JUDGMENT: 1. The Plaintiff, who is the daughter of the deceased, has sought to probate the Will of her deceased mother dated 22nd March, 1999. The deceased expired on 22nd May 2003. The Defendant is her brother. Two other sisters and a brother have also been served citation. They have not filed any caveat within time. The Defendant filed the caveat and has contended that the stamp paper on which the Will has been executed is backdated and is invalid. The Will has not been notorized and it has not been validly executed. Upon such defence the only issue that arose and which the Plaintiff was to prove was relating to the validity of the execution of the Will. 2. Issues came to be framed on 25th November, 2010 and are answered as follows: 1. Whether the last Will and Testament of the deceased Prabhavati Dattatray Bhansali dated 22nd March, 1999 was validly executed. No 2. What relief, if any, is the Plaintiff entitled to ? As per final order 3. Issue No.1: The Plaintiff has examined herself, a Doctor who has put his stamp and signature on the Will, a lawyer who identified the signature of the deceased and one of the attesting witness who was the neighbour of the deceased. These witnesses have been briefly, but precisely cross examined. The Defendant has examined himself and has been cross examined. 4. The Will has been executed in Marathi language on two stamp papers issued in the name of the Plaintiff. The Will is shown to be notorised. It is typewritten. It extends over three pages; the first two upon stamp papers. The deceased has signed at the foot of the first two pages and in the middle of the third page in the execution clause below the date which is typewritten. Below the signature of the deceased is the typewritten endorsement of the Doctor showing his name put in ink and which is signed and rubber stamped by the Doctor. Thereafter is the endorsement of the Plaintiff herself signed by the Plaintiff. The two witnesses who are stated to be attesting witnesses have signed below the Plaintiff's signature and not below or against the signature of the deceased in the execution clause. Thereafter is the endorsement of the Plaintiff herself signed by the Plaintiff. The two witnesses who are stated to be attesting witnesses have signed below the Plaintiff's signature and not below or against the signature of the deceased in the execution clause. The Will is also signed by her lawyer at the foot of the document after the signatures of the two witnesses who are stated to be attesting witnesses with a rubber stamp of the lawyer. 5. The brief, concise and precise cross examination of the witnesses of the Plaintiff is material to consider and to see the valid execution and attestation of the Will. 6. The attesting witness, who is the neighbour, had neighbourly relations with the deceased since prior to her marriage in 1982. She did not know who was maintaining the deceased after the death of her husband. She was not aware of any Will having been executed. She signed the Will, but she has not written her name in the Will. Her cross examination shows that nobody was present when she signed. She signed because the Plaintiff requested her to sign. She did not even remember whether the deceased was present when she signed on the document which is stated to be the Will. She deposed that she did not remember whether the deceased was present when she signed the Will because it was signed long back. She deposed that she did not remember anything. She did not know that the paper on which she signed was a Will. She stated that she signed because she was asked to sign. She would have signed some times in 2001-2002; She did not remember when the deceased signed on the will. The Will has been executed in 1999. She specifically deposed that she has not signed before the Notary and that no other signatures were appearing on the Will when she had signed. 7. The witness has signed on the third page of the Will. That page is shown to be notarised. That is the page containing the execution clause. That is the page containing one of the signatures of the deceased. Her evidence shows that that signature was not put before the witness signed. Hence, the witness who is stated to be the attesting witness had not attested the signature of the deceased. That page is shown to be notarised. That is the page containing the execution clause. That is the page containing one of the signatures of the deceased. Her evidence shows that that signature was not put before the witness signed. Hence, the witness who is stated to be the attesting witness had not attested the signature of the deceased. Under the provisions of Section 63 of Indian Succession Act the Will has to be signed by the Testator before it is signed by the attesting witnesses. The Testator is required to sign in the presence of the attesting witnesses or has to inform the attesting witnesses the acknowledgment of his or her own signature showing that it was a Will that he or she was signing. The attesting witness is mandatorily required to sign in the presence of the Testator. 8. The attestation, in this case, is diametrically against the rules for attestation and execution of the Will under Section 63 of the Indian Succession Act in view of her categorical negative answer about any signatures appearing on the Will when she signed it. Even the year of signing is different from the year in which a Will is purportedly executed. The attesting witness has signed before the Plaintiff and not before the deceased. She distinctly remembered that nobody was present and the Plaintiff requested her to sign. She remembered nothing else and hence she did not remember the execution and the attestation. Her evidence shows that the Will was not validly executed even if her signature can be accepted. 9. The Doctor who has signed in the Will has put his rubber stamp on the Will. He knew the deceased as a patient for 1½ years and had seen the patient for four or five times. He also does not remember who was present when the will was executed or the date on which he had examined the deceased. He also do not remember whether the deceased signed in his presence. His evidence only shows that he had examined the deceased at her house and had read the Will. His evidence also does not prove either the valid execution or the valid attestation of the Will. 10. The evidence of the lawyer shows that he had only identified the signature of the deceased. His evidence only shows that he had examined the deceased at her house and had read the Will. His evidence also does not prove either the valid execution or the valid attestation of the Will. 10. The evidence of the lawyer shows that he had only identified the signature of the deceased. It is not known which signature of the deceased he identified because three signatures appear on the three pages of the Will. His evidence shows that the deceased approached him outside the Bandra Court along with some one else. She signed in his presence and he put his rubber stamp on page 3 after which the deceased left. He also does not remember whether the signatures of any other witnesses was there when he signed identifying the signature of the deceased. His stamp and signature appears on page 3 of the Will. We may take it that he identified the signature of the deceased which was there on page 3. However, his identification is not against or even immediately after the signature of the deceased. Between his identification of the signature of the deceased there are two endorsements on the Will; one of the Doctor and one of the Plaintiff herself. There are also spaces in the names and signatures of the two witnesses. He specifically remembers that he had only identified the signature of the deceased. Hence, he had not identified any other signature. He does not remember that other signatures were put on the will before he identified the signature of the deceased, but the deceased signed in his presence and that was outside Bandra Court. Hence, the deceased could not have executed the Will in her house where the Doctor examined her. Since the Advocate is not even sure that all other signatures were on the Will, the signatures of the attesting witnesses cannot be taken to have been put before he identified the signature of the deceased who signed in his presence. 11. Reading the evidence in the cross examination of the three witnesses of the Plaintiff together at best it can be seen that the deceased put her signature outside the Bandra Court in the presence of the lawyer when no other witnesses including the attesting witnesses were present. The Doctor examined her at the different place and presumably on another date. The attesting witness put her signature in another year. The Doctor examined her at the different place and presumably on another date. The attesting witness put her signature in another year. None remembers or has seen the execution of the Will by the deceased which is a document compulsorily required to be attested as per the Rules under Section 63 of the Indian Succession Act. That has not been shown. In fact quite contrary has been shown. 12. From the evidence of the witness of the Plaintiff in the cross examination the valid execution of the Will is not seen. Hence, issue No.1 is answered in the negative. 13. Issue No.2: In view of the fact that the Will is not seen to be validly executed it cannot be probated. Hence, the Suit as well as the Petition are dismissed. 14. The Probate is refused. 15. The drawn up decree is dispensed with. 16. The death certificate of the other attesting witness has been tendered in Court today and is taken on record.