A will can be proven valid with the testimony of one attesting witness, provided it meets the statutory requirements of execution and attestation.

1. The defendants, who suffered a decree for recovery of possession and mesne profits, are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court.

2. The suit properties admittedly belonged to one Bharathy Amma. The plaintiffs claimed rights over the property on the basis of Ext.A4 dated 4.4.1997, a Will said to have been executed by late Bharathy Amma. According to the plaintiffs, Bharathy Amma let the defendants reside in two rooms in the building temporarily since they were constructing a house nearby. After the death of Bharathy Amma, even though the defendants were directed to surrender possession of the room, they did not do so. That necessitated the suit.

3. The defendants resisted the suit. According to them, deceased Bharathy Amma was bed ridden about two years before her death. She was unable to move her limbs and could not manage her daily pursuits without the help of someone. The defendants took up the task of looking after Bharathy Amma and as a token thereof, the defendants were orally given permission to reside in the house till the death of the third defendant. According to the defendants, Bharathy Amma was incapable of executing any Will and that the Will now put forward by the plaintiffs is a concocted and fabricated one. Based on these contentions, they prayed for a dismissal of the suit.

4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendants had D.Ws. 1 and 2 examined. Both the trial court as well as the lower appellate court found the Will to be genuine and therefore decreed the suit. The said judgments and decrees are assailed in this Second Appeal.

5. Though several questions of law have been formulated in the Memorandum of Second Appeal, learned counsel appearing for the appellants pressed only one point for consideration at the time of hearing of this appeal. According to learned counsel, there is no evidence or proof of proper attestation of the Will and the courts below were not justified in accepting the Will. Elaborating on his argument, learned counsel pointed out that even though one of the attesting witnesses has been examined, he has not spoken about the attestation of the Will by the other attesting witness. The other attesting witness has not been examined also. Therefore, the Will has to fail. In support of his contention, learned counsel relied on the decision reported in Janki Narayan Bhoir v. Narayan Namdeo Kadam (AIR 2003 SC 761), Benga Behera v. Braja Kishore Nanda (AIR 2007 SC 1975), Rur Singh v. Bachan Kaur (2009(1) KLT SN 48) and Yumnam Obgbi tampha Ibema Devi v. Yumnam Joykumar Singh ((2005) 4 SCC 780).

6. Learned counsel for the respondents on the other hand pointed out that this issue was never raised before the courts below and it is raised for the first time before this court. It is also pointed out that the evidence of P.W.2, one of the attesting witnesses, is clear regarding the attestation of the Will. Her evidence is sufficient to show that the Will has been properly attested by the attesting witnesses. It is pointed out that it is not necessary to examine both the attesting witnesses, and that is not contemplated by the relevant provisions of the Evidence Act. All that the law requires in a case where the Will is relied on is that one of the attesting witnesses will have to be examined to prove

the due execution of the Will and that has been done in the case on hand. The

propounder has discharged the burden cast on him. Learned counsel appearing for the

respondents relied on the following decisions in support of his contention:

i) H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443),

ii) Varghese v. Oommen (1994 (2) KLT 620)

iii) Simon v. George (2003(1) KLT 718)

iv) George v. Varkey (2004(1) KLT 21)

v) Kathrikutty v. V.J. Pappoo (2005(2) KLJ 303)

vi) Da