The main legal point established in the judgment is that the proof of execution of a registered Will requires the examination of attesting witnesses in court or their summoning under Order 16 Rule 10 CPC.

JUDGMENT

(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree dated 30.07.2003 in A.S.No. 95 of 2002 on the file of Principal District Court, Coimbatore, confirming the Judgment and Decree dated 21.12.2001 in O.S.No. 1626 of 1992 on the file of I Additional Subordinate Court, Coimbatore.)

1. The Plaintiff in O.S.No. 1626 of 1992 on the file of the First Additional Sub Court at Coimbatore is the appellant herein.

2. The said suit in O.S.No. 1626 of 1992 had been filed by the plaintiff, Sivakami against her brother Arumugam, shown as the 1st defendant and against Sivagama Sundari, the daughter of her sister, shown as the 2nd defendant and against the tenants in the suit schedule property shown as the 3rd to 8th defendants, seeking partition and separate possession of 1/6th share in the suit schedule property and for accounts and for costs of the suit.

3. The suit schedule property was vacant land situated at No. 30, Heminswaypet, now Sivasubramaniam Road, in R.S.Puram in Coimbatore bearing T.S.No. 3788 measuring 3200 sq.ft. The suit was dismissed by Judgment dated 21.12.2001 by the First Additional Sub Judge, Coimbatore. Thereafter, the plaintiff filed A.S.No. 95 of 2002 before the Principal District Court at Coimbatore. The said appeal suit along with I.A.No. 1040 of 2002 which had also been filed by the plaintiff for amendment of the description of the property were taken up together for consideration and by Judgment dated 30.07.2003, both the Appeal suit and the Interlocutory Application were dismissed. This has necessitated the plaintiff to file the present Second Appeal.

4. The Second Appeal had been admitted on the following two substantial questions of law:-

“1) Whether in law the Courts below erred in overlooking that no attestor was examined to prove Ex.B13 Will and assuming without admitting that the attestors were dead that nonexamination of any one identifying the signatures of that attestors would amount to non-compliance of Section 69 of Evidence Act to hold that the Will was not proved?

2) Whether in law the Courts below have erred in overlooking that proving the signatures of Scribe or testator is not sufficient proof of the execution of the Will marked as Ex.B13 as held in the Judgment report in A.I.R.2001 (5) SC 689?”

O.S.No. 1626 of 1992 [ I Additional Sub Court, Coimbatore]:

5. The plaintiff claimed that the property had been purchased as vacant land by Raman Chettiyar, who then put up a titled house consisting of two portions. He died intestate on 10.04.1448 and left behind his wife and his son, the first defendant, as his legal heirs. It was stated that since he died before the introduction of the Hindu Succession Act in 1956, the first defendant was entitled to an undivided ½ share and Nagammal was entitled to maintenance from the other ½ share. Thereafter, Nagammal died on 21.06.1978 leaving behind as her legal heirs the plaintiff, the first defendant and also the second defendant, who was the daughter of a predeceased daughter. The plaintiff sought 1/3rd share in the ½ share of Nagammal which indicates that she sought undivided 1/6th share in the suit schedule property.

6. It was also stated that prior to filing of the suit, the plaintiff had issued an Advocate's notice and the first defendant had issued a reply notice stating that Nagammal had executed a Will in his favour with respect to her entire ½ share and therefore, he became entitled to the entire property. He contended that the plaintiff cannot seek partition and separate possession. Holding that the execution of the Will is surrounded with suspicious circumstances, the suit had been filed seeking partition and separate possession as stated above.

7. The first defendant filed a written statement, denying the contentions raised in the plaint. He claimed that as daughter in the family, the plaintiff was not entitled to claim a share in the property. He claimed the property in entirety particu