JUDGMENT: The first defendant in O.S.No.94 of 1983 on the file of the District Munsif Court, Paramakudi, has preferred this Appeal, against the decree and judgment dated 30.11.1987 made in A.S.No.26 of 1987 on the file of the learned Subordinate Judge, Ramanathapuram at Madurai.

2. The first respondent/ plaintiff filed the suit for declaration and injunction restraining the defendants from interfering with the plaintiff’s possession and enjoyment of the suit properties. The plaintiff contended that she was the only daughter of Coori Konar and thereby become entitled to the suit properties. But the appellant/ first defendant herein contended that she is entitled to the entire item 1 and half share in items 2 to 5 of the suit properties, being the daughter of the same mother Rakkayee Ammal through Sathappan. The appellant herein relied upon a Will dated 10.1.1958 marked as Ex.B-1. Though the Will was exhibited and marked without any objection, it was not duly proved by the defendant about the execution and attestation of B-1. Though the Will is a registered document, the due execution, attestation and registration of the three different acts, one follows the other. Sec.68 of the Evidence Act reads as under:

“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 atleast 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 going evidence.

”(Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied).“

Proviso states that it is not necessary to call the attesting witness in proof of execution of any document, if the same has been registered in accordance with the provisions of Indian Registration Act, 1908, unless its execution is specifically denied. Even the said exemption is not available in the case of Will as the execution and attestation have got to be proved.

3. The word”attested“is defined under Sec.3 of the Transfer of Property Act which reads as under:

”3 “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person and each of whom has signed the instrument in the presence of the executant, but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.“

Admittedly, the deed of Will is one of such document which necessarily required by law to be attested. In Kashibai and another v. Parwatibai and others, (1995)6 S.C.C. 213, Thier Lordships of the Supreme Court state that there can be no valid execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of no avail. Sec.63 of the Indian Succession Act, 1925 also prescribes certain rules with regard to the execution of unprivileged Wills.

4. Sec.63(C) of the Indian Succession Act reads as under:

”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 same other person sign the Will, in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of his signature or mark, or of the

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