Important Points:
• A Will or Codicil attested by legatees alone or the person interested with the legatees who holds a fiduciary relationship with the legatee/legatees would itself amounts to suspicious circumstance attached to its execution, absence of an independent attesting witness to the document is so fatal to the bequest under the document.
• The legislative intention demanding compliance of mandate incorporated both under Section 68 of Indian Evidence Act and Section 63 of Indian Succession Act and their evidence or attestation would stand as self serving, though there is no provision debarring attestation by a legatee as far as an unprivileged Will of a Hindu is concerned.
• Atleast one of the attesting witness should be an independent witness and his examination cannot be avoided if he is capable of giving evidence and amenable to the process of the court for proving the Will or Codicil in accordance with the mandate under Section 68 of the Evidence Act.

The appellant, the defeated plaintiff in O.S.No.22/1991 of the Munsiff's Court, Kanjirapally, and in A.S.No.273/1995 of Addl. District Court, Kottayam, came up with this appeal.

2. The dispute centered around execution of three Wills Exts.A1, A2 and A4 left out by the father of plaintiff. In Ext.A1, the plaintiff is the sole legatee regarding the plaint schedule property. In Ext.A2 there is some modification. In Exhibit A4 Will, an entirely different deposition was made by the testator, hence under challenge. The plaintiff sought declaration that Exhibit A4 Will is invalid, and for declaring his title over the plaint schedule property based on Exhibit A1 Will. A permanent prohibitory injunction was also sought.

3. Both the Trial Court and the First Appellate Court rejected the contention raised by the plaintiff, but upheld the contention of first defendant and found that Exhibit A4 Will is genuine and that it is the last testament of the deceased.

4. There are two attesting witnesses to Exhibit A4 Will – one Raman Nair and one Raghavan Nair. Raman Nair is none else, the first defendant. That Will was executed in favour of the children of the first defendant by giving major portion of property covered by the Will to their share and only a minor portion was given to other legatees.

5. The questions came up for consideration are:

(1) What would the legal effect of an unprivileged Will attested by the legatees alone left out by a Hindu? Can it be said that there is sufficient compliance of requirement as mandated under Section 63 of Indian Succession Act regarding the execution of an unprivileged Will?

(2) What would be the legal effect of Section 67 of the Indian Succession Act on an unprivileged Will left out by a Hindu ?

(3) Whether the examination of a legatee under a Will who is an attesting witness to the Will or Codicil would be a sufficient compliance of the requirement as mandated under Section 68 of Indian Evidence Act ?

(4) Whether the Court below is justified in holding that Exhibit A4 is a genuine one and the last testament of the deceased ?

6. The learned counsel for the respondents relied on a decision rendered by a Single Bench of this Court in Lisamma v. Saramma and Others [2017 (3) KHC 27] in support of his argument that Section 67 of the Indian Succession Act, 1925, has no application on an unprivileged Will or Codicil left out by a Hindu. The question of devolution of successive interest over the asset of deceased testator and the bequest under a testament would come into question only after the death of testator and not before, and that is why the legislature has in its wisdom, incorporated certain mandate to be complied with in the matter of execution and proof of documents showing testamentary succession -Will or Codicil, under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act and there cannot be any dilution of requirement as mandated under both the above said provisions. An unprivileged Will other than that of a Hindu is governed by Section 67 of the Indian Succession Act which makes the bequest under the Will to any attesting witness or his wife or husband or any person claiming under them as void, though the Will deemed to be sufficiently attested and valid in so far as the bequest to other persons are concerned. But it has not been made applicable to an unprivileged Will of a Hindu and there is no prohibition for any legatee to stand as an attesting witness. Then comes the question what would be the validity of an unprivileged Will of a Hindu testator attested only by the legatees in whose favour the Will was executed and whether it would be a sufficient compliance of mandate under Section 63 of the Indian Succession Act. Though there is no prohibition in the Act to stand as an attesting witness by a legatee, the mandate both under Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act would convey the meaning that what is required is the attestation b