JUDGMENT :

SANJAY KAROL, J.

1. Leave granted.

2. Arising out of a dispute pertaining to the execution of the alleged last Will and testament of one Thankam, this appeal challenges the final judgment and order dated 30th November 2022 in RFA No. 298 of 2019 passed by the High Court of Kerala at Ernakulam, that had in turn been preferred against the judgment and decree dated 18th February 2019 in O.S. No. 156 of 2015 delivered by the Principal Sub Court, Thrissur,¹[Civil Court].

3. The facts are that the Thankam was the mother of the plaintiff and defendant nos. 1, 2, 4 and 5 before the Civil Court. She died on 27th August 2011. The Civil Court records that as per the defendant-respondents herein Thankam had executed a registered Will as No.35 of SRO, Ollukara, dated 22nd March 1999 and bequeathed her property to the abovementioned defendant - nos. 1, 2, 4 and 5. The plaintiff-appellant herein had no knowledge of this Will and hence, upon her mother’s death, had filed a suit for partition. It was held that the Will could not be proved in accordance with Section 63 of the Indian Succession Act 1925,²[ISA]. A preliminary decree was passed directing the suit property to be divided into 10 shares and the plaintiff-appellant being entitled to a 2/10th share.

3.1 The defendants approached the High Court. In a judgment of only two paragraphs and three-and-a-half pages, of which more than one page is spent on extracting the reasoning of the Civil Court, the judgment of the Court below has been set aside. That apart, the judgment of the Civil Court has been termed to be entirely lacking in as much as the Court was unable to understand the controversy in issue and the judge has been directed to be sent for training.

“1. The dispute involved is pertaining to the due execution of a registered Will Ext.B1, for which one among the propounders gave oral evidence as DW1 and one of the attesting witnesses was examined as DW2. During the cross-examination, nothing was brought out to discredit either the propounder or the attesting witness. The testator was also introduced before the Sub-Registrar for the purpose of its registration by two witnesses and one among the witness is none else, DW2. In fact, no challenge was raised with respect to the competency of the testator. She died in a motor vehicle accident on 27/8/2011 and the Will was executed 12 years prior to the abovesaid alleged accident. But the trial court on some extraneous consideration found that there is failure to prove the due execution of the Will and hence granted a decree for partition. The relevant portion of the impugned judgment (paragraphs 17 to 22) are extracted below for reference:

“17. The one attesting witness examined in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of Will. To put in other words, if one attesting witness can prove execution of the Will in terms of clause (c) of Section 63 of Indian Succession Act viz, attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will.

18. In the evidence of DW2 it is lacking that execution of the Will by Thankam was witnessed by him and the other attesting witness. Therefore, it cannot be found that the defendants proved execution of the Will by Thankam.

19. In the cross examination DW3 stated unequivocally that Thankam was illiterate and she could not write or read. A document can said to be duly executed only when it is shown that the executant signed the document of his own volition after fully knowing the content of the document and at the time of execution he was capable of forming a rational judgment as to its effect. In the instant case there is no evidence that the content of t