JUDGMENT K.T. Thomas, J. 1. Kunjannam, the mother of the appellant and the respondents, passed away on 30th May 1972. (She will be referred to as the deceased hereinafter). The deceased left behind her a few items of immovable properties. The appellant's case is that the deceased had executed Ext. A-1 Will on 20th December 1971. It is a registered Will. The appellant filed a petition in the lower court for the grant of Letters of Administration with a copy of Ext. A-1 Will annexed thereto. The 1st respondent contested the petition and disputed the legal validity of Ext. A-1. The lower court dismissed the petition and hence the appeal. 2. Appellant and the 1st respondent are the sons and the other respondents are the daughters of the deceased. The properties described in the schedule to the petition as items Nos. 2 to 6 belonged to Thomas, the husband of the deceased who died earlier. Item No. 1 of the schedule belonged absolutely to the deceased. In a suit for partition filed by the 2nd respondent, the deceased was declared to be entitled to 2/10 shares in items 2 to 6. These facts are not disputed. 3. The appellant's case is that Ext. A-1 was executed by the deceased voluntarily and with full testamentary capacity. The 1st respondent who contested the petition has stated in his counter, inter alia, that Ext. A-1 was brought into existence by the appellant by exerting undue influence on the deceased and hence the said document is not enforceable in law. According to the 1st respondent, the deceased had executed another Will (Ext. B-1) on 23rd June 1969 bequeathing all her properties in favour of the 1st respondent, and that is the last testament duly executed by the deceased. He further contended that the deceased was residing with the 1st respondent till 1970 and thereafter he stayed in the appellant's house where she fell ill and died in 1972. The deceased, due to her ill health and old age, was mentally very weak and the appellant could prevail upon her exerting undue influence, to make her sign in Ext. A-1. These are the main contentions advanced by tie 1st respondent. 4. The lower court held that the appellant has not succeeded in removing suspicions surrounding the execution of Ext. A-1. A-1. These are the main contentions advanced by tie 1st respondent. 4. The lower court held that the appellant has not succeeded in removing suspicions surrounding the execution of Ext. A-1. The learned District Judge came to the above conclusion from a variety of factors, such as, the preference town to the appellant in the bequest made in Ext. A-1, the prominent role played by the appellant in the execution and registration of that document, and the absence of adequate reasons for revoking the earlier Will, Ext. B-1. The lower court also found that the appellant failed to prove that Ext. A-1 was executed in compliance with the requirements of section 63 of the Indian Succession Act, 1925 (for short 'the Act'). 5. Section 63 of the Act provides that every testator shall execute his Will in accordance with the rules enumerated in the section. It is not necessary to refer to the first two rules because there is no dispute regarding compliance of those two rules. The third rule is incorporated in clause (c) of section 63, which envisages the following three requirements: (i) the Will shall be attested by two or more witnesses, (ii) each of the attesting witnesses should see the testator signing the Will and (iii) each of the attesting witnesses shall sign the Will in the presence of the testator [other details in section 63 (c) are not relevant in this case]. The clause makes it clear that it is not necessary that more than one witness be present at the same time. 6. The evidence in this case consists of the testimonies of P.W. 1, the appellant and P.W. 2 (Lonappan) who is one of the attesting witnesses in Ext. A-1. The document shows that three persons had signed it, besides the testator. They are: P.W. 2 Lonappan, one Bhaskaran and one Thomas the scribe (who is said to be no more). Bhaskaran, was not examined. The explanation is that he was away in one of the Gulf countries. P.W. 1 the propounder of the Will did not say anything regarding the compliance of the rules of section 63 of the Act. P.W. 2 said in chief examination that the testator had signed Ext. A-1 in the presence of the witnesses, but he did not say that the witnesses signed the Will in the presence of the testator. P.W. 1 the propounder of the Will did not say anything regarding the compliance of the rules of section 63 of the Act. P.W. 2 said in chief examination that the testator had signed Ext. A-1 in the presence of the witnesses, but he did not say that the witnesses signed the Will in the presence of the testator. In cross examination P.W. 2 said that the testator signed the Will before it was presented to the Sub Registrar and that it did not then contain the signature of either of the two attesting witnesses. According to P.W. 2, the witnesses signed Ext. A-1 only after the Sub Registrar read it. Further down in cross examination P.W. 2 said that the document which the witnesses had signed was one prepared on a stamp paper. Ext. A-1 is not written on stamp paper. What P.W. 2 said cannot be treated as a slip of the tongue because he stated repeatedly that he signed the document prepared on a stamp paper. There is no evidence much less any reliable evidence to show that the attestors signed Ext. A-1 in the presence of the testator. 7. The learned counsel contended that the court should presume that all the formalities in section 63 of the Act have been complied with in the execution of Ext. A-1. According to him, the maxim "omina proe sumuntur rite esse acta" (All acts are presumed to have been done rightly and regularly) applies in this case since Ext. A-1contains the signatures of the testator and the attesting witnesses. He therefore contends that an inference should be drawn that the formalities have been duly complied with in the execution of Ext. A-1. In support of the contention the learned counsel quoted a passage from Mantha Ram Murty's Law of Wills (3rd edition) page 130. It reads as follows: "If a Will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Act, the maxim "omnia proe sumuntur rite esse acta" applies, unless it is clearly proved by the attesting witnesses that the Will is not in fact duly executed." The passage quoted has been extracted by the author from decisions of English Courts. But the courts in India, by and large, have not followed the above presumption in cases relating to Wills. But the courts in India, by and large, have not followed the above presumption in cases relating to Wills. The preponderant view held by the courts in India is that the propounder of the Will shall prove that the execution is in compliance with the rules in section 63 of the Act. Section 68 of the Indian Evidence Act prescribes a special mode of proof of documents which law requires to be attested. The said section says that such a document shall not be used as evidence "until one attesting witness at least has been called for the purpose of proving its execution". It is significant to note that in the proviso to the said section registered documents are exempted from the rigor of the main section, but at the same time Wills are kept out of the reach of the benefit of that exemption. This means that there is no escape from reporting to the special mode of proof envisaged in section 68 when a Will is sought to be used as evidence unless the attesting witnesses are incapable of giving evidence. According to the said section, the insistance on calling an attesting witness is "for the purpose of proving its execution". This means that proof of due execution of a Will cannot be made without the oral evidence of atleast one of the attesting witnesses if he is capable of giving evidence. 8. In an early decision of the Supreme Court reported in Girija Datt v. Gangotri Datt A.I.R. 1955 S.S. 346 one of the questions considered was regarding compliance with the requirements of section 63 of the Act. Bhagwati, J., who spoke for the three Judges, has observed that in order to prove the attestation of the Will the propounder would have to prove that the attesting witnesses saw the testator signing the Will and they themselves signed the same in the presence of the testator. The relevant passage in the decision is quoted: "It cannot be presumed from the mere signatures of Mahadeo Pershad and Nageshur appearing at the foot of the endorsement of registration of a Will that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. The relevant passage in the decision is quoted: "It cannot be presumed from the mere signatures of Mahadeo Pershad and Nageshur appearing at the foot of the endorsement of registration of a Will that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. Section 68, Evidence Act requites an attesting witness to be called as a witness to prove the due execution and attestation of the Will. This provision should be complied with in order that those two persons might be treated as attesting witnesses." 9. In Moonga Devi v. Radha Ballabh A.I.R. 1972 S.C. 1471 the Supreme Court has stated that the execution of the Will has to be proved in accordance with the provisions of section 63 of the Indian Succession Act. Their Lordships have stated thus: ".It is not merely the genuineness of signatures on which the proof of the execution of the Will under section 63 of the Indian Succession Act depends. It has to be proved that the Will was attested in accordance with clause (c) of that section. That could not be done unless the statement of the attesting witness could be taken into consideration." 10. In a later decision in Jaswant Kaur v. Amrit Kaur A.I.R 1977 S.C. 74 =977 (1) S.C.C. 369 Chandrachud, J. (as he then was) has stated as follows: "Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it. In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him. Accordingly, the defendant ought to have led satisfactory evidence to prove the due execution of the Will by his grandfather Sardar Gobinder Singh." (emphasis supplied) 11. It is fairly clear from the above decisions that the burden is on the propounder to prove that the rules for execution of a Will have been duly followed. If evidence is not let in by the propounder in proof of compliance of the said rules the consequence is inevitable that the Will cannot be treated as duly executed. 12. It is fairly clear from the above decisions that the burden is on the propounder to prove that the rules for execution of a Will have been duly followed. If evidence is not let in by the propounder in proof of compliance of the said rules the consequence is inevitable that the Will cannot be treated as duly executed. 12. As the appellant failed to prove that Ext. A-1 Will was executed in compliance with the rules contained in section 63 of the Act, the said document cannot be enforced in law. No Letters of Administration can be granted with a copy of Ext A-1. In view of the above finding it is unnecessary to consider other points argued by the learned counsel for the respondents. In the result, we confirm the decree passed by the lower court and dismiss this appeal, without any order as to costs.