Evidence of witnesses regarding attestation in handwriting of attesting witness sufficient.

Mishra, J.

The appellant, herein was the caveator/defendant in a proceeding under and 276 of the Indian Succession Act for the grant of Letters of Administration regarding the estate of late K.Venkatachary as per his last dated 9.3.1974. The testator died on 11.7.1976. The defendant/appellant filed a caveat 24.11.1982. The application filed for Letters of Administration was converted as T.O.S.No.9 of 1982. The plaintiff (executor of the will) claimed that he was the grandson of the testator through his only deceased son. According to him, the testator executed his last will sound disposing state of mind, he (plaintiff) being the sole legatee under the will directing him to arrange for the marriage of his two sisters and to maintain his widow. The attestors of the will however were dead. The plaintiff claimed that he had arranged for marriages of his two sisters as directed in the will and that the two loans remained payable on the house property.

2. The caveator/defendant/appellant, however, objected to the prayer stating that testator had left two daughters of whom she was one. The testator’ s son had pre him (testator) leaving the plaintiff and his two sisters. Even when the testator was alive, plaintiffs sister Ambujam was married on 8.5.1974 and the second sister was married 1980 after his demise. The defendant’s mother had also died. The main objection was the testator never executed any will at all on 9.3.1974 or at any lime before his death that the will was unnatural and improper. The defendant also alleged that no provision been made by the testator for the defendant as alleged in the will. Elucidating the case the defendant, it was also said that the testator had no testamentary capacity to write will. He was affected by paralysis since 1973. The sickness had taken a serious turn year 1974 when he completely lost his senses. The signatures in the will were not those the testator. He had a settled handwriting. The signatures thus might have been forged. 3. In the course of the hearing, three issues were framed, namely: 1. Whether the will dated 9.3.1974 was executed by the testator while he was in a and disposing state of mind? 2. Whether the will is vitiated for the reasons stated in the written statement?

3. To what relief, if any, is the plaintiff entitled?

4. Learned trial judge, who considered issue Nos. 1 and 2 together has held, “Hence, it is found on these issues that the will dated 9.3.1974 was executed by the testator while he was in a sound and disposing state of mind and that the will is not vitiated for reasons stated in the written statement. ” Having so answered the first two issues he has concluded on the third issue that the plaintiff was entitled to the grant of Letters of Administration as prayed for, but was not eligible costs against the defendant in the circumstances of the case and accordingly decreed favour of the plaintiff for the grant of Letters of Administration of the will.

5. The main challenge before us has been that the plaintiff failed to prove the will, contents arid execution in accordance with law. Learned counsel has drawn our attention the rule of special proof of a will in Sec.63(c) of the Indian Succession Act, 1925, reads as follows:

“Sec.63, Every testator, not being a soldier employed in an expedition or engaged in warfare or an airman so employed or engaged or a mariner at sea, shall execute his according to the following rules; ............ (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; each of the witnesses shall sign the will the presence of the testator but it shall not necessary that more than one witness be present at the same time, and no particular of att