The main legal point established in the judgment is the interpretation of attestation requirements for wills under S.63 of the Indian Succession Act and S.3 of the Transfer of Property Act.

1. Karuppan alias Devarajan, the brother of the plaintiff, first married the 1st defendant; and he executed two mortgages in her favour. Subsequently, he married the 8th defendant, the daughter of the 7th defendant, and begot the 9th defendant. He executed a will bequeathing his properties in moieties to the 8th and 9th defendants, and the 7th defendant respectively. A few months after he cancelled that will and executed another will, whereby he bequeathed half of his properties to the 8th and 9tb defendants and the other half to the plaintiff. A few days thereafter he died; and subsequent to his death, the plaintiff filed the suit for redemption of the two mortgages in favour of the 1st defendant. The 1st defendant raised several objections; but both the lower courts decreed the suit for redemption. The 1st defendant comes up in second appeal.

2. One of the questions mooted before the lower courts as well as before me is whether the 1st defendant was validly divorced. Before the lower appellate court the 1st defendant's counsel appears to have agreed that that question need not be considered in this case. Another question raised before the lower courts is whether Devarajan had the right to dispose of all his properties by will. On that question the lower appellate court held that Devarajan had the right, subject to the right of maintenance of the 1st defendant, if any. That finding also is not disputed. The remaining questions for adjudication are whether the will, Ext. A-1 is not valid for the reason that it is not properly attested as required by law; and whether the appellant is entitled to further value of improvements, in case she is to be redeemed.

3. There are two attesting witnesses to the will and the will is also registered. pw. 3 is one of the attesting witnesses; but he deposes that he did not see Devarajan sign the will and that he attested the will at the request of the plaintiff on being satisfied that the signature in the will was that of Devarajan and even that he did, not in the presence of Devarajan. S.63 of the Indian Succession Act provides that a will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will; and that each of them shall sign the will in the presence of the testator. The evidence of pw. 3 does not establish proper attestation as provided in this section. The other attesting witness is not called, because, according to the plaintiff, he is a teacher in a school run by the 1st defendant & therefore he is not likely to give evidence fairly. The complaint against pw. 3 by the plaintiff is also the same.

4. Under S.68 of the Indian Evidence Act, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if one is available. In this case that requirement is complied with; and in such a case, S.71 of the Evidence Act provides that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. Therefore, if there is other evidence available that the attesting witnesses signed the will in the presence of Devarajan when Devarajan himself signed the will or acknowledged his signature, S.71 would have been complied with and the will proved. But there is no such evidence. Even the plaintiff as pw. 2 does not say that he saw the attesting witnesses sign the will in the presence of Devarajan when Devarajan himself signed or acknowledged his signature.

5. The will, as already stated, has been registered. pw.1 is the Sub Registrar who registered the will at the house of Devarajan. He deposes that Devarajan acknowledged the execution of the will and signed in his presence, whereupon he made the registration endorsement and also signed in the presence of Devarajan. He further says that the identifying witnesses also signed in the presence of Devarajan as well a