A. Hariprasad, J.

1. This second appeal raises an important question regarding the application of Section 67 of the Indian Succession Act, 1925 (in short, "the Act") in respect of a Will said to have been executed in favour of the appellant, who is the 1st defendant in a suit for partition.

2. The substantial questions of law arising for consideration are thus :

(i). Is the interpretation placed on Section 67 of the Indian Succession Act, 1925 by the lower appellate court legal and proper?

(ii). Has not the scribe of Ext.A2 attested the Will with necessary animus?

3. Heard the learned Senior Counsel appearing for the appellant. I have carefully perused the impugned judgments and the disputed Will, viz., Ext.A2.

4. Plaintiffs and defendants are sisters. Their father Paily died on 17.10.2005 and mother Saramma died on 17.12.2007. Parties are Christians governed by the Act. Plaint schedule properties belonged to deceased Paily. He executed a Will in respect of the properties in the year 1986, which is marked as Ext.A1. On the death of Paily, the properties devolved on his wife as per Ext.A1 Will. Saramma died intestate and after her death, the properties devolved on the plaintiffs and defendants. Since the defendants were not amenable for a partition, the suit is filed for division of the properties.

5. Appellant/1st defendant filed a written statement contending that the suit property is not available for partition. According to her, their mother Saramma did not die intestate. She had executed Ext.A2 Will on 27.05.2007. Admittedly, Ext.A2 is an unregistered document. As per Ext.A2, the scheduled property was bequeathed in favour of the 1st defendant and therefore, it is not partiable.

6. Trial court, after considering the documentary and oral evidence, found that suspicious circumstances surrounding Ext.A2 Will could not be effectively dispelled by the propounder. Further, it found that the disposition by Ext.A2 Will did not take effect by virtue of the provisions under Section 67 of the Act. For these two reasons the suit was dismissed. Lower appellate court also concurred with findings of the trial court and dismissed the appeal.

7. Learned Senior Counsel argued that the courts below erroneously applied the principles under Section 67 of the Act to the facts of this case.

8. Before dealing with the said contention, I shall discuss the legal principles in Section 67 of the Act. Section reads as follows:

"Effect of gift to attesting witness.- A Will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband, but the bequest or appointment shall be void so far as concerns the person so attesting, or the wife or husband of such person, or any person claiming under either of them.

Explanation.-A legatee under a Will does not lose his legacy by attesting a codicil which confirms the Will."

On a careful reading of the Section, following matters will be clear:

(i) A Will shall not be deemed to be insufficiently attested by reason of any benefit given to any person attesting it.

(ii) The benefit can either be by way of a bequest or by way of an appointment (like executor, administrator, etc.)

(iii) No deemed insufficiency in attestation, even if such a benefit is given to any person attesting it or to his or her wife or husband, as the case may be.

(iv) However, the bequest or appointment shall be void so far as it concerns the person so attesting, or the wife or husband of the attestor, as the case may be, or any person claiming under either of them.

9. The sum and substance of the Section is that merely for the reason that a beneficiary has attested a Will, the document will not become void ipso facto. If any benefit is given to the attestor by way of a bequest or by way of an appointment, he will not get any right as that bequest or appointment shall be void insofar as he is concerned. Not only that th