1. The defendant in O.S. No. 378 of 1998 on the files of the Sub Court, Thrissur, is the appellant herein.

2. A suit was filed for partition of the plaint schedule property by the respondents herein. The plaintiffs and the defendant in the said suit are the children of deceased Rappai and Mariam. The plaint schedule property belonged to the deceased Mariam, and the plaintiffs instituted the suit relying on a Will executed by Mariam in the year 1994. It is stated that the mother had earlier filed O.S. No. 148 of 1995 against the defendant for recovery of possession of the plaint schedule property, and she died on 29.01.1998. The plaintiffs contend that the defendant is in possession of the plaint schedule property and that the Will executed in 1994 is the last Will of the mother, but the defendant is not willing to hand over possession of the property to them.

3. The appellant herein contends that he is a disabled person and that his mother was residing with him. According to him, the house and the plaint schedule property were set apart in his favour as per a registered Will executed by Mariam as Document No. 190/1976 of the Sub Registry Office, Thrissur. It is further contended that after the execution of the said registered Will, the defendant has been in exclusive possession and enjoyment of the property for the last 24 years and has thereby perfected title by adverse possession.

4. The trial court passed a preliminary decree partitioning the plaint schedule property. The appellant contends that the suit for partition is not maintainable since the deceased Mariam had filed O.S. No. 148 of 1995 before the Munsiff’s Court for recovery of possession of the plaint schedule property from the appellant, which was dismissed. It is therefore argued that the issue in the present suit is barred by res judicata, as the question regarding possession of the plaint schedule property has attained finality in O.S. No. 148 of 1995. The appellant also denies the execution of Ext.A6 Will in 1994 by the mother, contending that it is not genuine and that no evidence has been adduced by the plaintiffs to prove its execution.

5. It is further submitted that the plaintiffs have admitted that they have received their respective shares in the family property and that the plaint schedule property had been set apart for the defendant as per an oral partition. It is also contended that the appellant has been in possession of the property from 1976 onwards, which indicates that the shares in the family property had already been settled. It is further contended that Ext.A6 Will was executed on 15.02.1994 and that, as per Section 213 of the Indian Succession Act as it then stood, the Will could not have been relied upon by the court below unless it was probated. It is argued that Section 213 was amended only after the execution of Ext.A6 Will, and hence the court below ought not to have relied on Ext.A6 Will in the absence of probate.

6. It is also contended that the trial court failed to consider the improvements made by the defendant in the property, and that the value of such improvements exceeds the value of the property itself. According to the appellant, these aspects ought to have been considered while passing the judgment. The appellant therefore seeks to set aside the judgment and decree passed by the Sub Court, Thrissur in O.S. No. 378 of 1998 and to dismiss the suit.

7. Heard Sri. Dinesh Mathew J Murikan, for the appellant and Sri. K.B. Gangesh for the respondent.

8. The learned counsel for the appellant relied on the decisions in N. Kamalam (Dead) and Another v. Ayyasamy and Another [(2001) 7 SCC 503], Yumnam ONGBI Tam𝕛ha Ibema Devi v. Yumnam Joykumar Singh and Others [(2009) 4 SCC 780], Rathnamma v. Omana (2024 KHC 7074) to contend that the execution of the Will has not been proved in accordance with law. The consistent principle flowing from the above decisions is that though Section 68 of the Evidence Act permits proof of a Will by examining one attesting witness, such witness must, in his evidence, satisfy all the requirements of due execution as contemplated under Section 63(c) of the Indian Succession Act, including proof of attestation by both witnesses. If the attesting witness examined fails to prove the attestation by the other witness, it is incumbent on the propounder to examine the other available attesting witness. Failure to do so is fatal, and recourse to Section 71 of the Evidence Act is impermissible unless the attesting witnesses examined deny or fail to recollect execution. It is further contended that any suspicious circumstances surrounding execution must be satisfactorily explained by the propounder.

9. Per contra, the learned counsel for the respondent relied on Devassykutty v. Visalakshy Amma (2010 KHC 6233) and Ganesan (D) Through Lrs. v. Kalanjiam and Others (2019 KHC 5523), to contend that it is sufficient if the attesting witness examined speaks not only to his own attestation but also, even by necessary implication, to the attestation by the other witness. It is argued that there is no rigid requirement that both attesting witnesses must be examined if the evidence of one attesting witness, read as a whole, establishes compliance with Section 63(c) of Indian Succession Act. It is further submitted that acknowledgment of execution by the testator is sufficient compliance, and attestation need not necessarily take place simultaneously or in the presence of both witnesses together, so long as the statutory requirements are otherwise satisfied.

10. The only question that arises for consideration is whether Ext.A6 Will has been executed in compliance with Section 63 of the Indian Succession Act and whether the same has been proved in accordance with Section 68 of the Indian Evidence Act.

11. Section 63 of the Indian Succession Act mandates that for a Will to be duly executed, three essential requirements must be satisfied, namely:

                  (i) the testator must sign or affix his mark to the Will or it must be signed by some other person in his presence and by his direction; (ii) such signature or mark must be so placed as to indicate that it was intended to give effect to the document as a Will; and (iii) the Will must be attested by two or more witnesses, each of whom must have seen the testator sign or affix his mark or must have seen some other person sign the will in the presence and by direction of the testator or must have received from the testator a personal acknowledgment of his signature or mark or of the signature of such other person, and each of the witnesses has to sign the will in the presence of the testator.

12. Section 68 of the Indian Evidence Act prescribes the mode of proof of such a document and requires that at least one attesting witness be examined to prove its execution, provided such witness is alive and capable of giving evidence. The attesting witness so examined must not only speak to his own attestation but must also depose, either expressly or by necessary implication, about the attestation by the other witness so as to establish due execution in terms of Section 63(c).

13. The Bombay High Court in Vishnu Ramkrishna and Others v. Nathu Vithal and Others (AIR 1949 Bombay 266), laid down the following principles:

                  1. For a Will to be duly executed under Section 63 of the Succession Act, the propounder must establish (i) that the testator signed or affixed his mark to the Will or it was signed by another in his presence and by his direction, (ii) that such signature or mark was so placed as to indicate an intention to give effect to the document as a Will, and (iii) that the Will was attested by at least two witnesses, each of whom either saw the testator sign or received from him a personal acknowledgment of his signature, and each witness must have signed in the presence of the testator, though not necessarily in the presence of each other.

                  2. Section 68 of the Evidence Act provides a concession by permitting proof of a Will through the examination of at least one attesting witness, but such witness must be capable of proving the entire execution of the Will, which includes not merely the act of signing by the testator but compliance with all the formalities of attestation mandated under Section 63(c).

                  3. If the attesting witness examined proves only his own attestation but is unable to speak to the attestation by the other witness, the evidence falls short of the mandatory requirements of Section 68, as proof of execution necessarily includes proof of attestation by two witnesses in the manner required by law. But if the one attesting witness cannot prove execution of the will, then his evidence has to be supplemented by the other attesting witness being called to prove the execution and the deficiency cannot be cured by examining non-attesting witnesses such as the scribe or parties to the document, since execution of a Will must be proved only through attesting witnesses.

                  4. The statutory concession under Section 68 cannot be used to dilute the substantive requirement of proof; where the evidence of the sole attesting witness is insufficient, the only proper course is to call the other attesting witness so that the due execution of the Will is proved in full compliance with Section 63.

                  5. Section 71 of Evidence Act provides that if the attesting witness denies or does not recollect the execution of the documents, its execution may be proved by other evidence. This is a sort of a safeguard introduced by the Legislature to the mandatory provisions of Section 68 where it is not possible to prove the execution of the will by calling attesting witnesses but this section can only be requisitioned when the attesting witnesses who have been called fail to prove the execution of the will by reason of either by denying their own signatures, or denying the signature of the testator, or having no recollection as to the execution of the document. Section 71 has no application when one attesting witness has failed to prove the execution of the will and other attesting witnesses are available who could prove the execution if they were called.

14. Based on the said principles the Bombay High Court found that the defendants therein failed to prove the due execution of the Will since the attesting witness examined, out of the four attestors, only spoke of the presence of one other attestor along with the testator, when the latter acknowledged her thumb impression in the Will. The witness spoke of his attestation but not that of the other. It was also held that recourse to S.71 of the Evidence Act is impermissible without exhausting the remedy under Section 68 of the Evidence Act of calling the available attesting witnesses. The High Court therefore remanded the matter for further evidence of the other three attesting witnesses said to be available to determine whether there was due execution of the Will.

15. The principles laid down in this judgment of the Bombay High Court was affirmed by the Hon’ble Supreme Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam [(2003) 2 SCC 91] by overruling all other judgments in this line including Manki Kaur v. Hansraj Singh (1938 SCC OnLine Pat 45) which took a different view from Vishnu Ramakrishnan (supra) and resolved the issue by holding that the clause (c) of Section 63 of the Succession Act requires and mandates attestation of a will by two or more person as witnesses, albeit Section 68 of the Evidence Act that gives concession to those who want to prove and establish a will in the court of law by examining at least one attesting witness who could prove the execution of the will viz attestation by two witnesses and its execution in the manner contemplated by clause (c) to Section 63 of the Succession Act. Where one attesting witness examined fails to prove due execution of the will, then the other available attesting witness must be called to supplement his evidence to make it complete in all respects to comply with the requirement of proof as mandated by Section 68 of the Evidence Act. This position was further reiterated by the Apex Court in Raj Kumari and Others v. Surinder Pal Sharma [(2021) 14 SCC 500] and in a recent decision in Dinachandran K.S. v. Shyla Jose𝕛h (2025 KHC Online 8026), wherein the Supreme Court upheld these principles and held that the Will involved in that case stood duly proved in accordance with Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act, as the attesting witness examined had clearly deposed to the presence of the testator and the attesting witnesses, and to the signatures having been affixed by each of them on the Will.

16. In the case on hand, PW2 is an attesting witness to Ext.A6 Will. From his deposition, it is evident that the testator Mariam signed the Will in his presence and that he affixed his signature as an attesting witness thereafter. PW2 has also deposed that the other attesting witness, Shinto, had signed the Will and that he had seen Shinto signing the document as an attestor. The evidence further discloses that after execution, the testator along with the attesting witness proceeded to the Sub Registrar’s Office for registration of the Will.

17. The testimony of PW2, read as a whole, clearly establishes that the testator executed the Will in a sound disposing state of mind and that both the attesting witnesses had signed the Will in the presence of the testator. The deposition that PW2 saw the other attesting witness sign the document, coupled with the sequence of events narrated, is sufficient to infer compliance with the requirement of attestation under Section 63(c).

18. It has also come out in evidence that the whereabouts of the other attesting witness Shinto are not known. In such circumstances, the non-examination of the other attesting witness cannot be held against the propounder, particularly when the evidence of PW2 substantially proves the due execution and attestation of the Will. This is not a case where the attesting witness examined has failed to prove the execution so as to necessitate the compulsory examination of the other attesting witness. On the contrary, the evidence of PW2 satisfies the requirements of Section 68 of the Evidence Act.

19. Section 71 of the Evidence Act has no application to the facts of the present case, as the same is attracted only in situations where the attesting witness examined denies or does not recollect execution. Here, PW2 has clearly spoken to the execution and attestation of the Will, and therefore, there is no occasion to invoke Section 71.

20. Further, there is no material on record to indicate any suspicious circumstances surrounding the execution of the Will. The testamentary capacity of the testator is not in dispute and the evidence on record shows that the Will was executed voluntarily and with full understanding of its contents. The fact that the Will is a registered document, though not by itself conclusive, is an additional circumstance supporting its genuineness.

21. In the above circumstances, it has to be held that Ext.A6 Will has been duly executed in compliance with Section 63 of the Succession Act and has been properly proved in accordance with Section 68 of the Indian Evidence Act. The challenge regarding non-proof of execution and attestation is therefore liable to be rejected.

22. Given the above, there is no reason to interfere with the judgment and preliminary decree passed by the Sub-Court, Thrissur in O.S. No.378 of 1998.

                  Accordingly, the Appeal fails and is dismissed.