1. FACTS OF THE CASE: The 2nd defendant in O.S. 223 of 2004 on the file of the Subordinate judge's court, Thalassery, preferred this appeal, being aggrieved by the preliminary judgment and decree passed by the trial Court in the above suit for partition of some landed property situated within Kannur District, which was part of erstwhile Madras Presidency. The children of late Mr. Sumathi, who died on 02.10.1990, are the plaintiffs 1 to 4 and defendants 1 and 2 in the suit. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial Court).

2. According to the plaintiffs, late Sumathi executed his last Will namely Exhibit A3 which was a typed Will dated 27.04.1989, and as per which he bequeathed the plaint schedule property covered by Ext. A1 title deed, equally among his six children. Therefore, the plaintiffs prayed for partition of the plaint schedule property into 6 equal shares and to allot 4 shares to them. They would also contend that before the execution of Ext. A3 Will, Sumathi executed Ext. A2 holographic Will dated 9.11.1984, in which also he bequeathed the plaint schedule property to all his six children equally. The defendants disputed the above claim of the plaintiffs and according to them, Sumathi executed a registered Will namely Ext. B10 on 19.05.1984 in which the 2nd plaintiff was excluded from inheriting the property. Therefore, they would contend that the plaint schedule property is to be partitioned as per Ext. B10. They would further contend that thereafter, Sumathi executed Ext. B2 holographic Will on 04.12.1984 and through the said Will he had cancelled all previous Wills and restored Ext. B10.

3. EVIDENCE AND FINDING OF THE TRIAL COURT: The evidence in the case consists of the oral testimonies of PWs 1 to 3 and DWs 1 and 2 and documentary evidence Exts.A1 to A7 and B1 to B10. After evaluating the evidence, the trial Court found that both the sides failed to prove the execution of all the above Wills and accordingly ordered to partition the plaint schedule property into six equal shares and allowed one share each to plaintiffs 1 to 4 and defendants 1 and 2. It was aggrieved by the above preliminary judgment and decree that the 2nd defendant preferred this appeal.

4. QUESTIONS OF LAW: In this appeal, an interesting argument was raised by the learned counsel for the 3rd respondent Sri.R. Surendran, that, in the light of Section 213(1) read with Section 57(a) and (b) of the Indian Succession Act, for a Hindu claiming right under a Will executed before the amendment of 2025, over a property situated within Kannur District, which was part of erstwhile Madras Presidency, probate or letters of administration is mandatory. Since in this case no such probate or letters of administration was obtained, he prayed for dismissal of the appeal on that ground itself. Another argument advanced by the learned counsel for the respondents was that though Ext.A2 was not proved as a Will, it could be used as a revocation of Ext.B10, as according to them, the rigor of proof of a revocation is much less than that of a Will. It was further argued that, once Ext.B10 was cancelled as per Ext.A2, it cannot be subsequently revived as stated in Ext.B2. The above arguments were seriously disputed by Sri.Dinesh R.Shenoy, the learned counsel for the appellant.

5. POINTS FOR DETERMINATION:- In the light of the above arguments advanced by the learned counsel for both sides, the following points arise for determination:

                  1) Whether, in the light of Section 213(1) read with Section 57(a) and (b) of the Indian Succession Act, for claiming right under a Will executed by a Hindu before the amendment of 2025, over a property situated within Kannur District, which was part of erstwhile Madras Presidency, probate or letters of administration of the Will is mandatory?

                  2) Whether the defendants have succeeded in proving the due execution of Ext.B10 Will?

                  3) What is the nature of proof required for proving a revocation?

                  4) Whether the plaintiffs proved Ext.A2 as a revocation?

                  5) Whether in the light of Ext.B2, Ext.B10 stands revived?

6. Considering the seriousness of the questions involved in this case, as per order dated 8.10.2025, this Court had appointed Adv. Smt. Girija K. Gopal as Amicus curiae to assist the Court. Heard Sri. Dinesh R. Shenoy, the learned counsel for the appellant, Sri. R.Surendran, Sri. V. Ramkumar Nambiar and Sri.V.Subhash Bhat, the learned counsel for the respondents and Smt. Girija K. Gopal, the learned Amicus curiae, in detail.

7. POINT NO.1:- It was argued by the learned counsel for the respondents that, in the light of Section 213 read with Section 57(a) and (b) of the Indian Succession Act, probate or letters of administration is mandatory for Wills made by Hindus created on or after 01.09.1870, within the limits of erstwhile Madras Presidency and as such the Wills involved in this case which are neither probated nor obtained letters of administration, cannot be acted upon. If so, according to him, this appeal is liable to be dismissed on that ground alone.

8. Section 213 of the Indian Succession Act is extracted below for easy reference:

                  213. Right as executor or legatee when established.—

                  (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.

                  (2) This section shall not apply in the case of Wills made by Muhammadans or Indian Christians, or and shall only apply—

                  (i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of section 57; and

                  (ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immovable property situated within those limits.

9. Section 57(a) and (b) of the Indian Succession Act reads as follows:

                  57. Application of certain provisions of Part to a class of Wills made by Hindus, etc.—

                  The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply—

                  (a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and

                  (b) to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits.

10. In this case the Wills were executed and the property situates within Kannur district, within the erstwhile Malabar district coming under Madras Presidency. The parties are also Hindus. At the time of arguments, the fact that Kannur District previously situated within the limits of erstwhile Malabar district was not disputed. Therefore, the next question to be considered is whether the ordinary original Civil Jurisdiction of the Madras High Court as on 01.09.1870 extended upto the Malabar district or not.

11. AMENDMENT IN 2025:- In the meantime, as per the amendment made to the Indian Succession Act by the Parliament, Section 213 was deleted with effect from 21.12.2025. The reason given for the deletion of Section 213 from the statute is that, it was discriminatory. Admittedly, the above amendment has only prospective effect. The above amendment was also relied upon by Adv. Sri R. Surendran in support of his argument that, till the above amendment, in the light of Section 213 Of the Indian Succession Act, probate or letters of administration was mandatory for Wills executed within the limits of erstwhile Malabar district.

12. In the decision in Hem Nolini Judah v. Isolyne Sarojsbashini Bose and Others, AIR 1962 SC 1471 relied upon by the learned counsel for the respondents, a three Judge Bench of the Apex Court has considered the effect of Section 213 of the Indian Succession Act and held that the above provision applies not only to a person claiming directly as a legatee, but also to those claiming under the legatee. In paragraph 7 of the above judgment the Apex court held that:

                  "The words of S. 213 are not restricted only to those cases where the claim is made by a person directly claiming as legatee. The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the will under which be claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the will under which the right is claimed, and therefore it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right, whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might derived title, he cannot do so unless the will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration.”

13. HISTORICAL BACKGROUND: In order to substantiate the argument that the Madras High Court had ordinary original civil jurisdiction over the entire Madras Presidency as on 01.09.1870, the learned counsel for the respondents have relied upon certain ancient documents. Letters patent Establishing a Supreme Court of Judicature at Fort St. George dated 26.12.1800 is one such document. As per the above Letters Patent, a Supreme Court was established at Fort St. George, with the jurisdiction similar to that of the King's Bench in England. As per the above Letters Patent, the Supreme Court established at Fort St.George was given jurisdiction "within and throughout the settlement of Fort St. George and the Town of Madras, and the Limits thereof and the Factories subordinate thereto, and all the Territories which now are, or hereafter may be, subject to, or dependent upon, the Government of Madras aforesaid; and to have such Jurisdiction and Authority as Our Justices of Our Court of King's Bench have, and may lawfully exercise, within that Part of Great Britain called England, as far as Circumstances will admit.”

14. Letters Patent Constituting the High Court of Madras, dated 26.06.1862 is another such document relied upon by the learned counsel. As per the said Letters Patent, the existing Supreme Court, the Court of Sudder Adawlut and Foujdarry Adawlut were abolished and a High Court was established with the same powers as that of the then existing Supreme Court. As per Section 12 of the above Letters Patent dated 26.06.1862, original jurisdiction of the High Court as to suits is as follows:

                  “And we do further ordain that the said High Court of Judicature at Madras, in the exercise of its ordinary original Civil jurisdiction shall be empowered to receive, try, and determine suits of every description, if, in the case of suits for land or other immovable property, such land or property shall be situated, or in all other cases if the cause of action shall have arisen, or the defendant at the time of the commencement of the suit shall dwell, or carry on business, or personally work for gain, within the local limits of the ordinary orginal jurisdiction of the said High Court, except that it shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Madras, in which the debt or damage, or value of the property sued, for does not exceed one hundred rupees.”

15. Amended Letters Patent for the High Court of Madras dated 28.12.1865 is another document relied upon by the respondents. In the above document, local limits of the ordinary original jurisdiction of the High Court was dealt with in Section 11 therein as follows:

                  “And We do hereby ordain that the said High Court of Judicature at Madras, shall have and exercise ordinary original Civil jurisdiction within such local limits as may from time to time be declared and prescribed by any law made by the Governor in Council, and until some local limits shall be so declared and prescribed, within the limits of the local jurisdiction of the said High Court of Madras at the date of the publication of these presents, and the ordinary original Civil jurisdiction of the said High Court shall not extend beyond the limits for the time being declared and prescribed as the local limits of such jurisdiction.”

16. Section 12 dealing with original jurisdiction as to suits therein is as follows:

                  “And we do further ordain that the said High Court of Judicature at Madras, in the exercise of its ordinary original Civil jurisdiction shall be empowered to receive, try and determine suits of every description, if, in the case of suits for land or other immovable property, such land or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or, in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the defendant at the time of the commencement of the suit shall dwell, or carry on business, or personally work for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Cause Court at Madras, in which the debt or damage, or value of the property sued, for does not exceed one hundred rupees.”

17. According to the learned counsel for the respondents, only as per Act No. IV of 1927 of the Local Legislature of Madras, the above original civil jurisdiction of the Madras High Court was limited to the town of Madras, after the commencement of the Indian Succession Act. Till then, according to him, the Madras High Court had ordinary original civil jurisdiction over the entire territory within the State of Madras. Therefore, the learned counsel would argue that Ext.B10 Will relied upon by the appellant, which was not probated or obtained letters of administration, is to be rejected and the appeal is to be dismissed, confirming the impugned preliminary judgment and decree passed by the trial court.

18. The learned counsel for the appellant would argue that the High Court of Judicature at Madras had ordinary original civil jurisdiction only over Madras town and not over the entire Madras presidency. The learned Amicus curiae would also argue that the High Court of Judicature at Madras had ordinary original civil jurisdiction only over Madras town and not beyond the town of Madras. In order to substantiate the above argument, the learned counsel has relied upon the following points/arguments and documents:

                  i) Section 11 of the Letters Patent constituting the High Court of Judicature for the Presidency of Madras and Section 11 of The Amended Letters Patent for the High Court of Madras dated 28.12.1865 which limits the ordinary original jurisdiction of the High Court, in the following words:

                  “And We do hereby ordain that the said High Court of Judicature at Madras, shall have and exercise ordinary original Civil jurisdiction within such local limits as may from time to time be declared and prescribed by any law made by the Governor-in-Council, and until some local limits shall be so declared and prescribed, within the limits of the local jurisdiction of the said High Court of Madras at the date of the publication of these presents, and the ordinary original Civil jurisdiction of the said High Court shall not extend beyond the limits for the time being declared and prescribed as the local limits of such jurisdiction.”

                  ii) Statement of objects and reasons in Bill No.3 of 1927 which states that, “The present limits of the jurisdiction of the High Court are those of the old Supreme Court. This Court took the place of the old Recorder's Court which exercised jurisdiction over a specific area defined in a Proclamation, dated 2nd November 1798. As no law declaring the jurisdiction of the present High Court at Madras has so far been enacted the old jurisdiction laid down in the Proclamation referred to above continues. The Government have recently extended the limits of the town of Madras by a notification under section 62 of the Government of India Act so as to include a portion of the Mambalam zamindari area. It is considered necessary for administrative purposes that the limits of the jurisdiction of the High Court should correspond to the limits of the Town of Madras and the Bill is intended to achieve this object.”

                  iii) The Preamble to the Hindu Wills Act, 1870 states that, “Whereas it is expedient to provide rules for the execution, attestation, revocation, revival, interpretation and probate of the wills of Hindus, Jainas, Sikhs and Buddhists in the territories subject to the Lieutenant-Governor of Bengal and in the towns of Madras and Bombay.” At the same time, Section 2 of the aforesaid Act states that the Act extends to all wills and codicils made by any Hindu, Jaina, Sikh or Buddhist on or after the first day of September, 1870, within the said territories or the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and

                  (b) to all such Wills and codicils made outside those territories and limits, so far as relates to immovable property situate within those territories or limits:

                  iv) S.2(2) of The Madras City Civil Court Act,1892 which defines “City of Madras” as the area within the local limits for the time being of the ordinary original civil jurisdiction of the High Court.”

                  v) The Madras Civil Courts Act,1873.

                  vi) The Madras High Court (Jurisdictional Limits) Act,1927 declaring and prescribing the limits of ordinary original civil jurisdiction of the High Court at Madras.

                  vii) Section 9 of The Act for establishing High Courts of Judicature in India dated 6.8.1861 relating to jurisdiction and powers of the High Courts and limiting the exercise of original civil and criminal jurisdiction beyond the limits of the Presidency towns.

                  viii) Section 2 of The Madras General Clauses Act, 1867 which defined the term “Town of Madras” as “such places as are within the local limits for the time being of the ordinary original civil jurisdiction of the High Court of Judicature at Madras.”

                  ix) Amendment to The Madras City Land Revenue Act, 1851 substituting the words “within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Madras”, for the words “within the limits of the Town of Madras as defined in S.12, Regulation II of 1802 of the Madras Code”

                  x) Regulation II of 1802 of the Madras Code dated 1.1.1802 which established Zilla Courts in all districts in the British Territories immediately subject to the Presidency of Fort St.George, with jurisdiction to try all civil suits arising within the district concerned. However, Section 12 thereof had specifically excluded the Town of Madras or the limits of the Supreme Court of Judicature at Madras, from the jurisdiction of the newly established Zilla Courts. Section XII of Regulation II of 1802 states that: -“The Zillah Courts are not to receive or entertain any suit, under any pretence whatever, relating to any land, house, tenement, or hereditament, nor a dispute regarding the boundaries of lands, houses, tenements or hereditaments, situated within the town of Madras or the limits of the Supreme Court of Judicature at Madras, which for the purpose of this rule is declared to be bounded as follows :- That the southern limits shall be the southern bank of the Saint Thome river, as far as the road leading to the Long Tank; that the limits shall then be continued in a northern direction along the bank of the Long Tank, and from thence along the bank of Nungambaukum Tank, as far as the village of Chettapet, upon the banks of the Poonamally river; that the limits shall be continued, in the same direction, to the villages of Kilpaukum and Peramboor, and that, from the latter village, it do take an eastern direction to the sea, so as to include the whole village of Tandearpetta; also that no lands situated to the southward of the Saint Thome river, or to the westward of the bank of the Long Tank, or of the Nungumbaukum Tank, shall be considered within the limits of the said town of Madras, but that all the lands included in the said villages of Chettapet, Kilpaukum, Peramboor and Tandear, shall be considered within the said limits. Nor shall be Zillah Courts entertain any suit whatever against a person who may be a resident of Madras, or of any place within the said limits, at the time the suit may be instituted. The Courts are commanded not to intermeddle with, or take cognizance of the suits above mentioned, which are to be considered entirely exempt from their jurisdiction. But the prohibitions contained in this section are not to be construed to extend to preclude the Zillah Courts entertaining any suit concerning marriage, or cast, in which no money or other valuable thing may be demanded or decreed although the cause of action shall have arisen, or the defendant may reside, or shall have resided at the time the suit commenced, within the limits of the Supreme Court.”

                  xi) Jurisdiction of the Recorders Court as per Letters Patent dated 20.2.1798 and Supreme Court as per Letters Patent dated 26.12.1800.

                  xii) Referring to Letters Patent dated 26.6.1962 it was argued that the terms “Presidency” and “Presidency town” are different and that the High Court had ordinary original civil jurisdiction only over local limits.

                  xiii) Small Cause Courts Act,1864

                  xiv) Section 5 of The Provincial Small Cause Courts Act,1887 authorises the State Government to establish a Court of Small Causes at any place within the territories under its administration beyond the local limits for the time being of the ordinary original civil jurisdiction of a High Court of Judicature established in a Presidency-town.

                  xv) Information given by the e-Committee, Supreme Court of India that the High Court of Judicature at Madras established as per Letters Patent dated 26.6.1862 exercises Original Jurisdiction over the city of Madras and Appellate Jurisdiction over the entire State of Tamil Nadu.

                  xvi) Decision of the Delhi High Court in VLS Finance Ltd. v. Southend Infrastructure Pvt. Ltd. & Another, 2015 Supreme (Del) 656 in which in paragraph 26 the Division Bench held that: - “26. There is a historical distinction between original jurisdiction exercised by two groups of High Courts in India. This corresponds to the jurisdiction exercised by the Courts preceding these two groups of High Courts. The then Supreme Courts exercised jurisdiction in the Presidency Towns and the then Sadar Courts exercise jurisdiction in the Mofussil. When the Supreme Courts and Sadar Courts were abolished, on one hand their two different kinds of original jurisdiction were transferred to what may be called the Non-Chartered High Courts by different Letters Patent, which were substantially different from the Letters Patent of the Chartered High Courts. The former Supreme Courts themselves exercised ordinary civil jurisdiction in the Presidency Towns. In the Mofussil, however, the principal courts of original jurisdiction were the District Courts. The Chartered High Courts succeeding the Supreme Courts in the Presidency Towns obtained an ordinary original civil jurisdiction till then exercised by the Supreme Courts. This continued till city Civil Courts were established in the Presidency Towns taking away the lower pecuniary jurisdiction from the ordinary civil jurisdiction of these Chartered High Courts in the Presidency Towns. The ordinary civil jurisdiction was possessed by the Supreme Courts and the Chartered High Courts from the very beginning. Later, a part of it was transferred to the City Civil Courts, which corresponded to the District Courts in the Mofussil.”

                  xvii) The decision of the Bombay High Court in H.H.Chimnabai Saheb Maharani Gaekwar v. Kasturbai Manibhai Nagarseth, AIR 1934 Bombay 225 in which it was held that as per the Letters Patent of 1865 and the Rules of the said Court, the local jurisdiction of the Bombay High Court was confined to the Town and Island of Bombay.

                  xviii) The decision of the Madras High Court in Ratansi DD. Morarji v. The Administrator-General, AIR 1928 Mad.1279 in which while considering the validity of a will, it was held that, the will executed at the residence of the testator at Adyar, which is separated from Madras city by Adyar bridge is beyond the local limits of the ordinary original civil jurisdiction of the High Court of Madras.

                  xix) The decision of the Madras High Court in T.Ekambaram v. Bhavani Sagari, (2013) 5 MLJ 219.

EVALUATION OF EVIDENCE

19. Section 11 of the Letters Patent constituting the High Court of Judicature for the Presidency of Madras dated 28.12.1865 limits the ordinary original civil jurisdiction of the High Court within such local limits as may be from time to time declared and prescribed by any law made by the Governor-in-Council, and until some local limits are so declared and prescribed, within the limits of the local jurisdiction of the High Court of Madras at the date of the publication of the Letters Patent. It also makes it clear that the ordinary original Civil jurisdiction of the said High Court shall not extend beyond the limits for the time being declared and prescribed as the local limits of such jurisdiction.

20. The statement of objects and reasons given in Bill No.3 of 1927 states that the present limits of the jurisdiction of the High Court are those of the old Supreme Court. The High Court took the place of the old Recorder's Court which exercised jurisdiction over a specific area defined in a Proclamation, dated 2nd November 1798. It further states that, as no law declaring the jurisdiction of the present High Court at Madras has so far been enacted, the old jurisdiction laid down in the Proclamation referred to above continues. It further states that the Government have recently extended the limits of the town of Madras by including a portion of the Mambalam zamindari area. Therefore, it was in order to include the newly included area into the town of Madras, the above Bill was introduced.

21. The Preamble to the Hindu Wills Act, 1870 dealing with Wills of Hindus, Jainas, Sikhs and Buddhists also limits its operation to the towns of Madras and Bombay, in addition to the territories subject to the Lieutenant-Governor of Bengal. At the same time, Section 2 of the aforesaid Act states that the Act extends to all Wills and codicils made by any Hindu, Jaina, Sikh or Buddhist on or after 1.9.1870, within the said territories or the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay. This will also makes it clear that the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Madras extends only to the town of Madras.

22. Section 2(2) of the Madras City Civil Court Act,1892 defines “City of Madras” as the area within the local limits for the time being of the ordinary original civil jurisdiction of the High Court.” Section 9 of the Act for establishing High Courts of Judicature in India dated 6.8.1861 relating to jurisdiction and powers of the High Courts has limited the original civil and criminal jurisdiction of the High Court to the limits of the Presidency towns. Section 2 of the Madras General Clauses Act, 1867 defined the term “Town of Madras” as “such places as are within the local limits for the time being of the ordinary original civil jurisdiction of the High Court of Judicature at Madras.”

23. Amendment to The Madras City Land Revenue Act, 1851 substituted the words “within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Madras”, for the words “within the limits of the Town of Madras as defined in Section 12, Regulation II of 1802 of the Madras Code.” Though Regulation II of 1802 of the Madras Code established Zilla Courts in all districts in the British Territories immediately subject to the Presidency of Fort St.George, Section 12 thereof had specifically excluded the Town of Madras or the limits of the Supreme Court of Judicature at Madras, from the jurisdiction of the newly established Zilla Courts.

24. Section 5 of The Provincial Small Cause Courts Act,1887 authorises the State Government to establish a Court of Small Causes at any place within the territories under its administration beyond the local limits for the time being of the ordinary original civil jurisdiction of a High Court of Judicature established in a Presidency-town. The information given by the e-Committee, Supreme Court of India also states that the High Court of Judicature at Madras established as per Letters Patent dated 26.6.1862 exercises Original Jurisdiction over the city of Madras and Appellate Jurisdiction over the entire State of Tamil Nadu.

25. In the decision in Ratansi DD. Morarji (supra) the Madras High Court held that, the Will executed at the residence of the testator at Adyar, which is separated from Madras city by Adyar bridge is beyond the local limits of the ordinary original civil jurisdiction of the High Court of Madras. In the decision in H.H.Chimnabai Saheb Maharani Gaekwar (supra), the Bombay High Court also held that as per the Letters Patent of 1865 and the Rules of the said Court, the local jurisdiction of the Bombay High Court was confined to the Town and Island of Bombay alone. In the decision in VLS Finance Ltd. (supra) the Delhi High Court also held that the former Supreme Courts and the Chartered High Courts exercised ordinary original civil jurisdiction in the Presidency towns, while in the Mofussil the principal courts of original jurisdiction were the District Courts.

26. Therefore, from the documents i-iv,vi-x,xiv and xv referred above and the decisions referred as items xvi, xvii and xviii, it is abundantly clear that the ordinary original civil jurisdiction of the High Court of Judicature at Madras extended only within the Madras town and not beyond the town. In the above circumstance, it is to be held that, for claiming rights under Wills executed by Hindus in the erstwhile Malabar district, which was not part of Madras town and where the ordinary original civil jurisdiction of the High Court of Judicature at Madras did not extend, probate or letters of administration is not mandatory. Point No.(i) answered accordingly.

27. Point Nos.(ii) to (iv):- The trial court has found that none of the Wills were proved in this case and it was in the above context that it passed a preliminary decree for partition of the scheduled property equally among the 6 children of Sumathi. Against the above preliminary decree, only the 2nd defendant preferred appeal. Therefore, now the question to be considered is whether the appellant has succeeded in proving the due execution of Ext.B10 Will and whether Ext.B10 was revoked through Ext.A2 ?

28. A Will is to be proved in terms of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. Section 63 of the Indian Succession Act dealing with the mode of proof of execution of unprivileged Will reads as follows :-

                  63. Execution of unprivileged Wills.—

                  Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:—

                  (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

                  (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

                  (c) 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 acknowledgement 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, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

29. Section 68 of the Indian Evidence Act dealing with the manner of proof of execution of a document required by law to be attested reads as follows :-

                  68. Proof of execution of document required by law to be attested.

                  If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

                  [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]

30. In order to prove the execution of Ext.B10, the defendants examined one of the attestors to the Will as DW2. The trial court disbelieved the evidence of DW2. The trial court also found that there are suspicious circumstances surrounding Ext.B10 and also that the defendants failed to remove those suspicious circumstances. According to the learned counsel for the plaintiffs, even if it is assumed that Ext.B10 was validly proved, the same was revoked as per Ext.A2. Therefore, according to him, in the absence of re-execution, Ext.B10 will not revive, as claimed in Ext.B2. It is interesting to note that in Ext.B2 there is only one witness and Ext.A2 was not proved as required under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act.

31. The learned counsel for the appellant would argue that since Ext.A2 was not duly proved, it cannot be accepted in evidence for any purpose. The learned counsel for the plaintiffs would also fairly concede that they could not prove Ext.A2, as a Will, as required under the law. However, it was argued that, a revocation need not be proved like a Will and as such, in the light of the admission in the pleading, Ext.A2 could be used as a valid revocation. Relying upon Sections 17 and 70 of the Indian Evidence Act, the learned counsel for the respondents would further argue that in the instant case, late Sumathi himself admitted the execution of Ext.A2 in Ext.B1 and B2 and as such non-examination of any attesting witness to A2 is not fatal in this case. Therefore, according to the learned counsel, in the light of the admission made by late Sumathi in Ext.B1 and B2, execution of Ext.A2 as a revocation stands proved.

32. The learned counsel for the plaintiffs would further argue that a holographic Will has special sanctity. In support of the above argument he has relied upon the decision of this court in Kanhachankandy Vijayan v. Pandarakandi Kamala and Others, 2017 (2)KHC 449 and the decision of the Apex court in Joyce Primrose Prestor v. Vera Marie Vas and Others, 1996 KHC 1656. It is true that law makes a great presumption in favour of the genuineness of a holograph Will. Once it is proved as a holographic Will, very little evidence is required to prove its execution and attestation.

33. Sections 17 and 70 of the Indian Evidence Act reads as follows :-

                  S.17. Admission defined.

                  An admission is a statement, [oral or documentary or contained in electronic form] [Substituted by Act 21 of 2000, Section 92 and Sch.II, for "oral or documentary"], which suggests any reference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.

                  S.70. Admission of execution by party to attested document.

                  The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.

34. On the other hand the learned counsel for the appellant would argue that in the light of Section 70 of the Indian Succession Act, revocation of a Will also is to be proved in the same manner as that of a Will and in the absence of any evidence to prove the execution of Ext.A2, the same cannot be relied upon either as a revocation revoking Ext.B10 or as execution of a new Will in place of Ext.B10. The learned Amicus Curiae would also argue that revocation of a Will also is to be proved in the same manner as that of a Will or codicil. In support of the above argument she has relied upon the decisions in Anil Behari Ghosh v. Latika Bala Dassi and Others, AIR 1955 SC 566, Bhagat Ram and Another v. Suresh and Others, 2003 (12) SCC 35, Baburajan v. Parukutty and Others, AIR 1999 Ker. 274, Jaswant Kaur v. Amrit Kaur & Others, 1977 (1) SCC 369, C.G.David Tharakan v. Dr.Mrs.Lily Jacob, AIR 1993 Ker. 9 & Amruta Pasayat And Another v. Tama Pasayat, AIR 2017 (NOC) 235 (Ori.)

35. Section 70 of the Indian Succession Act reads as follows :-

                  70. Revocation of unprivileged Will or codicil.—

                  No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.

                  (i) A has made an unprivileged Will. Afterwards, A makes another unprivileged Will which purports to revoke the first. This is a revocation.

                  (ii) A has made an unprivileged Will. Afterwards, A being entitled to make a privileged Will makes a privileged Will, which purports to revoke his unprivileged Will. This is a revocation.

36. In the decisions in Anil Behari Ghosh (supra) and Bhagat Ram (supra) the Apex court held that in the light of Section 70 of the Evidence Act a revocation document is to be executed in the same manner as a Will. The decisions in Anil Behari Ghosh (supra) was followed by this Court in Baburajan (supra). In Jaswant Kaur (supra) the Apex Court held that the revocation of an unprivileged Will is an act only a little less solemn than the making of the Will itself and has to comply the statutory requirements under Section 70 of the Succession Act. In C.G.David Tharakan (supra) this Court has followed the decision in Jaswant Kaur (supra).

37. In the light of the above decisions as well as in the light of Section 70 of the Indian Succession Act, revocation of a Will also is to be executed and proved in the manner of execution and proof of an unprivileged Will or codicil. As argued by the learned counsel for the appellant, in the instant case the respondents have not examined any attesting witness to prove the execution of the Wills relied upon by them. In this case, both the attesting witnesses to Ext.A2 were no more at the time of evidence. In such a case the procedure to be followed is laid down in Section 69 of the Evidence Act. However, in this case no such attempt was made to prove Ext,A2 and as such the same cannot be taken as a valid revocation revoking Ext.B10. Therefore, it is to be held that the plaintiffs failed to prove Ext.A2 as a revocation, revoking Ext.B10.

38. In this case Ext.B10 relied upon by the appellant is a registered Will. However, what is produced and marked as Ext.B10 is only its certified copy. The original of Ext.B10 is not forthcoming. According to the appellant, the original of Ext.B10 is with the 3rd plaintiff, which was stoutly denied by him. During the cross-examination of the appellant as DW1, it was revealed that he had no direct knowledge with regard to the possession of the original of Ext.B10 with the 3rd plaintiff. According to DW1, his mother told him that the original of Ext.B10 was taken away by the 3rd plaintiff. Since DW1 has no direct knowledge in that respect, his evidence cannot be relied upon to prove that the original of Ext.B10 was in the possession of the 3rd plaintiff. Therefore, the defendants could not prove that the original of Ext.B10 is with the 3rd plaintiff. In other words, the defendants namely the propounders of the Will could not give any satisfactory explanation about the missing of the original Will.

39. Since Ext.B10 is only a certified copy, it does not contain the signature of the testator or that of the attesting witnesses. Since, Ext.B10 did not contain the signature of the testator or the witnesses, Ext.B10 could not be proved as required under Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act. The learned counsel for the appellant would argue that in Ext.A2, the holographic Will, there is admission about Ext.B10 by the testator himself and in the light of Sections 17 and 70 of the Evidence Act, further proof regarding the execution of Ext.B10 is not required. It is true that in Ext.A2 holographic Will dated 9.11.1984 there is mention about Ext.B10. However, I have already found that the plaintiffs failed to prove the execution of Ext.A2, either as a Will or as a revocation. Therefore, Ext.A2 cannot be relied upon by the appellant also, to prove Ext.B10.

40. In the decision in Sarada and Others v. Radhamani and Others, 2017(2)KHC 527 a Division Bench of this court after referring to various provisions of law as well as decisions on the point held that a Will shall not be used as evidence until one attesting witness at least has been examined, even if its execution is not specifically denied. In the above decision, the Division Bench also declared that the decisions to the contrary referred therein are per incuriam. In paragraph 16, the Division Bench held that:

                  “16. There is a world of difference between the factum of a document akin to the Will being admitted under Section 58 of the Act and proof of due execution of the Will under Section 68 of the Act. The due execution of the Will cannot be proved otherwise than by recourse to Section 68 of the Act and Section 63 of the Indian Succession Act, 1925 as has been held time and again. The general provisions of Section 58 of the Act has obviously to give way to the special provisions of Section 68 of the which govern documents required by law to be attested. That some documents are required by law to be attested imply that law gives additional solemnity empowering the executants with rights and obligations thereunder. Section 68 of the operates as an exception in relation to documents required by law to be attested and cannot be said to be subject to Section 58 of the Act by any stretch of imagination. No distinction has been drawn by the statutory provision between an admitted Will and a disputed Will as has been rightly observed by Mr. Justice P. Bhavadasan in Poulose.

A.V.s case (supra). One of the attesting witnesses if he be alive should be called for the purpose of proving its execution whenever a Will is used as evidence and for whatever purpose.”

41. It means that, a Will is to be proved as required under the Evidence Act, before it could be used as evidence and for whatever purpose. In other words, unless a Will is proved as required under the Evidence Act, it cannot be used as evidence or for any other purpose. Admission under S.58 of the Evidence Act is not a substitute for the requirement under S.68 therein. In the decision in Bharpur Singh and Others v. Shamsher Singh, (2009) 3 SCC 687 the Apex Court further held that the presumption under S.90 of the Evidence Act is not applicable to Will. In the above circumstance, it is to be held that the parties to this proceeding cannot make use of the provisions under Ss.17 and 70 of the Evidence Act, as a substitute for the requirement under S.68 and 69 therein.

42. Since the defendants are the propounders of Ext.B10 Will, it is their burden to prove its due execution. In addition to the same, they have an added responsibility to remove all suspicious circumstances surrounding the Will. In the decision in Bharpur Singh (supra) the Apex Court quoted the following dictum from its earlier decision in Niranjan Umeshchandra Joshi v. Mrudula Jyothi Rao and Others, 2006 (14) SCALE 186:

                  “33.The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator.”

43. With respect to suspicious circumstances surrounding the execution of the Will, in the same decision the Apex Court held in paragraph 21 and 22 as follows:

                  “ 21. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:

                  i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.

                  ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time.

                  iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.

                  iv. The dispositions may not appear to be the result of the testator's free will and mind.

                  v. The propounder takes a prominent part in the execution of the Will.

                  vi. The testator used to sign blank papers.

                  vii. The Will did not see the light of the day for long.

                  viii. Incorrect recitals of essential facts.

                  22. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the Will had duly been proved or not.

44. In this case the testator Sri.Sumathi is a well educated man retired from the post of Assistant Collector, Customs. Altogether 4 Wills allegedly executed by him were produced by both the sides. They are Exts.A2,A3, B2 and B10. Out of which, B10 is dated 19.5.1984, A2 is dated 9.11.1984 and B2 is dated 4.12.1984. A2 and B2 are holographic Wills, neatly written by him in English, while B10 is a registered Will, prepared with the help of a scribe. Ext.A3 dated 27.4.1989 is a type written Will. The testator has six children, 3 sons and 3 daughters. In Ext.B10 he excluded only one of his sons, namely the 3rd plaintiff. Surprisingly, in Ext.B10 the testator has not even mentioned the name of the excluded son. He has also not stated any reason for disinheriting the 3rd plaintiff. In A2 and A3 he wanted to give equal share to all six children. At the time of arguments the learned counsel for the appellant also could not give any valid reasons for excluding the 3rd plaintiff by the testator. In Ext.B1 letter the testator has stated that all his sons are well off, but they were not properly taking care of him. Though he had similar complaint against the 2nd plaintiff also, he was not excluded from inheriting him. At the same time it was revealed that it was the 3rd plaintiff, who was a doctor in Indian Army, took the testator to his place of employment and provided necessary treatment to him. Finally the testator died while he was with the 3rd plaintiff.

45. In the facts of this case absence of the original of Ext.B10 is very crucial. As already stated, though the appellant contended that the original of Ext.B10 was with the 3rd plaintiff, he could not prove the same. Therefore, in this case there is no reliable evidence regarding the original of Ext.B10. In Ext.B2 letter the testator demands return of Ext.A2 from him, but not demanded Ext.B10. Therefore, whether or not the testator himself destroyed the original of Ext.B10 cannot be ascertained or ruled out. It is true that the respondents/plaintiffs have not raised such a contention in their pleadings. However, in a suit for partition all the parties are in the same footing. In the decision in Bharpur Sungh (supra) the Apex after referring to its earlier decision in Jaswant Kaur v. Amrit Kaur and Others, 1977 (1) SCC 369 held in paragraph 20 that:

                  “20. We may notice that in Jaswant Kaur vs. Amrit Kaur & ors. [(1977) 1 SCC 369] this Court pointed out that when the Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and defendant. An adversarial proceeding in such cases becomes a matter of Court's conscience and propounder of the Will has to remove all suspicious circumstances to satisfy that Will was duly executed by testator wherefor cogent and convincing explanation of suspicious circumstances shrouding the making of Will must be offered.”

46. Therefore, it is the burden of the propounders of the Will to remove all the suspicious circumstances surrounding the Will. In the facts of the case, non-production of the original of Ext.B10 Will, without offering any valid explanation in that respect, is a serious suspicious circumstance surrounding the Will. Non-mention of the 3rd plaintiff's name in Ext.B10 and absence of any valid reasons for disinheriting him are also two other suspicious circumstances surrounding Ext.B10. Since the appellant failed to remove those suspicious circumstances surrounding Ext.B10, the same by itself is sufficient to reject Ext.B10. Moreover, since Ext.B10 certified copy did not contain the signature of the testator and the attesting witnesses, Ext.B10 could not be proved as required under Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act. In short, the defendants have failed to prove the due execution of Ext.B10 Will. Since the defendants failed to prove the execution of Ext.B10, there is no question of its revival in the light of Ext.B2.

47. In the light of the above discussions, I do not find any irregularity or illegality in the impugned preliminary judgment and decree passed by the trial court, so as to call for any interference. Therefore, this appeal is liable to be dismissed, confirming the impugned preliminary judgment and decree passed by the trial court. Points 2 to 5 answered accordingly.

48. CONCLUSION:- In the result, this appeal is dismissed.

Considering the facts the parties are directed to suffer their respective costs.

                  NB: Before parting with, I would like to place on record my profound gratitude to Sri.Dinesh R.Shenoy, Sri.R.Surendran, Sri.V.Ramkumar Nambiar and Sri.V.Subhash Bhat, the advocates appearing for both sides, in reposing confidence in me by bringing up this part heard matter before me by filing a Joint Memo and finding time to argue the same during the summer vacation, so that I could dispose of this old appeal, in time.

                  Further, I would like to place on record my profound gratitude to Advocate Smt. Girija K. Gopal, the learned Amicus Curie, for ably assisting this court, even during the period of vacation.