This appeal is directed against the judgment and order of the learned District Judge-cum-Additional Deputy Commissioner, Shillong in (Probate) Case No. 28 (T) of 1981. Judgment was delivered on 20.12.84. 2. One late Kulbahadur Konwar allegedly executed a Will. It may be stated that wife of Kulbahadur pre-deceased him and he died childless. The Will was allegedly executed by late Kulbahadur in favour of Smti Dilu Sahu, wife of Shri Zharilal Shahu and by the said Will, the house and the land situated at Shillong were given in favour of Smti Dilu Sahu. There is no dispute that Smti Dilu Sahu, opposite party in the first appeal, was not related to late Kulbahadur. 3. On 28.8.81 an application for probate of the Will of late Kulbahadur who died on 23.7.78 was filed before the learned Court below. As no one was shown in the said application as next of kin of the Kulbahadur, only a general notice was issued and as no objection was filed, after examining Smti Dilu Sahu and two others witnesses, ex parte order was passed on 12.10,81 granting probate of the Will. 4. The present appellant namely, Til Bahadur in his capacity as a younger brother of deceased Kulbahadur filed an application on 26.2.82 for cancel­lation of the probate. In the said application for revocation of probate it was alleged that late Kulbahadur used to live with his brother Til Bahadur till his death on 23.7.81 at Walsh Mission Hospital, Jaiaw, Shillong. It has also been stated that late Kulbahadnr was addicted to drinks and as such, he was suffering off and on in his later part of his life. He was also not physically and mentally fit. Therefore, he was looked after by his brother, Til Bahadur and his wife. According to the appellant, Smti Dilu Sahu in collusion with her husband Shri Zharilal Shahu got the forged Will executed and also fraudu­lently and surreptitiously managed to take the ex-parte order of probate by suppressing the facts. According to the appellant, the respondent herein knew fully well that appellant was the brother of late Kulbahadur and they used to live together till the time of his death. According to the appellant, the husband of the respondent Shri Zharilal Shahu used to visit late Kulbahadur and supply him with liquor for consumption and it was so done in order to grab the property in question. According to the appellant, the husband of the respondent Shri Zharilal Shahu used to visit late Kulbahadur and supply him with liquor for consumption and it was so done in order to grab the property in question. It has been stated that late Kulbahadur did not execute any Will and the Will produced in the Court was forged one, In support it has been stated that no member of the Nepali community sighed as a witness to the alleged Will. 5. The respondent filed objection denying all the allegations. It has also been denied that by playing fraud the earlier ex-parte order was obtained. According to the respondent, she used to visit regularly the house of late Kul Bahadur when his wife was ill and never saw the appellant in the house of late Kul Bahadur. Therefore "it never occurred to her" that Kul Bahadur had a brother and as such in the application for probate the name of the present appellant was not shown and no notice was issued. It has also been denied that the appellant jointly possessed the land and house for which the Will was made, as alleged by the appellant in his petition for revocation of the order of probate. According to the opposite party it is not a fact that Kul Bahadur was heavily addicted to drinks. The allegation that the appellant and his wife used to look after Kulbahadur has also been denied. 6. It may be stated that by the impugned judgment and order the learned Court below rejected the application for revocation of the order of probate earlier granted. 7. In support of their respective cases, both the parties adduced oral as well as documentary evidence. 8. Heard Mr. GN Sahewalla, learned counsel for the appellant and Mr. DN Choudhury, learned counsel for the respondent. 9. For the purpose of the present case, the provisions of sections 59, 61 and 63 of the Indian Succession Act, 1925 are relevant. According to section 59 every person of sound mind not being a minor may dispose of his property by Will. Explanation 4 to the said section 59 is relevant which inter-alia, provides that no person can make a Will while he is such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing. Explanation 4 to the said section 59 is relevant which inter-alia, provides that no person can make a Will while he is such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing. Section 61 of the Act inter-alia, provides that a Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void. 10. Section 63 of the Act provides the mood of execution of unprivileged Wills. According to the said section, every testator shall execute his Will according to procedure in clause (a), (b) and (c) of the said section. Clause (a) provides that the testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. According to clause (c) the signature or mark of the testator or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. Clause (c)provides that 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 received from the testator a personal acknowledgement of his signature or mark, or of 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. 11. Thus, it appears that a person of sound mind not being a minor can dispose of his property by a Will and a Will obtained by fraud or coercion or any action which takes away the free agency of the testator is void. 11. Thus, it appears that a person of sound mind not being a minor can dispose of his property by a Will and a Will obtained by fraud or coercion or any action which takes away the free agency of the testator is void. As in case the Will alleged to have been executed was not a soldier for the execu­tion of such Will, he must sign or affix his mark or it shall be signed by some other person in his presence and by his direction, and the signature or mark or signature of the person signing for him shall be so placed that it shall appear that it was intended thereby to give effect in writing as a Will. Most important part regarding execution is that the Will shall be attested by two or more witnesses each of whom has seen the testator's signature or affixing his mark on the Will or has seen some other person signing the Will in presence and by direction of the testator. It would also be sufficient if the attesting witnesses receive from the testator a personal acknowledgement of his signature or the signature of other person and each of the witnesses shall sign the Will in presence of the testator but it shall not be necessary that more than one witness be present at the same time, 12. On behalf of the appellant the learned counsel has placed reliance in various decisions of the Apex Court ( AIR 1959 SC 443 , AIR 1977 SC 63 and AIR 1982 SC 133 ) to bring home the point that the contents of the Will was not proved. Learned counsel has also urged that the very fact that the property in question was given to a person who is not related to the testator is a suspicions circumstance which was not taken into consideration by the learned trial Court. Learned counsel has also drawn attention of this Court to the contradiction in the evidence of the attesting witnesses. Mr. Sahewalla has also placed reliance in two other decisions of Apex Court and one decision of this Court reported in AIR 1976 Gauhati 94. Learned counsel has also drawn attention of this Court to the contradiction in the evidence of the attesting witnesses. Mr. Sahewalla has also placed reliance in two other decisions of Apex Court and one decision of this Court reported in AIR 1976 Gauhati 94. According to the learned counsel though Til Bahadur, the present appellant who claims to be the brother of late Kul Bahadur was residing in the property in question, this was suppressed by the respondent and no notice was served before the ex-parte order of probate was passed and this suppression of facts is also suspicious in the case in hand. 13. Drawing attention of the evidence of the witnesses on record Mr.DN Choudhury, learned counsel for the respondent has urged that no fraud has been alleged and that there is no suggestion in cross-examination that .the deceased did not sign the Will. Learned counsel has also urged that there was no allegation that the Will was forged and in fact the Will was not challen­ged. In support learned counsel has placed reliance in the cases reported in AIR 1924 PC 28, AIR 1971 SC 2236 and AIR 1982 SC 133 . Relying on the decisions of the various Courts it has been urged that by the Will a testator can bequeath the property to some other person depriving his relation. The main witnesses in this case were the attesting witnesses to the Will, PW I Purmandu Bhattacharjee was the attesting witness, but he does not know that fete Kul Bahadur had any relative. According to him the Will was signed in the open space of the compound of late Kul Bahadur. He has admitted that Kul Bahadur used to drink and stated that at the time of attesting the Will, Kul Bahadur was not under the influence of the liquor. He has further stated that nobody explained the contents of the Will to Kul Bahadur. It may be stated that Kul Bahadur did not know English but the Will was written in that language. 14. PW 2, OK Lyngdoh claims to be Headman of the locality and he has proved his signature on the Will Ext. 1(6). In cross-examination he has stated that he resides 1/2 KM away from the house of late Kul Bahadur and he did not know Kul Bahadur from before. 14. PW 2, OK Lyngdoh claims to be Headman of the locality and he has proved his signature on the Will Ext. 1(6). In cross-examination he has stated that he resides 1/2 KM away from the house of late Kul Bahadur and he did not know Kul Bahadur from before. From his cross-examination it has come out that he did not see other witnesses attesting the Will and he alone put his signature. I also find that respondent Dilu also went to the house of late Kul Bahadur. According to him he attested the Will inside the room. 15. PW 3, Sorobindhu Biswas is another attesting witness and according to him the other two witnesses namely, PW 1 and 2 also signed along with him as attesting witnesses. He has stated in cross-examination that the con­tents of the Will was discussed and first Kul Bahadur signed and thereafter other witnesses signed in open space between the shop and house of Kul Bahadur. He has further stated that the above three attesting witnesses signed one after another. 16. Thus, from the evidence of the above attesting witnesses, there is material which creats a suspicion. PW 5, Bhaskar Choudhury, an Advocate who was also a Member of the legislative Assembly prepared the Will and he has stated in exaniination-in-chief that he prepared the same in the year 1981 and he did not remember Kul Bahadur. 17. PW 8, husband of respondent and from his evidence I find that his wife namely, respondent gave money from time to time to late Kul Bahadur including a sum of Rs.10,000/-. Power of Attorney was executed in his name by late Kul Bahadur. This fact of taking money was also been admitted by respondent (PW 7). 18. In the petition filed for revocation of the ex-parie order of probate it was specifically stated that late Kul Bahadur did not sign the Will. I find from the judgment of the learned trial Court that this plea was rejected by holding that signature in the Will (Ext. 1) and the signature in the Power of Attorney (Ext. 3(i) "are identical". I find from the judgment of the learned trial Court that this plea was rejected by holding that signature in the Will (Ext. 1) and the signature in the Power of Attorney (Ext. 3(i) "are identical". In my opinion, in view of the specific statement made in the petition and also supported by the evidence of Til Bahadur (DW 8) the learned Court below erred in law in not sending the Will for examination by a hand writing expert and by holding that the signatures are identical only by verification by the Court. On this point alone this matter has to be go back on remand. In view of the fact that I propose to remand the matter, I am not expressing any opinion as to whether the Will was properly attested and whether there was fraud. I may only say that from the evidence on record it has come out in respect of the property in question that there was an un-registered sale deed in favour of respondent executed by late K.ul Bah adur. This fact shall he re-examined by the learned trial Court after getting the report of the hand writing expert and after taking into consideration the submission made before this Court. The opinion of the hand writing expert shall be obtained at the cost of the appellant. 19. In view of the order of remand, I need not examine the various decisions cited before this Court as it might prejudice the learned trial Court, The learned trial Court shall re-consider the entire matter again keeping in view the law regarding competency of a person to execute the Will and the manner in which a Will has to be attested. 20. With the above direction and observation, the appeal is allowed by setting aside the impugned judgment and order and I remand the matter to the learned trial Court for re-trial afresh. I leave the parties to bear their own costs.