Proof of will requires attesting witness evidence; scribe's testimony cannot cure defective proof in appeal.

Additional evidence in appeal under Order XLI Rule 27 CPC is confined to the statutory contingencies and cannot be used to fill gaps in proof; a belated request made after long delay was properly refused. A will must be proved by compliance with Sections 63 of the Indian Succession Act and 68 of the Evidence Act, including examination of at least one attesting witness where available. The scribe's testimony cannot replace proof by attesting witnesses, because a scribe does not become an attesting witness merely by writing and signing the document. On these facts, the will was not proved in accordance with law.

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Issues: (i) Whether additional evidence could be permitted in appeal to examine an attesting witness to the will. (ii) Whether the will was proved in accordance with law when the attesting witnesses were not examined and only the scribe was examined.

Issue (i): Whether additional evidence could be permitted in appeal to examine an attesting witness to the will.

Analysis: Order XLI Rule 27 of the Code of Civil Procedure, 1908 permits additional evidence only within the limited contingencies stated in the rule, and not to fill lacunae in the case or repair omissions at the appellate stage. The application was moved after a long delay of about ten years from the filing of the appeal, and the explanation for non-examination of the attesting witnesses earlier was not found satisfactory. The Court held that the belated request did not satisfy the statutory conditions for additional evidence.

Conclusion: The request for additional evidence was rightly refused and the issue was decided against the appellants.

Issue (ii): Whether the will was proved in accordance with law when the attesting witnesses were not examined and only the scribe was examined.

Analysis: Section 63 of the Indian Succession Act, 1925 requires due execution and attestation of a will by two or more witnesses, and Section 68 of the Indian Evidence Act, 1872 requires at least one attesting witness to be called to prove execution where such witness is available. The Court reiterated that an attesting witness must sign animo attestandi, and that a scribe does not become an attesting witness merely by having written and signed the document. On the facts, the attesting witnesses were named but not examined, and the scribe's evidence could not substitute for statutory attestation.

Conclusion: The will was not proved according to law and the finding was against the appellants.

Final Conclusion: The challenge to the appellate order failed because the statutory requirements for proving a will were not met and no basis existed to admit additional evidence to cure that defect.

Ratio Decidendi: A will must be proved by compliance with the statutory requirements of execution and attestation, and the testimony of a scribe cannot replace the evidence of attesting witnesses; additional evidence in appeal cannot be admitted merely to fill gaps in proof.

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