JUDGMENT :

SATHISH NINAN, J.

1. This Regular Second Appeal is by the plaintiff in a suit for declaration of title and injunction.

2. The plaint schedule property having an extent of 42 cents belonged to late V. Balakrishnan. The plaintiff is his wife. The defendant is the daughter born to Balakrishnan in his first wife. Plaintiff claims title over the property under Ext.A3 Will dated 26.11.2004 executed by Balakrishnan.

3. The defendant challenged the genuineness of Ext.A3 Will.

4. To prove the Will, the plaintiff examined one of its attestors viz. Velayudhan, as PW2. The trial court held that the evidence of PW2 does not prove compliance with the requirement under Section 63 of the Indian Succession Act. Accordingly, Ext.A3 Will was held against. It was also found that the suit is bad for non joinder of necessary parties viz. the non-impleadment of the other legal heirs of the testator. The suit was dismissed. The decree was confirmed in appeal.

5. Heard learned Counsel Sri.T.M.Chandran on behalf of the appellant-plaintiff and Sri.Sajan Varghese, the learned counsel for the respondent-defendant, on the following substantial questions of law:

“(i) Is the appreciation of the evidence of PW2 the attestor, by the courts perverse?

(ii) Is the finding of the courts that the suit is bad for non-joinder of necessary parties correct in law?

6. Ext.A3 Will is attested by two witnesses-PW2 Velayudhan and one T.Balakrishnan. In terms of Section 68 of the Indian Evidence Act, at least one of the attesting witnesses is to be examined to prove due execution of the Will. In terms of Section 63 of the Indian Succession Act, the signing of the Will by the testator must be followed by attestation of two witnesses who must have witnessed the signing by the testator, or have received personal acknowledgment of execution from the testator. The finding of the courts is that, PW2-the attestor has failed to prove due execution and attestation as required under Section 63 of the Indian Succession Act. The learned counsel for the respondent rely on the judgments in K.M. Varghese and Others vs. K.M. Oommen and Others, 1994 (2) KLT 620 and Balakrishna Pillai and Others vs. G. Nataraja Pillai and Others, 2017 (5) KHC 732 to contend that signing by the testator is to precede the act of signing by the attestors failing which there is no due execution.

7. Before I proceed to discuss on the evidence of PW2, it would be relevant to refer to the background or the circumstances that prevailed at the time of execution of Ext.A3 Will. The testator Balakrishnan V. was aged 86 years. He was being taken care of by his wife-the plaintiff. His daughter, the defendant, had not attended to his needs nor did she care about the welfare of her father. This is admitted by the defendant as DW2, in her cross-examination. The defendant was gifted other properties by the father. Seeking to get possession of the property from her father in respect of the property covered under the gift, she filed a suit against her father as OS 208/1992. The suit was decreed on 14.11.1996. Exts.A14 and A15 are the decree and judgment respectively, in the suit. The sons of the testator were given other properties under Ext.A1 partition deed of the year 1996. It was in the said background that Ext.A3 Will was executed by Balakrishnan. There is no case nor evidence that any property was given to the plaintiff other than that covered under the Will. The above circumstances are of significance while considering the genuineness of Ext.A3 Will. The circumstances would probabilise the execution of a Will by V.Balakrishnan in favour of the plaintiff.

8. Now coming to the evidence of PW2-the witness to Ext.A3 Will, it is to be borne in mind that, the witnesses to execution were themselves the identifying witnesses for registration. Therefore, the witnesses had signed at the time of execution of the Will and also at the time of registration of the Will though in different capacities. A reading of the evidence of PW2 w