ORDER : ORDER IN APPEAL: 1. By way of this appeal, the present appellant has challenged the judgment and order passed by the learned Principal Senior Civil Judge, Limbadi allowing Civil Misc. Application No. 8 of 2015 granting probate in favour of the original applicant and the judgment and order passed by the first appellate Court in Regular Civil Appeal No. 16 of 2016 confirming the judgment and order passed by the Principal Senior Civil Judge, Limbadi dated 05.05.2018. 2. As there is concurrent findings of the trial Court as well as first appellate Court with detailed reasons, with the consent of learned advocate for the appellant, this matter is taken up for final hearing. The learned advocate has placed the paper book on record. 3. Brief facts of the present case may be referred as under : The original applicant preferred an application for granting probate on the basis of the Will executed by deceased Bhanbhai Nanbhai Kathi Darbar, husband of the applicant. As per the averments made by the applicant in her application, deceased Bhanbhai Nanbhai Kathi Darbar was her husband and on account of her marriage with the deceased, she had a daughter namely Hemubaben. Her husband was expired on 8th November 1989 at village Dhajala and she herself and her daughter were the legal heirs of the deceased. As per the averments made by her, her husband had executed one registered Will dated 9th March 1989, which was registered with the office of the Sub Registrar at Muli vide Sr. No. 154 and such Will was voluntarily executed by her husband and two witnesses namely Mahendrasinh Mepabhai and Sahdevsinh Jorubhai Parmar witnessed the said Will. Shri Natvarlal L. Dagli, advocate of Sayala had identified the executor on the very same day. That, her husband was previously married with Aaybaben Merambhai of village Loyana and during their wedlock, they had one son and one daughter. But, she had deserted her husband before twenty years and was staying separately at her parental home. With the consent of his first wife, her husband got married with the applicant. That, some property situated in the sim of village Nagdaka, field admeasuring 50 Bigha and huge portion in the immovable property of village Dhajala as well as agricultural land of survey no. With the consent of his first wife, her husband got married with the applicant. That, some property situated in the sim of village Nagdaka, field admeasuring 50 Bigha and huge portion in the immovable property of village Dhajala as well as agricultural land of survey no. 63 paiki admeasuring acre 6-33 guntha known as Khakharaat village Dhajala and one big house known as Thakar temple and entire income of the said temple was given to the first wife of her husband namely Aaybaben and her son Ramkubhai by her husband. That, all the properties were purchased from the independent income of her husband and he was entitled to manage the property by his own way. As per the Will executed by her husband, applicant received all the properties on the basis of the Will. Descriptions of the property, which was given by her husband was mentioned in para 5-A, 5-B and 5-C of the application. That, she was in possession of the property and was staying along with her daughter. She requested to granted the probate of the property as prayed for. 4. A public notice was issued by the Court. Written objections were raised by Shri Ramkubhai. Shri Ramkubhai Bhanbhai objected for granting probate as prayed by the applicant stating that he was the son of first wife of the deceased. That, no divorce was taken from the first wife of the deceased and no consent was granted to marry with the present applicant with deceased Bhanbhai. That, no marriage of deceased Bhanbhai was solemnized. That, as the first wife was alive, as per the law, no status would be availed to any woman as second wife. That, the daughter and son is the legal heirs of the deceased Bhanbhai. That, certain property ie., agricultural field known as Khijadavalu Khetar situated at Dhajala sim bearing survey no. 17 admeasuring acre 6-37 guntha and agricultural land of survey no. 10 admeasuring acre 19-35 guntha situated at village Karadi sim, were purchased by deed dated 25th February 1966 from the income of the temple. That, one another plot admeasuring 561 sqr meter was also purchased from the government from the income of the temple. That, they were the owner of the said property. It was denied that deceased Bhanbhai has executed any Will on 9th March 1989 or any person had witnessed of the Will. That, one another plot admeasuring 561 sqr meter was also purchased from the government from the income of the temple. That, they were the owner of the said property. It was denied that deceased Bhanbhai has executed any Will on 9th March 1989 or any person had witnessed of the Will. Necessary procedure of executing Will was not followed by the deceased, as he was not competent to execute the Will. That, mental as well as physical condition of the deceased on the date of alleged execution of Will was not fair as he was not competent to execute the Will or was not having any conscious state of mind about managing his property. That, in fact, before one year from the date of execution of the Will, deceased was sick and was unconscious since last one year. That, the alleged Will was not executed voluntarily or in sound condition. That, the bogus Will was executed by the applicant herself only for her interest. That, no property was inherited to the applicant or her daughter. That, in the revenue record the name of the applicant as well her daughter were wrongly entered. That, after objecting before the revenue authority by this opponent, the disputed property as was in possession of the opponent, the disputed entry was not certified. That, the applicant is not entitled to grant any relief as prayed by her. That, after passing of 10 years of the deceased, no such fact was disclosed by the applicant about execution of Will. That, property in dispute in the alleged Will was not self acquired property of the deceased Bhanbhai Kathi and he had no right to manage the property by executing the Will. That, no probate can be granted in favour of the applicant as the Will was not legal or voluntarily executed by executor and requested to dismiss the application. 5. Heard learned advocate for the appellant. 6. It was submitted by learned advocate for the appellant that there was a clear breach of Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act. That, witness Mahendrasinh has not stated in his deposition about other witnesses, who had signed in the Will in presence of the testator. That, the Will allegedly executed in favour of the original applicant dated 9th March 1989 was never proved by the applicant producing the cogent evidence. That, witness Mahendrasinh has not stated in his deposition about other witnesses, who had signed in the Will in presence of the testator. That, the Will allegedly executed in favour of the original applicant dated 9th March 1989 was never proved by the applicant producing the cogent evidence. That however, both the Courts have committed grave error in accepting the version in evidence of the applicant. In support of his arguments, learned advocate for the appellant placed reliance in case of Yumnam Ongbi Tampha, Ibemma Devi v. Yumnam Joykumar Singh, reported in 2009 (0) AIJEL-SC 43093 and argued that the execution and attestation of the Will was never proved and other witness has never stated about the signature of witnesses signed in the Will in presence of the testator, and therefore, it cannot be relied upon. Ultimately, it was requested by learned advocate for the appellant to quash and set aside the judgment and order passed by the first appellate Court and trial Court. 7. However, this appeal was placed for hearing at admission stage, considering the fact that trial Court as well as first Appellate Court has concurrently found the substance in the prayer made by the appellant, with the consent of learned advocate for the appellant, this appeal is taken up for final hearing. 8. Learned advocate for the appellant, at this stage, produced the paper book of the documents, relied upon by the trial Court. 9. Having perused the record of the trial Court, arguments advanced by the learned advocate for the appellant, it appears that the learned trial Judge, after recording the evidence, allowed application by reasoned order dated 14th August 2016 granting probate in favour of the applicant. That, the appellant preferred Civil Misc. Appeal No. 1 of 2007 before the court of learned District and Sessions Judge, Surendranagar, wherein on 07.09.2007, as per the order passed below Ex. 6, the order dated 14th August 2006 was stayed. That, Civil Misc. Appeal No. 1 of 2007 was renumbered as Civil Misc. Appeal No.24 of 2012 and the matter was remanded and issues were framed by the appellate Court. Civil Misc. Application No.19 of 2002 was renumbered as Civil Misc. Application No. 8 of 2015, which was allowed on 23rd August 2016. Again, Civil Misc. That, Civil Misc. Appeal No. 1 of 2007 was renumbered as Civil Misc. Appeal No.24 of 2012 and the matter was remanded and issues were framed by the appellate Court. Civil Misc. Application No.19 of 2002 was renumbered as Civil Misc. Application No. 8 of 2015, which was allowed on 23rd August 2016. Again, Civil Misc. Appeal No. 16 of 2016 was preferred before the appellate Court wherein on 17th March 2017, stay was granted till final hearing of the appeal. The learned Appellate Court, on 5th May 2018, was pleased to dismiss the appeal preferred by the appellant and confirmed the order passed by the trial Court granting probate to the applicant. 10. Learned advocate for the appellant has mainly relied on Section 68 of the Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925 and argued that document Will was required to be attested and it should be proved by examining the attesting witness alive. It was further submitted that each witnesses almost seen the testator signed or affixed his mark to the Will in his presence and by direction of the testator would also require to be proved by the applicant. It is submitted that this part is not proved by the applicant, and therefore, execution of Will cannot be considered in evidence. 11. If we consider the Will produced on record vide Ex. 78, it appears that the Will was duly registered before the office of the Sub Registrar, Muli on 9th March 1989. There were two attested witnesses namely Mahendrasinh Merubhai Parmar and Sahdevsinh Jorubha Parmar. A Will was produced by Shri Natvarlal Dagli, advocate under his signature. It appears from the record Ex. 77, an attesting witness in the Will namely Shri Mahendrasinh Merubhai Parmar was examined before the trial Court. While showing the document Will mark 11/4, he has identified his signature at page no. 7 stating that in his presence, Bhanbhai Nanbhai had made his signature. At page no. 7 of the document, he has identified the signature of the testator along with signature of Natvarlal Dagli, advocate. He further stated that at the time of registration of the Will before the registrar office, Bhanbhai Nanbhai was present. In his cross examination, he has admitted that contents of the document was not known to him and under the instruction issued by Shri Natvarlal, he had made his signature. He further stated that at the time of registration of the Will before the registrar office, Bhanbhai Nanbhai was present. In his cross examination, he has admitted that contents of the document was not known to him and under the instruction issued by Shri Natvarlal, he had made his signature. True that the contents were not known to this witness, the testator has made his signature in the Will in presence of this witness in the office of the Sub Registrar, no questions were asked in the cross examination of this witness in respect of status of mind or incompetency of execution of Will by the testator. There was no evidence available before the trial Court in respect of mental status of the deceased Bhanbhai. At the time of execution of Will Ex. 78 or he was sick before one year since the execution of the Will. 12. Another witness Labhshankar Ukaradabhai (Ex. 44) has also supported the statement of the applicant that the applicant was staying with the deceased and his care was taken by the applicant. In his cross-examination also, not a single question was put in respect of the mental or physical condition of the deceased Bhanbhai. If we consider testimony of another witness Santarambhai (Ex.45) he has not disclosed of mental and physical condition of the deceased. In fact, there was no evidence produced before the trial Court regarding physical and/or mental condition of the deceased Bhanbhai at the time of execution of Will. 13. If we can consider the deposition of attesting witness Ex. 77, it is nowhere found that he was not competent or fit to execute a Will Ex. 78. On the contrary, in the document Ex. 78, it was clearly stated by the executor that in conscious state of mind, considering his interest as per his desire and considering love and affection towards his wife and daughter, without any pressure, in a sound state of mind, Will was executed by him. It was the duty of the present appellant before the trial Court to prove that deceased was not fit or competent or unable to execute a Will on account of his mental or physical condition. But, no evidence was led by the opponent. 14. It was the duty of the present appellant before the trial Court to prove that deceased was not fit or competent or unable to execute a Will on account of his mental or physical condition. But, no evidence was led by the opponent. 14. Section 63 of the Indian Succession Act defines that a Will would require attestation by one or more witnesses and each of whom would see the testator sign or affix his mark to the Will. Here, one witness was examined by the applicant. Another attesting witness of the Will was expired, and therefore, the Will was rightly proved by the applicant. 15. Under Section 68 of the Indian Evidence Act, the Will Ex. 78 was required to be attested by law and applicant has called for the purpose of proving its execution by one attesting witness as he was alive. Another attesting witness was not alive, and therefore, he was not available to examine before the Court. Section 68 of the Indian Evidence Act also provides that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless its execution by the person by whom it purports to have been executed in specifically denied. 16. Here, Will was required to be attested by two witnesses and one attesting witness was examined by the applicant, no other question was asked in cross examination of this witness or witnesses examined by the applicant in respect of the mental and physical condition of the deceased. 17. In case of Yumnam Ongbi Tampha, Ibemma Devi v. Yumnam Joykumar Singh, reported in 2009 (0) AIJEL-SC 43093, contention was raised that there was no execution of Will much less in accordance with law. In Appeal, High Court concluded that PW-2 failed to testify anything regarding alleged due execution and attestation of Will. It was held that attesting witness should speak not only about testator’s signature or affixing his mark to Will but also that each of witnesses had signed the Will in presence of testator, having failed to do so, grant as claimed cannot be allowed. 18. It was held that attesting witness should speak not only about testator’s signature or affixing his mark to Will but also that each of witnesses had signed the Will in presence of testator, having failed to do so, grant as claimed cannot be allowed. 18. Here, Will was duly registered with the office of the Sub Registrar, Muli and attesting witness Mahendrasinh has supported the execution of Will in his presence by the deceased. Other witnesses examined by the applicant have also supported the case of the applicant. Hence, this Court is of the view that trial Court as well as first appellate Court has committed no error in granting probate as prayed for by the applicant and confirmed by the first appellate Court. As there is no substantial questions of law, present appeal stands dismissed and accordingly, disposed of. ORDER IN CIVIL APPLICATION: 19. In view of dismissal of Second Appeal, there shall be no order in this application. 20. Civil application stands disposed of accordingly.