The appellant successfully argued that a will can be validly proved by examining at least one attesting witness under the Indian Succession Act and Evidence Act.

J U D G M E N T

The 2^nd defendant in a suit for cancellation of document and for partition has come up with this appeal questioning the concurrent findings rendered by the courts below.

2. The brief facts necessary for the disposal of this appeal are as follows:-

The 1^st respondent / plainti cancellation of document and for partition, contending that the extent of 61 cents belong to her father and mother is open for partition. Originally the property belong to the father of the plaintiff and the defendants as per the document Nos.3538/1959 and 1276/1959 of Perumbavoor SRO. Later, the mother also derived right title and interest over a 20 cents as per document No.3413/1963. The plaintiff being the daughter was excluded from the shares, when her father and mother executed a registered gift deed on 07.01.1985 before the Sub Registrar Office, Perumbavoor. It is contended that the plaintiff's father did not sign the Will, and that the Will has not taken into effect. The plaintiff's father expired on 08.05.1997 and the mother expired on 14.04.2012. The claim for partition was made on 21.09.2012, which was refused and hence the suit. The defendants entered appearance and resisted the suit by contending that going by the registered Will, executed by the father and mother of the plaintiff in the year 1985, the plaintiff had no right title and interest over the plaint schedule property and thus precluded from seeking partition. Out of the total extent of property, held by the father and mother of the plaintiff, 61 cents was given to the appellant / the 2^nd defendant and 20 cents to the 1^st defendant. Out of the 61 cents, 20 cents was sold by the mother during her life time and the 2^nd defendant is in possession of remaining 41 cents. It is further contended that the Will being a registered Will, was validly executed and that the father of the plaintiff and the defendants was having sound health and a proper mental state of affairs for execution of the Will. On behalf of the plaintiff, Exts.A1 to A4(a) were produced and PW1 was examined. On behalf of the defendants, Ext.B1was produced and DW1 and DW2 were examined. The trial court on appreciation of the oral and documentary evidence adduced by the parties, came to the conclusion that the defendants have not proved the execution of the Will inasmuch as the attesting witness, who was examined by them did not speak about the 2^nd attesting witness, who has signed the Will. Aggrieved, the appellant herein preferred A.S No.69/2013 before the Sub Court, Perumbavoor, and by judgment dated 28.11.2015, the appeal was dismissed and hence the present appeal.

3. On 27.09.2016, while admitting this appeal, this Court framed the following substantial questions of law:-

(i) Did the courts below omit to follow the dictum laid down in K.M.Varghese and Others v. K.M.Ommen (ILR 1994(1) Kerala 372) that law does not insist that the two attesting witnesses should be present at the same time when the Will is executed leads to the conclusion that the Will is properly executed?

(ii) Are the findings of the courts below vitiated by omission to consider important and relevant piece of evidence adduced in the case?

4. Heard Shri.A.Jayasankar, the learned counsel appearing for the appellant and Shri.G.Rajagopal, the learned counsel appearing for respondents 1 and 6.

5. The learned counsel for the appellant submitted that the point raised in the appeal is squarely covered by the decision of this Court in Saiby v. Mary [ 2025 (5) KHC 482 ]. He further pointed out that the 2^nd attesting witness was no more on the date of filing of