Compliance with the formalities required by S.63 of the Indian Succession Act is crucial for the valid execution of a will. When the evidence of attesting witnesses is doubtful, the court may consider the circumstances of the case collectively to judge compliance with statutory requirements.

1. These two appeals arise out of two petitions filed under S.278 of the Indian Succession Act praying that Letters of Administration may be issued under the above Act. One Pavu Ittoop died on 9 91964. He was survived by three sons, three daughters and his widow. The eldest son Varghese claimed in O.P. 7 of 1965 that Letters of Administration with copy of the will dated 14 31960 executed by the deceased Pavu Ittoop may be issued to him. The second son Poulose filed O.P. 10 of 1965 praying that Letters of Administration with the copy of the will dated 3 31964 may be issued to him. The proper execution of the will dated 14 31960 is admitted by all the parties. But, the petitioner in O.P. 10 of 1965 contended that the will dated 14 31960 stood cancelled by the will dated 3 31964 and therefore Letters of Administration cannot be issued under the earlier will. The testamentary validity of the latter will was questioned by the eldest son Varghese. The lower court tried these two petitions jointly, found that the second will has been properly executed and therefore dismissed O.P. 7 of 1965 and ordered the issue of Letters of Administration with the copy of the will dated 3 31964 annexed to the petition in O. P.10 of 1965. These appeals are filed by the eldest son against the common order passed by the lower court.

2. It is admitted on all hands that the will dated 14 31960 was properly executed by the deceased and Letters of Administration can be issued if that is the last will validly executed by the deceased. But, the contention is that that is not the last will and that the will dated 3 31964 is the last will. If this is established, the issue of Letters of Administration under the earlier will does not arise. So, the question for consideration in these appeals is regarding the testamentary validity of the will dated 3 31964. Though the appellant had a contention that the latter will is a result of undue influence and fraud practised on the deceased, there is no material to support it and we agree with the lower court that there are no vitiating circumstances established against the testamentary capacity of the deceased. The main point urged by the appellant against the validity of the will put forward by the respondents is that the latter will has not been proved to be properly executed in conformity with S.63 of the Indian Succession Act. That Section lays down the formalities required to be observed in the execution and attestation of a will. That Section is in the following terms:

"63. Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to 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".

Ext. D2 on the face of it conforms to the requirements of this Section. But, the two witnesses to this will when examined as dw. 4 and dw. 5 stated that they did not see the testator signing and did not get a personal acknowledgment from the testator of his signature in the will and further that they did not sign in the presence