This is an appeal preferred by the plaintiff in O.S.No.377/1996 on the file of the Subordinate Judge's Court, Nedumangad against the judgment and decree dismissing a suit for partition. The brief facts necessary for the disposal of the appeal are stated as follows:

2. Admittedly the plaint schedule property belonged to one Sidhardhan. It is also admitted that Sidhardhan committed suicide. At the time of death of Sidhardhan, he did not have wife and children or his mother. But was survived by his sister - the plaintiff, Soman -D1, Viswanathan D2 and Anirudhan D3. During the pendency, Soman died and his legal representatives are impleaded as D6 and D7, Viswanathan (D2) died and his legal representative is impleaded as D8. It is the case of the plaintiff that on the death of Sidhardhan as per the provisions of the Hindu Succession Act, the property had devolved upon her and D1 to D3 and therefore she is entitled one out of three shares in the plaint schedule property.

3. On the other hand, the defendants would contend that the plaintiff does not have any right in the property of deceased Sidhardhan for the reason that before the death of Sidhardhan, he had executed a Will which is marked as Ext.B10 whereby the plaintiff is not entitled to any share over the property. It is also their case that before Sidhardhan committed suicide, he had written a note in which also he had made mention to disinherit the plaintiff. Before considering the validity of the Will also, the question to be considered is whether deceased Sidhardhan had other legal representatives. It is submitted that Sidhardhan did have another brother, who had died before him. But as per Schedule 2 of the Hindu Succession Act when brother and sister are alive, they take it together and exclude the brother's children. Therefore there cannot be any dispute that if the Will is not there, the property would belong to the plaintiff and D1 to D3 equally.

4. Now about the Will. This unfortunate man lost his wife and child and ultimately he also committed suicide and the so called kith and kin are now fighting for his properties. This shows the way in which the moral standard has come down.

5. Ext.B10 is an unregistered Will. I am conscious of the fact that a Will need not be registered. A perusal of the Will would show that in the last sentence of the Will, name Sidhardhan is written and it is signed. The two attesting witnesses to the document are (1) Nadarajan who is an Assistant in LIC of India and (2) one Sukumara Panicker. Will is to be proved as contemplated under Section 63 of the Indian Succession Act. Under Section 63(c) of the Indian Succession Act a Will has to be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. So, the section mandates that affixing of the signature by the testator has been witnessed by two or more witnesses. It is also an imperative stipulation that each of the witnesses shall sign in the presence of the testator. So it is necessary that there must be evidence to speak that testator had affixed his signature and that the testator had seen both the attesting witnesses affixing their signature in the Will.

6. The learned counsel for the appellant has brought to my notice a decision of the Supreme Court of India reported in Janaki Narayan Bhoir v. Narayan Namdeo Kadam (AIR 2003 SC 761). In that decision, it has been specifically stated that at least one attesting witness has to be called for proving due execution of the Will as envisaged under Section