W DHASARATHA RAO Vs. HEROJI RAO

JUDGEMENT

(1.) Some of the legal representatives of the deceased plaintiff are the appellants in this second appeal. The first respondent is the defendant in the suit and the other respondents are the other legal representatives of the deceased plaintiff. The plaintiff's claim for declaration that the will executed by her step-mother one Kasi Bai is not valid and is not binding on her and for consequential reliefs in respect of the suit properties was discountenanced by the two Courts below. The defendant is the legatee under the will in question, marked in the case as Ex B1. At the time of admission of this second appeal, the only substantial question of law which was formulated by this Court runs as follows:

(2.) On the question of execution, of unprivileged wills like Ex.B1. the statutory principles that govern the same are to be gleaned from S.6 3 of the Indian Succession Act, hereinafter referred to as 'the Act' and it stands extracted as follows:

(3.) The bone of contention that survives between the parties in the second appeal, as reflected in the substantial question of law extracted above, relates to valid attestation of the will. The requirements are set out in Cl.(C) of S.63 of the Act. Of these, the submissions which were made by Mr.R.S. Venkatachari, learned counsel for the appellants, related to the necessity of each of the witnesses signing the will in the presence of the testator. Two attesting witnesses have been summoned and examined in the case as P.Ws.2 and 4.. Learned counsel for the appellants would submit that none of these two witnesses deposed that they signed the will in the presence of testator. As to how the satisfaction of this requirement should be arrived at by Courts has been set out by four learned 3udges of the Supreme Court in Naresa Charan v. Parkash Charan, (1955) 1 M.L, J. (S.C) 183: 1955. S.C, J. 293: (1955) 1 S.C.R. 1035: A.I.R. 1955 S.C. 363 at 367 as follows: