K. Harilal, J.

1. The substantial question of law that arises for consideration in these Regular Second Appeal is, have not the courts below erred in relying on the evidence, other than the evidence adduced under Section 68 of the Indian Evidence Act, 1872 (hereinafter referred to as ‘the Act’), where any one of the twin requirements under Section 70(1) of the Act was not satisfied.

2. Heard Sri. T. Krishnanunni, learned Senior Counsel for the appellants and Sri. Mathew John, learned counsel appearing for the respondents.

3. Since the parties in these appeals are common and the subject matter and the matters in dispute are same, both appeals are heard together and disposed of, accordingly.

4. The facts necessary for the determination of the substantial question of law alone need be narrated in these appeals.

5. The common appellant in both these appeals is the plaintiff in O.S. No. 413/2000 and the first defendant in O.S. No. 359/2000 on the files of the Principal Sub Court, Kottayam. O.S. No. 413/2000 was a suit for setting aside or cancelling Ext.BI Will allegedly executed by (late) Fr. Mathew Nadackal, who is the brother of the plaintiffs father. O.S. No. 359/2000 was a suit for partition, on the basis of Ext.BI Will, filed by the defendants 1 to 4 in O.S. No. 413/2000. The parties are referred to as in O.S. No. 413/2000. According to the plaintiff, the plaint schedule property therein originally belonged to Rev. Fr. Mathew Nadackal, who is the brother of the plaintiffs father. He was a Roman Catholic priest. He was suffering from various diseases and the plaintiff was looking after him. Since he was a bachelor, he has promised that his property will be given to the plaintiff. At the time of his death, he has lost all his will power and he could not even manage his personal affairs independently. He was admitted for treatment in the Holly Cross Hospital. During his last days, he has no physical or mental capacity to execute a document. On 28.7.2000, the plaintiff came to know that the defendants colluded together and concocted a document styling as a Willi-of Rev. Fr. Mathew Nadackal, which is marked as Ext.BI It is not a genuine Will and it was executed without the knowledge of the testator. Ext.BI Will was concocted for taking undue advantage. It is vitiated by a large number of suspicious circumstances. At the time of execution of the Will, the testator was aged 88 years. There are so many suspicious circumstances surrounding to the Will. Hence, the plaintiff filed the suit and sought for setting aside or cancelling Ext.BI Will.

6. In the written statement, the defendants 1 to 4 and 7 contended that Ext.BI Will is a duly executed and registered one. It was the last Will of Rev. Fr. Mathew Nadackal. At the time of execution of the Will, he had sound disposing mind and he has executed the Will after obtaining sufficient legal advise. They denied the allegation that at the time of execution of the Will, Fr. Mathew Nadackal was physically or mentally incapacitated to execute a Will. According to the defendants, he was having full mental ability to execute the Will. There was no fraud and no undue influence was exerted on him to execute the Will. In short, the testator of Ext.BI Will was physically and mentally fit for executing the Will. The averment in O.S. No. 359/2000 is that Rev. Fr. Mathew Nadackal died on 16.7.2000 and Ext.BI Will has come into force. Even though, specific shares have been allotted as per the Will, the property is in joint possession and hence the property is to be divided as per the terms of the Will. Therefore, the suit has been instituted for partition and for injunction. In the written statement filed by the defendants, they reiterated all the averments in the plaint in O.S. No. 413/2000. Hence, the contentions need not be repeated again.

7. On the rival pleadings, both suits were tried jointly and both the parties adduced evidence, both-oral and documentary, consists of oral testimony of PWs. 1