JUDGMENT Honorable Mr. Justice Shailesh Kumar Sinha 1. The appeal is directed against the order dated 22nd of July, 2010 passed by the 1st Additional District Judge, Bhojpur at Arrah in Title Suit No. 1 of 1998 arising from the Letters of Administration Case No. 40 of 1997 filed under section 278 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act'), whereby prayer of the plaintiffs for grant of letters of administration was refused and the suit was dismissed by the judgment under appeal. The short facts of the case are that the plaintiff-appellants filed the aforesaid letters of administration case, which was later on converted into Title Suit No. 1 of 1998 for grant of letters of administration with respect to the Will dated 27th of April, 1994 executed by their father Late Jagarnath Prasad Singh, Advocate, Civil Court, Ara with respect to his landed property, detailed in the Will. In the said Will, two witnesses are attesting witnesses, namely, Lakhichand Singh and one Rishimuni Singh. The scribe of the aforesaid Will was one Raj Kishore Sahay. The respondent contested the aforesaid application, inter alia, on the ground that the Will is not genuine. Testator Jagarnath Prasad Singh was not in a sound state of mind as on the date of the execution of the Will. As a matter of fact, the Will was got executed at the instance of the husband of Karuna Singh, namely, Rajendra Singh. Further stand of the respondent Smt. Sharda Singh was that she had no sister named as Karuna Singh. Accordingly, prayer was made for dismissal of the suit. The court below on considering the pleadings of the parties framed several issues as mentioned in paragraph 3 of the judgment under appeal. Issue No. 3 was with respect to the genuineness of the Will. The court below, on perusal of the evidence-oral as well as the documentary-on the record, came to the conclusion that the aforesaid Will dated 27th of April, 1994 (Ext.2) is not a valid and genuine deed executed by Jagarnath Prasad Singh in favour of the plaintiffs on the ground that the attesting witnesses were not examined, a mandatory requirement of law for such examination, especially in the matter of grant of letters of administration/probate of a Will. The court also expressed serious doubt and suspicion with regard to the identity of Krishna Singh, one of the plaintiffs, who claimed to the effect that Karuna Singh and Krishna Singh is one and the same person in view of the evidence of defendant Smt. Sharda Singh (D.W.1) to the effect that she had no sister of the name Kauna Singh in her examination-in-chief, which was not diluted in her cross examination. The court has further taken note of the fact that firstly, on perusal of the plaint there is no averment mentioning the name of the attesting witnesses nor there is any specific averment that the testator Jagarnath Prasad Singh had put his signature over the Will in presence of the attesting witnesses and thirdly, the attesting witnesses had put their signatures over the Will on the instructions of Jagarnath Prasad Singh. The court below in view of the evidence on the record adduced on behalf of both the parties held that the Will is not a valid and genuine and, accordingly, dismissed the suit. 2. Mr. Kamal Nayan Choubey, learned Senior Counsel appearing on behalf of the appellants submits that the suit was basically dismissed on the ground that the attesting witnesses to the Will were not examined. In this connection it was submitted that the plaintiffs made efforts for examination of the attesting witness, namely, Rishimuni Singh, who had appeared in the suit for his examination on two dates i.e., on 26.6.2009 and again on 10.7.2009, but on both the dates, the attesting witness could not be examined as on the first date, no work call was given by the Advocates and on the second date, there was an incident of bomb blast in the premises of Ara Civil Court and as such, the plaintiffs did made all efforts for the examination of said attesting witness. Therefore, on account of non-examination of the said attesting witness, the suit could not have been dismissed. It was further submitted that while filing an application under section 278 of the Act for grant of letters of administration as required under the law, one of the attesting witnesses, namely, Lakhichand Singh had put his separate endorsement along with the aforesaid application testifying the genuineness of the Will, which was exhibited as Ext. No. 7. It was further submitted that while filing an application under section 278 of the Act for grant of letters of administration as required under the law, one of the attesting witnesses, namely, Lakhichand Singh had put his separate endorsement along with the aforesaid application testifying the genuineness of the Will, which was exhibited as Ext. No. 7. As regards the identity of the plaintiff Karuna Singh, it is submitted that Karuna Singh alias Krishna Singh, who appeared as plaintiff No. 2, has stated in her evidence that Karuna is her alias name. In other words, Karuna Singh and Krishna Singh is one and the same person. Learned counsel further submits that the case of the defendant that Late Jagarnath Prasad Singh had executed previously a Will dated 2.6.1992 had no relevance as the same is not on the record. Moreover, it is submitted that the desire of the testator cannot be tested as to what was the occasion for him to execute two deeds of Will on the same date; one in favour of both the plaintiffs as per the Will dated 27th of April, 1994 and another Will of the same date in favour of the defendant Smt. Sharda Singh although the plaintiffs and the defendant are own daughters of Late Jagarnath Prasad Singh. It is, accordingly, submitted that the judgment under appeal deserves to be set aside. 3. On the other hand, Mr. Umesh Prasad Singh, learned Senior Counsel appearing for the respondent submits that the suit was rightly dismissed since the mandatory requirement that the attesting witness must be examined, was not done in the case. Admittedly, the attesting witness Rishimuni Singh was not examined. It is submitted that on two occasions although he had appeared, but he could not be examined on account of the reasons already taken notice by the court below. However, admittedly no steps were taken on behalf of the plaintiffs for his examination after 10th of July, 2009 and till 19th of December, 2009 when the plaintiffs after examination of three witnesses closed their case without examining the attesting witness. However, admittedly no steps were taken on behalf of the plaintiffs for his examination after 10th of July, 2009 and till 19th of December, 2009 when the plaintiffs after examination of three witnesses closed their case without examining the attesting witness. It is submitted that in terms of the provisions of sections 68 and 69 of the Evidence Act, the examination of the attesting witnesses with respect to the grant of letters of administration/probate of a Will is the mandatory requirement and in absence of such examination, the Will cannot be probated or the letters of administration cannot be granted. As regards the genuineness of the Will, it was submitted on behalf of the respondent that Smt. Sharda Singh herself appeared as D.W.1 and stated in her evidence that the attesting witnesses have put their signatures on being told that all the three daughters have been given share in equal proportion. Besides a serious doubt was with respect to the genuineness of the Will since the Will was in favour of Shanti Devi and Karuna Singh whereas D.W.1 Sharda Singh, another daughter of the testator, had categorically stated that she has no sister of the name Karuna Singh and nothing contrary could be found in her cross-examination. Learned Senior Counsel submits that in fact, the genuineness of the Will in question is seriously doubted and as such, the letters of administration/probate of the Will cannot be granted. Accordingly, it is submitted that the appeal deserves to be dismissed. 4. Upon considering the rival submissions of the parties and on perusal of their respective pleadings and the evidences on the record, it would appear that the primary question for consideration is with respect to the genuineness of the Will. In this connection, it is not in dispute that there is no evidence of the attesting witness on record. The evidence of attesting witness Lakhichand Singh could not be recorded as he died during the pendency of the proceedings in the court below. However, the endorsement of Lakhichand was on the record at the time of filing of the original application to the effect that the Will in question was genuine, vide Ext.7. It is also not in dispute that the attesting witness Rishimuni was not examined or could not be examined although he had appeared on two dates i.e., 26.6.2009 and 10.7.2009, for the reasons as noted above. It is also not in dispute that the attesting witness Rishimuni was not examined or could not be examined although he had appeared on two dates i.e., 26.6.2009 and 10.7.2009, for the reasons as noted above. Nonetheless the plaintiffs closed their evidence on 19.12.2009 but in between 10th of July, 2009 and 19th of December, 2009, there is nothing on the record to suggest that the plaintiffs either produced the said attesting witness for his examination or took any steps for procuring his attendance; with the result the attesting witness was not examined, a mandatory requirement for such examination in the matter of grant of letters of administration/probate of a Will. Besides the above, the identity of Karuna Singh in whose favour the Will was executed along with Shanti Singh was seriously doubted. Krishna Singh claimed herself to be the daughter of Late Jagarnath Prasad Singh and also claimed that her alias name is Karuna Singh. The identity of Karuna Singh was seriously disputed in the evidence of D.W.1, wherein she has categorically stated that she had no sister of the name Karuna Singh. In other words, Karuna Singh is not the daughter of Jagarnath Prasad Singh. Learned counsel further submits that admittedly, after the attesting witnesses was not examined, the scribe of the Will, namely, Rajkishore Sahay was examined as P.W. 4, who supported the genuineness of the Will in his examination-in-chief. However, in his cross examination he had stated that he could not say as to when the Will was presented for registration or he had no knowledge with respect to the presentation of the Will. Accordingly, the evidence of P.W.4 was also not reliable. In the opinion of the Court, the submissions of the Learned Counsel is well founded that the examination of the attesting witness is a must in the facts and circumstances when such witness was available for examination. As regards the genuineness of the Will, the identity of the plaintiff Karuna Singh was seriously doubted in the face of the specific evidence of defendant No. 1 that she had no sister named Karuna Singh. For the reasons and discussions as made above, the order under appeal cannot be faulted. As such, I do not find any merit in the appeal. It is, accordingly, dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.