JUDGMENT

A suit for partition by the brothers of deceased husband of first defendant was contested on the basis of an alleged unregistered Will incorporated under an unregistered mortgage deed - Ext.B1. The mortgage was executed by her husband in connection with some money transaction in favour of one Sunny, by which provisions were also made so as to make a portion of the said document as a testament of the deceased. It is recited in the document that after the death of the executant husband, the entire property would go to his wife, the first defendant. She was given permission to take further loan from the abovesaid Sunny. A declaration was also incorporated so as to treat the said deposition as a Will of deceased husband, the executant. The trial court found the Will not genuine and decreed the suit granting preliminary decree for partition, against which, the first defendant wife came up in appeal.

2. There is no much dispute with respect to the respective shares entitled by the parties, if it is proved that the property was left out without any testament. There is no separate Will or testament executed by the deceased. The alleged Will infact was incorporated in Ext.B1 unregistered mortgage deed. It was prepared in the handwriting of the sole legatee under the Will, the first defendant. She is the scribe of the document. It was executed while the executant was undergoing treatment in a hospital, which is evident from the document produced by the first defendant wife. Some sort of confusion and doubt is well explicit from the fact that Ext.B1 document was executed as a mortgage deed in favour of one Sunny, wherein provisions were made so as to make a portion of the same as a testament/Will of the executant instead of executing a separate Will, that too, in favour of the scribe, who is the sole legatee. It was not explained by the propounder as to under what circumstance provisions were made in the mortgage deed so to bring the document also a Will, by which the sole legatee is the scribe. Then a question whether the abovesaid clause was brought to the notice of the executant by the scribe, the sole legatee, would also arise especially when he was hospitalised at the relevant time or whether it was incorporated and embedded in that document in secrecy. It is not explained why a separate Will or testament was not executed in favour of the Scribe, if it was actually intended by the testator/executant. The fact that the sole legatee under the alleged Will is the scribe casts a reasonable doubt as to whether it was the voluntary act of the deceased and whether it was brought to his notice especially when the document itself was executed as a mortgage in favour of one Sunny and whether it was secretly incorporated without the notice of the testator under the guise of execution of a mortgage deed in the name of a third person. The fact that the sole legatee is the scribe of the document and it was incorporated and embedded in an unregistered mortgage deed executed in favour of a third person while the testator was undergoing treatment in a hospital by itself would constitute suspicious circumstances strong enough to expel the due execution of the testament unless the contrary is proved.

There is also no proper attestation as mandated under Section 63(c) of the Indian Succession Act. There is something in the document to indicate the compliance of mandate under Section 63(c) of the Act, that the Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person and each of the witnesses shall sign the Will in the presence of the testator. This Court in Ujjalabai v. Puthukkudy Bharathan [2022 (3) KLT 131] had laid down the law that the two inseparable requireme