- (1.) The appellant filed a suit claiming share in the suit properties asserting them to be joint family properties. The Trial Court held that the suit property was the self-acquired property of the deceased who died intestate and genuineness of the Will had not been established in accordance with the law, entitling the appellant to 1/5th share. The appeal of the defendant was allowed holding that the signature of the testator was not in dispute and the testator was of sound mind. The Will was executed in accordance with Section 63 (c) of the Indian Succession Act, 1925 (hereinafter called "the Act") and proved by the attesting witnesses DW 3 and DW 4. The second appeal by the appellant was dismissed.
(2.) Section 63 (C) of the Indian Succession Act, 1925 reads as follows : "63 (c). The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
(3.) Learned counsel for the appellant submitted that the Will was not signed by the testator in presence of the two attesting witnesses. Neither had the attesting witnesses signed together in presence of the testator. Therefore, the genuineness of the Will cannot be said to have been established in accordance with the provisions of Section 63 (c) of the Indian Succession Act, 1925.;