JUDGMENT : 1. The Court : P.L.A. 94 of 2012 was registered at the instance of Rajesh Goenka, praying for grant of probate of the Will of deceased Mohanlal Goenka, executed on 29th January, 1999 in favour of the sole executor named in the said Will with effect throughout the Union of India. Citations were issued and served upon the concerned heirs and legal representatives of the deceased Mohanlal Goenka by order of this Hon’ble Court. Probate application discloses the names and address of the natural heirs of the deceased. Such particulars of the natural heirs have been mentioned in paragraph 4 of the probate petition. The probate petition stood amended vide order dated 26th February, 2016, passed by the Hon’ble Justice Sudip Ahluwalia in G.A. 364 of 2016. After the citations were served, one of the legal heirs, namely, Chandra Prakash Goenka, filed an affidavit. In pursuance of filing of the said affidavit the probate proceeding was treated as a contentious cause and the proceeding has been converted into a testamentary suit being T.S. No.22 of 2015. 2. In the affidavit filed by the said Chandra Prakash Goenka, it has been alleged that the Will is not a genuine Will of the deceased for the reason that the testator, on the day of execution of the alleged will, was approximately of 90 years of age; he was extremely old and in feeble state of mind and body; on the date of execution of the alleged Will the deceased, owing to his extreme old age, mental and physical weakness, was unable to understand the nature of the disposition contained in the Will; the feeble state of the testator is visible from the shaky signature on the Will; such debility, physical and mental, militates strongly against the voluntary character of the Will and raises an irresistible presumption of undue influence. All the legitimate heirs of the testator have been disinherited without any justifiable reason. As a result of which, the Will should be treated to be an unnatural Will; that the Will, if at all executed by the deceased, has been caused by fraud, coercion and undue influence. 3. Although, the said Chandra Prakash Goenka filed his affidavit but at no stage of hearing the caveat or contested the matter. Even at the stage when issues were settled the defendant did not appear. 3. Although, the said Chandra Prakash Goenka filed his affidavit but at no stage of hearing the caveat or contested the matter. Even at the stage when issues were settled the defendant did not appear. Accordingly, in his absence, issues were framed by this Court. By an order dated 3rd August, 2017 this Court observed that despite order dated 7th December, 2016 whereby the defendant was allowed to disclose document, if any, no steps were taken, nor has any document been disclosed on behalf of the defendant. There was also a direction for framing of issues but no one appeared with suggested issues. After hearing the learned counsel for the plaintiff, following issues were settled :- 1. Is the suit maintainable in law? 2. Is the plaintiff entitled to probate of the last Will and Testament dated 29th January, 1999 allegedly executed by Mohanlal Goenka? 3. Whether the deceased had testamentary capacity at the time when the Will and Testament was executed on 29th January, 1999? 4. Whether the Will has been procured by the plaintiff by exercising undue influence over the testator as alleged by the defendant? 5. Whether the execution of the Will is shrouded by any suspicious circumstances or not? 6. To what reliefs is the plaintiff entitled to? 4. The matter was directed to be listed on 23rd August, 2017 for witness action. 5. On 30th August, 2017, an order was recorded to the effect that – “despite filing affidavit no one turned on behalf of the defendant to contest the testamentary suit. On previous occasion also no one appeared. It seems that the defendant had lost interest in the fate of the suit. Let this matter appear on 15th September, 2017 for hearing.” 6. On 15th September, 2017, the matter was taken up for recording evidence of Mr. Rajesh Goenka on behalf of the plaintiff. Mr. Rajesh Goenka, the propounder of the Will, appeared in the box to prove the Will. The Will has been marked as Exhibit ‘A’ and the signatures appearing in the Will, that is, the signature of the testator and the signatures of the attesting witnesses were separately marked as Exhibit ‘A1’, ‘A2’ and ‘A3’, respectively. 7. Mr. Rajesh Goenka, the propounder of the Will, appeared in the box to prove the Will. The Will has been marked as Exhibit ‘A’ and the signatures appearing in the Will, that is, the signature of the testator and the signatures of the attesting witnesses were separately marked as Exhibit ‘A1’, ‘A2’ and ‘A3’, respectively. 7. On perusal of the original Will which has been annexed to the probate application it appears that the Will is a registered Will and the same has been registered before the District Sub-Registrar III, Alipore, 24-Parganas (South) on 29th January, 1999. When the document, namely, the Will (Ext. ‘A’) was tendered, the witness deposed that apart from the signature of the testator, Mohanlal Goenka, two other signatures appeared on the Will (Ext. ‘A’), one of Muralidhar Dhandhania and the other is of Kailash Chandra Kedia. The witness also deposed that the testator died in 2002 at 27, Ballygunj Park and at the time of his death he was 89/90 years old. His physical condition was fine. He came to know about the Will late in the year 2011 while the witness was searching his cupboard for some other papers and he came across the Will in question (Ext. ‘A’). He specifically deposed that in 1999 the testator had a good health and he had no problem as such. He used to look after land work. He regularly goes to his office and looked after the land work which he had. He never took assistance of any person for doing such work. It has also been deposed that he has no ailment in 1999. In answer to question no.43 when he was asked that it has been contended by the caveator that the testator was not fit and was not in proper state of mind, memory and understanding, the witness deposed that the testator had full memory when he wrote the Will. The witness added that all throughout, the testator was in good state of mind till his death. The witness further deposed that the execution of the Will was never within his knowledge and he came to know about the same only in December, 2011 and immediately thereafter he took legal advice for taking probate of the said Will. According to the witness, the delay which has been caused is unintentional as the Will was found after a long period of time. According to the witness, the delay which has been caused is unintentional as the Will was found after a long period of time. The witness, in order to show the physical and mental fitness of the testator, has also proved through the documents being refund vouchers issued by the Income Tax authority in favour of the deceased and those are marked Exhibit ‘C’ and Exhibit ‘D’. Exhibits ‘C’ and ‘D’ are contemporaneous documents signed by the testator. Signatures appeared in the said refund vouchers have also been identified by the witness in the box to be the signature of the testator. If that be so, it can be safely concluded that the deceased was fit enough both mentally and physically to execute the Will and he was in a disposing state of mind at the time when the Will was executed. 8. There are two attesting witnesses of the said Will, namely, Mr. Muralidhar Dhandhania and Mr. Kailash Chandra Kedia, who is a Doctor by profession and appeared before this Court to depose as an attesting witness in respect of the execution of the Will. Dr. Kedia has also affirmed an affidavit on 9th March, 2012 and the same was proved by him. Execution of the Will has been duly proved by the attesting witness Dr. Kedia and he has also confirmed that the testator signed the Will not only in his presence but also in the presence of Mr. Muralidhar Dhandhania, the other witness. The attesting witness further proved that the testator signed the Will first and thereafter, the other attesting witness signed the Will as per request of the testator. The attesting witness also deposed in Court that Mr. Muralidhar Dhandhania died long ago. The attesting witness has also deposed that the testator was in good health and mentally fit at the time of execution of the Will as will be borne out from the answers relating to question nos.20 and 21. 9. Perusal of the registered Will and the materials disclosed in evidence does not leave any doubt in my mind that the Will has been executed by the testator, Mohanlal Goenka, and in view of the evidence adduced on behalf of the attesting witness and the propounder it is also proved that the Will is the last and genuine Will of Late Mohanlal Goenka. It is true that the signature appears on the Will appears to be shaky but that is not all. In bare eyes it can be perceived that the signatures are of identical nature. However, the execution of the Will by Mohanlal Goenka has not been challenged by any independent witness or by making any prayer for Handwriting Expert, save and except bald allegations made in the affidavit that the Will has been made under coercion or by fraud, no material is available to substantiate the claim of the defendant. 10. The allegations, that the signatures are very shaky, do not make a substantial attack to the genuineness of the Will being executed under the hand of the testator. Section 63(a) of the Indian Succession Act provides that the testator can sign or affix his mark. Even if the testator is capable of writing but on account of weakness he has unable to put his signature, he can execute the Will by even affixing a mark and thumb impression in such a case is held to be good. Section 63(a) requires a Will should be in writing because it is to be signed or marked by the testator himself or signed by some other person in the presence of the testator or under his direction. A Will, as per Section 63, is also required to be attested by two or more witnesses which requirement has duly been complied with in the present case. 11. In the present case, out of the two attesting witness only Dr. Kedia has come forward to prove the attestation and from his evidence it appears that the other attesting witness has passed away before the probate petition was filed. Under Section 68 of the Indian Evidence Act, it is only one attesting witness, if alive and subject to the process of the Court and capable of giving evidence, has to be called to prove the execution of the document, it would be incumbent on the propounder or the person claiming under the Will to prove that the said document was executed as required under Section 63(c) of the Indian Succession Act. This criteria having been fulfilled in this case, it can be held that the document is the genuine Will of the testator, Mohanlal Goenka. 12. This criteria having been fulfilled in this case, it can be held that the document is the genuine Will of the testator, Mohanlal Goenka. 12. In view of the above evidence, there is no doubt that the propounder has been able to prove the execution of the Will and parameters prescribed under Section 63 of the Indian Succession Act have been duly fulfilled in this case. Therefore, this Court is of the view that the Will of the said deceased is the last and genuine Will and this Court directs that an order may be made granting probate of the last Will and Testament of the deceased, Mohanlal Goenka, in favour of the plaintiff. 13. For the reasons assigned herein, I allow the instant suit and order that probate of the original last Will executed by deceased, Mohanlal Goenka, on 29th January, 1999, shall be granted to the propounder with effect throughout the Union of India and costs and incidental to the probate application shall be paid out of the funds from the estate of the deceased. 14. Department is directed to draw up and complete the decree as expeditiously as possible. 15. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.