' The appellant filed an application for grant of probate in respect of will executed by Miss Lily Rose Waters dated 20-10-1964. She bequeathed the property movable and immovable to the Roman Catholic Church except two legacies which were bequeathed to All Muhammad and Dai Safura.
The Bonaventure Paul Bishop of Hyderabad Roman Catholic Church was appointed executor of the will. It was attested by two witnesses and was deposited with the Registrar Hyderabad. She died on 14-4-1975. The sealed cover containing the will was opened, on 7-8-1975 in presence of the duly authorised agent of the executor and it was handed over to him. The respondent entered caveat and filed objections alleging that a subsequent will dated 18-3-1975 was executed by the deceased in his favour out of love and affection as he had served her for more than 39 years. In view of the fact that proceedings had become contentious the probate proceedings were converted into a suit and following issues were framed:
(1) Is the Will dated 20-10-1964 genuine and legal and binding?
(2) Is the plaintiff entitled to the grant of probate?
(3) What should the order be?
' The parties examined their witnesses. The appellant examined the applicant namely Bonaventure Peterpal but none of the attesting witnesses was examined although while filing probate proceeding the affidavit of one of the witnesses namely Father Fulgence Kager was filed stating that the deceased had signed the will. The respondent examined himself and two attesting witnesses to prove the will filed by him. The learned trial Court came to the conclusion that the will in respect of which probate was being sought has not been proved and therefore the suit was dismissed.
' Mr. A. Aziz Khan, the learned counsel for the appellant has contended that as the appellant was fully aware of the signature of one of the attesting witnesses he had proved it and therefore the will which was deposited as far back as in the year 1964 should be treated to be a genuine and proved document. On the other hand Mr. Shahenshah Hussain, the learned counsel for the respondent has contended that under law two witnesses should attest the will and at least one should be examined but none of them has been examined. He further contended that mere deposit of will with the Registrar does not prove it.
So far the first contention is concerned it may be noted that under section 63 of the Succession Act the will is required to be attested by two or more A witnesses. However, the question is whether the document has been proved. The learned counsel for the respondent has referred to section 68 of the Evidence Act which was applicable at that time. According to it if a document is required by law to be attested it shall not be used in evidence until one attesting witness has been called for the purpose of proving its execution provided he is alive and subject to the process of the Court and capable of giving evidence. In order to prove a document required to be attested at least one attesting witness be examined provided he is alive, capable of giving evidence and is within the process of the Court. The failure to call an attesting witness may render the document required to be attested by witnesses inadmissible in evidence. Reference can be made to Karimullah v. Gudar Koeri AIR 1925 All.
56. From the evidence on record it is not established that one attesting witness is not alive or incapable of give evidence or that he is beyond the reach of the process of the Court. P.W.1 has stated that he is in Holland. The learned counsel for the appellant also stated that he is in the Church and therefore could be located and either called in Court or letter of request could be issued for his examination on commission. None of the procedures provided under law were adopted by the appellant. No efforts were made to even look for the other witness whose even name is not known to the appellant much less the address and present whereabouts, However reference can be made to section 69 of the Evidence Act which provides that if no such attesting witness can be found then it must be proved by producing a witness who could testify that the attestion was made by such a witness and he is acquainted with his handwriting. A pre-condition to such C a procedure is that the witness cannot be found. It has not been established that he cannot be found. The evidence is that he is available and can be found in Holland but he has not been examined.
' Therefore the benefit of section 69 cannot be given to the appellant.
' It may be noted that the will was deposited with the Registrar under section 42 of the Registration Act but all formalities as required by sections 43 and 44 were not complied with.
According to section 43 of the Registration Act if' the Registrar is satisfied that the will has been presented for deposit by the testator or his agent then he shall transcribe in Register Book No, 5 the super-scrimption aforestated and note the exact time and date of presentation and receipt and names of persons identifying the testator or his agent on the said book and the sealed cover. After the death of the testator as required by section 45 on application being made, the Registrar after satisfying himself of the death of the testator, may open the sealed cover and cause the contents of the will copied in Book No,
3. After completing this procedure the will is delivered to the nominee of the testator or his representative. A will so deposited and delivered may attract credibility but in no case proof of execution as required by sections 68 and 69 is dispensed with. The provisions of sections 43 and 45 were not complied with by the Registrar. Neither any entry was transcribed in Register Book No, 5 nor the contents of the will were copied on Book No,
3. In these circumstances the deposit of will with the Registrar was meaningless and no credence can be attached to it. The appellant has failed to prove the will. The appeal is therefore dismissed.