(Prayer: Original Petition filed under Order XXV Rule 4 of O.S. Rules read with Sections 222 & 276 of Indian Succession Act, 1925, praying that he may be allowed to prove the will in common form and that probate thereof to have effect throughout the State of Tamil Nadu Gross Amount Rs.1,50,00,000/- and Net Amount Rs.1,50,00,000/- Suc. duty of Rs.25,000/- paid on 04.11.2022 by C/F D.No.31496/2022.)

1. This Original Petition has been filed under Sections 222 and 276 of the Indian Succession Act, 1925, seeking grant of probate in respect of the registered Will dated 11.10.2011, said to have been executed by late E.V. Prabha Lakshmi. The Will is stated to have been registered as Document No. 108 of 2011 in the file of the Sub-Registrar, Anna Nagar, Chennai. The petitioner is the testatrix's son and claims to be the executor appointed under the Will. The respondent is the testatrix's daughter. The testatrix died on 08.05.2021.

2. The petitioner examined himself as P.W.1 before the learned Master. Through P.W.1, Exs.P1 to P5 were marked. Ex.P1 is the original Will dated 11.10.2011; Ex.P2 is the death certificate of the testatrix; Ex.P3 is the legal heir certificate; Ex.P4 is the property tax receipt; and Ex.P5 is the affidavit of assets showing the net value of the estate as Rs.1,50,00,000/-.

3. Since the attesting witnesses to the Will were stated to be no longer available, the petitioner examined one Alamelu Radhakrishnan as P.W.2. P.W.2 stated that she knew the testatrix and that, during her lifetime, the testatrix had informed her about the execution of the Will. P.W.2 identified the signatures found in Ex.P1 as those of the testatrix. Significantly, P.W.2 did not identify the signature or handwriting of either of the attesting witnesses to Ex.P1.

4. When the matter was taken up on 08.06.2026, this Court noticed the said deficiency. It was specifically observed that, though P.W.2 had identified the signature of the testatrix, there was no evidence identifying the signature or handwriting of any attesting witness. This Court therefore directed the petitioner to place proof regarding the death or unavailability of the attesting witnesses, to examine a person acquainted with the signature of at least one attesting witness, and also to place on record any consent affidavit of the respondent, if available.

5. Pursuant thereto, the petitioner filed an additional affidavit dated 30.06.2026. In the said affidavit, he stated that the Will had been attested by J. Gopi and another witness and that both attesting witnesses had since died. The petitioner sought permission to prove the Will by other evidence under Section 69 of the Indian Evidence Act, 1872. No evidence identifying the signature or handwriting of either attesting witness was, however, produced along with the said affidavit.

6. By order dated 06.07.2026, this Court nevertheless granted the petitioner one further opportunity and directed that the matter be placed before the learned Master for recording further evidence specifically to satisfy the requirements of Section 69 of the Indian Evidence Act, 1872. The further evidence was directed to be completed on or before 29.07.2026.

7. The records thereafter show that there was no representation for the petitioner before the learned Master on 10.07.2026 and 14.07.2026. The matter was adjourned on 16.07.2026, 27.07.2026, and 29.07.2026 to record further evidence, but the parties were not ready to proceed. When the matter came before this Court on 30.07.2026, another opportunity was sought on behalf of the petitioner. Having regard to the opportunities already granted, the request was declined by this Court.

8. A Will is required to be executed and attested in the manner prescribed by Section 63(c) of the Indian Succession Act, 1925. It requires attestation by two or more witnesses. Ordinarily, Section 68 of the Indian Evidence Act, 1872 requires at least one attesting witness to be examined where such a witness is alive, capable of giving evidence and subject to the process of the Court. The statutory proviso dispensing with examination of an attesting witness in the case of certain registered instruments expressly does not extend to a Will.

9. Where no attesting witness can be found, Section 69 of the Indian Evidence Act, 1872 provides the alternative mode of proof. Even under that provision, two distinct requirements remain: first, the attestation of at least one attesting witness must be proved to be in his handwriting; and secondly, the signature of the executant must be proved to be in the handwriting of the executant.

10. The Supreme Court has reiterated that proof merely of the signature of the testator does not amount to proof of due execution of a Will; the statutory requirement relating to attestation must also be established. [Janki Narayan Bhoir v. Narayan Namdeo Kadam, reported in (2003) 2 SCC 91 and Benga Behera v. Braja Kishore Nanda, reported in (2007) 9 SCC 728].

11. Applying the above requirements to the present case, P.W.2 has identified the signature of the testatrix and, to that extent, there is evidence concerning one limb of Section 69. There is, however, no evidence whatsoever identifying the signature or handwriting of even one of the attesting witnesses to Ex.P1. The additional affidavit dated 30.06.2026 does not cure this defect. Even assuming, for the purpose of the present consideration, that the statement regarding the death or unavailability of both attesting witnesses is accepted, the mandatory requirement of proving the handwriting of at least one attesting witness still remains wholly unsatisfied.

12. The fact that Ex.P1 is a registered Will does not dispense with proof of its execution and attestation in the manner prescribed by law. Equally, the petitioner's assertion that the respondent has consented to the Will, and the earlier memo stating that the Will is admitted by both parties, cannot by themselves constitute proof of due attestation. The petitioner's memo dated 23.09.2024 does state that the Will is admitted by both the petitioner and the respondent. However, probate operates as a judgment in rem, and the absence of an inter se contest cannot relieve the propounder of the Will of the statutory burden of proving its due execution and attestation.

13. In fact, the proof affidavit itself stated that a consent affidavit was being filed, but no separate consent affidavit of the respondent forming part of the materials placed before this Court has been shown. Be that as it may, the fundamental deficiency is not the absence of consent, but the failure to prove the attestation of Ex.P1 in accordance with Section 69 of the Indian Evidence Act, 1872.

14. The petitioner was specifically put on notice of this defect by the order dated 08.06.2026 and was thereafter granted a further opportunity by the order dated 06.07.2026 to lead the necessary evidence. No such evidence has been produced despite repeated opportunities. In these circumstances, this Court cannot record the satisfaction required for grant of probate that Ex.P1 Will has been duly proved in accordance with law.

15. Accordingly, the petitioner has failed to establish the Will in the manner required by law and is, therefore, not entitled to the grant of probate. In the result, O.P.No.601 of 2022 is dismissed. There shall be no order as to costs.