The execution of a Will must be proved in accordance with Section 63(c) of the Succession Act, which requires attestation by two or more witnesses who have seen the testator sign or affix their mark, or have received a personal acknowledgment of the signature or mark.

1. In this second appeal against the judgment and decree of the Senior Sub-Judge, Ludhiana, exercising enhanced appellate powers, the sole point for determination is whether due execution of the Will propounded by Piara Singh defendant-respondent stands proved.

2. The relevant facts of this case are that Bakhtawar Singh was owner of the land in dispute. He died issueless and without leaving a widow on April 27, 1970. Udhe Singh and Inder Singh plaintiffs and Piara Singh defendant are his brothers. Intier Kaur plaintiff is their sister. Plaintiffs brought a suit claiming possession of 3/4th share in the land by succession as heirs of Bakhtawar Singh. They denied the execution and validity of a Will propounded by Piara Singh defendant alleged to have been executed by Bakhtawar Singh bequeathing the whole land to him. It is said that Piara Singh is entitled to only 1/4th share in the land by inheritance. The suit was resisted by Piara Singh reiterating the genuineness of the Will executed in his favour by Bakhtawar Singh. The trial Court held that execution and genuineness of the Will have not been established and consequently decreed the plaintiffs suit. The first appeal filed against this decision of the trial Court by Piara Singh was allowed by the lower appellate Court holding that the execution of the Will as well as its validity have been proved. On this finding the plaintiff s suit was dismissed.

3. It may be mentioned here that before filing of the instant appeal Udhe Singh plaintiff died and his son Labh Singh filed this appeal along with the other two plaintiffs Inder Singh and Inder Kaur. During the pendency of the appeal the plaintiffs Inder Singh and Inder Kaur as well as defendant Piara Singh died and their legal representatives were brought on record.

4. The disputed Will bears the name of Nachhattar Singh and Hamir Singh attesting witnesses, Hamir Singn, though alive, was not produced in the witness-box to support the execution of Will. Nachhattar Singh stepped into the witness-box as DW 3 but he led to support the will. He stated t he has no knowledge about the execution of such a Will. As none of the attesting witnesses had come forward to prove execution of the Will, the trial Court held that its execution has not been proved. The trial Court also doubted the genuineness of the Will because although it was recited therein that Piara Singh had been rendering service to the testator but no evidence has been produced to prove this fact. The trial Court was, therefore, of the view that there appeared to be no good reason for Bakhtawar Singh to have excluded his other brothers from inheritance. The lower appellate Court took the view that the Sub-Registrar Hardip Singh (D. W.1) who had registered the Will, can be considered to be an attesting witness of the Will and from his testimony the execution of the Will stands proved. It was also observed that no circumstance existed from which the genuineness of the Will may be doubted. The vital point for consideration is whether the view taken by the lower appellate Court is sustainable.

5. Before me the learned counsel for the parties addressed arguments in respect of the execution of the Will only. It was not contended by the learned counsel for the appellants that even if the Will is found to be duly executed it should not be considered genuine testamentary disposition of the property. I will, therefore, confine myself to the question of due execution of the Will.

6. It appears proved from the testimony of the Sub-Registrar that the testator had acknowledged his thumb mark on the Will at the time of registration. However, as held by the Supreme Court in Moonga Devi V/s. Radha Ballab, 1972 Cur LJ 717: (AIR 1972 SC 1471), it is not merely the genuineness of signature or mark of the testator on which the proof of the execution of the Will under Section 63 of the Succession Act depends. It has to be proved that the will was attested in accordance with Cl. (c) of tha