The main legal point established is that the execution of a Will must adhere to the requirements of attestation as per Section 63 and Section 68 of the Indian Succession Act.

ORDER

1. In this appeal under Section 384 of the Indian Succession Act, the appellant has challenged the order dated 06.07.2017 passed in Miscellaneous Succession Application No.21/2011 filed under Section 372 of the Indian Succession Act, whereby prayer for grant of succession certificate in respect of the property left by Khubi Ram, uncle of the appellant was refused. Claim of the appellant is based on a registered deed of Will said to be executed on 20.09.2003 by Late Khubi Ram, father of respondent No.2 and uncle of the appellant. The Will was registered on 24.09.2003 and Khubi Ram died on 27.09.2003.

2. Respondent No.2, Mithlesh is daughter of Late Khubi Ram. She appeared and contested the matter by stating that Khubi Ram had never executed any Will in favour of the applicant, rather applicant Santosh had committed forgery to claim and grab the pensionary benefits of Khubi Ram. Respondent No.2 asserted that Late Khubi Ram (her father) never expressed any desire that the benefits arising out of his service should go to Santosh (the appellant). She has specifically stated that Late Khubi Ram before his death never visited any Office rather in between the period of alleged execution of the Will and its registration Late Khubi Ram was hospitalized and respondent No.2 was taking his care.

3. The learned Court below refused the prayer on the ground that attesting witnesses on the Will were not examined during the proceeding, hence, the ’Will’ cannot be probated and accordingly refused succession certificate which was claimed on the basis of the Will.

4. From the record, it is evident that instead of seeking for a probate of the Will, a case for succession certificate was filed though the appellant herein was not a successor of the deceased rather the real successor was his daughter Mithlesh. One of the issue before the Court below was whether the produced Will was the last Will of Late Khubi Ram duly executed under the law.

5. Section 63 of the Indian Succession Act deals with execution of unprivileged Wills. The present one is an unprivileged Will.

Section 63 reads as follows :-

’63. Execution of unprivileged Wills.- 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 acknowledgement of his signature or mark, or 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."

6. The original Will available as Exhibit-P1 does not show that the testator signed in presence of the attesting witnesses and attesting witnesses also singed at the request of the testator in his presence. The witnesses of the Will namely, Ajay Singh Gurjar and Chhitaria were not examined. It is settled proposition that if the law requires anything to be done in a particular manner, it should be done in that manner only. Section 68 of the Evidence Act provides for proof of execution of document required by law to be attested. The provisions of Section 68 of the Evidence Act reads as follows :-

"68. Proof of execution of document required by law to be attested.-If a document is required by law to be attested, i