A registered Will must be properly executed and attested according to the Indian Succession Act and Evidence Act; failure to satisfy these legal requirements invalidates claims based on the Will.

JUDGMENT :

A.D.MARIA CLETE, J.

Heard.

2. This Second Appeal is filed by the defendants against the judgment and decree dated 19.01.2012 passed in A.S.No.24 of 2008 by the Principal Sub Court at Tiruppur, confirming the judgment and decree dated 04.04.2008 passed in O.S.No.213 of 2005 by the District Munsif cum Judicial Magistrate Court, Palladam. The connected Civil Revision Petition arises from the order dated 06.03.2018 in E.A.No.02 of 2018 in E.P.No.17 of 2017 in the same suit.

3. For the sake of convenience, the parties are referred to as they are arrayed before the trial Court.

4. The suit is for declaration of title and recovery of possession. The plaintiffs are three sisters. They says that the suit property (house and site) was their father Subbanna Gounder’s self-acquired property, purchased under a registered sale deed dated 05.06.1981. They state that he died on 18.12.2003 and that they alone inherited the property as his legal heirs. They says that the defendants were permitted to stay only to look after their father, and later continued to stay only with the plaintiffs’ permission. They allege that in 2004, when asked to vacate for partition/arrangement, the defendants vacated but later broke open the lock, re-entered and refused to hand over possession. After notice dated 08.01.2005, the defendants claimed rights under an alleged Will dated 09.06.1985, which the plaintiffs deny as false and fabricated. Hence, the suit.

5. The defendants admit that Subbanna Gounder purchased and owned the property under the sale deed dated 05.06.1981. They deny the plaintiffs’ version on possession and re-entry. They say the plaintiffs were married long before the purchase, lived in their matrimonial homes, and did not maintain cordial relations with, or take care of, their father. They refer to maintenance proceedings filed by the plaintiffs’ mother in 1978 in M.C.No.20/1978 before the Sub Divisional Judicial Magistrate, Tirupur, and state that Subbanna Gounder paid maintenance till her death and was thereafter neglected by the plaintiffs. According to the defendants, Subbanna Gounder executed a registered Will dated 09.06.1985 bequeathing the suit property to the first defendant, and title vested in her on his death. They further say the first defendant executed a gift deed dated 31.01.2005 in favour of the second defendant, who claims possession as absolute owner. They therefore contend that the plaintiffs have no right, the suit lacks cause of action, and the valuation and court-fee are incorrect.

6. Before the Trial Court, the plaintiffs examined P.W.1 to P.W.4 and marked Exs.A1 to A12. The defendants examined D.W.1 to D.W.4 and marked Exs.B1 to B24. The defendants relied mainly on the registered Will dated 09.06.1985 (Ex.B20) and the settlement/gift deed dated 31.01.2005. The Trial Court noted an earlier Will dated 25.02.1980 relating to provident fund and gratuity in favour of the second defendant and his sister Indrani (Ex.A12/Ex.B19), and considered the plea that Ex.B19 stood cancelled by Ex.B20. On Ex.B20, the Trial Court noted that the scribe (D.W.4) was examined, but since he was not cross- examined, his evidence was not relied upon. The Trial Court held that Ex.B20 was not proved in accordance with law, as no attesting witness was examined and the requirements of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 were not satisfied. The suit was therefore decreed in favour of the plaintiffs, with a direction to deliver possession.

7. The defendants appealed. The First Appellate Court held that examining the scribe was not sufficient to prove the Will under Section 68 of the Evidence Act