The existence of a will can be confirmed through admissions made in prior litigations and the presumption under S.90 of the Evidence Act, even if the mandatory requirements of S.68 of the Evidence Act are not fully complied with.

1. First defendant in O.S. 5 of 1981 of the District Court, Kottayam is the appellant. The first respondent-plaintiff filed O.P. 55 of 1980 under S.278 of the Indian Succession Act for the grant of Letters of Administration with the copy of the will annexed. As the petition became contentious it was converted

into a suit.

2. The case of the plaintiff is that deceased Augusthy Thommen executed Ext.Al will on 24-12-1114 M.E. in the presence of attestors, that he died on 8-1-1115 M.E., that the will was subsequently registered in 1118 M.E. and that the plaintiff should be granted Letters of Administration with the copy of the will annexed. First defendant disputed the genuineness of the will. The District Judge granted Letters of Administration in favour of the plaintiff.

3. Ext.Al will was attested by four witnesses. Except Augusthy Antony, the first witness in Ext.Al other attesting witnesses are not alive. P.W.1 stated that the witness Augusthy Antony is aged 90 years, that he is unable to walk and that his power of speech has been impaired. Twice summons were taken to the witness. On the first occasion the summons was returned stating that the witness was not residing permanently in the place shown in the summons. On the second time the summons was returned stating that the witness had gone somewhere. Thus, it can be seen that the plaintiff had taken steps to examine the sole surviving witness. Contention of the defendant is that non-compliance of the mandatory requirements of S.68 of the Evidence Act disentitles the plaintiff to any relief in the suit.

4. S.68 of the Evidence Act provides that documents required by law to be attested shall not be used as evidence unless one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.

5. Counsel for the defendant submitted that the plaintiff ought to have taken out a commission to examine the witness Augusthy Antony and as nothing of that sort was done the Court below ought to have drawn necessary adverse inference against the plaintiff. Plaintiffs counsel argued that in view of the categoric admissions of the will in prior litigations defendant is estopped from adopting diametrically opposite posture.

6. O.S. 204 of 1951 was filed by the present plaintiff against Kathri (daughter of testator and mother of the first defendant) and wife of the testator. Ext. A3 is the certified copy of the written statement in that suit. In Para.4 of Ext.A3 they admitted the will and stated that the right of plaintiff is subject to the terms and conditions in the will. O.S. 4 of 1124 M.E. was filed by Kathri against the present plaintiff asserting her rights in accordance with the will. As per Ext.Al will Kathri was given life interest in the properties. Ext. A5 is the decree in O.S. 4 of 1124 M.E. The decree discloses that Kathri had filed the suit on the strength of the will executed by her father. O.S. 177 of 1975 is a suit filed by the plaintiff against the first defendant. In Para.3 of Ext.A2 written statement in the above suit appellant (first defendant) has admitted in unequivocal terms that he and his mother have been residing in the property and keeping possession of it in accordance with the will. Exts.A2, A3 and A5 would clearly establish the genuineness of Ext. Al will. As the existence of the will has been admitted in Exts.A2, A3 and A5 the plaintiffs failure to examine the sole surviving attesting witness cannot be held to be detrimental to his case.

7. The burden is on the propounder of the will to prove its due execution by examining at least one of the attesting witnesses. As the will is admitted by the defendant in prior judicial proceedings (Ext.A2) plaintiff's failure to examine the attesting witness can in no way be deleterious to his case. An admission is really a statement of fact which will have the effect of dispensing with the prod