The court clarified that the reasons given by the lower court for declining probate were not supported by Section 276 of the Indian Succession Act, 1925, and the evidence on record. The court also clarified that registration of a Will is optional under Section 18(e) of the Registration Act 1908 and that the presence of a close relative as an attesting witness does not make the Will suspicious.

1. - The appellants have preferred this appeal under Section 384 of the Indian Succession Act, 1925 (for short, `the Act of 1925') for assailing the impugned order dated 17th of December 2007, passed by the learned Addl. District Judge, Bali, District Pali camp Sumerpur (for short, `the learned trial Court'), whereby the learned trial Court has declined to issue probate to the appellants for a Will dated 27th of February 2001 executed by Smt. Suraj Kanwar in their favour for her entire movable and immovable properties.

2. The learned Court below, while rejecting the prayer of the appellants, has observed in the impugned order that prima facie it appears that the Will has been executed under suspicious circumstances looking to the age of the testator. That apart, the learned trial Court has also observed that the appellants have miserably failed to prove the cause of death of the testator and they have not examined both the attesting witnesses of the Will. The learned trial Court, before deciding the petition for issuance of probate, affixed the notice of the petition on the notice board of the Court, and at a conspicuous place within the Panchayat area where the deceased testator was residing. Besides these requirements, the requisite notice was also published in the daily newspaper "Dainik Bhaskar" dated 24th of January 2007 inviting objections. However, despite publishing notice, no objection was submitted. Although there was no objection submitted against the issuance of probate, the learned trial Court rejected the petition of the appellants for probate.

3. The matter came up before this Court and at the threshold the Court was pleased to call for the record. Thereafter, the appeal was admitted on 8th of January, 2010. On 19th of February, 2010, when the matter came up before this Court, the following order was made :

"Learned counsel for the appellant submits that notice of application under Section 276 of the Indian Succession Act was published by the learned trial Court also on 24-1-2007 as stated in para No. 3 of the impugned order dated 17-12-2007 but no body appeared in the trial Court to raise any objection to the grant of succession certificate in favour of the appellants, who are brothers of deceased Vijay Singh, husband of deceased Sint. Suraj Kanwar on the basis of Will in favour of the applicants.

In view of this, no fresh publication of notice of this appeal is considered expedient. The record of the trial Court may be summoned.

List the appeal for hearing in due course."
From a bare perusal of the order aforesaid, it is clear that the Court has thought that it is not expedient to publish notice of this appeal in the newspaper.

4. Learned counsel for the appellants, Mr. Bharat Singh, has argued that the reasons assigned for declining probate in the impugned order are absolutely alien to Section 276 of the Act of 1925, and as such, the order impugned is not sustainable. Learned counsel for the appellants would urge that the Will executed by late Smt. Suraj Kanwar was produced before the learned Court below and execution of the Will by the testator was also proved by the appellants by tendering cogent evidence, and therefore, it was not desirable from the learned Court below to decline the prayer of the appellants for issuance of the probate. Learned counsel Mr. Bharat Singh has strenuously argued that when nobody has come forward to oppose the issuance of probate and admittedly no Class-I heir of the deceased was available, how and in what manner the learned Court below has rejected the prayer of the appellants by observing that the Will appears to have been executed under suspicious circumstances. Attacking the said finding of the learned Court below with full vehemence, the learned counsel for the appellants has urged that these findings are based on mere ipsedixit of the learned Court below and is outcome of personal sentiments of the learned trial Court. Mr. Bharat Singh, learned counsel for the appellant