Judgment :- The suit is one aiming to get Letters of Ad­ministration, based upon a Will, said to have been executed by one S.A. Balu Naicker, who expired on 14.6.1987. 2. S.A. Balu Naicker and Muniammal are the parents of the plaintiff, defendant and one Manomani (the first respondent in the O.P. and not a party to the TOS, since not contested), the plaintiff and the defendant being the sons, the said Manomani being the daughter. According to the plaintiff, S.A. Balu Naicker had executed the Will, bequeathing his properties, on 9.9.1983, which is duly attested and thereafter, he died on 14.6.1987. The mother of the parties, Muniammal, also died on 25.9.1995, after the death of Balu Naicker. When the Original Petition was filed by the plaintiff, seeking to issue Letters of Administration, annexing the Will, in his favour, as against the defendant and the said Manomani, since the defendant filed the caveat, the O. P. was converted into this TOS. 3. The defendant, in his written statement, would contend that in the property covered under the Will, he is entitled to half share, since he had also contributed funds to build up the, superstructure; that pursuant to the same, even during the lifetime of Balu Naicker, one portion was allotted to him; that his father did not execute the alleged Will in a sound disposing state of mind and in this view, it is not a genuine one, which would be clear from the fact that the alleged Will is brought into existence by the plaintiff only after the lifetime of his mother, in order to suppress the truth, and therefore, the plaintiffs not entitled to any relief. 4. On the above basis, the following issues were settled, for settling the dispute between the parties, by this Court, as per the order dated 19.6.2002: 1. Whether the will executed by the deceased Balu Naicker on 9.9.1983 is true, genuine and valid? 2. Whether the plaintiff is entitled for the issue of Letters of Administration? 3. To what relief, the plaintiff is entitled? Issues No. 1 and 2: 5. Ex.P.2 is the Registered Will said to have been executed by Balu Naicker on 9.9.1983, which is registered on the same day, under which it is said, the life estate was given to the plaintiff, giving or vesting the vested reminder to the Sons of the plaintiff. To what relief, the plaintiff is entitled? Issues No. 1 and 2: 5. Ex.P.2 is the Registered Will said to have been executed by Balu Naicker on 9.9.1983, which is registered on the same day, under which it is said, the life estate was given to the plaintiff, giving or vesting the vested reminder to the Sons of the plaintiff. The Will was executed within the city limit and the property is also situated within the original jurisdiction of this Court. In view of this fact, to administer the property, the Will has to be proved. Therefore, originally, as said above, a petition has been filed, which is converted into the suit, because of the contest by the defendant. 6. As seen from Ex.P.2, this document is attested by two persons by name J. Manuel and P.S. Krishnaraj. It is an admitted fact that the Will was registered on the same day, showing the document was registered in accordance with law, on the basis of the acceptance by the testator before the Registrar, which may, to some extent, support, the case of the plaintiff. The mere fact, the Will is registered, certainly, will not relieve the plaintiff from discharging his burden, as contemplated under Section 68 of the Evidence Act. 7. It is the specific case of the plaintiff that both the attestors to the Will by name J. Manuel and Krishnaraj died, dates are also available, not at all challenged. Therefore, examining at least one of the attesting witnesses, as mandated under Section 68 of the Indian Evidence Act, became an impossibility. Therefore, we have to see what is the other mode of proof contemplated under law, if both the attesting witnesses are not alive. 8. Section 69 of the Indian Evidence Act commands, "if no attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person." Therefore, to appreciate the above law and the facts on hand, it should be remembered, what is the stand taken by the parties, regarding the execution of that Will by S.A. Balu Naicker. 9. 9. The plaint reads, the Will is the last Will and testament of Balu Naicker, duly executed by him at Madras on 9.9.1983, in the presence of the witnesses, whose names appear at the foot thereof. In the written statement, it is said that Balu Naicker had not executed the alleged Will dated 9.9.1983, while he was in a sound disposing state of mind. It further reads, dur­ing the relevant period, the father was sick and bedridden. There is no specific plea in the written statement, such as the Will does not contain the signature of Balu Naicker or the Will was not attested by two witnesses, as stated therein. In the absence of any such plea and considering the averments available in para No.3 of the written statement, it could be said safely, the Will is challenged only on the ground that the testator had no testamentary capacity or in other words, it could be said the signatures found in the Will are not challenged such as forgery and the registration is also not challenged, such as impersonation etc. The fact the defendant has not taken such 4 specific plea, certainly, will not relieve the plaintiff from proving the due execution, as understood under law as well as the attestation, as ruled by the Courts. If at all, the above defence taken by the defendant would lessen the burden of proof and nothing more. 10. The learned counsel for the plaintiff would submit that by the examination of P.Ws.1 and 2, as well as by proving the registration of the document, the due execution and attestation of the Will are proved and therefore, as of right, without going into the title to the suit property, letters of administration shall be granted. Responding to the above said submission, the learned counsel for the defendant would submit that P.Ws.1 and 2 being the son-in-law and father-in-law, respectively, they should come within the meaning of “interested witnesses” and because of the evidence given by P.W.2, that Balu Naicker was bedridden during the relevant period, it is impossible to say that he should have executed the Will while in a sound disposing state of mind. 11. To discredit the oral testimony of P.W.2, my attention was also drawn to the affidavit filed by P.W.2, which is exhibited as Ex.P.4. Admittedly, P.W.2 has not attested the Will. 11. To discredit the oral testimony of P.W.2, my attention was also drawn to the affidavit filed by P.W.2, which is exhibited as Ex.P.4. Admittedly, P.W.2 has not attested the Will. But, unfortunately, he has filed an affidavit, as if he had seen the execution, attestation etc., which is patently incorrect. Despite that fact P.W.2 has given evidence only regarding his presence, after the execution of the Will, as well as the identification of the signatures in the Will and nothing more. Therefore, on the ground that the affidavit wherein P.W.2 signed contains incorrect particulars, alone, may not be a ground to discard his testimony, as unworthy of credence and ignoring the same, we have to scan the oral evidence of P.W.2 also, whether it satisfies the ingredients of Section 69 of the Evidence Act. 12. P.W.1 very fairly admits that he was not present at the time of the execution of the Will on 9.9.1983. But, he would state, when the Will was executed, his father was hale and healthy and in a sound disposing state of mind. It is also admitted by P.W.1 that his brother was living in a portion of the house, paying rent to his father, whether it is correct or not. When he was cross-examined, no question has been put to him, even suggestively, that at the time of the execution of the Will, Balu Naicker was incapacitated to execute any document, whereas, if at all, the document should have been extracted or obtained ' from him, by adopting dubious method., Therefore, 'the evidence given by P.W.1 regarding the mental capacity of his father, to execute the Will, is to be accepted. P.W.2 would state that Balu Naicker was taking treatment often at the hospital and he was bedridden for long time. Though he would state so, it is not the case suggested to him that because of his illness, Balu Naicker had no mental capacity to execute a document, knowing its contents etc. A person, assuming is ill, bedridden, still, may have the capacity to disposition, unless it is otherwise shown. No case has been made out, by the defendant, to doubt the genuineness of the document and its execution, as well as regarding the mental capacity of the testator. A person, assuming is ill, bedridden, still, may have the capacity to disposition, unless it is otherwise shown. No case has been made out, by the defendant, to doubt the genuineness of the document and its execution, as well as regarding the mental capacity of the testator. When the defendant has been examined as D.W.1, he would state that his father who was ill, never informed about the execution of the Will and nothing more. Even it is not the case, through his mouth also, that the Will was not attested or father had no testamentary capacity to execute the Will. In the absence of any such case, if the oral evidence of P.W.2 is satisfactory, to prove the valid attestation, it should be held that the same is proved, as required under law. 13. It is the specific case of P.W.2 that on the date of the execution of the Will on 9.9.1983, he went to the house of Balu Naicker, who was waiting for his friends to come, to go to the Registrar's office and after the arrival of the two witnesses, all of them left to the Registrar's Office. Fairly he would admit further, he has not seen anybody signing the Will. But, he identified the signatures of J. Manuel, P.S. Krishnaraj and Balu Naicker in Ex.P.2 Will. He has further deposed that both the attestors are not alive. When P.W.2 has Spo­ken about the availability of the signatures of Balu Naicker in the Will, as well as when he identified the signatures of two attesting witnesses as that of J. Manuel and P.S. Krish­naraj, it is not denied. Therefore, the oral evidence of P.W.2, certainly, in my consid­ered opinion, satisfies the ingredients required under Section 69 of the Indian Evidence Act. 14. The Will is sought to be made unnatural or improbable on the ground that one of the sons of the testator has been excluded or ignored completely. In the Will itself, we find the re­citals as to why the father had chosen the plain­tiff, ignoring the defendant, the eldest son. The recitals available in the Will would, reveal, since the elder son is not behaving well, to his satisfaction, the testator has not given any property to the elder son. In the Will itself, we find the re­citals as to why the father had chosen the plain­tiff, ignoring the defendant, the eldest son. The recitals available in the Will would, reveal, since the elder son is not behaving well, to his satisfaction, the testator has not given any property to the elder son. Not only that P.W.1 also has given evidence before the Court that his father has not given any prop­erty to the other son because of the reason, he has not obeyed the command of the father or he was not dutiful to the parents. This part of the evidence given by P.W.1 is not at all, even suggestively, denied, thereby to say the Will was obtained by one of the sons by some method, unknown to law or in a method which could not be recognised by law. 15. Admittedly, the defendant is residing in a portion of the suit property. It is the case of the plaintiff that the other son/defendant was, permitted to live in a portion of the suit property, as tenant, whereas it is the case of the defendant that because of his contribution, for the construction of the building, on division of the property later on, he is residing in a portion of the suit property. As far as this case is concerned, this Court is not called upon to decide, how, the building in the property bequeathed was constructed, whether the property was divided equally by the father, while he was alive or not. Therefore, it may not be proper to say, in this case, that the defendant is occupying the property as tenant or in his capacity as the owner and these are all matters outside the purview of this suit and if the parties an advised, they have to work out their remedy separately. 16. The evidence of P.W.2, coupled with the registration of the document and the other circumstances, narrated above, prompt me to conclude that Balu Naicker alone had executed Ex.P.2 Will, while he was in a sound disposing state of mind, which was attested by two witnesses, as required under law, coming within, the meaning of the "Will" and this being the position, his last Will and testament should be, fulfilling his desire, for which granting Letters of Administration is a must. 17. 17. For, the foregoing reasons, these, two issues are answered accordingly in favour of the plaintiff. Issue No.3. In the result, the suit is decreed, ordering to issue Letters of Administration in favour of the plaintiff, with the Will annexed, as le tee, on executing a bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) in favour of the Assistant Registrar-II, Original Side, High Court, Madras. 18. But, under the facts and circumstances of the case, the parties are directed to bear their costs. Ordered accordingly.