A. Selvam, J.—Challenge in this Original Side Appeal is to the judgment and decree dated 06.04.2016, passed in T.O.S. No. 26 of 2014, by the learned Single Judge of this Court.

2. The respondents herein, as plaintiffs, have filed T.O.S. No. 26 of 2014, praying to grant Letters of Administration in respect of a Will dated 24.11.2008. During pendency of the same, on the side of the respondents/plaintiffs, an attempt has been made to examine P.W.1 to adduce evidence and also to mark the Will, dated 24.11.2008. The appellants/defendants have raised an objection with regard to marking of the Will, dated 24.11.2008, through P.W.1 and subsequently, a reference has been made to the learned Single Judge of this Court.

3. The learned Single Judge, after considering the rival contentions raised on either side, has disposed of the matter, after giving the following observation:

“This Court permits P.W.1 to examine herself as the first witness and thereafter examine any one of the attesting witnesses or both of them to prove the execution of the Will.”

Against the order passed by the learned Single Judge, the present Original Side Appeal has been filed, at the instance of the defendants, as appellants.

4. The learned counsel appearing for the appellants/defendants has repeatedly contended to the effect that the Will in question has not been executed by the alleged executant and the same has been concocted by the respondents/plaintiffs. As per Section 68 of the Indian Evidence Act, 1872, coupled with Section 63(c) of the Indian Succession Act, 1925, the Will in question has to be marked only through an attesting witness. Under the said circumstances, a befitting objection has been raised and even though a reference has been made to the learned Single Judge of this Court, the learned Single Judge has not answered properly and the Will in question cannot be marked through P.W.1. Under the said circumstances, P.W.1 is totally incompetent to mark the Will, dated 24.11.2008.

5. Per contra, the learned counsel appearing for the respondents/plaintiffs has also equally contended that as per procedure, on the side of the plaintiffs, necessary documents can be marked as exhibits and for proving the same, some more witnesses have to be examined. Under the said circumstances, on the side of the respondents/plaintiffs, an attempt has been made to mark the Will, dated 24.11.2008, but on the side of the appellants/defendants, a frivolous objection has been raised and even the learned Single Judge has not pointed out as to through whom the Will, dated 24.11.2008, has to be marked.

6. The entire contention put forth on the side of the appellants/defendants is based upon the decision of the Bombay High Court in Walter D’Souza v. Anita D’Souza (judgment dated 14.11.2014 made in Testamentary Petition No.774 of 1997), wherein at paragraph No.22, it is observed as follows:

“22. Therefore, Mr. Narula is correct in his submission that if a contesting witness is not examined first to prove the execution of the Will, it cannot be marked in evidence, and in that situation, the cross-examination of the plaintiff might well be meaningless or futile in the sense that the plaintiff may need to be recalled as a witness after an attesting witness proves due execution of the Will. In fairness Mr. D’Mello accepts that this appears to be the correct position in law.”

Even a cursory look of the observation made in paragraph No. 22 shows that the High Court of Bombay has observed that the disputed document has to be marked only through an attesting witness, for having effective cross-examination.

7. The learned counsel appearing for the respondents/plaintiffs has drawn the attention of this Court to the decision reported in (2015) 5 MhLJ 587, Yatin Gordhandas Dossa v. Supriya Shalilesh Patel, wherein, the very same Judge in paragraph Nos.12 and 13 has observed as follows:-

“12. The plaintiff, Yatin, led his own evidence, and that of Shanbag, one of the two attesting witnesse