Modi, J. —This is a special appeal against an order of a learned Single Judge of this court by which the appellants application for grant of probate was dismissed.

2. The material facts leading upto this appeal are these. One Maliram who is the alleged testator of the will Ex. P. 2 is said to have made it on the 11th October, 1944. The will was registered on the 11th January, 1945. Maliram died on the 5th November, 1946. The appellant before us is one of his two sons Kedar Nath, and the respondent Sitaram is the other son. Kedar Nath filed an application for probate in the court of the District judge, Jaipur, on the 28th April 1952. Sitaram resisted this application. His case was that his father Maliram had not executed any will at all and further that at the time he is alleged to have executed the will, he was so ill that he had no sound disposing mind. He also objected that the testator had no right to make a will in respect of the property in question; but with that aspect of the case, we are not concerned so far as these probate proceedings go. The only issue which was framed by the trial court on the aforesaid pleadings was whether the deceased executed a valid will in favour of the applicant on the 11th October, 1944. That court, as a result of the consideration of the evidence led by both parties, came to the conclusion that it was not convinced that the will was executed by the deceased and signed by him while he had a sound disposing mind. The trial court also held that the signature of the respondent Sitaram appeared to be fabricated. It was also persuaded to hold that the appellant Kedar Nath who was the legatee under the will had taken a prominent part in the execution of the will by his father and on this ground also the will was a very suspicious document. The trial court, therefore, dismissed the application for probate with costs.

3. The appellant thereupon filed an appeal in this court which was disposed of by a learned Single Judge*. The findings of the learned Judge may be briefly summarized as follows :—

(1) The execution of the will Ex.P.2 by the deceased Maliram was satisfactorily proved;

(2) Maliram had a sound disposing mind at the time the will was executed ; and,

(3) The finding of the trial court, that the part played by the appellant in the making of the will by his father Maliram was highly suspicious, was not well founded.

4. Having arrived at these findings in favour of the appellant, the learned Judge then addressed himself to the question whether the will was properly attested. His findings on this aspect of the case are that the will bore the signatures of Basantilal, Badrinarain and the respondent Sitaram ; that the attestation of Badrinarain was proved, but he further came to the conclusion that the signature of Sitaram on the will was given in his capacity as an executant and not as an attesting witness. So far as Basantilal was concerned, he was merely a scribe. Having regard to these circumstances, the learned Judge came to the conclusion that the will was attested by only one attesting witness,, Badrinarain and that the signatures of Sitaram must have been obtained to secure his approval of the will rather than for the purpose of attestation. In this view of the matter, the learned Judge came to the conclusion that the will was not proved to have been attested by two witnesses as required by Sec. 63 of the Jaipur Succession Act which is in the same terms as Sec. 63 of the Indian Succession Act, and therefore, he upheld the dismissal of the application for probate though for very different reasons from those which had prevailed with the trial court. Kedarnath has now come up in special appeal to this court under sec. 18 of the Rajasthan High Court Ordinance (No. XV) of 1949.

5. It is a matter to be regretted that this appeal has had to be heard ex parte although we gave more than one opportunity to learned counsel for the respondent to put in his appearances in this court. All the same, we have

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