JUDGMENT

Dr. Mukundakam Sharma, J.

1. Leave granted.

2. The Deed of Will and Gift are the bone of contention between the parties in this appeal. Predecessor-in-interest of the plaintiff and the fifth defendant is one Shri Chathu who had three daughters and a son. He died in the year 1975 leaving behind him the aforesaid son and three daughters and a number of properties.

3. The present appellant was the contesting defendant being the fifth defendant and is a son of Chathu. The respondent No. 1 herein is one of the daughters of Chathu and was the plaintiff in the suit. The suit was filed by her after demise of Chathu contending inter alia that the property left behind by Chathu devolved upon the plaintiff and the defendants equally and therefore they are entitled to one fourth share each. In the plaint, suit property was mentioned as item Nos. 1 to 12. Subsequently, plaintiff also incorporated Item Nos. 13 and 14 in the plaint for division.

4. In the written statement filed by the present appellant, he stated that items 1 to 3 in the plaint schedule property were assigned in his favour by virtue of a document Ext. B1 and items 13 and 14 were assigned in his favour by virtue of Ext. B4. It was his further case that his father Chathu had executed a gift deed on 26.04.1974, Ext. B2, in his favour with respect to items 4 and 5. Also, that his father Chathu had bequeathed properties being item Nos. 6 to 8 and 10 to 12 by executing a Will in his favour on the same day. It was also pleaded that in the Will item No. 9 was set apart to the share of daughters and therefore the properties described as items 1 to 8 and 10 to 13 are not available for division.

5. It was held by the Trial Court that Ext. B2 which is a gift deed and Ext. B3 which is a deed of Will had been properly proved by defendant No. 5- appellant herein and therefore, in terms of Ext. B3 Will, the only item available for division is item No. 9 of the plaint schedule property.

6. As against the said judgment and order passed by the Trial Court an appeal was preferred by the plaintiff. The Appellate Court after hearing the parties passed the judgment and order holding that items 1 to 3 and 13 to 14 are not available for division which are the properties covered by Ext. B1 and B4. However, so far as the other properties are concerned which are covered by Ext. B2 and B3, the Deed of Gift and Deed of Will, it was held that the entire items mentioned therein are available for division.

7. Being aggrieved by the said decision, a second appeal was filed by the fifth defendant, which was heard by the High Court of Kerala. The High Court, however, dismissed the second appeal by the impugned judgment and order which is under challenge in this appeal.

8. It was held by the High Court that execution of both the Deed of Will as also Deed of Gift are shrouded in mystery and therefore it is the responsibility of the fifth defendant to dispel the suspicious circumstances by adducing satisfactory evidences. After appreciation of the materials available on record, it was held that the Appellate Page 3 of 17 Court was legal and justified in coming to a conclusion regarding the suspicious circumstances pertaining to execution of the Will and also execution of the Deed of Gift and that the fifth defendant has failed to discharge the onus.

9. Narration of the aforesaid facts would thus clearly establish that execution of the Gift Deed and also of the Will are held to be suspicious and the genuineness of the same was doubted by the first appellate court as also by the High Court. That the appellant failed to dispel the suspicious circumstances by adducing satisfactory evidences, was held, mainly on the ground that the attesting witnesses to both the documents were not examined.

10. Counsel appearing for the appellant by referring to the provision of Section 68 of the Indian Evidence Act, 1872 (for short `the Act') submitted before us that examination of at least one of the attesting witnesses is mandatory