K.T. SANKARAN, J.

1. The question which arises for consideration in this Original Petition is:-

"Where a document purported to be a will, but not attested by any witness, is produced by the defendants, whether the court has jurisdiction to reject that document even before it is sought to be proved at the trial of the case."

2. The respondents filed O.S. No. 190 of 2010 on the file of the court of the Munsiff of Wadakkancherry for partition. The petitioner is the second defendant in the suit. The plaintiffs are the children of late Padmanabhan Nair in his first wife. The defendants are the second wife of Padmanabhan Nair and his six children born in the second marriage. The plaint schedule property belonged to Padmanabhan Nair. The plaintiffs claimed share in that property stating that Padmanabhan Nair died intestate.

3. Defendants 1 to 4, 6 and 7 filed a joint written statement and contended that Padmanabhan Nair had executed a Will in favour of his second wife and five children in her. The original will was not produced along with the written statement. Not even a copy of the will was produced by the defendants. The list of documents produced along with the written statement does not contain an entry regarding the will.

4. The plaintiffs averred in the plaint that Padmanabhan Nair did not execute any will as alleged by the defendants in the reply notice sent by them to the plaintiffs.

5. When the suit was listed for trial, the defendants filed I.A. No. 2526 of 2011 seeking to produce several documents including the will allegedly executed by late Padmanabhan Nair. That Will is an unattested and unregistered will.

6. The court below dismissed I.A. No. 2526 of 2011 on the ground that the documents could not be accepted in evidence. Since not even a list of documents was produced along with the written statement, the court below held that under Rule 1 of Order 13 of the Code of Civil Procedure, the documents could not be accepted. Sri Santhosh P. Poduval, the learned counsel for the petitioner relied on the decision in Bhanumathi vs. Sarvothaman, 2010 (4) KLT 809 and contended that the order passed by the court below is unsustainable. In Bhanumathi vs. Sarvothaman, 2010 (4) KLT 809, a learned single Judge of this Court held that if the documents in the possession or power of the defendant on which he bases his defence or relies are not produced along with the written statement, the party has no right as such to produce those documents in evidence at the time of hearing, but in view of Sub Rule (3) of Rule 1 A of Order 8 C.P.C. the court has the power to receive such documents in evidence even at the time of hearing. It is submitted that in the light of the decision in Bhanumathi vs. Sarvothaman, 2010 (4) KLT 809, the view taken by the court below is erroneous.

7. Sri N. Subrahmanian, the learned counsel appearing for the respondents submitted that even if the dictum in Bhanumathi's case is applied to the present case, the order impugned could be sustained on other grounds. The learned counsel submitted that the will in question was not executed and attested in accordance with law. Therefore, the defendants cannot insist that such a document should be accepted by the court. The counsel relied on the decisions in Chaganti Ventaka Bhaskar vs. C. Chandresekhar Reddy, AIR 2010 AP 155, Sanjay Shrikishanji Somani & another vs. Vishnupant Shankarrao Shahane, AIR 2008 (NOC) 58 (Bombay), S. Kaladevi vs. V.R. Somasundaram and others, 2009 (2) MLJ 361, Ranajit Kanungo vs. Ibcon Pvt. Ltd. AIR 1982 Karnataka 219, Mt. Sumitra Kuer vs. Ram Khair Chowbey, AIR 1921 Patna 61 and Dwijesh Chandra Roy vs. Naresh Chandra Gupta, AIR (32) 1945 Calcutta 492.

8. Section 63 of the Indian Succession Act provides for execution of un-privilege in Wills. Section 63 reads as follows:

"63. Execution of unprivileged wills – Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, o