The court affirmed that a Will can be proved by satisfying the attestation requirements of one witness, even if some discrepancies exist in property descriptions under Section 63(c) of the Indian Succession Act.

JUDGMENT :

These appeals arise out of an order of remand passed by the Sub Court, Perumbavoor in A.S Nos.77/2011 and 78/2011 dated 23.07.2014. By the judgment impugned, the First Appellate Court set aside the judgment and decree of the Munsiff’s Court, Perumbavoor in O.S.Nos.113/2009 & 95/2009 dated 29.3.2011 and remanded the suit back for fresh consideration. In these appeals, certain intricate questions pertaining to the interpretation of Section 63 (c) of the Indian SUCCESSION ACT , 1925 read with Section 68 of the Indian EVIDENCE ACT , 1872 have been raised.

2. The brief facts necessary for the disposal of these appeals are as follows:-

O.S No.95/2009 was instituted by the appellants for a prohibitory injunction, restraining the defendants [respondents herein] from trespassing into the plaint schedule property, which they claimed as derived through a Will executed by the 1^st plaintiff’s father, one Issac. The plaintiff in O.S No.113/2009 sought a prayer for declaration of title, recovery of possession, partition, and for a permanent prohibitory injunction. On appreciation of oral and documentary evidence, the trial court decreed O.S No.95/2009 and dismissed O.S No.113/2009. Aggrieved by the judgment and decree, the plaintiff in O.S No.113/2009 preferred two appeals, A.S Nos.77/2011 and 78/2011. The primary dispute involved in the suits is as regards the registered Will No.118/2007 dated 19.10.2007 [Ext.B5], executed by late Issac, the father of the 1^st appellant. Based on the Will, the trial court dismissed the suit for declaration of title filed by the respondent herein and decreed the suit filed by the appellants for permanent prohibitory injunction. The First Appellate Court, however, took a view that the Advocate Commissioner has not identified the property and therefore, the trial court ought not to have decreed the suit filed by the respondent herein. It was further found that, when the Will was attempted to be proved, in terms of the mandate of Section 68 of the Indian EVIDENCE ACT , 1872, attesting witness did not speak about the second attesting witness who attested the Will and therefore, the mandate of Section 63 (c) of the Indian SUCCESSION ACT , 1925 is not complied with and therefore found that the Will is not proved. Accordingly, remanded back the suit for a fresh trial, in accordance with law.

3. In these appeals, the appellants contend that, the order of remand is unwarranted, as it is nobody’s case that, the Will was not proved in terms of Section 68 of the Indian EVIDENCE ACT , 1872. As regards the misdescription of property, it is contended that, the first appellate court did not notice Section 71 of the Indian SUCCESSION ACT , 1925, and that, the identity of a property cannot be the basis for questioning the Will.

4. Heard Shri.P.Thomas Geeverghese, the learned counsel for the appellants and Shri.G.Rajagopal, the learned counsel for the respondents.

5. Shri.P.Thomas Geeverghese, the learned counsel for the appellants contended that in terms of the provisions contained in Section 68 of the Indian EVIDENCE ACT , 1872 the appellants are required to examine only one attesting witness and the mandate having been complied with, the Will stood proved and therefore the trial court rightly decreed the suit. In the memorandum of appeal, the respondent did not have a case that the Will was not proved because of the infirmity in the oral