IMPORTANT POINT
The burden to prove the execution of a Will and the free will of the testator lies on the propounder. The propounder must establish attestation and remove suspicious circumstances affecting the genuineness of the Will.

JUDGMENT :

A. BADHARUDEEN, J.

1. Plaintiffs in O.S. No. 329/2013 on the files of Additional Sub Court, North Parvur have filed this appeal challenging decree and judgment in the above case dated 29.08.2016 as confirmed by the verdict dated 25.07.2023 in A.S. No. 25/2017 on the files of Additional District Court, North Paravur. Respondents are defendants 1 and 2.

2. Heard the learned counsel for the appellants/plaintiffs on admission. Perused the relevant documents including copy of the Will deed placed by the learned counsel for the appellants.

3. I shall refer the parties in this Second Appeal as to their status before the trial court as ‘plaintiffs’ and ‘defendants’ hereinafter for convenience.

4. Plaintiffs filed the Suit to get partition of the plaint schedule properties A to E, left by Bhargavi Amma, the mother of plaintiffs and defendants on the assertion that Bhargavi Amma died intestate.

5. Defendants 1 and 2 filed written statement and raised contention that no property is available for partition since Bhargavi Amma executed Will deed in their favour on 21.04.1989 and transferred the entire property in favour of the 1st and 2nd defendants.

6. Plaintiff filed replication and disputed the Will, relied on by the defendants.

7. Trial court ventured the matter. PW-1 was examined and Exts.A1 to A8 were marked on the side of the plaintiffs. DW-1 to DW-3 were examined and Exts.B1 to B10 were marked on the side of the defendants.

8. Ultimately trial court decreed the Suit in part allowing partition of plaint D and E schedule properties excluding plaint A schedule property given in favour of the 2nd defendant and plaint B and C schedule properties given in favour of the 1st defendant on the strength of Ext.B1 Will deed. It was found by the trial court that the propounders of Ext.B1 Will proved the same dismounting the doubtful circumstances surrounding thereof. Though appeal filed, the said verdict was confirmed.

9. It is fervently argued by two Advocates appeared for the plaintiffs on two days that Bhargavi Amma was not in a good health condition to travel 12 km from the residence to Chendamangalam, Sub Registry Office to complete the formalities of registration and the attestor of the Will, who was examined as DW-2, is none other than the husband of the 2nd defendant, to justify doubtful circumstances attached to Ext.B1 Will and to hold the same as not genuine.

10. As regards to the mandate to prove the execution of a Will, the law is well settled. On reading Section 63 of the Succession Act with Section 68 of the Indian Evidence Act, it is the mandate that a person propounding the Will shall prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Indian Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness to be called for proving the due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Indian Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. However, Section 68 provides that those who want to prove and establish a Will in a Court of law, to do so, by examining at least one attesting witness even though the Will has to be attested at least by two witnesses mandatorily under Section 63 of the Indian Succession Act. But what is relevant and noteworthy is that one attesting witness examined should be in a position to prove the execution of a Will. To pu