than those who have been exempted from the purview of the Section, shall execute his will in accordance with the following rules:

(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall' appear that it was intended thereby to give effect to the writing as a will.

(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, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

5. The content of the rules briefly stated is this: On a testator signing the will or affixing his mark to the will or some other person signing the will in his presence and under his direction, it can be said that the test for has completed the first stage in the execution of the will. The signature or mark of the testator or the signature of the person signing for him however, shall be so placed that it shall appear that it was

intended thereby to give effect to the writing as a will. But this is not enough to opine that the will has validly been executed. The requirements prescribed under clause (c) of the Rules also require to be satisfied. That means the will must also be duly attested i.e., roust be attested in accordance with the provisions contained in Clause.3. If these three requirements are satisfied it can be said that the will has validly been executed. To put it pithily execution in the case of a will means and includes not only the testator affixing his signature or mark to the will or some other person signing it in the presence of and under direction of the testator, but the whole series of acts or formalities like attestation etc. stipulated under S.63 of The Succession Act.

6. A question immediately would arise: What is the legal position in the matter of proof of a will? We have already seen that will is a document which is required by law to be attested. Such documents shall not be used as evidence until at least one attesting witness has been called for proving its execution, if there be an attesting witness alive and subject to the process of court and capable of giving evidence. (See S.68 of the Evidence Act). The proviso to this Section however relaxes the rigour