IMPORTANT POINTS
(1) Normally, registration of Will shall not be used as proof of execution of Will.
(2) Proof of execution of Will – When evidence of attesting witness is deficient to meet requirements under Section 63(c), it is for Court to assess evidence of attesting witness and come to a conclusion that there is no malafide intention on part of attesting witnesses purposefully to help objectors of document.

JUDGMENT

The additional defendants, 2 to 7, who are the legal heirs of the original defendant, are the appellants. Hereinafter, the original defendant is referred to as the 1st defendant. The plaintiff and the 1st defendant are the children of Ammalu Amma. The suit was for the partition of the plaint schedule property having an extent of 15 ½ cents belonged to Ammalu Amma as per Ext.A1 Gift Deed dated 29.02.1980 executed by the plaintiff. Ammalu Amma expired on 02.05.1995. The suit was filed on 16.02.2005.

2. As per the plaint allegations, the plaintiff issued Ext.A3 Notice dated 05.01.2005 to the 1st defendant demanding partition. The 1st defendant sent Ext.A4 Reply dated 10.01.2005 stating that Ammalu Amma had executed Ext.B2 Will dated 23.05.1980 bequeathing the plaint schedule property in favour of the 1st defendant. The plaintiff came to know about Ext.B2 Will only from Ext.A4 Reply. Ammalu Amma never executed such a Will. She had no mental capacity to execute any such Will on the date of the alleged execution. Ammalu Amma was not in a proper state of mind to make any such disposition due to her old age. Hence, the plaint schedule is liable to be partitioned, allotting half share to the plaintiff.

3. The 1st defendant filed a Written Statement opposing the prayer for partition, contending that Ammalu Amma had executed Ext.B2 registered Will in favour of the 1st defendant, and hence the property is not available for partition. Mutation of the property was effected in favour of the 1st defendant, and she has been paying land tax. The plaintiff is aware of all these matters. The plaintiff never raised any objection till the filing of the suit. When the 1st defendant decided to sell the plaint schedule property to raise some amounts to pay off her debts, the plaintiff approached the 1st defendant and asked to lend Rs.50,000/- out of sale consideration, which the 1st defendant could not give. On account of this enmity, the present suit is filed by the plaintiff with a false claim.

4. On the death of the 1st defendant during the pendency of the appeal, the additional defendants 2 to 7 were impleaded as her legal representatives.

5. On the side of the plaintiff, the plaintiff was examined as PW1, and Exts.A1 to A4 documents were marked. On the side of the defendants, the 3rd defendant was examined as DW1, and DWs 2 and 3 were examined as attesting witnesses to Ext.B2 Will. Exts.B1 to B5 were marked on the side of the defendants.

6. The Trial Court disbelieved Ext.B2 Will, finding that the defendants failed to prove execution and attestation of Ext.B2 Will as required under Section 63(c) of the Indian Succession Act and accordingly decreed the suit passing a Preliminary Decree for partition allowing the plaintiff to get partition and separate possession of one-half share of the plaint schedule property.

7. The defendants 2 to 7 filed an Appeal before the First Appellate Court, and the same was dismissed, confirming the judgment and decree of the Trial Court.

8. This Court admitted this Appeal on the following substantial questions of law.

• Whether the courts below are justified in holding that Ext.B2 is not genuine and valid?

• Whether the courts below failed to consider the impact of Section 71 of the Evidence Act while considering the proof of Will as enumerated in Sec.68 of the Evidence Act?

• Whether the genuineness of the Will could be established in the circumstances enumerated in Section 71 of the Evidence Act?

• Whether the courts below are justified in ignoring registration of the Will in regard to the proof of Will as envisaged under Sec.68 of the Evidence Act?

9. I heard the learned counsel for the appellant, Sri.M. Narendra Kumar, and the learned counsel for the respondent, Sri. Varghese Prem.

10. The learned counsel for the appellant argued that the defendants could prove the execution of Ext.B2 Will with the aid of Section 70 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) corresponding to Section 71 of the