ORDER
Prabha Sridevan, J.
1. The following substantial questions of law were framed at the time of admission:
“(1) Whether the Lower Court erred in holding that the Will alleged have been executed by Sankaravadivammal is true and genuine without correctly appreciating the evidence on record to show the existence of grave suspicious circumstances?
(2) Whether the Lower Court is right in accepting the evidence of the only attestor examined and holding that the Will dated 12.3.1982 is proved especially when all the attestors are not examined as there are various suspicious circumstances?
(3) Whether the Lower Court is right in going into the question of title between competing claimants in the suit for redemption?”
The defendant is the appellant. The suit was filed by the respondent for redemption of the mortgage and for other reliefs. According to the respondent-plaintiff, the suit properties belonging to Sankaravadivammal were mortgaged to the first defendant whose legal representatives are the appellants and respondent Nos. 2 and 3 herein. On 22.3.1965, the mortgagee was put in possession of the property to enjoy the usufructs in lieu of interest. Sankaravadivammal was entitled to the Debt Relief Act (Act 40 of 1979) and the debt got discharged on 14.7.1978. So she issued a notice on 29.5.1982 calling upon the mortgagee to deliver possession. No reply was received from the mortgagee nor were the properties delivered. The first respondent is the sister’s daughter of Sankaravadivammal and was the beneficiary under the Will dated 12.3.1982. Sankaravadivammal died on 24.2.1983. The first respondent issued a notice to the mortgagee informing that she alone is entitled to the property. To that, a response was given by the mortgagee stating that Sankaravadivammal had executed a Will on 24.5.1974 and that alone was the true Will and that the Will set up by the respondent herein was fraudulent. The defendants filed a written statement accepting the mortgage but denying that the respondent had any right to redeem the mortgage in view of the Will dated 24.5.1974. It is the defendants’ specific case that the Will set up by the respondent is not a true one and therefore, prayed for dismissal of the suit. The Trial Court accepted the plaintiffs case and decreed the suit. The Appellate Court confirmed the decision and therefore, the second appeal has been filed.
2. The learned counsel for the appellant, contended the acceptance of the second Will was not correct. The plaintiffs brother was examined as P.W.1 and he had accepted that the Will dated 24.5.1974 (Ex-A1). As per Ex-A1, the property was given equally both to the first respondent (plaintiff) and to the first defendant. But according to P.W.1 Ex-A1 was cancelled in 1982 by Ex-A2, cancellation deed and Ex-A3 is the Will set up by the first respondent. According to the counsel for the first respondent, Exs-A2 and A3 had been duly proved and it is enough if one attesting witness has been examined to prove the due execution of the Will. Since the learned counsel for the appellant requested that for: the purpose of testing the genuineness of the evidence the Will must be looked at. Ex-A3, Will was also seen by me. In Ex-A2, Sankaravadivammal has referred to the earlier Will, Ex-A1, and that under Ex-A1, Schedule No. 1 property which are the suit properties were given to her husband’s brother’s grandson who is the first defendant and the Schedule 2 property was given to the brother’s daughter, the first respondent herein and that subsequently, she felt that the said Will was wrong and that some problems may arise and therefore, she had cancelled the Will. The extracts from Ex-A2 are as follows:
3. P.W.1 and one Gurusamiapillai are the witnesses to this document. The document is not signed by Sankaravadivammal. A mark is made by the person, who wrote Ex-A2. In P.W.1’s evidence, reason for execution of the cancellation of the Will is quite different from what is stated in Ex-A2. So it is clear that P.W.1 did not know what was written in Ex-A2 or his statement that he was present at the time of execution of Ex-A2 cannot be true, because the two reasons do not tally with each other. The scribe is one Palani, who was not examined. The other witness is one Gurusamiapiflai, who was not examined.
4. As regards Ex-A3, it was allegedly written upon the instructions of Sankaravadivammal. P.W.I says that in the first three pages, she made a mark with the pen, in the last page she affixed her thumb impression and that he saw it and that he and Gurusamiapillai signed as attesting witness and that Sankaravadivammal saw them attesting the will. The following is the extract of the evidence :
6. The learned counsel for the first respondent, fervently urged that it is not necessary for the respondent to examine both the attesting witnesses. The inadequacy of the evidence in this case arises from the fact that only attesting witness, who has been examined does not speak of the other attesting witness, seeing the mark of the testatrix and attesting witness. Therefore, the requirements of Indian Succession Act, 1925 are not satisfied.
7. Following decisions were relied on by the counsel on either side.
(i) S. Sundaresa Pai v. Mrs. Sumangala T. Pai, . That is a case where the Will was proved by the testimony of the attesting witness and the uneven distribution of the assets by executant, cannot by itself be taken as suspicious circumstance. That does not apply to this case.
(ii) Sushila Bala Saha v. Saraswati Mondal, was relied on by the learned counsel for the respondents in which the Division Bench held that even if the attestor is capable of writing but on account of weakness he is unable to put his signature, he can execute the Will by affixing a mark. There can be no disagreement with this proposition. But in this case, the Will has not been proved in accordance with law for the reasons stated in the above said paragraph and therefore, this case does not apply to the case on hand.
(iii) In Dharam Singh v. Aso, the Supreme Court held that since there was no evidence to show that the two attesting witness supported the execution of the Will, the Will had not been duly proved and in that case the signature of the Registrar could not be a signature of the attesting witness. This applies to the present case.
(iv) In Kalyan Singh v. Smt. Chhoti, AIR 1990 SC 397, it was held that a Will is one of the most solemn documents known to law. The executant of the Will cannot be called to deny the execution, or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will. We have already seen that even the presence of P.W.1 is extremely doubtful since the reasons he gives is total revocation from what is set out under Ex-A3 and further the Will has not been proved by showing that there were two attesting witnesses.
(v) In H. Venkatachala Iyengar V.B.N. Thimmajamma, it was held that Section 68 of the Evidence Act deals with the proof of execution of the document required by law to be attested and it provides that such a document shall not be used as evidence until one attesting evidence at least has been called for the purpose of proving its execution. It is the question as to whether the Will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Section 63 of the Indian Succession Act are also, relevant and it requires that the testator shall 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 acknowledgment of his signature or mark, or of 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. This Section also requires that the Will shall be attested by two or more witnesses as prescribed. In that case, the Supreme Court also referred to the manner in which the evidence will have to be tested and observed that, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. But in this case, P.W.1 is the brother of the beneficiary and he cannot said to disinterested and his evidence is also unsatisfactory.
(vi) In Dasureddi v. Venkatasubbammal, AIR 1934 Mad. 436 it was held by a Division Bench that execution of a Will by a person other than the testator and by his direction is sufficient. But, in this case, though the execution is apparently by a person other than the testator, the evidence is to the effect that the mark was made by the testatrix itself and that is not correct.
(vii) In P. Radhakrishna Mudaliar v. P. Subraya Mudaliar, 1917 ILR 40 Mad. 550 a Full Bench of this Court held that in a Will of a marksman when mark is not affixed by the testator himself but by another is not a due execution in the absence of two witnesses besides the person affixing the mark is not a due attestation.
(viii) In S. Thirunavukarasu v. B. Kandasuamy Reddy, 2001 (2) CTC 744 this Court held that the propounder of the Will who was the sole proprietary did not discharge the burden of the Will since the Will was executed by an illiterate Hindu female and there is nothing to show that the Will was explained to her.
8. For the following reasons, the second appeal is allowed:
(a) the attestation by two attesting witnesses not proved;
(b) the presence of P.W. 1 is highly doubtful since the reason given by him for execution of Ex-A2 differs from the reasons given in Ex-A2 itself;
(c) the evidence that Sankaravadivammal herself made the mark is patently and clearly false on a perusal of the Will; and
(d) even regarding the custody of the Will, there was contradictory evidence.
(e) It is also seen that the mark is made on all the four pages of Exs-A2 and A3 in addition to the thumb impression on the fourth page. So P.W.I’s evidence is unreliable.
No costs.
9. The learned counsel for the appellant also made another request. He submitted that the dismissal of the suit will again give rise to another ground of litigation since the bequest under Ex-A1 entitles the two parties to the suit to partition the property and enjoy it separately. The suit was filed in 1984. Already 20 years have lapsed and the first defendant is no longer alive but only his legal representatives. In these circumstances, exercising the inherent power of this Court in the interest of justice and to cut down further delay, the relief granted in the appeal is moulded into a preliminary decree for partition as per Ex-A1. It is open to the parties to pay the necessary court-fees and apply for final decree.