This Civil Miscellaneous Appeal has been filed by the appellant/petitioner against the order dated 28.08.2014, passed in S.O.P.No.1 of 2011, on the file of I Additional District Court (PCR), Tiruchirappalli.

2. The appellant is the petitioner in S.O.P.No.1 of 2011. She has filed the present Civil Miscellaneous Appeal against the order of the learned I Additional District Judge (PCR), Tiruchirappalli, partly allowing the S.O.P. granting Succession Certificate, 50% of schedule mentioned properties.

3. According to the appellant, the learned I Additional District Judge ought to have allowed the O.P. in full. The respondent is the daughter of first wife of the appellant's husband Arumugam.

4. The case of the appellant:

The appellant's husband Arumugam divorced his first wife and married the appellant. Her husband by a registered Will, dated 18.03.2008, bequeathed the properties mentioned therein. While, he was alive, he sold one of the items viz., the house property mentioned in the Will, to settle the monies borrowed for his medical expenses. He died on 21.05.2011. He was working in Tiruchirappalli City Co-operative Bank Ltd. When the appellant claimed the death-cum-retirement benefits, she was directed to obtain a Succession Certificate. Hence, she filed S.O.P.No.1 of 2011. The first wife of Arumugam did not object to her claim. Only the daughter objected to her claim. Hence, the daughter A.Sangeetha alone is made as respondent.

5. The case of the respondent:

The appellant is not a lawfully wedded wife of Arumugam. The respondent's mother was not divorced by her father. They were living together as husband and wife till his death. The alleged Will is forged one. Only immovable property can be bequeathed. Hence, the Will is not valid and legal.

6. Before the lower Court, the appellant examined herself as P.W.1 and four other witnesses were examined as P.Ws.2 to 5 and marked 11 documents as Exs.P1 to P11. The respondent examined herself as R.W.1 and marked two documents as Exs.R1 and R2.

7. The learned Judge framed necessary points for consideration. The learned Judge, after considering all the materials on record, held that the appellant is the legally wedded wife of Arumugam, but failed to prove the Will, dated 18.03.2008, marked as Ex.P4 and therefore, partly allowed the S.O.P., granting 50% share to the respondent in the schedule properties.

8. Against the said order dated 28.08.2014, the present appeal is filed.

9. Heard the learned counsel appearing for the parties.

10. The learned counsel for the appellant contended that the learned Judge erred in holding that the Will was not proved. The identifying witness has categorically stated that the Executor signed the Will Ex.P.4 and has stated that the Testator and the witnesses signed the Will and he signed as Identifier. The learned Judge ought to have seen that the intention of Testator is to give properties to the appellant. The entire evidence taken together shows that the appellant had proved the Will. The appellant only took care of the Testator. The Testator had already settled the property on the respondent.

11. The learned counsel for the appellant further contended that Ex.P4 Will is a registered Will and as per Section 68 of Indian Evidence Act, it is not necessary to give positive evidence, to prove that the Testator saw the attesting witnesses, put their signature or that the attesting witnesses saw the Testator signing the documents. Registration is Prima facie, execution of Will. As per Section 63(c) of the Indian Succession Act, 1925, if the attesting witnesses receive from the Testator, personal acknowledgement that amounts to attesting the signature of Testator. The Courts must also take into consideration the attendant circumstances and the intention of the Testator. Even though P.W.5 has stated that he did not see the Testator signing Ex.P.4, he has stated that the Testator declared that Ex.P.4 is his intention. He saw the other witnesses signing the Will. Al