The court upheld the validity of the Will based on the evidence of an attending witness despite the absence of attesting witnesses.

1. The petitioner has filed the instant application for grant of probate in respect of the last Will and Testament dated 21 May, 1980 of the deceased Sita Lahiri.

2. The deceased Sita Lahiri had executed a last Will and Testament by appointing her husband Ashis Ranjan Lahiri, since deceased as sole executor and in the event of her death, her daughter Smt. Monika Sarkar, the petitioner herein as the sole executrix of his last Will and Testament.

3. The mother of the petitioner expired on 28 June, 2014 leaving behind the following legal heirs :
i. Smt. Monika Sarkar .... Daughter ( Petitioner herein)
ii. Smt. Shibani Ganguly .... Daughter
iii. Smt. Kanika Bhattacharjee .... Daughter
iv. Radha Rani Chatterjee .... Daughter.

4. The father of the petitioner was the pre - deceased to his wife who died th on 27 March, 1982 leaving behind his wife and the above named four daughters as his legal heirs. After the death of the mother, the petitioner has filed the instant application for grant of probate of the last Will and testament dated 21 May, 1980.

5. While filing the instant application for grant of probate the petitioner has filed affidavit of assets and affidavit of the one of the attending witness namely Uttam Bhattacharyya.

6. None of the legal heirs of the deceased Sita Lahiri have filed any caveat and accordingly the petitioner has taken steps for issuance of general citations and special citations. By way of special citation, the petitioner has published the notice of the instant case in the English Daily News Paper namely Statesman and in the Bangla Daily News Paper namely Bartaman Patrika on 6 August, 2017 but in spite of publication of the notice no caveat is lodged.

7. The petitioner has examined two witnesses on commission to prove the last Will and Testament of the deceased Sita Lahiri namely:
i. Uttam Bhattacharyya - The attending witness of the Will.
ii. Smt. Monika Sarkar - The petitioner (Executrix).

8. Shri Uttam Bhattacharyya during his examination has identified the last Will and Testament dt. 21 May, 1980 and after identification, the Will is exhibited as Exhibit - 'A' and the signature of the Testatrix is exhibited as Exhibit - 'A / 1' and signature of the attesting witnesses are exhibited as A / 2, A / 3 and A / 4. The witness Uttam Bhattacharyya in his evidence stated that he was present at the residence of Sita Lahiri when she has executed the Will. He also stated that at the time of execution of the Will by Sita Lahiri, three attesting witnesses namely Shib Shankar Saha, Nemai Kumar Kundu and Tarapada Saha were also present and in his presence, the said attesting witnesses have signed in the said will at attesting witnesses. He further stated that except the petitioner, other three daughters were also present at the residence of the deceased. The witness also stated that at the time of execution of Will Sita Lahiri was perfectly healthy state, both physically and mentally.

9. The petitioner during her evidence has proved the death of her father and mother and the death certificate of the mother is marked as Exhibit - 'B'. She has also identified the signatures of her mother in the said Will and also stated that her mother was in fit state of mind.

10. In the instant case, none of the attesting witnesses were examined to prove the Will but the petitioner has examined the attending witness namely Uttam Bhattacharyya.

11. S.63 of the Succession Act 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