J U D G M E N T

Aggrieved over the concurrent findings of the Courts below, the unsuccessful defendants have preferred the above Second Appeal.

The respondents are the plaintiffs.

2.The Suit was filed for declaration of title and delivery of possession. The plaintiffs claimed that they have derived title by virtue of a Gift Settlement Deed dated 29.09.2005. Originally, the property was purchased by one Nallayammal @ Nallammal, who is the grandmother of the plaintiffs. She purchased the property under a registered Sale Deed dated 12.07.1957 and enjoyed the same as her own. During her lifetime, she bequeathed the property in favour of her daughter Dhanalakshmi under registered WILL bearing Document No.23/2005 dated 22.03.2005 at the Office of the Sub Registrar, Rasipuram. The said Nallayammal @ Nallammal died on 28.06.2005. On the death of the testator, the WILL had taken effect and the legatee Dhanalakshmi became the absolute owner. The said Dhanalakshmi was living with her mother, the testator of the WILL, in a portion of the Suit property as she was deserted by her husband. Thereafter, by virtue of a Settlement Deed dated 29.09.2005, the plaintiffs' mother had settled the property in favour of the plaintiffs. The plaintiffs approached the defendants who are the sons of Nallayammal @ Nallammal and brother of Dhanalakshmi and maternal uncle of the plaintiffs to vacate and deliver possession of the portion occupied by them. After exchange of notices and after the denial of title of the plaintiffs by the defendants, they filed a Suit for declaration of title and delivery of possession.

3.In the written statement, the execution of the WILL was denied as fraud and forged. The property was purchased by their father in the name of the mother and therefore, the sons are entitled to a share in the property. The daughter was given in marriage with all Sridhanas and therefore, the daughter cannot claim any right. Their sister has taken their mother to Rasipuram for the purpose of getting a Ration Card in mother's name on 22.03.2005 and without the knowledge of the mother, she registered the WILL. The mother has not bequeathed the property in sound and disposing state of mind, but could have executed without any knowledge. The defendants are in possession and enjoyment of the Suit property and the plaintiffs' mother was not in possession of the property. The Settlement Deed executed by the mother of the plaintiffs without having possession and without having title is not sustainable in law.

4.The Trial Court relying on the evidence of the attestor-

P.W.4 has held the WILL was proved and declared title in favour of the plaintiffs and ordered delivery of possession. The Appellate Court confirmed the judgment and decree passed by the Trial Court. 5.This Second Appeal was admitted on 26.07.2012 on the following substantial questions of law:-

(i) Whether the Ex.A3 WILL was proved as required under Section 68 of Evidence Act when it was not marked through attestor and no attempt was made to show the same to PW4 attestor when he was examined before the Court?

(ii) Whether the evidence of PW4 would prove Ex.A3 WILL when it was not identified by him before Court?"

6.Heard the submissions made on either side and perused the materials available on record.

7.The first and foremost question to be decided is as to whether the WILL has been proved in the manner known to law or not?

8.It is well settled that as per Section 68 of the Indian Evidence Act, 1872, the WILL has to be proved atleast by examining one attesting witness. Section 67 of the Indian Evidence Act, 1872 specifies the manner in which the signature and handwriting of the person signed the document.

9.P.W.4 is the attestor of the WILL. At the outset, the evidence of P.W.4 reveals that the WILL was not at all presented to him either during his chief examination or during cross examination for identifying the signature of the testator or his signature. On the other hand, he has mechanically deposed tha