IMPORTANT POINT
The main legal point established is the strict requirements for proving wills under Section 69 of the Evidence Act and the conditional nature of compliance with Rule 228 r/w Rule 230 of the Kerala Civil Rules of Practice.

Second defendant in O.S.No.45/2006 on the files of Sub Court, Thodupuzha is the appellant herein and she assails decree and judgment in the above case dated 28.03.2012, as confirmed in A.S.No.52/2012 on the files of IInd Additional District Court, Thodupuzha, as per judgment dated 20.01.2015. The respondents herein are plaintiffs and defendants 3 to 5.

2. Heard the learned counsel appearing for the appellant/2nd defendant and the learned counsel appearing for plaintiffs 1 and 2, who are respondents 1 and 2 herein. Perused the records of trial court as well as the appellate court.

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, who are the daughters of one late Mathew, filed Suit seeking partition of the plaint schedule property, left by Mathew, who died intestate on 25.12.1993, contending that plaintiffs and defendants viz., Abraham Mathew and Paul (plaintiffs’ brothers) are entitled to get equal shares in the plaint schedule property.

5. The main contention raised by the defendants, inter alia, is that Mathew executed a Will in favour of Abraham and Paul thereby transferred the entire extent of property and no property is available for partition.

6. Trial court ventured the matter. PWs 1 to 4 were examined and Exhibits A1 to A10 were marked on the side of the plaintiffs. DW1 to DW8 were examined and Exhibits B1 to B9 were marked on the side of the defendants. Exts.X1 to X4(c) also were marked as Court exhibits. After appreciating the evidence at length, the trial court found that testator was not having sound mind for execution of Ext.B1 Will and the propounders had not succeeded in adducing satisfactory evidence to dispel the suspicion, surrounding the Will deed. Accordingly the trial court rejected the claim raised by defendants 1 and 2 on the strength of Ext.B1 Will. Consequently, excluding the property covered by Ext.B8 sale deed No.3008/1986 of SRO, Karikode, whereby Mathew sold 1 Acre 2 cents of property to one Philipose, the remaining property ordered to be partitioned in equal shares among the plaintiffs and the legal heirs of Abraham Mathew and Paul. Though appeal was filed and challenged the veracity of the verdict of the trial court, the appellate court also concurred the view of the trial court and confirmed the same.

7. At the time of admission as per order dated 24.11.2015 my learned predecessor admitted this appeal on the questions of law framed in the Memorandum of Second Appeal. Since formulation of substantial question of law is mandatory to admit and hear the Second Appeal substantial questions of law are formulated as under :

(1) Whether Ext.B1 Will is proved as mandated under Section 69 of the Evidence Act?

(2) Whether the present Suit is bad for non joinder of necessary parties, in view of Rule 228 r/w Rule 230 of the Kerala Civil Rules of Practice?

(3) What is the condition precedent to mandate compliance of Rule 228 r/w Rule 230 of the Kerala Civil Rules of Practice?

(4) Whether the trial court and the appellate court overlooked Ext.A6 partition deed to deny 1/3 right over the plaint schedule property belonged to the mother, to Abraham and Paul, relinquished by her?

8. The learned counsel for the 2nd defendant argued that none of the grounds found by the trial court and affirmed by the appellate court to disbelieve the execution of Ext.B1 Will would sustain and the finding that the Will is surrounded by doubtful circumstances could not be justified. The learned counsel dealt with each and every finding of the trial court and appellate court, particularly, referring to the evidence of DW7, PW3, PW1 and DW1.

9. Refuting this contention, the learned counsel appearing for the plaintiffs supported the verdicts of the trial court as well as the appellate court, holding the view that Ext.B1 was not proved properly and the same is in the midst of series of doubtful circumstances. Therefore, Ext.B1, a