JUDGMENT :

The plaintiffs are the appellants. The plaintiffs filed a suit seeking for the relief of declaration and permanent injunction based on a Will dated 19.06.1996. According to the plaintiffs, the suit property was originally owned by one Sreenivasa Chettiar, who is the father of the defendants. The said Sreenivasa Chettiar gave both his daughters on marriage and he and his wife were taken care by the plaintiffs who are none other than the sons of the younger brother of the said Sreenivasa Chettiar Considering the help rendered by the plaintiffs, the said Sreenivasa Chettiar is said to have executed a Will dated 19.06.1996 in favour of the plaintiffs and thereby had bequeathed the suit property in their favour. According to the plaintiffs, the said Sreenivasa Chettiar died on 15.04.1997 and thereafter the Will started operating in favour of the plaintiffs. However, the defendants started claiming right over the property and were not willing to act upon the Will that was executed in favour of the plaintiffs. Left with no other alternative, the suit came to be filed by the plaintiffs seeking for the relief of declaration and permanent injunction.

2. The defendants have denied the factum of the execution of Will dated 19.06.1996 by their father Sreenivasa Chettiar in favour of the plaintiffs. The defendants have taken a categoric stand that the plaintiffs are attempting to knock of a valuable property by means of a fabricated and forged Will and hence they have sought for the dismissal of the suit.

3. The Trial Court on appreciation of the facts and circumstances of the case and oral and documentary evidence, decreed the suit as prayed for. Aggrieved by the same, the defendants filed an appeal before the Lower Appellate Court and the appeal was allowed by judgment and decree dated 22.01.2016. The plaintiffs aggrieved by the judgment of the lower Appellate Court have preferred the present Second Appeal.

4. This Court heard the learned counsel appearing on either side and carefully went through the findings rendered by the Lower Appellate Court.

5. The source of the right for the plaintiffs is the Will dated 19.06.1996 which is said to have been executed in their favour by the father of the defendants viz., Sreenivasa Chettiar. The Indian Evidence Act, mandates the Will to be proved in accordance with Section 68 of the Indian Evidence Act. Unless the Will is proved in line with the requirements of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, the same cannot be taken into consideration. The provision mandates the Will to be proved through attesting witness. In the present case, the attesting witnesses are said to be the respective husbands of the defendants. According the plaintiffs, the husband of the 1st defendant had expired and hence the husband of the 2nd defendant was examined as PW-4. Unfortunately this witness made a statement to the effect that the signature found in the Will as a attesting witness is not his signature. A further statement is made by PW-4 to the effect that he did not see Sreenivasa Chettiar signing the Will in his presence.

6. It is also seen from evidence that the scribe of the Will was examined as PW-3. He has stated that the Will was prepared on the request made by Sreenivasa Chettiar and two attesting witnesses. However, this witness has stated that he did not see Sreenivasa Chettiar signing the Will.

7. It is therefore clear from the evidence of PW-3 and PW-4 that there was no witness who had spoken about Sreenivasa Chettiar subscribing his signature to the Will. Even though PW-3 had stated that the Will was prepared on the request made by Sreenivasa Chettiar, he cannot be taken to be an attesting witness as defined under Section 3 of the Transfer of Property Act. The actual attesting witness namely PW-4 also did not support the case of the plaintiffs.

8. Even the evidence of PW-5 did not in any way satisfy the requirements for the proof of Will. This witness has f