THE HONOURABLE SRI JUSTICE G. KRISHNA MOHAN REDDY C.M.A.No.3064 OF 2003 JUDGMENT: This appeal is filed under Section 384 of the Indian Succession Act read with Order 43 Rule 1 of Civil Procedure Code to set aside the order of dismissal, dated 18-7-2002 in O.P.No.113 of 1995 on the file of the III Additional District Judge, Karimnagar. 2. The appellants herein are the petitioners and the respondents herein are the respondents in the said O.P. For the convenience sake, I refer to the parties as arrayed in the O.P. 3. The O.P. was filed under Section 372 of the Indian Succession Act in respect of 11 Indira Vikaspatrams admittedly amounting to Rs.1,55,000/- left behind by Sarobu Vishvanatham (late). 4. The claim of the petitioner is as follows: The deceased, who was a Pandit died intestate without leaving any issues and the first petitioner happened to be the only legal heir of the deceased. Further, the first petitioner died during the proceedings of the petition and therefore the petitioners 2 to 7 were arrayed as parties to the petition being his wife and children respectively. Hence they are entitled for the issuance of Succession Certificate as prayed for. Further the respondent No.1 is son of brother of 1st petitioner and the respondents 3 and 4 are third parties who came on record as parties to the petition as per orders in I.A.No.454 of 1995 dated 22-08- 1995 on the ground that they got interest in the estate of the deceased. The fifth respondent claims the schedule patras along with other properties on the ground that the deceased executed a will dated 30- 04-1994 bequeathing those properties in his favour. 5. Further, on 15-09-1998, the lower Court allowed the petition granting Succession Certificate as prayed for in favour of the petitioners. Aggrieved by it, appeal No.274 of 1999 was preferred before this Court and by order dated 28-09-1999, this Court set aside the order and remanded the matter to the lower Court for fresh disposal after giving notice to the Deputy Commissioner of Endowments and also after giving further opportunity to the parties to adduce necessary evidence. In fact, subsequently, the fifth respondent was impleaded as a party to the O.P accordingly. 6. Further, on behalf of the 1st petitioner, he got himself examined as PW.1 while he was alive and got marked Exs.A1 to A12. Further, on behalf of the contesting respondents, the 3rd of them got himself examined as R.W.1 and one B. Rama Raju got examined as RW.2 and got marked Exs.B1 to B4. After examining the material on record, it is observed by the lower Court at Para 41 of its order as follows: “In view of the section 63 of Indian Succession Act and also having regard to the settled proposition of Law as has been rendered by the Apex Court as Ex.B.2 was attested by only one witness which is contrary to the statutory obligation as adumbrated in the section 63 of Indian Succession Act 1925 the Will cannot be given much credence. More so, as seen from the testimonies of the witnesses, it is noticed that there are no cordial relationship between the petitioners and deceased, and when he alone was residing, he died in that house then during night time without revealing his death, the deceased was secretly burried. All these circumstances led to have some suspicion on the execution of Will, Ex.B.2. More so, the property covered under this petition is also subject matter of a dispute before Deputy Commissioner in O.A.No.16/95 whereby also Government filed counter claiming property covered under Ex.B.2 belonging to the temple including the property under Ex.A.1 to A.11. Though the execution of Will was not valid under law and also in view of the fact that the dispute is pending before the Commissioner, Endowments Hyderabad in O.A.No.16/95 and in view of the elicit evidence that the said late Sarabu Vishwanatham acquired his properties including A.1 to A.11 only on the income derived from the temple and at the same time, he did not acquire any of his personal property as he was living on the income of temple only, it can be said that the petitioner is not entitled to get the amounts under Ex.A.1 to A.11 in this petition. Accordingly, they are not entitled to get the Succession Certificate as sought for. At the same time, R.5 filed counter. Claim to receive the amounts under Ex.A.1 to A.11 is also negatived at this stage. Their counter claim is also rejected. Accordingly, the petition filed by the petitioner for getting Succession Certificate is hereby dismissed alongwith counter claim of R.5 7. Accordingly, the lower Court dismissed the petition. Hence aggrieved by it, the present appeal has been preferred. There is no dispute that the petitioners happen to be the legal heirs of the deceased subject to the proof of the execution of the Will. Therefore if the Will is proved, then the petitioners are not entitled to the issuance of Succession Certificate as prayed for. On the other hand, if the Will is not proved the petitioners are entitled to the issuance of Succession Certificate as prayed for. 8. Therefore it is sufficient to consider as to- (i) Whether the fifth respondent proved the execution of the Will as per the law and as such it is valid and binding on the petitioners. (ii) Whether the lower Court examined the matter properly and arrived at correct conclusions and its order is sustainable or not? 9. Heard the petitioners’ advocate and no representation is made for the respondent even though the matter is posted today under the caption of dismissal. Hence their arguments are closed. 10. It is the contention of learned counsel for the petitioner that the Will was not attested as contemplated under the Section 63 of the Indian Succession Act and hence it is not valid and that, in spite of the same, the lower Court allowed the claim of the fifth respondent and dismissed the claim of the petitioners and therefore, it is not tenable and there is no dispute that the petitioners happen to be the legal heirs of the deceased and accordingly they are entitled to the relief prayed for. 11. By virtue of Section 63 of the Indian Succession Act, the Will should be attested by at least two attestors and it is a mandatory provision. By virtue of Section 68 of the Evidence Act, it should have been proved by examining at least one of the attestors of the Will. It is very significant to note here that admittedly, the will was attested by only one attestor and therefore it is not valid under law. It is quite surprising that having held that the Will was not attested as per the said provision of law, the lower Court took a view that the Will was proved in view of the evidence adduced. 12. But, the overall circumstances of the case, are not tenable and therefore, the Will is not proved and ultimately the petitioners are entitled to the relief prayed for. 13. For the reasons enumerated above, the appeal is allowed setting aside the order of the lower Court dismissing the plea to grant Succession Certificate in respect of schedule Vikas Patras and therefore, Succession Certificate is granted to the petitioners as prayed for with costs before the lower Court and also before this Court. 14. The appeal is allowed with costs. _________________________ G. KRISHNA MOHAN REDDY, J 17.02.2011 SP HONOURABLE SRI JUSTICE G. KRISHNA MOHAN REDDY C.M.A.No.3064 OF 2003 17-02-2011 SP