1. A Will required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if he be alive and subject to the process of Court. Does this statutory mandate apply even while the execution of the Will by the person by whom it purports to have been executed is not specifically denied or expressly admitted? This is the precise question referred to the Division Bench by the learned single Judge for consideration in these Regular Second Appeals arising out of a preliminary decree for partition.

2. The plaintiff and the defendants are siblings and the suit is for partition of the property purchased in the joint names of the plaintiff and her deceased father who has reportedly bequeathed his share, The alleged beqest was under Ext.A2 Will in favour of the plaintiff and the defendants followed by Ext.A3 Codicil allegedly executed to define a pathway to the property bequeathed. There is also a prayer for declaration of right of pathway and consequential prohibitory injunction as well as a counter claim for mandatory injunction for return of gold and almirah. The plaintiff was examined as PW1 and the second defendant as DW1 and none of the attesting witnesses either to Ext.A2 Will or to Ext.A3 Codicil were examined in evidence.

3. The relief of partition was based on Ext.A2 Will and the relief of declaration and prohibitory injunction was based on Ext.A3 Codicil and it is conceded that the defendants did not dispute its execution. The trial court dismissed the suit and partly decreed the counter claim holding the claim for partition as impermissible since the plaintiff had accepted the bequest made under Ext.A2 Will. The lower appellate court in the appeal filed by the plaintiff held that Ext.A2 Will and Ext.A3 Codicil cannot be enforced for want of proof however decreeing the suit for partition. The learned single Judge before whom the Regular Second Appeals filed separately by defendant No. 1 as well as defendant Nos. 2 and 3 came up for hearing felt the need for a reference. This was in view of the conflicting decisions of this court on the necessity to examine one attesting witness at least even if the execution of the Will is not disputed or expressly admitted.

4. We heard Mr. S.B. Premachandra Prabhu, Advocate and Mr. P. Thomas Geeverghese, Advocate on behalf of the appellants and Mr. S. Vinod Bhat, Advocate on behalf of the contesting respondents.

5. It was quite surprising when a Division Bench of this Court for the first time held that the necessity to call for an attesting witness stands obviated unless the execution of the Will or its attestation is in dispute. It was held in Thayyullathil Kunhikannan and Others vs. Thayyullathil Kalliani and Others, AIR 1990 Ker. 226 as follows:-

“Section 68 states that 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 there be an attesting witness alive. The proviso to the Section which was introduced by the amending Act 31 of 1926 makes an exception in the case of any document, not being a Will, which has been registered, unless its execution by the persons by whom it purports to have been executed, is specifically denied. The fact that the proviso is not applicable to Wills, and that it does not make an exception in the case of registered Wills, does not lead to any inference that a Will cannot be acted upon or used as evidence, unless it has been proved by examining an attesting witness. The only effect of the proviso is that registration of the Will by itself does not obviate the necessity of calling an attesting witness to prove it, if it is otherwise required to be proved. The proviso does not speak of a case where a Will is not in dispute. Section 68 relates to those documents which require to be proved at the trial of a suit. If by any rule of law or of pleadings, su