JUDGMENT
G.V. Seethapathy, J.
1. This appeal is directed against the judgment and decree dated 31.3.1992 in OS No. 103 of 1987 on the file of Subordinate Judge, Bheemavaram, wherein the suit filed by first respondent herein for partition and separate possession of 1/8th share in the plaint A and B schedule properties, was decreed in part.
2. The first respondent herein filed suit against the appellants-defendants 2 to 7 and respondents 2 and 3-defendants 1 and 8, for partition and other reliefs with the following averments:
The plaintiff, defendants 1 to 3, 5 to 7 and Satyanarayana Raju, father of 4th defendant were the children of one Smt. Surayya. She died intestate in January 1987. On her death, all the movable and immovable properties, cash and jewellery belonging to her devolved on her legal heirs, plaintiff, defendants 1 to 3, 5 to 7 and father of 4th defendant. The plaintiff became entitled for l/8th share therein. Ever since the death of Smt. Surayya, the plaintiff has been demanding for partition, but there was no response from the defendants. The plaint A schedule measures 25 cents, wherein terraced building with 14 rooms, asbestos cement roofed house with 12 rooms along with a thatched house on the terrace and a RCC roofed upstair building are situated. Plaint B schedule property consisting of cash of Rs. 1,50,000/-, gold jewellery weighing 10 sovereigns and silver were owned and possessed by Smt. Surayya. After the death of Smt. Surayya, the first defendant who has been in management and control of the affairs started his wrongful efforts to secrete B schedule movables. The house properties situated in A schedule fetches not less than Rs. 3,000/- per month by way of rent. The 8th defendant, who is son-in-law of first defendant, was in charge of the collection of rents. Penmetsa Satyanarayana Raju, father of 4th defendant, subsequent to death of Smt. Surayya, died leaving behind 4th defendant as his sole legal heir. P. Chalapathiraju, eldest son of Smt. Surayya ceased all connections with the family and got himself divided and has been living separately since over 30 years and hence, he is not impleaded as a party to the suit and is not claiming any share in the plaint schedule properties.
3. The first defendant filed a written statement and the other defendants adopted the same by filing a memo, contending in brief as follows:
The relationship among the parties is admitted. Smt. Surayya executed a registered Will dated 14.8.1967 bequeathing the southern half of the plaint schedule property in favour of defendants 2 and 3 and father of 4th defendant. Subsequently on 18.11.1967 Smt. Surayya executed a registered settlement deed in respect of northern half of the plaint A schedule property in favour of first defendant. Ever since the first defendant has been in possession and enjoyment of the said property and got his name mutated in municipal records. The first defendant gifted four cents of vacant site out of northern half of plaint A schedule property in favour of his daughter Y. Satyavathi, who is wife of 8th defendant through registered settlement deed dated 18.3.1981. Satyavathi constructed RCC roof upstair building in the said site in 1981-82 and has been enjoying the same with absolute rights. The municipal plan for construction of the said building was drawn by Venkataraju, husband of plaintiff. After death of Smt. Surayya, southern half of the plaint A schedule devolved on defendants 2 and 3 and father of 4th defendant by virtue of Will executed by Smt. Surayya and they are in possession and enjoyment of the same. Two portions were separately assessed to municipal tax with assessment Nos. 790 and 790(A). Plaint A schedule property is therefore not available for partition. Plaint B schedule movables were never in existence. Smt. Surayya had only bank balance of Rs. 12,000/- and cash of Rs. 4,000/- by the date of her death and the total amount of Rs. 16,000/- was equally apportioned by plaintiff, defendants 5 to 7 into equal shares of Rs. 4,000/- each. K. Venkatraju, husband of plaintiff got the suit filed with a view to extract money from the defendants.
4. On the strength of the pleadings, the trial, Court framed the following issues for trial:
1. Whether the plaintiff is entitled to the division of the plaint schedule property into 8 equal shares and putting her in separate possession of one such share from out of it?
2. Whether the plaintiff is entitled to the past and future profits?
3. Whether Smt. Surayya died testate having sold and bequeathed the plaint schedule properties prior to her death?
4. Whether the 8th defendant is not a necessary and proper party in this suit?
5. To what relief?
5. PWs.1 to 4 were examined and Ex.A.1 was marked on behalf of the plaintiff. DWs.1 to 3 were examined and Exs.B.l to B.9 were marked on behalf of the defendants.
6. On a consideration of the evidence on record, the trial Court held on issues 1 and 3 to the effect that the registered gift deed dated 18.11.1967 executed by Smt. Surayya in favour of first defendant in respect of northern half of plaint A schedule is true, valid and binding and the registered Will Ex.B.3 dated 14.8.1967 said to have been executed by Smt. Surayya in favour of defendants 2 and 3 and father of 4th defendant in respect of southern half of the plaint A schedule is not proved to be genuine and except cash of Rs. 16,000/- Smt. Surayya had no movables mentioned in B schedule; on issue No. 2 the trial Court held that the plaintiff is entitled for past and future profits at Rs. 1,562.50 towards l/8th share in the southern half of plaint A schedule property i.e., 1/16th share in the total property, which was fetching rents at Rs. 25,000/- per annum. Accordingly, the suit was decreed in part granting preliminary decree for partition of the southern half of the plaint A schedule property covered by Ex.B.3 is entitled to l/8th share to the plaintiff and the defendants 2 to 7 are also entitled for l/8th share each therein. The first defendant was held entitled for l/8th share in the southern half besides northern half of plaint A schedule by virtue of Ex.B.l. The plaintiff was also held entitled for Rs. 2,000/- towards 1/8th share in plaint B schedule property and also mesne profits at the rate of Rs. 1,562.50 from 21.1.1987 and the rest of the plaintiffs claim was dismissed.
7. Aggrieved by the said judgment and decree, the defendants 2 to 7 preferred the present appeal.
8. Arguments of the learned Counsel for the appellants and respondents are heard. Records are perused.
9. Learned Counsel for the appellants contended that there is no specific plea in the plaint that the Will is concocted and the trial Court erred in holding that the Will is not proved, though one of the attestors was examined as DW.2, who is none else than the eldest son of Smt. Surayya and the other attestors and scribe being no more, the handwritings of the scribe in Ex.B.3 Will was identified by his nephew DW.3, a practising Advocate. Learned Counsel for the appellants further contended that no rejoinder was filed by the plaintiff disputing the settlement deed Ex.B.l after Will Ex.B.3 and that the husband of plaintiff, Venkataraju, who is a material witness is not examined. He would further contend that Exs.B.l and B.3 were scribed by the same person and the attestors were also same, but the trial Court while accepting Ex.B.l rejected Ex.B.3 Will as not proved, ignoring the admission of PW.3 that DW.2 eldest son of Smt. Surayya is a gentleman. He further contends that the witnesses cannot be expected to speak strictly in accordance with the provisions of Section 68 of the Evidence Act and in the absence of any suspicious circumstances surrounding the Will and in view of the fact that the other sisters are not supporting the plaintiff, though they stand to gain by supporting her, the trial Court ought to have upheld the genuineness of Will Ex.B.3.
10. Learned Counsel for the first respondent-plaintiff contended that the burden squarely lies on the propounder of the Will to establish its genuineness by adducing necessary evidence of execution and attestation in accordance with the provisions of Section 68 of the Evidence Act. Except the testimony of DW.2, there is no other evidence and even DW.2’s evidence does not establish due execution and attestation and therefore, the trial Court has rightly held that the Will Ex.B.3 is not proved to be genuine.
11. In view of the rival contentions of the parties, the first and foremost point which arises for consideration is whether the Will Ex.B.3 dated 14.8.1967 said to have been executed by Smt. Surayya in favour of defendants 2 to 7 and father of 4th defendant, in respect of southern half of the plaint A schedule is true, valid and binding and therefore the said property is not available for partition?
12. It is not disputed that the plaintiff, defendants 1 to 3, 5 and 7 and Satyanarayanaraju, father of 4th defendant, were the children of Smt. Surayya and Thimmaraju. DW.2 Chalapathi Raju was the eldest son of Smt. Surayya and he got divided from the joint family long back and was living separately and ever since he had nothing to do with the rest of the joint family or properties of the family. The plaint A schedule property comprising 25 cents of site with a terraced building of 14 rooms and A.C. sheet roofed building of 12 rooms and RCC sheet upstair building, admittedly belong to Smt. Surayya, she having purchased the same from Godi Rangayya under a registered sale deed dated 29.5.1950 and the said property constituted her ‘streedhana’ property. It is not disputed that Smt. Surayya died on 25.1.1987 and her husband Thimmmaraju predeceased her. According to the plaintiff, on the death of her mother Smt. Surayya, plaint schedule properties devolved on her heirs i.e., plaintiff, defendants 1 to 3, 5 to 7 and father of 4th defendant, in equal shares i.e., l/8th each. Chalapathi Raju-D.W.2 having got separated from the family has not claimed any share in the plaint schedule property. Of course, DW.2 also stated in his evidence that he got separated from the joint family long back and ever since he had no connection with the family. He did not claim any share in the suit properties. The plaintiff, therefore, seeks partition and separate possession of her l/8th share in the suit properties.
13. The case of the defendants is that southern half of the plaint A schedule property was bequeathed by Smt. Surayya by registered Will Ex.B.3 dated 14.8.1967 in favour of defendants 2 and 3 and father of 4th defendant and ever since the death of Smt. Surayya on 25.1.1987, they have been in possession and enjoyment of their respective portions of the southern half of plaint A schedule property by virtue of a Will Ex.B.3. The defendants further contend that northern half of the plaint A schedule property was conveyed by Smt. Surayya in favour of first defendant by registered settlement deed Ex.B.l dated 18.11.1967 with absolute rights and ever since the first defendant has been in possession and enjoyment of the northern half of plaint A schedule. Thus according to the defendants, plaint A schedule property is not available for partition, the same having been disposed of by Smt. Surayya herself under Exs.B.l and B.3.
14. The trial Court upheld the transaction covered under Ex.B.l in favour of first defendant in respect of northern half of plaint A schedule. However, the genuineness of the Will Ex.B.3 is held to be not established and therefore directed the partition of southern half of A schedule into 8 equal shares and allotment of one such share to the plaintiff. The plaintiff did not file any appeal questioning the finding of the trial Court upholding conveyance under Ex.B.l settlement deed and thereby excluding northern half of A schedule. The defendants 2 to 4 who are beneficiaries of the Will Ex.B.3 filed this appeal questioning the decree for partition of southern half of plaint A schedule property. Significantly, defendants 5 to 7 who are not the beneficiaries under Ex.B.3 Will and who stand to gain by the decree for partition also joined the defendants 2 to 4 in filing the appeal.
15. The defendants contended that the plaint B schedule movables i.e., cash of Rs. 1,50,000/-, gold weighing 10 sovereigns worth Rs. 30,000/- and silverware worth Rs. 20,000/- were never in existence. According to them by the date of death of Smt. Surayya, there was a bank balance of Rs. 12,000/- and cash of Rs. 4,000/- and after her death, the said amount of Rs. 16,000/- was equally distributed among the daughters i.e., plaintiff, defendants 5 to 7. The trial Court gave a finding that the plaintiff failed to establish the existence of plaint B schedule movables except the said amount of Rs. 16,000/- and directed partition of the same into 8 equal shares and allotment of one such share in a sum of Rs. 2,000/- in favour of the plaintiff, holding that her claim of l/8th share in respect of entire B schedule property was devoid of merits. The trial Court also held that the plaintiff is entitled for past and future profits at the rate of Rs. 1,562.50 towards her l/16th share of rental income of Rs. 25,000/- per annum fetched by the plaint schedule property (i.e., l/8th share of income from southern half of A schedule). The plaintiff has not filed any appeal questioning the finding of the trial Court regarding plaint B schedule property or mesne profits.
16. The only question, which arises for consideration, is whether the defendants, who are propounders of the Will Ex.B.3, duly established its genuineness and whether the finding of the trial Court that the defendants failed to do so is liable to be interfered with?
17. The first defendant alone filed written statement and the same was adopted by the defendants 2 to 8. The 8th defendant is the son-in-law of first defendant and he was impleaded only because he was stated to be collecting the rents on behalf of the first defendant, who was living at Hyderabad. The defendants 2 to 4 who are the beneficiaries of the Will Ex.B.3 did not file any separate written statement, but they filed a memo adopting the written statement filed by first defendant, which amounts to propounding of the Will by them as well. One of the contentions raised by the appellant is that the plaintiff has not specifically questioned the genuineness of the Will either in the plaint nor by way of filing of rejoinder subsequent to filing of the written statement by the defendants nor in her evidence and in the” absence of such specific denial, the rigor of burden on the defendants to establish its genuineness gets lessened. The plaintiff filed the suit seeking partition of suit property and separate possession of her l/8th share by specifically pleading that Smt. Surayya died intestate in January 1987 and after her death all her movable and immovable properties devolved on the plaintiff, defendants 1 to 3, 5 to 7 and father of 4th defendant. It is further pleaded in the plaint that the cause of action arose in January 1987 when Smt. Surayya died intestate. The plaintiff has thus pleaded the facts, which are necessary to support her claim and the cause of action arising thereupon. The fact that the plaintiff did not file any rejoinder is not of much consequence because the burden squarely lies on the defendants, who are propounders of the Will to establish its genuineness and so the property covered by it is not available for partition. In the evidence also PW.l asserted that her mother never executed any document and she died intestate. In the cross-examination PW.1 stated that she does not know when the Will was executed by her mother and was registered. When the Will was shown to her, she could not identify the signatures of her mother Smt. Surayya, who is said to be the executant and her father Thimmaraju and brother Chalapathiraju, who are said to be the attestors. Of course she went to the extent of saying that she cannot identify even the signatures of her husband. Even assuming that she was purposefully refusing to identify the signatures of her parents or brother, the same does not constitute an admission on her part so as to absolve the defendants of their obligation to establish the genuineness of the Will. Her evidence that she cannot identify the signatures of her parents or husband or brother, stands strange, but nonetheless the burden cast on the defendants to establish the Will propounded by them is in no way reduced, in the absence of any categorical admission of the Will by plaintiff. In order to support their claim that southern half of the plaint A schedule property is also not available for partition, the defendants have to necessarily establish the genuineness of the Will by duly proving its execution and attestation as required under law.
18. Section 63 of Indian Succession Act prescribes the procedure for execution of a Will. Clause C of Section 63, which contemplates the attestation of Will mandates as follows:
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 been 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 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.
Thus according to Section 63, the first condition requisite to render valid any testamentary disposition is that such disposition should be ‘in writing’ though no particular form is required. The next condition prescribed for the validity of a Will is that it should be duly signed by the testator. The third statutory requisite is that it should be attested by at least two witnesses. The provisions of Section 63 of the Indian Succession Act shall have to be necessarily complied with so as to render the document valid regarding any testamentary disposition. Clause (C) of Section 63 mandates that each of two or more witnesses shall see the testator sign or affix mark or receive personal acknowledgment of signature or mark from the testator and each of the witness shall sign the Will in the presence of testator. Though it is not necessary that all of them should be present at the same time, it is only when all the formalities required under Section 63 of the Succession Act are shown to have been complied with that the Will can be said to have been duly executed. The Will being a document, which is not compulsorily registerable, the absence of registration does not impinge upon the validity of the document provided its execution and attestation are duly established as required under law. At the same time the fact that the Will was registered does not enhance its level of acceptability and notwithstanding the registration, the execution and attestation of the document have to be necessarily established before its validity can be upheld.
19. It is an established proposition that registration is not the proof of due execution of the Will. The mode of proof of execution of document required by law to be attested is set out in Section 68 of the Evidence Act in the following terms:
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.
The proviso to Section 68 states that it shall not be necessary to call an attesting witness in proof of the execution of any document when the document has been registered unless its execution is specifically denied by the executant. The proviso however does not apply in case of a Will. In fact, the trial Court invoked the proviso to Section 68 while upholding the validity of Ex.B.l settlement deed. The executant Smt. Surayya never denied the execution of Ex.B.l. However, the execution of Ex.B.l was proved through the evidence of DW.2 one of the attestors. However, in the case of a Will to which the proviso does not apply, the due execution and attestation have to be proved by calling at least one of the attesting witnesses, notwithstanding the fact that it was a registered document Ex.B.3 Will is said to have been attested by DW.2 and his father Thimmaraju and scribed by one Kapila Jogi Jagannadharao. Admittedly, the scribe and one of the attestors Thimmaraju are no more. The handwriting of the scribe is sought to be proved by examining his nephew DW.3, who deposed that Exs.B.l and B.3 are in the handwriting of his uncle. According to him, the name of his uncle is Kapila Jogi Jagannadharao, but he was popularly known as Jogiraju. Ex.B.l and B.3 however show that the scribe has signed as Kapila Jogi Jagannadharao. It is suggested to DW.3 in the cross-examination that his uncle Jogi Jagannadharao was not known as Jogiraju. There is no reason to suspect the testimony of DW.3 a practising Advocate at Bheemavaram, that his uncle was Jogi Jagannadharao, who scribed Exs.B.l and B.3. The testimony of DW.3 does not however establish the validity, execution or attestation of Ex.B.3 in terms of Section 63 of Succession Act or Section 68 of the Evidence Act.
20. In Bhagat Ram v. Suresh , the apex Court held as follows:
Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. Under Section 58 of the Registration Act such particulars as are referred to in Sections 52 and 58 of the Registration Act are required to be endorsed by Registrar along with his signature and date on document under Section 59 and then certified under Section 60. A presumption by reference to Section 114 (illustration (e) of the Evidence Act shall arise to the effect that the events contained in the endorsement of registration, regularly and duly performed and are correctly recorded. None of the endorsements, require to be made by the Registrar of Deeds under the Registration Act, contemplates the factum of attestation within the meaning of Section 63(C) of the Succession Act or Section 68 of the Evidence Act being endorsed or certified by the Registrar of Deeds. The endorsements made at the time of registration are relevant to the matters of the registration only.
21. In N. Kamalam v. Ayyasamy , the Apex Court held as follows:
Effect of subscribing a signature on the part of the scribe cannot be identified to be of same status as that of the attesting witnesses. Signature of the attesting witness as on a document, required attestation (admittedly in the case of a Will the same is required), is a requirement of the statute thus, cannot be equated with that of the scribe. In such a case, it could not be said that in the event of there being an intent to attest, that itself should be sufficient compliance of the requirement of law. The animus to attest is not available, so far as the scribe is concerned; he is not a witness to the Will but a mere writer of the Will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer and it could go against the propounder where both the witnesses were named in Will with detailed address and no attempt was made to bring them or to produce them before the Court as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to be proof of the due attestation unless the situation is so expressed in the document itself.
22. The evidence of DW3 is limited to the extent of identifying the writing and signature on Ex.B.3 as that of his senior paternal uncle and it does not extend to proving the due execution or attestation of the document. In the above decision, it was further held as follows:
Turning on to the former expression ‘onus probandi it is now fairly well settled principle that the same lies in every case upon the party propounding the Will land may satisfy the Court’s conscious that the instrument as propounded is the last Will of a free and capable testator, meaning thereby obviously, that the testator at the time when he subscribed his signature on to the Will had a sound and disposing state of mind and memory and ordinarily, however, the onus is discharged as regards the due execution of the Will if the propounder leads evidence to show that the Will bears the signature and mark of the testator and that the Will is duly attested. This attestation however, shall have to be in accordance with Section 68 of the Evidence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so however, in the event of there being an attesting witness alive and capable of giving the evidence. The law is also equally well settled that in the event of there being circumstances surrounding the execution of the Will, shrouded in suspicion, it is the duty paramount on the part of the propounder to remove that suspicion by leading satisfactory evidence.
23. Admittedly, DW.1-first defendant was not present at the time of execution of the Will. He categorically deposed that he was not present at the time of execution of Ex.B.3 and he came to know about it a couple of months after its execution from his mother. But he says that his mother did not inform him with whom she left Ex.B.3 Will. Ex.B.3 Will dated 14.6.1967 was executed earlier to Ex.B.l dated 18.11.1967. Under Ex.B.3 no disposition was made in favour of first defendant. However, first defendant says that he did not raise any objection for the recitals of Ex.B.3, under which the property was bequeathed in favour of other sons, defendants 2, 3 and father of 4th defendant. Father of 4th defendant is no more, but the other two beneficiaries defendants 2 and 3 are also not examined. It is not the case of the defendants that any of them was present at the time of execution of Ex.B.3. According to DW.l his brother late Satyanarayana Raju took possession of Ex.B.3 along with other items found in a box in the house after the death of their mother. Subsequent to death of Satyanarayanaraju, document Ex.B.3 ought to have come into possession of other beneficiaries defendants 2 and 3, but DW.l says that he took possession of Ex.B.3 as it was found in the house, though he is not a beneficiary under the said document.
24. Be that as it may, except the testimony of DW.2, there is no other evidence on record to establish the genuineness of Ex.B.3. The question, which then arises for consideration, is whether the testimony of DW.2 sufficiently proved the valid execution or attestation of Ex.B.3 as required under law? DW.2 is none else than the eldest son of Thimmaraju and Smt. Surayya, who got separated from the family long back. He was examined on commission and his evidence is recorded in vernacular. At the first instance, he stated that he does not know whether his mother executed any document or not. Again he stated that the northern portion was conveyed in favour of first defendant under settlement deed Ex.B.l and southern portion was bequeathed in favour of other three sons, defendants 2, 3 and father of 4th defendant by a Will. He identified the signature of his mother on each page in Ex.B.3. He also identified the signature of his father and the other attestor on the last page of Ex.B.3 and also the signature of the scribe. His evidence is however conspicuously silent that himself and his father witnessed the execution of Ex.B.3 by his mother Smt. Surayya or that himself and his father having so witnessed signed the document as attestors in the presence of Smt. Surayya.
25. In Beni Chand v. Kamla Kunwar , the apex Court held as follows:
By attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by Section 63(C) of the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document.
26. Section 3 of the Transfer of Property Act defines the expression ‘attested’ as follows:
‘Attested’, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;
27. In the present case, the evidence of DW.2 does not disclose that himself and his father have witnessed the execution of the document by his mother Smt. Surayya or that they signed the document as a witness or attestor in their presence or receiving personal acknowledgment of Smt. Surayya. Mere identification of the signatures on Ex.B.3 by DW.2 as that of his own and of his mother and father do not amount to proof of execution and attestation as contemplated in terms of Section 63 of the Succession Act and Section 68 of the Evidence Act read with Section 3 of the Transfer of Property Act. A perusal of evidence of DW.2 who was examined almost 25 years after the execution of Ex.B.3, gives an impression that he does not remember the transaction well. It is also to be noted that he severed his connections with the family long back and has been living separately pursuing his medical profession since 1950, which was 17 years prior to Ex.B.3. He does not even remember whether two weeks prior to date of Ex.B.3, his brother Krishnamraju died and on account of the said incident, the physical and mental condition of Smt. Surayya was affected or not. He does not remember whether any other family member was present at the time of execution of Ex.B.3 apart from himself and his parents. He says that on account of his preoccupation with his medical profession, he does not even know what his brothers were studying or doing. He does not know why Smt. Surayya made bequest in favour of only three of her sons excluding the other sons and daughters. DW.2 is not a stranger to the family. He was the eldest son of Smt. Surayya. He does not know why he was called to attest Ex.B.3 when he has lost all his connections with the family since 17 years prior thereto. Assuming that he was called upon to attest because he happened to be one of the sons and no bequest was made in his favour, there is no reason why first defendant, the other excluded son is not called upon to be present at the time of Ex.B.l. No doubt plaintiffs witness admitted that DW.2 is a respectable person. Nevertheless DW.2’s evidence is not adequate or sufficient to prove the execution or attestation of the Will as required under law, apart from the fact that he does not seem to be in know of things or events having lost all contacts with the family decades back.
28. The trial Court has rightly observed that mere identification of the signatures of the executant or attestor or scribe by DW.2, is not proof of due execution or valid attestation of the document Ex.B.3. The ingredients of the attestors witnessing the executant signing the document and the attestors signing as witnesses in the presence of the executant or on receipt of personal acknowledgment by her are conspicuously absent in the evidence of DW.2, the only witness examined by the defendants to prove Ex.B.3 Will. In the absence of such evidence of due execution and valid attestation in terms of Section 63 of the Succession Act and Section 68 of the Evidence Act and the evidence of DW.2 not meeting the required standards of proof prescribed in case of a Will, the trial Court was justified in holding that the Will Ex.B.3 was not duly established by their propounders-defendants. Consequently, the finding of the trial Court that the plaintiff and the defendants 2 to 7 are each entitled for l/8th share in the southern half of the plaint A schedule property does not call for any interference.
29. As stated supra, the finding of the trial Court upholding the conveyance of northern half by Smt. Surayya in favour of first defendant under settlement deed Ex.B.1 is not under challenge and so, the said northern half is not available for partition, as also in respect of plaint B schedule movables whose existence was not established.
30. In the circumstances and for the reasons stated above, it is held that the judgment and decree dated 31.3.1992 passed by the trial Court in OS No. 103 of 1987 are not liable to be interfered with.
31. In the result, the appeal is dismissed. In the circumstances, no order as to costs.