5.The result inevitably is that Testamentary Suit No. 173 of
2017 must fail. Even if the attesting witnesses give evidence that
they attested that earlier Will, their affidavits and affirmation of
their attestation of the later Will dislodges the earlier one. The
Plaintiff in Suit No. 173 of 2017 cannot lead the evidence of the
same attesting witnesses contrary to their assertions in support of
the later Will propounded in Testamentary Petition 1699 of 2017.
This is a peculiar situation that arises only because the attesting
witnesses to both Wills are the same persons. Had they been different
persons, then each set of attesting witnesses would affirm or attest
to the due execution and attestation of the competing Wills
separately. The two attesting witnesses’ support to the due
execution and attestation of the later Will is not an idle formality.
They are in effect proving the due execution and attestation of the
later Will, i.e., that it complies with the provisions of Section 59 and
63(c) of the Succession Act, 1925. They cannot simultaneously
attest to the due execution and attestation of both the earlier and the
later Wills as each being concurrently valid; their evidence in
support of the later Will displaces their evidence in support of the
earlier Will. Otherwise it would amount to the attesting witnesses
being allowed to approbate and reprobate. Suit No. 173 of 2017 is,
