Execution of Will not proved.

1. This Civil Revision Petition has been filed by the petitioner/5th defendant against the judgment and decree dated 12.10.2004 made in C.M.A No. 5 of 2004 on the file of the Subordinate Judge, Kuzhithurai, reversing the Order and decretal order dated 13.1.2004 passed in I.A. No. 759 of 1998 in O.S. No. 37 of 1990 on the file of the Principal District Munsif, Kuzhithurai.

2. The short facts of the case is as follows:

The Suit in O.S. No. 37 of 1990 was filed by the legal representatives of one Nesamani for partition and separate possession against the brother of the deceased Nesamani and Ammalu Nadathi, the mother of the defendants 1 to 5 and the deceased Nesamani. It has been admitted that after preliminary decree for partition was passed, the said Ammalu Nadathi passed away. The 5th defendant one of the sons of the deceased, based on a Will alleged to have been executed by the said Ammalu Nadathi filed a Petition to record that he was the sole legal respective of the deceased, Ammalu Nadathi.

3. The Trial Court allowed the Petition filed by the petitioner, 5th defendant against which the respondents 1 to 3 herein, being the plaintiffs in the Suit preferred an Appeal before the Court of Subordinate Judge, Kuzithurai, which reversed the finding of the Court below and allowed the Civil Miscellaneous Appeal, against which the present Civil Revision Civil has been preferred.

4. The learned counsel appearing for the revision petitioner would contend that in order to prove the Will, under Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act, P.Ws.1 to 4 were examined.

5. Section 63(c) of the Indian Succession Act, 1925, reads as follows:

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

Section 68 of the Indian Evidence Act, 1872 reads as follows:

“Proof of Execution of document required by law to be attested.— If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence."

Therefore, it is not disputed by both the learned counsel that in order to prove the Will should have been attested by two or more witnesses and atleast one witness had been examined to prove the execution of the Will.

7. In the instant case, admittedly one of the witnesses to the Will was not alive. The other attester namely, Appavu Nadar has deposed in his chief­-examination that he signed as a witness in the Will and that, he saw Ammalu Nadathi affixing her left hand thumb impression on the Will. But, in the cross-examination, he has stated that he had not signed the Will and he did not see Ammalu Nadathi affixing her thumb impression on the Will. The scribe of the Will one Johnson was examined as P.W.2 who has deposed in his evidence that he wrote the alleged Will on behalf of Ammalu Nadathi, but in the cross-examination, he would depose that he had never seen the said Ammalu Nadathi prior to the date of execution of the Will.

8. The Court below has given a finding in the impugned judgment passed in the C.M.A. that even the revision petitioner, who was examined as P.W.1 had deposed that he did not accompany his mother, Ammalu Nadathi while the alleged Will was executed by her. The Sub-Registrar who registered the Will was examined as P.W.4 and