Proof of a will requires valid attestation and due execution; Section 71 cannot cure failure to examine an available witness.

A will is proved only when attestation complies with Section 63 of the Indian Succession Act, 1925 and at least one attesting witness proves due execution under Section 68 of the Indian Evidence Act, 1872. An attesting witness must establish not only the testator's signature but also valid attestation by the other witness. Section 71 is only a limited safeguard where a summoned witness denies or cannot recollect execution; it does not excuse non-examination of an available attesting witness or cure deficient proof. On the evidence, the scribe was only a writer, not an attesting witness, and the non-examination of the other witness justified adverse inference. The will was therefore not proved, and the suit dismissal was restored.

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Issues: Whether the will was proved in accordance with law by compliance with the mandatory requirements of attestation under Section 63 of the Indian Succession Act, 1925 and proof under Sections 68 and 71 of the Indian Evidence Act, 1872, and whether the High Court was justified in treating the scribe as an attesting witness and in restoring the trial court decree.

Analysis: A will must be attested by two or more witnesses, and proof of execution requires more than proof of the testator's signature. Under Section 68 of the Indian Evidence Act, 1872, at least one attesting witness must be called, but that witness must be able to prove due execution, including attestation in the manner required by Section 63 of the Indian Succession Act, 1925. If the attesting witness examined does not establish that the will was attested by the other witness, the statutory requirement remains unmet. Section 71 of the Indian Evidence Act, 1872 is only a safeguard where a summoned attesting witness denies or does not recollect execution; it does not excuse failure to examine an available attesting witness or permit proof by other evidence when the only attesting witness examined has not proved due execution. The scribe, on the evidence, was only a writer of the document and not an attesting witness. The non-examination of the other available attesting witness also justified an adverse inference.

Conclusion: The will was not proved as required by law, the High Court was wrong in treating the scribe as an attesting witness and in reversing the first appellate court, and the appellant succeeded.

Final Conclusion: The appeal was allowed, the High Court's decree was set aside, and the dismissal of the suit by the first appellate court was restored.

Ratio Decidendi: A will can be accepted in evidence only when at least one attesting witness proves due execution in the manner required by Section 63 of the Indian Succession Act, 1925, and Section 71 of the Indian Evidence Act, 1872 cannot be used to bypass the examination of an available attesting witness or to cure a failure of proof under Section 68.

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