ORAL ORDER

1. The present First Appeal is filed under Section 299 of the Indian Succession Act, 1925 read with Order 41 of the Code of Civil Procedure, 1908. The challenge is made by the appellant against the judgment and order dated 02.02.2024 passed by the learned 2nd Additional Civil Judge, Umargam in Civil Miscellaneous Application No.4 of 2017 (Old Probate Application No.17 of 2016).

2. Heard learned advocate Mr. Aadit Sanjanwala for the appellant. Paper-book is placed on record, which is taken on record.

3. The brief facts of the case are as under:-

3.1. The appellant filed a probate application for the WILLs as Prabhakar Narayan Deodhekar registered his WILL on 15.06.2010 and Vidula Prabhakar Deodhekar registered her WILL on 15.06.2010. Prabhakar Narayan Deodhekar passed away on 11.04.2016 and Vidula Prabhakar Deodhekar passed away on 25.11.2014. The appellant who is their nephew, was appointed as an executor under both the WILLs. Accordingly, the appellant sought for probate by filing probate of WILLs application. Public notice came to be issued pursuant to the probate proceedings. No resistance against granting of probate was received by the learned trial Court. The probate application came to be dismissed by the learned trial Court on the ground of non-examination of witnesses of the said registered WILLs as contemplated under Section 63(c) of the Indian Succession Act read with Section 68 (c) of the Indian Evidence Act, 1872.

3.2. Being aggrieved and dissatisfied with the impugned judgment and order, the appellant is before this Court.

4. Learned advocate for the appellant submitted that the uncle of appellant Prabhakar Narayan Deodhekar had executed a registered WILL on 15.06.2010 and also the aunt of the appellant Vidula Prabhakar Deodhekar had executed registered WILL on 15.06.2010 for that property mentioned in the respective WILLs. Both the WILLs were registered at the office of Sub-Registrar, Mumbai City 2 (Worli) being Registration No.BB12-4713-29010. It is further submitted that Prabhakar Narayan Deodhekar passed away on 11.04.2016 and Vidula Prabhakar Deodhekar passed away on 25.11.2014 at Mumbai. Being a Beneficiary-Cum-Executor of the aforesaid WILLs, the appellant sought probate of registered WILLs of deceased persons. Pursuant to the filing of the probate application, the public notice was issued by the learned trial Court. No dispute was raised by any person against the granting of probate in favour of the appellant. It is further submitted that since nobody raised any objection or resistance / dispute with regard to registered Wills of the aforesaid deceased persons, the appellant thought it fit that in absence of any resistance, the witnesses of WILLs would not be required to examine. Resultantly, under a bonafide belief, the witnesses were not examined. It is further submitted that both the witnesses of the registered WILLs have filed their respective affidavits dated 04.04.2024 and 06.04.2024 in the present First Appeal, which is taken on record. It is pointed out that due compliance of the provisions of Section 63 (c) of the Indian Succession Act has been complied with. It is further submitted that both the witnesses have proved the execution of the WILLs by their respective affidavits.

4.1. It is further submitted that in the larger interest of justice, the matter may be remanded back to the learned trial Court for a fresh hearing after permitting the appellant to file an affidavits of both the witnesses of the aforesaid two WILLs. It is further submitted that if an opportunity is given to the appellant to prove the execution of both the WILLs, the purpose of justice would be served. It is further submitted that the appellant being a beneficiary of the WILLs, it would be in the fittest of things, if the matter is remanded back for fresh adjudication.

5. I have considered the submissions canvassed by the learned advocate for the appellant as well as the impugned judgment and order, whereby the probate a