MFA 73/2002 BEFORE HON’BLE MR. JUSTICE P.K. MUSAHARY.. JUDGMENT AND ORDER (ORAL) Heard Mrs. M. Hazarika, learned counsel for the appellants. There is no representation for the respondents. 2. There is an affidavit filed by the counsel for the appellants to the eff ect that as per the order dated 29.7.2007 passed by this Court, the appellants h ave served the notices upon the respondents by hand and the respondents have als o accepted the same. In spite of notice being served, the respondents have prefe rred not to appear before this Court, nor have they engaged any counsel to appea r for and on their behalf. Hence, it is heard ex-parte. 3. This appeal is directed against the order dated 2.8.2002 passed by the l earned District Judge, Dibrugarh in Misc. (P) Case No.262/2002 whereby the said Misc. (Probate) Case for grant of probate has been rejected. 4. Briefly stated, a Will was executed on 22.12.1992 by Nanda Lal Garodia d uring his life time, in favour of the present appellants and other legal heirs i n presence of witness B.K. Kanoi, ECA one of the attesting witnesses and Dr. D.K . Dutta of Dibrugarh, Assam. The said Nanda Lal Garodia died on 22.9.1993 at his residence. Appellant Shri Om Prakash Garodia and his wife Smti. Manju Devi Garo dia applied for probate before the delegate and learned District Judge, Dibrugar h, which was registered as Misc. (P) Case No.262/2002. The learned District Judg e by the impugned order dated 2.8.2002 rejected the aforesaid application for pr obate. 5. Mrs. Hazarika, learned counsel for the appellants submits that there is no valid ground for rejecting the application for probate inasmuch as there is n o objection from any party to granting of such probate. The legal requirements f or acceptance of the said Will have been fulfilled. She refers to Section 68 of the Indian Evidence Act, 1872, under which it is provided that if a document is required by law to be attested, it shall not be used as evidence until one atte sting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. In the present case, she submits, that Dr. D.K . Dutta, who was present at the time of execution of the Will has been examined as witness No.2 by the Probate Court besides the executor Shri Om Prakash Garodi a. 6. I have carefully gone through the impugned order dated 2.8.2002 passed b y the learned District Judge, Dibrugarh and also the evidence and materials on r ecord. From the impugned order, it is found that the learned District Judge reje cted the probate application only due to variation of date as to the execution o f the vital document, Will, Ext.2 and the person, who drafted the Will, was not examined as a witness. As regards the variation of the date, I have verified the same from Ext.2, which is available in the record. At page 3 of the Will, it h as been clearly mentioned that it was signed on the 22nd day of December 1992. T here is nothing to show that the aforesaid Will was signed/executed on other day . In my considered view, the Court is not to infer any other date except what is recorded on the Will itself at the time of executing the same. The testator of the Will, who was examined himself as witness No.1, has also affirmed the afores aid date. The witness No.2, the doctor, who was present as an attesting witness at the time of execution of the Will clearly stated that he signed the Will in t he capacity of a witness. He also stated that Nanda Lal Garodia put his signatur e on the Will in his presence. The signatures of Late Nanda Lal Garodia have bee n identified, proved and exhibited. It is found that both the testators and at l east, one witness, who was present at the time of execution of the Will, have be en examined as per the requirement of the provisions under Section 68 of the Evi dence Act. There is no legal compulsion that the scribe of the Will must be exa mined for proving the authenticity and/or genuineness of the Will and as such, I do not find any legal bar to accepting the evidence of the executor and the wit ness. 7. Besides, it may be noted that all the legal heirs of the deceased are so n, daughter-in-law, daughters and grand-children. I do not find from the record that any objection has been filed by the legal heirs of the deceased testator. A s stated earlier, no objection has been filed by anybody/party before this Court also. 8. Considering the entire facts and circumstances of the case and also the evidence and materials on record, I find that the impugned order dated 2.8.2002 is unsustainable under the law and the same is liable to be set aside, which I s et aside accordingly. Consequently, the Court of District Delegate and District Judge, Dibrugarh is directed to grant probate, as prayed for by the appellants, under the seal of the Court in the form prescribed under Section 289 of the Indi an Succession Act. 9. Appeal stands allowed. Send down the L.C.R.