IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 222 of 2011 Date of decision : 17.10.2011. Shashi Goyal … Appellant. Versus General Public …Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Appellant.: Mr. K.D.Sood, Advocate. For the Respondent : None. Deepak Gupta, J.(Oral) 1. This appeal by the original petitioner Shashi Goyal is directed against the order of the learned District Judge, Sirmaur at Nahan in Succession Petition No. 01-IS/5 of 2010 whereby he dismissed the application filed by the petitioner for grant of probate in respect of the Will allegedly executed by deceased Mahant Shri Godawari Giri in his favour on the ground that the Will had not been legally proved in accordance with Section 68 of the Evidence Act. 2. In my view the order of the Court below is correct inasmuch as the attesting witnesses had not been examined and therefore, the learned Court below was justified in 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 holding that the Will had not been proved in accordance with law. 3. Alongwith the appeal, the petitioner has filed an application that the counsel of the petitioner was not aware that an affidavit of the attesting witnesses is required, under the provisions of the Indian Succession Act alongwith a petition seeking probate of the Will. The petitioner expected his counsel to advise him properly in the matter but the counsel did not advise the petitioner to examine any of the two attesting witnesses. In this application it is stated that both the attesting witnesses are alive and their affidavits have been filed alongwith this application stating that they have signed the said Will as attesting witnesses. 4. This Court is not going to the question as to whether the affidavits filed are correct or not. However, it is apparent that these witnesses were not examined because the counsel who was handling the case did not advise the petitioner to examine the witnesses. It is apparent that the counsel was not aware that the attesting witnesses had to be examined. In a petition for grant of probate in respect of a Will the law requires that the affidavit of at least one of the attesting witnesses, if alive, should be filed alongwith the petition. No petition for probate of the Will could have been entertained without such an affidavit and should have been returned on this short ground. 5. Be that as it may, since the affidavits have now been placed on record and there is no other claimant to the 3 property of late Shri Godawari Giri, I am of the considered view that this appeal should be allowed in the interest of justice and also on account of the fact that the petitioner has been able to show that the witnesses were not examined due to lack of proper advice given by his counsel. 6. Therefore, the present appeal is allowed. The order of the learned Court below is set-aside and the matter is remanded to the learned court below for decision afresh. One opportunity shall be given to the petitioner to examine the attesting witnesses and thereafter the Court below shall decide the matter in accordance with law. The petitioner is directed to appear before the learned Court below on 21st November, 2011. The Registry is directed to send back the records of the case so as to reach well before the next date. No costs. 17th October, 2011 ( Deepak Gupta ) ™ Judge