The burden is on the propounder to prove compliance with the rules for execution of a Will, and oral evidence from attesting witnesses is necessary to prove its execution.

K.T. Thomas, J.

1. Kunjannam, the mother of the appellant and the respondents, passed away on 30th May 1972. (She will be referred to as the deceased hereinafter). The deceased left behind her a few items of immovable properties. The appellant's case is that the deceased had executed Ext. A-1 Will on 20th December 1971. It is a registered Will. The appellant filed a petition in the lower court for the grant of Letters of Administration with a copy of Ext. A-1 Will annexed thereto. The 1st respondent contested the petition and disputed the legal validity of Ext. A-1. The lower court dismissed the petition and hence the appeal.

2. Appellant and the 1st respondent are the sons and the other respondents are the daughters of the deceased. The properties described in the schedule to the petition as items Nos. 2 to 6 belonged to Thomas, the husband of the deceased who died earlier. Item No. 1 of the schedule belonged absolutely to the deceased. In a suit for partition filed by the 2nd respondent, the deceased was declared to be entitled to 2/10 shares in items 2 to 6. These facts are not disputed.

3. The appellant's case is that Ext. A-1 was executed by the deceased voluntarily and with full testamentary capacity. The 1st respondent who contested the petition has stated in his counter, inter alia, that Ext. A-1 was brought into existence by the appellant by exerting undue influence on the deceased and hence the said document is not enforceable in law. According to the 1st respondent, the deceased had executed another Will (Ext. B-1) on 23rd June 1969 bequeathing all her properties in favour of the 1st respondent, and that is the last testament duly executed by the deceased. He further contended that the deceased was residing with the 1st respondent till 1970 and thereafter he stayed in the appellant's house where she fell ill and died in 1972. The deceased, due to her ill health and old age, was mentally very weak and the appellant could prevail upon her exerting undue influence, to make her sign in Ext. A-1. These are the main contentions advanced by tie 1st respondent.

4. The lower court held that the appellant has not succeeded in removing suspicions surrounding the execution of Ext. A-1. The learned District Judge came to the above conclusion from a variety of factors, such as, the preference town to the appellant in the bequest made in Ext. A-1, the prominent role played by the appellant in the execution and registration of that document, and the absence of adequate reasons for revoking the earlier Will, Ext. B-1. The lower court also found that the appellant failed to prove that Ext. A-1 was executed in compliance with the requirements of section 63 of the Indian Succession Act, 1925 (for short 'the Act').

5. Section 63 of the Act provides that every testator shall execute his Will in accordance with the rules enumerated in the section. It is not necessary to refer to the first two rules because there is no dispute regarding compliance of those two rules. The third rule is incorporated in clause (c) of section 63, which envisages the following three requirements: (i) the Will shall be attested by two or more witnesses, (ii) each of the attesting witnesses should see the testator signing the Will and (iii) each of the attesting witnesses shall sign the Will in the presence of the testator [other details in section 63 (c) are not relevant in this case]. The clause makes it clear that it is not necessary that more than one witness be present at the same time.

6. The evidence in this case consists of the testimonies of P.W. 1, the appellant and P.W. 2 (Lonappan) who is one of the attesting witnesses in Ext. A-1. The document shows that three persons had signed it, besides the testator. They are: P.W. 2 Lonappan, one Bhaskaran and one Thomas the scribe (who is said to be no more). Bhaskaran, was not examined. The explanation is that he was away in one of the Gulf countries. P.W. 1 the propounder of the Will did not say anything