IMPORTANT POINT
Statutory requirements for proving of Will must be satisfied.

JUDGMENT

S.B. Sinha, J. —

1. Leave granted.

2. This appeal is directed against the judgment and order dated 26.6.2006 passed in FA No.110 of 2000 and FA No.124 of 2000 by the High Court of Gujarat at Ahmedabad dismissing appeals filed against a common judgment and order dated 23.2.2000 passed by the learned Civil Judge (SD) Rajkot allowing the Civil Miscellaneous Application No.25 of 1996 and dismissing the Civil Miscellaneous Application 26 of 2006.

3. One Purshottam Manji Thakrar was the owner of the property. He purported to have executed a Will on or about 15.4.1978 in favour of the respondents. He left behind his two sons (Jamnadas and Jayantilal) and two daughters (Kasturben and Lalita - appellants herein).

Purshottam Manji Thakrar died on 30.11.1984. His wife had predeceased him. Jamnadas died leaving behind his wife, Jasumati (Respondent No.3) and two daughters, Pragna and Bina (Respondent Nos.1 and 2 respectively). Jayantilal died issueless. He was a divorcee. He purported to have executed two Wills; one on 31.1.1995 propounded by the appellant and the other on 18.6.1995 propounded by respondents. Kasturben died on 19.12.1995.

4. Respondents filed an application for grant of probate of the Will dated 18.6.1995. On the other hand, appellant filed an application for grant of probate in respect of the Will dated 31.1.1995.

The learned District Judge granted probate in respect of the Will dated 18.6.1995 propounded by the respondents and dismissed the application for grant of probate in respect of the Will dated 31.1.1995 executed by Jayantilal.

5. Two appeals were preferred thereagainst. By reason of the impugned judgment, the High Court dismissed the said appeals.

Although all the three aforesaid Wills, i.e., one dated 15.4.1978 executed by Purshottam Manji Thakrar in favour of the respondents, as also two Wills executed by Jayantilal dated 31.1.1995 and 18.6.1995 were in question, this Court by an order dated 2.11.2006, issued a limited notice directing :

“In view of the decision of this Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam,1 (2003 (2) SCC 91), issue notice only on the question as to whether the Will dated 18.6.1995 was legally proved.”

6. Mr. Jay Savla, learned counsel appearing on behalf of appellant, would submit that a Will, having regard to the provisions contained in Section 63(c) of the Indian Succession Act, is required to be attested by two or more witnesses and furthermore, although in terms of Section 68 of the Indian Evidence Act it is permissible to examine one witness, who must testify to prove valid execution and attestation of the Will, i.e., both the witnesses have signed in the presence of the testator or the testator has either signed in presence of one or acknowledged his signature before the other. It was contended that as in this case, the said legal requirements had not been complied with, the Will in question cannot be said to have been proved. Strong reliance in this behalf has been placed on Janki Narayan Bhoir (supra) and Benga Behera & Anr. v. Braja Kishore Nanda & Ors.2 [2007 (7) SCALE 228].

It was urged that a large number of suspicious circumstances surrounding the execution of the Will by the testator having not been explained by respondent, the Will cannot be said to have been legally proved. These, according to the learned counsel, are:

“Respondent Nos.1 and 2 had filed suit for partition claiming 1/3rd share on the basis of the Will of grand father Shri Parshottam Kataria dated 15th April, 1978 and in the alternative under succession claiming 1/9th share against deceased Jayantilal Kataria being Suit No.119/1989. Testator had opposed the suit amongst other grounds and in the written statement of the testator, it was averred that Parshottam Kataria had in fact made last Will dated 19th November, 1983. In the reply dated 10th January, 2006, to Public Notice, no mention of Will. In the said proceedings, on 1st January, 1996, in the application for deletion of deceased, Re