IMPORTANT POINT
A Will can be validated by the testimony of one attesting witness if it meets the statutory requirements, even if the other witness is unavailable or does not support the execution.

JUDGMENT :

C.S. SUDHA, J.

1. Are both the attesting witnesses in a Will required to attest simultaneously? Is it mandatory that one attesting witness testify regarding attestation by the other witness also? What should be the course followed in case the testimony of the attesting witness/witnesses is found unsatisfactory or when attestation is denied, or they fail to recollect the execution of the document? Is the propounder left with no or any remedy? These questions inter alia arise for consideration in this appeal.

2. This appeal has been filed by defendants 1 to 3 and 5 against the judgment dated 23/09/1996 on the file of the Subordinate Judge's Court, Kozhikode. The respondents are the plaintiff and defendants 4 and 6 to 9. The parties in this appeal will be referred to as described in the suit.

3. Initially, the appeal came up before a Division Bench of this Court. One learned member of the Bench upheld the impugned judgment and dismissed the appeal, whereas the other learned member, allowed the appeal and set aside the impugned judgment. The last paragraph of the said judgment dated 12/10/2010 reads:

“Since we have delivered two separate judgments, one confirming and another setting aside the judgment and decree of the trial court and since the proviso to Section 98(2) of the C.P.C. does not apply, we confirm the decree passed by the court below and the appeal shall stand dismissed.

There will be no order as to costs.”

3.1. The matter was taken up by the defendants before the Apex Court. By order dated 14/01/2020 in Civil Appeal No. 201 of 2005, the matter has been remanded to this court. The relevant part of the order reads:

“C.A. No. 201 of 2005

The issue involved in this appeal is already answered by the Constitution Bench of this Court vide judgment dated 25.02.2016 passed in Civil Appeal Nos. 201 of 2005 and 8576 of 2014. As a result, the parties will have to be relegated before the High Court for hearing of the remanded appeal by the third Judge as required in terms of Section 23 of Travancore-Cochin High Court Act, 1125. We order accordingly. The appeal and pending applications are disposed of in the above terms. We make it clear that we have not expressed any opinion on the merits of the controversy. All contentions available to both sides are left open.......”

Thus, the matter has come up before me.

4. The plaintiff and defendants 2 to 5 are the children of late Pulparambil Raru. The first defendant is the wife of Raru. Defendants 6 to 9 are the wife and children of a pre-deceased son of Raru. Plaint B schedule properties were acquired by Raru as per various documents. The C schedule are the movables that belonged to Raru, and D schedule is the cash Raru had at the time of his death. Raru passed away on 19/09/1992 and hence the plaint schedule properties have devolved on the plaintiff and defendants 1 to 9. The plaintiff and defendants 1 to 5 have 1/7 share each in the property. Defendants 6 to 9 jointly have 1/7 share in the property. The third defendant is now looking after the properties on behalf of all the co-owners. The plaintiff sought partition of his share by issuing a notice to the third defendant who has sent a reply raising untenable contentions. The contention in the reply notice that the deceased had executed Ext.B12 Will dated 01/11/1989 is false and incorrect. Raru did not have the testamentary capacity to execute a Will. Raru was laid up from 19/10/1989 onwards and he had not executed any Will on his own free will as contended by the third defendant. Even if there was any such Will, it was executed under undue influence and fraud of the third defendant and without Raru understanding the contents of the document.

5. Defendants 1 to 7 filed a joint written statement admitting the title of Raru in respect of plaint B schedule properties. However, according to them the C schedule movables never belonged to Raru. Almost all the items scheduled therein exclusively belong to the third defendant, who has a ‘kopra’