The main legal point established in the judgment is the mandatory requirement of examining at least one attesting witness and the relaxed manner of proof in case of unavailability of attesting witnesses when proving the execution of a will.

Venugopala Gowda, J.

This appeal arises from a suit for partition brought against the appellants by the respondent and another in the Court of Principal Civil Judge (Sr. Dn.), Kolar. Defendants in the suit are the appellants and respondent (dead) represented by her legal representatives, was the 1st plaintiff For the sake of convenience, the parties will be referred to hereinafter, with reference to their rank in the suit.

.2. The material facts in regard to the relationship of the parties, which are not in dispute are that, one Muniyappa and his wife Nasamma, who have died, have left behind three daughters namely, (1) Venkatamma (1st plaintiff) (2) Chinnamma (2nd plaintiff) and (3) Giddamma (1st defendant). Said Venkatamma and Chinnamma filed the suit for a decree of partition and separate possession of their 2/3rd share in the plaint schedule property against their sister Giddamma and her son B. Nanjappa, inter alia contending that, the second defendant is attempting to alienate the suit property without effecting partition and allotting the shares to them. Defendants in their written statement, disputed

.the right and claim of the plaintiffs inter alia contending that, the suit property belonged to Nasamma, who bequeathed the same in favour of the 2nd defendant under a will dated 10.11.1960 and after her death, the 2nd defendant became the owner and he is in possession and enjoyment of the same, in view of which, the suit for partition is not maintainable.

2. 3. During the pendency of the suit, Chinnamma, the 2nd plaintiff passed away, her legal representatives were not brought on record and the suit as far as she was concerned, stood abated. On the basis of the pleadings, the learned Trial Judge framed issues. Plaintiffs examined PW- 1 and Exs.P1 to P3 were marked and the defendants examined DWs 1 to 3 and Exs.D1 to D10 were marked. The learned Trial Judge has held that, the defendants have failed to prove that Nasamma executed the will – Ex.D1, in respect of the suit land in favour of the 2nd defendant and consequently, the plaintiffs are having 2/3rd share and they are entitled to partition and separate possession of their 2/3rd share in the suit land.

3. 4. As against the said decree, defendants preferred an appeal in the lower Appellate Court. Considering the record and the rival contentions, the lower Appellate Court raised the points for consideration and it held that, the defendants have failed to prove the execution of will – Ex.D1 and that the plaintiffs are entitled to a share. Taking into consideration, the abatement of the suit in so far as the 2nd plaintiff was concerned, the decree passed by the Trial Court was modified holding that, the plaintiffs together are entitled for half share and possession. The appeal was allowed in part, by modifying the Judgment and Decree passed by the Trial Court.

4. 5. Against the Decree passed by the lower Appellate Court, this second appeal has been filed, inter alia contending that, the Courts below are not justified, in not properly considering the contention that the property in question belonged to Nasamma, who had validly executed the will bequeathing the same under Ex.D1 in favour of the 2nd defendant, consequent upon which, the suit for partition was not maintainable and the suit ought to have been dismissed. It has also been contended that, in view of the death of the attestors and the scribe, DW-3 who was the son of the scribe, having been examined and that he having identified the signature of the scribe and the handwriting on the document, the execution of Ex.D 1 has been proved and non consideration of the said material aspect by the Courts below in the proper perspective has resulted in the impugned Decrees being illegally passed and hence, interference is called for.

.6. Sri.Y.R. Sadasiva Reddy, learned Advocate appearing for the appellants, by taking me through the impugned judgments of the Courts below, strenuously contended that, the will — Ex.D1 e