JUDGMENT P. Narayana Pillai, J. 1. This appeal by 1st defendant arises out of a suit for permanent injunction and damages. 2. Reduced to their fundamental structure, the facts and circumstances of the case are simple and can be stated briefly. The parties are potters governed by Hindu Law. The plaint properties belonged to one Ambu alias Ryru Nair. The 1st plaintiff and defendants 1 and 2 are his sons. The 2nd plaintiff is the 1st plaintiff's wife. They had a son Janardhanan by name. By the registered will, Ext. A-1, executed on July 17, 1945, Ambu who died in the succeeding year bequeathed the plaint properties to Janardhanan. Janardhanan who became entitled to these properties after Ambu's death died in his 15th year. The 2nd plaintiff is his heir. The plaintiffs are in possession of the properties. On March 12, 1958, the 1st defendant trespassed on the properties and took the yield from there. The 2nd defendant is the manager of the joint family. According to the plaintiffs the defendants have no right in the properties and they should be restrained by injunction from interfering with the plaintiffs peaceful possession of the same. They also claimed in the suit damages for the yield taken by the 1st defendant from the properties. 3. Defendants 1 and 2 denied the plaintiffs title to the properties. According to them the properties did not belong to Ambu and therefore he was incompetent to bequeath them to Janardhanan. They contended that even if he was the owner of the properties the will could not be given effect to as on the date of its execution Ambu was old and infirm and did not have the testamentary capacity and that it was vitiated by misrepresentation, undue influence, coercion and fraud. 4. The Munsiff, Taliparamba, who tried the suit dismissed it finding that the will was not valid. In the appeal from his decision the Subordinate Judge, Tellicherry, found the will valid and decreed the suit in terms of the plaint. 5. At the threshold of this case is the question whether the plaint properties belonged to Ambu and he was competent to devise them under the will. Both the courts below after an elaborate consideration of the evidence adduced in the case concurrently found that Ambu had title to the properties. 5. At the threshold of this case is the question whether the plaint properties belonged to Ambu and he was competent to devise them under the will. Both the courts below after an elaborate consideration of the evidence adduced in the case concurrently found that Ambu had title to the properties. They are findings on a pure question of fact and as no error in them has been brought to my notice they do not deserve to be disturbed. 6. The validity of the will was then attacked on the ground that at the time of its execution Ambu was not in a sound and disposing state of mind and that it was vitiated by misrepresentation, undue influence, coercion, and fraud. In respect of it while the finding of the Munsiff was in favour of the defendants that of the Subordinate Judge was in favour of the plaintiffs. It is true that Ambu was about 80 years of age when he executed the will and that he was illiterate. But from those circumstances it cannot be inferred that he was not in possession of his mental faculties. The letters, Exts. A-23 and A-24 of 1940 and Ext. A-25 of 1946, sent by the 1st defendant to the 1st plaintiff show that Ambu was not keeping well but that does not mean that his mental faculty had in any way been impaired. He lived for more than 11 months after the execution of the will. About 7 months after the execution of the will there was some ceremony in the 1st defendant's wife's house at Badagara. Ext. A-25 is a letter, dated February 2, 1946, sent by the 1st defendant to the 1st plaintiff requesting the latter to take their father to Badagara for attending that ceremony. That shows that even at that time Ambu was in a position to move about. Ext. A-33 is a notice sent by the 2nd defendant to Ambu about 7 months after the execution of the will complaining about the latter executing documents in respect of properties. There is not a word in it to show that Ambu was not in a sound disposing state of mind. On the contrary it clearly shows that even at that time his mind was not feeble or debilitated. It was Ambu himself who went to the Sub Registrar's office and produced the will for registration. There is not a word in it to show that Ambu was not in a sound disposing state of mind. On the contrary it clearly shows that even at that time his mind was not feeble or debilitated. It was Ambu himself who went to the Sub Registrar's office and produced the will for registration. The defendants were employed in distant peaces and Ambu was living with the 1st plaintiff. It was only natural that he would have had special consideration for Janardhanan who, it is seen from the evidence, was at the time a sick child. Even if there was persuasion and appeals to the affection or to the sentiment of gratitude for past services or pity for future destitution or the like they were all legitimate and not unlawful influences. The evidence taken as a whole shows that the will executed by the testator was an expression of his own desire and not the embodiment of somebody else's. He had several other properties also. Only two items were bequeathed by him to Janardhanan. The dispositions made under the will are not unfair or unnatural. In these circumstances the will cannot be considered invalid for all or any of the reasons mentioned by the defendants in their written statements. 7. The only other point regarding which there was controversy when this appeal was heard was about proof of the will. In the will there are two attestors, Raghavan Nair and Chindankutty Nair. Of them Raghavan Nair alone was examined. He was examined as P.W.2. He deposed that the; testator did not specifically say fT't)eenthe will. Chindankutty Nair sign a/Premt the testator saw the testator^'sim tir^ “Chindankutty Nair stance was “ ‘ S ‘Bomb:relied upon3Bombj Nambiar, learned counsel for the 1st defendant, as the last string to his bow and he argued that the requirements of section 63 (c) of the Indian Succession Act which lays down that "63. Chindankutty Nair sign a/Premt the testator saw the testator^'sim tir^ “Chindankutty Nair stance was “ ‘ S ‘Bomb:relied upon3Bombj Nambiar, learned counsel for the 1st defendant, as the last string to his bow and he argued that the requirements of section 63 (c) of the Indian Succession Act which lays down that "63. 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." ***** (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 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."� were not satisfied. According to him even though under section 68 of the Indian Evidence Act which reads as follows: "68. 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, unless its execution by the person by whom it purports to have been executed is specifically denied."� examination of one of the attestors may be sufficient for proof of due execution of a will that section does not dispense with the proof of all the requirements in section 63 (c) of the Succession Act and therefore if they are not brought out in the evidence of the attestor who is examined in the suit the will cannot be taken to have been duly executed and attested. Learned counsel cited in support of his position the decisions of the Bombay High Court in Roda Framroze v. Kanta Varjivandas, A.I.R. 1946 Bombay 12 and Vishnu Ramkrishna v. Nathu Vithal, A.I.R. 1949 Bombay 266. In both those decisions the impact of section 68 of the Evidence Act upon section 63 of the Succession Act was considered and it was held that all the provisions in the Succession Act had to be complied with for proof of a will and that the provision in the Evidence Act that at least one of the attestors should be called before the will was accepted in evidence did not in any way affect the necessity of proof of all the requirements in section 63 (c) of the Succession Act. According to Mr. T. P. Kelu Nambiar if two attesting witnesses sign at the same time in the presence of each other it would be unnecessary to examine both of them if one of them would be able to say that he saw the other also sign the will and that both of them saw the testator and the testator saw them sign the will and if the attesting witness who is examined is not able to speak to all these facts it is incumbent on the pro-pounder to examine the other attesting witness also for bringing out the remaining facts. 8. On the other hand Mr. P. Kesavan Nair, learned counsel who appeared for the plaintiffs and said all that there was so to say, contended that the rigour of the provisions of section 63 (c) of the Succession Act had been greatly relaxed by the decisions of the Supreme Court in Shashi Kumar v. Subodh Kumar, A.I.R. 1964 S..C. 529, Purnima Debi v. Khagendra Narayan, A.I.R. 1962 S.C. 567, H. Venkatachala v. B. N. Thimmajamma, A.I.R. 1959 S.C. 443 and Naresh Charan Das Gupta v. Paresh Charan Das Gupta, (1955) 1 S.C.R. 1035 and that even if mathematically all the conditions mentioned in the section were not strictly complied with, the onus on the propounder could still be taken to have been satisfactorily discharged if there was evidence that the will was signed by the testator, that he had at the time of its execution the requisite testamentary capacity and that he put his signature to the will of his own free will. 9. 9. In Shashi Kumar v. Subodh Kumar, A.I.R. 1964 S.C. 529 two attestors in the will in dispute in that case were examined and as their evidence was found reliable probate with a copy of the will attached to it was granted holding that except with regard to the special requirement of attestation prescribed in section 63 of the Succession Act the mode of proving a will did not in any manner differ from that of proving any other document. In Purnima Debi v. Khagendra Narayan, A.I.R. 1962 S.C. 567 the respondent in the appeal who on the strength of a will applied for probate was refused the same finding that the evidence of the three attestors whom he had examined was not sufficient to dispel the suspicion about the due execution and attestation of the will. There were several suspicious circumstances like dispositions in the will relied on by the respondent being most unnatural and the signature of the testator in the will being not his usual signature to show that the will was not genuine although it was a registered one. It was held that although registration was an important circumstance to be taken into account in considering the genuineness of a will from the mere fact of registration it could not be taken that the will was genuine. In H. Venkatachala v. B.N. Thimmajamma, A.I.R. 1959 S.C. 443 the court refused to act on the will propounded by the appellant in that case on the ground that it was not shown that the executrix had fully understood the contents of the will before she signed it. The evidence of the two attesting witnesses examined there in support of the will was found not sufficient to prove due execution of the will. It was observed that in actions on wills no inflexible rule could be laid down for the appreciation of evidence and that it depended on the facts and circumstance of each case. In Naresh Charan Das Gupta v. Paresh Charan Das Gupta, (1955) 1 S.C.R. 1035 the two attestors in the will in dispute in that case said in their examination in chief that the attestor signed the will in their presence and that they attested his signature but did not say that they signed the will in the presence of the testator. On the basis of that omission in their depositions it was contended that there was no due attestation. The witnesses were not cross-examined on the question of attestation. The fact of due execution and attestation of the will was not challenged when the suit was heard by the trial Judge, also. The Supreme Court held that the question as to whether there was due attestation of the will was purely one of fact depending on appreciation of evidence and that merely because the witnesses did not in their chief examination say that they signed the will in the presence of the testator it could not be said that there was no due attestation and repelled the contention that the will had not been proved to be duly attested. None of these decisions goes to the extent of saying that when due execution and attestation of a will are challenged the will can be acted upon even if all the requirements laid down in Action 63 (c) of the Succession Act are not proved. 10. Suspicious circumstances may surround the execution of a will. It may be shown that the testator did not have a disposing state of mind when the will was executed or that the propounder took a prominent part in its execution and received substantial benefit under it or that the dispositions made under the will were unfair and unnatural. When such or other similar suspicious circumstances sufficient to arouse judicial conscience are brought out the burden of proof is on the propounder to show that the testator had the testamentary capacity and that he signed the will after knowing its contents as a free agent. For that purpose it is open to him to let in any piece of relevant admissible evidence and not confine himself to the evidence of the attestors. But when due execution and attestation of a will are challenged it is obligatory that all the requirements of section 63 (c) of the Succession Act have to be proved and at least one attesting witness, if alive, should be examined. In the case of a will signed by the testator the requirements under section 63 (c) of the Succession Act are:- (1) attestation by two witnesses (2) each of them should see the testator sign the will and (3) each of them should sign the will in the presence of the testator. In the case of a will signed by the testator the requirements under section 63 (c) of the Succession Act are:- (1) attestation by two witnesses (2) each of them should see the testator sign the will and (3) each of them should sign the will in the presence of the testator. If all these matters are brought out in the evidence of one attestor and his evidence is reliable it can be acted upon as sufficient proof of due execution and attestation of the will. The provision in section 68 of the Evidence Act that at least one attestor should be examined for proof of execution of a will, as it does not deal with the facts to be proved, is not in any way inconsistent with the provisions of section 63 (c) of the Succession Act. The provisions of both section 63 (c) of the Succession Act and section 68 of the Evidence Act are obligatory. Attestation in a will can be made by different witnesses at different times. In such a case it may not be possible for one attesting witness to speak to matters taking place when attestation is made by another witness unless he was present on that occasion also. The upshot of all this is that if all the requirements of section 63 (c) are not brought out in the evidence of the attestor examined in the case those still remaining to be proved have to be proved like other facts. If Mr. T. P. Kelu Nambiar's arguments are accepted it would be to hold that if there are attestors in a will and they are alive and it is not possible to bring out through one of them all the matters provided for in section 63 (c) of the Succession Act those still to be brought out can be brought out only through the evidence of the other, even though the Evidence Act insists on examination of only one of them. One cannot segregate like that the depositions of attestors from other items of evidence adduced in the case to see whether due execution and attestation of a will have been proved because it is the overall effect of all the items of evidence adduced in the case that has to be considered for that purpose and not the effect of each item taken by itself. The effect produced by the entire evidence taken as a whole may be different from that of the individual items which go to make it up just as a bundle differs from odd sticks. The following definition of the word 'proved' "fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular ease, to act upon the supposition that it exists."� in section 3 of the Evidence Act applies to proof of wills also. On a harmonious interpretation of the relevant provisions of the Succession Act and the Evidence Act it can be safely be laid down that for proper proof of a will at least, one of the attestors if alive should be examined and that whatever is not proved through him should be proved through other evidence, direct or circumstantial. I do not think that any of the decisions cited above decides anything to the contrary. 11. Let me now, if I may, remind myself of the decision in Ammu v. Krishnan and others, 1969 K.L.T. 656 to which I was a party. The critical point there was whether the will in controversy there had been proved to be duly executed and attested. Of the 2 attestors in the will, Karunakara Panicker and Kuttyman, only one was examined. He was examined as P.W. 3. He turned hostile. Thereupon the only evidence the propounder relied upon was that of P.W. 1, the Sub Registrar, who registered the will. Two witnesses, Kuttan and Hydrose Kutty, identified the testator when he produced the will before P.W. 1 for registration. They were not examined. No doubt P.W. 1 deposed that the testator admitted in his presence the execution of the will and that he and the identifying witnesses signed in the presence of the testator but he admitted that the identifying witnesses only identified the testator and they signed the will only in token of that. There was no evidence in that case that the testator ever asked P.W. 1 or the indentifying witnesses to attest the execution or that the identifying witnesses had received from the testator a personal acknowledgment of his signature to the will. It was in those circumstances that it was held there was no proof that the will was duly executed. There was no evidence in that case that the testator ever asked P.W. 1 or the indentifying witnesses to attest the execution or that the identifying witnesses had received from the testator a personal acknowledgment of his signature to the will. It was in those circumstances that it was held there was no proof that the will was duly executed. 12. In the present case in their written statements the defendants did not dispute the fact that the testator had signed the will and that it was duly attested. Their only contention was that he had no testamentary capacity and that it was invalid because it was vitiated by misrepresentation, coersion, undue influence and fraud and the relevant issue raised in the suit related only, to those matters and not about the due execution and attestation of the will. It is true that P.W. 2 committed a mistake about the date when he signed the will. He said that he signed it on 18th July 1945. Really it was on 17th July 1945 that he signed it. Considering the fact he was deposing to a fact about 18 years after the execution of the will this discrepancy in date is not so serious as to destroy the value of his evidence. He deposed that he saw the testator sign the will and that the testator signed in his presence. He also said that the other attestor, Chindankutty Nair, was then with him and that they together went to the Sub Registry Office after putting their signatures. From the facts and circumstances brought out in the case a prudent man ought to act upon the supposition that all the provisions in section 63(c) of the Succession Act were complied with when the will was executed. The requirement in section 68 of the Evidence Act has also been satisfied. The will has been proved to be duly executed and attested. This appeal is dismissed with costs.