The execution of a will must be proven by at least one attesting witness who saw the testator sign it, as mandated by the Indian Succession Act.

J U D G M E N T

(Dated this the 22^nd day of October, 2024)

Defendants 1 to 3 are the appellants in RSA 375 of 2021, and defendants 1 and 3 are the appellants in RSA 1292 of 2016. These appeals are filed against the Preliminary decree and final decree in the suit. RSA No. 1292/2016 is filed against the preliminary decree and RSA No. 375/2021 is filed against the final decree.

2. The suit was filed by the plaintiffs for partition of the plaint Schedule property having an extent of 5 cents of land belonging to one Sadanandhan who died on 24.12.2002. Plaintiffs are 4 in numbers. The 1^st plaintiff is the wife, 2^nd & 3^rd plaintiffs are the children and the 4^th plaintiff is the mother of said Sadanandhan.

3. As per the plaint allegations, after deserting the plaintiffs, Sadanandhan started residing with the 1^st defendant and out of the relationship with 1^st defendant, the 2^nd and 3^rd defendants were born. The plaintiffs claim is that the plaint schedule property is liable to be partitioned among the plaintiffs and the defendants 2 and 3 by alloting 1/6^th share each.

4. The defendants opposed the suit for partition, contending, inter alia, that the plaint schedule property is not available for partition as Sadanandhan had executed Ext.B1 Will dated 11.12.2022 in favour of the second defendant with respect to the plaint schedule property.

5. The defendant examined DW2 as one of the Attesting witnesses to prove Ext.B1 Will. The Trial Court found that the evidence of DW2 is insufficient to prove Ext.B1 Will and decreed the suit as prayed for. The defendants 1 and 3 filed A.S No. 157/2009 before the First Appellate Court and the same was dismissed confirming the judgment and decree of the Trial Court.

6. I heard the learned counsel appearing for the appellants Sri. Hariharaputhran and learned counsel for the respondents 1 and 3 Sri. Paul K.Varghese.

7. The learned counsel for the appellants argued that execution of Ext.B1 will is sufficiently proved by the evidence of DW2. The DW2 has specifically deposed that the testator came to his residence with the Will and Sri.Vijayakumar, the other attesting witness and a Scribe; that after getting signature of DW2 and Sri.Vijayakumar the Will was taken to the office of the Notary advocate and after getting the signature of the Advocate, the same was entrusted to DW2.There are compelling circumstances to believe that Ext.B1 Will was executed in order to ensure the residence of the defendants 1 to 3 who have been with the testator for several years, which is admitted by the plaintiffs themselves.

8. On the other hand, the learned counsel for the respondents submitted that execution of Ext.B1 Will is not proved before the Trial Court as mandated under Section 63 (c) of the Indian succession Act as DW2 did not give evidence that the testator subscribing his signature to Ext.B1 Will before him. Separate Written Statements filed by the defendants 1 and 2 would show that they claimed that the Will is in favour of the second defendant whereas the Ext.B1 would show that it is in favour of the defendants 1 to 3. The contradiction between the pleading and evidence also would create suspicion as to the execution of the Will. The defendants 1 and 2 are not excluded from inheritance and they also would get their due share as per the Trial Court judgment and Decree.

9. Sec. 68 of the Evidence Act mandates the examination of only one of the two attesting witnesses to prove the Will. It is the duty of the Propounder to examine one of the attesting Witnesses to prove the Will in the Court even if the Will is not denied by the other side.

10. Sec.63(c) of the Indian Succession Act mandates that the Will shall be attested by two or more witnesses has seen the testator sign or affix his mark on the Will. DW2 was examined to prove the execution of Will by the testator. But his evidence would show that he had not seen testator signing the Will in front of him. The learned counsel for the appellant relied on the decision of the H