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Madras High Court · body

2012 DIGILAW 2735 (MAD)

Kamalambal (died) v. Bala

2012-06-29

R.S.RAMANATHAN

body2012
Judgment 1. The 3rd defendant and the legal heirs of the 2nd defendant are the appellants. The plaintiffs/respondents 1 to 3 filed the suit in O.S.No.1107 of 1996 on the file of the District Munsif Court, Chengam for partition of their 3/5th share in the suit properties. 2. The case of the plaintiffs/respondents 1 to 3 was that the suit properties originally belonged to Narayanaswamy Naidu, the father of the plaintiffs/respondents 1 to 3, the husband of the 4th respondent and the father of the deceased 2nd defendant. The first appellant was the husband of the deceased 2nd defendant and the appellants 2 and 3 are the children of the first appellant through the deceased 2nd defendant. According to the plaintiffs/respondents 1 to 3, Narayanaswamy Naidu died intestate on 11.2.1968 and the properties were managed by the 4th respondent, who is their mother and the deceased 2nd defendant and her husband, the first appellant/3rd defendant and they were giving the share of the plaintiffs/respondents 1 to 3 till 1-1/2 years prior to the filing of the suit and thereafter, they refused to give and denied the title of the plaintiffs/respondents 1 to 3 in the properties stating that Narayanaswamy Naidu left a Will, dated 12.01.1968 in favour of his daughter, the deceased 2nd defendant and her husband, the first appellant and thereafter, O.S.No.226 of 1977 was filed by the defendants 2 and 3 and others and in that suit, a compromise was entered into between the 4th respondent and the first appellant/3rd defendant and the 2nd defendant and as per the compromise decree, the 4th respondent was given half share in the properties and therefore, the plaintiff/respondents 1 to 3 have no right over the properties. The plaintiffs/respondents 1 to 3 denied the execution of the Will by Narayanaswamy Naidu and contended that the Will must be a fraudulent one or must have been procured by undue-influence or fraud and they are not bound by the decree passed in O.S.No.226 of 1977, as they were not parties to the suit and as the children of Narayanaswamy Naidu, they are entitled to 3/5th share and the 4th respondent and the deceased 2nd defendant are each entitled to 1/5th share and therefore, filed a suit for partition. 3. 3. The defendants 2 and 3 contested the suit stating that Narayanaswamy Naidu had two wives and the deceased 2nd defendant was the daughter through his first wife Rangammal and the 3rd defendant was her husband and the first defendant/4th respondent herein was the 2nd wife of Narayanaswamy Naidu and through her, the plaintiffs were born and the properties were the separate properties of Narayanaswamy Naidu and while he was in a sound disposing state of mind executed a Will, dated 12.01.1968 in favour of the defendants 2 and 3 and therefore, they became the owners of the properties and the Will was a registered one and the defendants 2 and 3, namely the first appellant and his wife, the deceased 2nd defendant filed O.S.No.226 of 1977 for declaration that they are the owners of the properties and for delivery of possession from the 4th respondent herein and two others and in that suit, a compromise was entered into by which the 4th respondent was given half share and the defendants 2 and 3 were given half share and in that suit, the Will was produced and marked as Ex.A1 and the mother of the plaintiff/respondents 1 to 3, namely the 4th respondent herein was a party to the compromise and she accepted the Will in that suit and therefore, the plaintiffs/respondents 1 to 3 have no right over the properties. 4. It was contended that the 4th respondent/first defendant also filed O.S.No.1134 of 1980 against the respondents 1 to 3 and the first appellant and his wife, the deceased 2nd defendant and in that suit, she also admitted the compromise decree passed in O.S.No.226 of 1977 and she also relied upon the Will and latter, the suit was dismissed for non-prosecution and that would also prove that the Will was a genuine one and it was acted upon and as per the terms of the Will, the first appellant discharged the loan incurred by Narayanaswamy Naidu and therefore, the plaintiffs/respondents 1 to 3 are not entitled to any relief as prayed for. 5. 5. The trial court framed five issues, including the issue whether the Will, dated 12.11.1968 alleged to have been executed by Narayanaswamy Naidu was true and whether that Will was executed by Narayanaswamy Naidu, when he was in a sound disposing state of mind and another issue whether the decrees passed in O.S.No.226 of 1977 and O.S.No.1134 of 1980 are binding on the plaintiffs/respondents 1 to 3. 6. The trial court, after elaborately discussing the oral and documentary evidence, held that the Will was not proved in accordance with law. The trial court further held that the Will was attested by three persons and two of them are stated to be dead and one person, by name Pachaiyappan is admittedly alive and he was not examined to prove the attestation. Therefore, the Will was not proved as per the provisions of section 63 of the Indian Succession Act and section 68 of the Evidence Act. 7. The trial court further held that the examination of the son of another attesting witness cannot be accepted as a proof of the execution of the Will in-as-much-as one of the attesting witnesses is alive. 8. The trial court further held that even according to the evidence adduced by the defendants 2 and 3, they were not present at time of execution of the Will and the deceased Narayanaswamy Naidu was bedridden for four months prior to his death and he was native of Kottakulam village and the Will was executed and registered at Thiruvannamalai and as per the Will, the Will was presented by Narayanaswamy Naidu, when he was staying in the house of one Shanmugam, who was also one of the attesting witnesses and how Narayanaswamy Naidu had gone to Thiruvannamalai, when he was bedridden for four months prior to his death was not explained and the said Shanmugan was not related or known to Narayanaswamy Naidu and 'Narayanaswamy Naidu' died within one month from the date of registration of the Will, dated 12.01.1968 and he died on 11.2.1968 and therefore, the Will was not proved to have been executed by 'Narayanaswamy Naidu', while he was in sound disposing state of mind. The trial court, therefore, answered the issue No.1 against the defendants 2 and 3 and held that the Will was not properly proved as per the provisions of Indian Successions Act and Evidence Act and the Will was not proved to have been executed by Narayanaswamy Naidu while he was in a sound disposing state of mind. 9. The trial court further held that the Will cannot be presumed to have been proved by reason of marking of the Will in O.S.No.226 of 1977 and in O.S.No.226 of 1977, though the Will was marked and the decree of compromise filed by the parties and no adjudication was made regarding the execution of the Will and therefore, it cannot be contended that the Will was proved in the earlier proceedings. 10. Further, the plaintiffs/respondents 1 to 3 were not parties to the suit and therefore, they are not bound by those decrees and answered the issue No.2 in favour of the plaintiffs/respondents 1 to 3 and decreed the suit as prayed for. 11. The first appellate court also elaborately discussed the oral and documentary evidence and concurred with the findings of the trial court and dismissed the appeal and hence, this second appeal is preferred by the appellants. 12. The following substantial questions of law were framed at the time of admission:- 1. Whether the courts below have properly appreciated the scope and effect of the compromise decree Ex.B8 in which Ex.B1 Will has been accepted and recognized. 2. Whether the courts below have properly appreciated the law relating to proof of Wills under Section 68 of the Evidence Act read with Section 63 of the Indian Succession Act, 1925, while considering the proof of the registered Will Ex.B1 by this defendants 2 and 3. 3. Whether the courts below are right in granting a decree for partition when the properties have already been dealt with by Narayanaswamy Naidu under a registered Will marked as Ex.B1 which Will has been accepted by the mother of the plaintiffs, who is the first defendant in the suit. 13. Mr. 3. Whether the courts below are right in granting a decree for partition when the properties have already been dealt with by Narayanaswamy Naidu under a registered Will marked as Ex.B1 which Will has been accepted by the mother of the plaintiffs, who is the first defendant in the suit. 13. Mr. T.V. Ramanujan, the learned Senior counsel appearing for the appellants submitted that the courts below without properly appreciating the provision of section 69 of the Evidence Act, erroneously held that the Will was not proved, without appreciating that one of the attestors' son was examined to prove the execution of the Will as two attesting witnesses were dead and one attesting witness refused to come and give evidence and therefore, as per the provision of section 69 of the Evidence Act, PW2 was examined to prove the execution of the Will and therefore, the Will was proved in accordance with law. 14. He further submitted that merely because some of the legal-heirs were disinherited in the Will, that will not lead to suspicious circumstances and in the Will, the deceased Narayanaswamy Naidu stated the reasons for disinheriting the plaintiffs/respondents 1 to 3 herein and gave the properties to the defendants 2 and 3, as they had taken care of him at his old age and on that ground, it cannot be stated that the Will was not a genuine one. 15. The learned Senior counsel further submitted that in O.S.No.226 of 1977, the 4th respondent herein was a party and in that suit, the Will was produced and marked as Ex.A1 and accepting the Will, the 4th respondent herein, who is the mother of the plaintiffs/respondents 1 to 4 entered into an agreement and as per the compromise, she was given half share in the properties and therefore, the plaintiffs/respondents 1 to 3 can claim any right only from their mother in respect of that half share and they cannot claim any right in the property. 16. 16. The learned Senior counsel further submitted that the 4th respondent also filed O.S.No.1134 of 1980 against the plaintiffs and the defendants 2 and 3 and in that suit she also mentioned about the Will executed by Narayanaswamy Naidu and latter, she allowed the suit to be dismissed for default and therefore, the Will was brought to light at the earliest point of time in 1977 and the plaintiffs/respondents 1 to 3 did not move their little finger for nearly 20 years challenging the Will and filed the suit after their mother lost her case in the earlier round of litigation and therefore, the courts below erred in holding that the Will was not proved and the decree passed in O.S.No.226 of 1977 was not binding on the plaintiffs/respondents 1 to 3. 17. The learned Senior counsel further emphasized that the mother of the plaintiffs/respondents 1 to 3, namely the 4th respondent herein remained ex-parte through out the suit, first appeal and in the second appeal and she was the competent witness to speak about the health and sound disposing state of mind of Narayanaswamy Naidu and she admitted the execution of the Will in the earlier proceedings and therefore, the plaintiffs cannot challenge the Will in this proceeding and without appreciating all these aspects, the courts below erred in holding that the Will was not proved and was not a genuine document and the decree passed in O.S.No.226 of 1977 was not binding on the plaintiffs/respondents 1 to 3. He, therefore, submitted that the decrees and judgments of the courts below are liable to be set aside and the second appeal is to be allowed. 18. The learned Senior counsel appearing for the appellants also relied upon the following judgments in support of his contention:- 1. 2001(3)CTC 283 in the case of Corra Vedachalam Chetty vs. G. Janakiraman. 2. (2002)2 SCC 85 in the case of Madhukar D. Shende vs. Tarabai Aba Shedage. 3. (2002)1 SCC 630 in the case of S. Sundaresa Pai and others vs. Sumangala T. Pai (Mrs.) another. 4. (2005) 8 SCC 67 in the case of Pentakota Satyanarayana and others vs. Pentakota Seetharatnam and others. 5. (2007)11 SCC 621 in the case of Savithri and others vs. Karthyayani Amma and others. 6. 2010(1)CTC 652 in the case of Mariammal and another vs. P. Indirani aznd 5 others. 19. 4. (2005) 8 SCC 67 in the case of Pentakota Satyanarayana and others vs. Pentakota Seetharatnam and others. 5. (2007)11 SCC 621 in the case of Savithri and others vs. Karthyayani Amma and others. 6. 2010(1)CTC 652 in the case of Mariammal and another vs. P. Indirani aznd 5 others. 19. On the other hand, Mr.T.R.Rajagopalan, the learned Senior counsel appearing for the respondents 1 to 3 submitted that as per the provisions of section 63 of the Indian Succession Act and Section 68 of the Evidence Act, in order to prove a Will, at least one attesting witness has to be examined and in this case, there were three attesting witnesses to the Will and though two of them are reported dead, no proof was adduced by the appellants to prove that those two persons were dead and admittedly, one attesting witness is alive and no steps were taken by the appellants to examine him to prove the attestation and therefore, in the absence of any proof of Will by examining one attesting witness, it cannot be stated that the Will was proved by the appellants. 20. Mr. T.R. Rajagopalan, the learned Senior counsel further submitted that the decrees passed in O.S.No.226 of 1977 and in O.S.No.1134 of 1980 are not binding on the respondents 1 to 3 and as rightly held by the courts below, the Will was not adjudicated in those suits and even though, the Will was produced and marked as Ex.A1 in O.S.No.226 of 1979, no finding was given on the Will and no attesting witness was examined to prove the Will in the suit and the decree was passed on the basis of the compromise entered into between the parties and therefore, it cannot be stated that the Will was proved in O.S.No.226 of 1977. 21. 21. He further submitted that when the defendants 2 and 3 filed O.S.No.226 of 1977, the appellants are alive and the defendants 2 and 3 filed the suit in O.S.No.226 of 1977 for declaration of title in respect of the suit properties on the basis of the Will and admittedly, the respondents 1 to 3 are alive on that date and they were not impleaded as parties and even though, the mother of the respondents 1 to 3 was a party to the suit, in the absence of impleading the respondents 1 to 3 herein, who are also entitled to a share in the property, the decree passed in O.S.No.226 of 1977 is not binding on the plaintiffs/respondents 1 to 3 and therefore, the decrees passed in O.S.No.226 of 1977 is not binding on the respondents 1 to 3. 22. He further submitted that no attempt was made by the first appellant to examine Pachaiyappan, one of the attesting witnesses, who is alive and DW1, the first appellant admitted that he did not file any application to summon the said Pachaiyappan to prove the Will and Pachaiyappan orally agreed to give evidence and he has not taken any steps to examine the Pachaiyappan by taking summons to him in the manner known to law and when one of the attesting witnesses is alive, the Will has to be proved only by examining him and not by examining any other person, who is acquainted with the signature of the other deceased attesting witnesses and considering all these aspects, the courts below rightly held that the Will was not proved in accordance with law. 23. 23. The learned Senior counsel appearing for the respondents 1 to 3 further submitted that admittedly, Narayanaswamy Naidu was native of Kottakulam village and he was bedridden for four months prior to his death and how he went to Thiruvanamalai to execute the Will was not properly explained by the appellants and DW2, who was examined to prove the signature of the one of the attesting witnesses also did not say how Narayanaswamy Naidu came to his house and he also did not say anything about the sound disposing state of mind of Narayanaswamy Naidu and therefore, the courts below rightly held that the Will was not proved and the decree passed in O.S.No.226 of 1977 was not acted upon and rightly decreed the suit and the concurrent finds of facts need not be interfered with in this second appeal. 24. He also relied upon the judgments reported in 2007(6)MLJ 866 in the case of Dharmaraj vs. Rajalingam in support of his contention that when one of the attesting witnesses is alive and no attempt is made to examine that witness, the Will is not proved and the right under section 69 of the Indian Evidence Act will accrue only when the attesting witnesses were not alive or were not available for examination and without following the procedure contemplated under Order 16 Rule 10 CPC, section 69 of the Indian Evidence Act can't be invoked by the propounder of the Will and the Will can't be proved by examining any person, who is acquainted with the signature of the deceased attesting witnesses. 25. Heard both sides. 26. Admittedly, the suit properties were the properties owned by Narayanaswamy Naidu and the plaintiffs/respondents 1 to 3 were his daughters through his second wife, namely the 4th respondent herein and the deceased 2nd defendant was the daughter through his first wife and the 3rd defendant and the first defendant are the sons-in-laws. The plaintiffs/respondents 1 to 3 filed the suit for partition stating that the deceased Narayanaswamy Naidu died intestate and therefore, they are entitled to 3/5 share. 27. The defence of the appellants was that Narayanaswamy Naidu left a Will, dated 12.01.1968 and as per the Will, he bequeathed all his properties in favour of the defendants 2 and 3 and therefore, the plaintiffs have no right over the properties and they are not entitled to any share. 27. The defence of the appellants was that Narayanaswamy Naidu left a Will, dated 12.01.1968 and as per the Will, he bequeathed all his properties in favour of the defendants 2 and 3 and therefore, the plaintiffs have no right over the properties and they are not entitled to any share. The appellants further contended that the Will was proved in the earlier proceeding, namely O.S.No.226 of 1977 wherein the 4th respondent, the mother of the respondents 1 to 3 was a party and the 4th respondent also filed the suit O.S.No.1134 of 1980 against the appellants/ the defendants 2 and 3 wherein also she admitted the compromise decree passed in O.S.No.226 of 1977 and as per the compromise decree passed in O.S.No.226 of 1977, the 4th respondent was given half share and the defendants 2 and 3 were given half share and the plaintiffs/respondents 1 to 3 were aware of all these proceedings and having kept quite for all these years, they are not entitled to contend now that the deceased Narayanaswamy Naidu did not execute the Will and they are entitled to 3/5th share over the properties. 28. It is settled law that when a person propounds a Will, a duty is cast upon him to prove the Will. As per 63 of the Indian Succession Act and Section 69 of the Evidence Act, a Will can be proved by examining one attesting witness, who is alive and subject to the process of the court and capable of giving evidence and as per section 69 of the Evidence Act, if any such attesting witness cannot be found, the Will can be proved by examining any person, who is acquainted with the signature of the attesting witnesses and prove that the signature of the persons found in the document is in the hand writing of that person. 29. In this case, according to Ex.A1 Will, the Will was attested by three persons and according to the appellants, except Pachaiyappan, the other two attesting witnesses are dead and except the oral testimony of DW1 and DW2, no proof was adduced by the appellants to prove that the other attesting witnesses are dead. Even assuming that the other two attesting witnesses are dead, no acceptable reason has been stated for non-examining the remaining attesting witness, namely Pachaiyappan, who is admittedly alive. 30. Even assuming that the other two attesting witnesses are dead, no acceptable reason has been stated for non-examining the remaining attesting witness, namely Pachaiyappan, who is admittedly alive. 30. It is seen from the evidence of DW1, the first appellant that he took summons for examining Pachaiyappan and the summons was served on him and on that date, the Advocates boycotted the court and therefore, he was not able to examine Pachaiyappan and thereafter, his whereabouts were not known and therefore, he was not examined. He further submitted that he did not file any application to examine Pachaiyappan by following procedures contemplated under Order 16 Rule 10 CPC. Even according to his own admission, when he served the summons on the witness Pachaiyappan, he promised to give evidence and thereafter, he did not come to give evidence. Therefore, it is seen from the evidence of DW1, no effective steps were taken by him to examine one of the attesting witnesses, who is admittedly alive and as per the mandatory requirements of section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, one of the attesting witnesses has to be examined to prove the Will and therefore, non-examination of one of the attesting witnesses, who is alive will lead to the only conclusion that the Will was not proved in accordance with law. 31. Further, as per section 69 of the Evidence Act, only when the attesting witnesses are not found, the party can examine any person, who is acquainted with the handwriting of the attesting witnesses and to prove that the attesting witnesses are not found, effective steps must be taken by propounder by following procedures contemplated under Order 16 Rule 10 CPC and only after getting the judicial finding in that respect, it is open to the propounder to prove the will by examining any person, who is acquainted with the handwriting of the attesting witnesses. 32. In this case, as stated supra, though summons was taken and served on the attesting witness Pachaiyappan, he did not come forward to give evidence and thereafter, no steps were taken by DW1, the first appellant to examine the attesting witness by taking fresh summons or following the procedures contemplated under Order 16 Rule 10 CPC. 32. In this case, as stated supra, though summons was taken and served on the attesting witness Pachaiyappan, he did not come forward to give evidence and thereafter, no steps were taken by DW1, the first appellant to examine the attesting witness by taking fresh summons or following the procedures contemplated under Order 16 Rule 10 CPC. Therefore, in such circumstances, it cannot be stated that the attesting witnesses are not found and therefore, the propounder can take advantage of the provision contained under section 69 of the Evidence Act. In this respect, this court has held in the judgment reported in 2007(6) MLJ 866 in the case of Dharmaraj vs. Rajalingam that a right will accrue to the propounder to examine any person, who is acquainted with the signature of the attestors only when he proved that he had taken all the steps to examine the attesting witnesses, who are alive by following the procedures contemplated under Order 16 Rule 10 CPC. Therefore, the courts below rightly held that the Will was not proved as one of the attesting witnesses, who is admittedly alive was not examined and the examination of DW2, the son of the one of the deceased witnesses will not prove the Will. 33. Further, as rightly held by the courts below, no evidence was produced by the appellants that the Will was executed by Narayanaswamy Naidu, while he was in a sound disposing state of mind. Admittedly Narayanaswamy Naidu was bedridden for four months prior to his death and he belonged to Kottakulam village and the Will was registered at Thiruvanamalai when Narayanaswamy Naidu stayed in the house of one of the attesting witnesses. No evidence was produced by the appellants that why Narayanaswamy Naidu had gone to Thiruvanamalai to register the Will, when admittedly he was bedridden for four months prior to his death. The Will is dated 12.01.1968 and Narayanaswamy Naidu died on 12.02.1968 and even according to the evidence of DW1, he did not participate nor was present, when the Will was registered and according to his evidence, the Will was given to him by the father-in-law of Narayanawsamy Naidu prior to his death. The Will is dated 12.01.1968 and Narayanaswamy Naidu died on 12.02.1968 and even according to the evidence of DW1, he did not participate nor was present, when the Will was registered and according to his evidence, the Will was given to him by the father-in-law of Narayanawsamy Naidu prior to his death. Therefore, in the absence of any acceptable evidence regarding the mental capacity of Narayanaswamy Naidu, when admittedly Narayanaswamy Naidu was bedridden for four months prior to his death and the Will was executed and registered at Thiruvanamalai, which is far away from the native place of Narayanaswamy Naidu, the courts below rightly held that the appellants failed to prove that the Will was executed, while Narayanaswamy Naidu was in a sound disposing state of mind. 34. The contention of the learned Senior counsel for the appellants was that as per the recitals in the Will, the first appellant discharged the loan incurred by Narayanaswamy Naidu and that would prove that the Will was acted upon and was a genuineness one. Further, the contention of the learned Senior counsel appearing for the appellants was that in the earlier proceeding in O.S.No.226 of 1977, the Will was produced and marked as Ex.A1 and the 4th respondent herein, the mother of the respondents 1 to 3 was a party and she also admitted the compromise decree passed in O.S.No.226 of 1977 by filing the suit O.S.No.1134 of 1980 and latter allowed the suit to be dismissed for default and therefore, the Will was proved. 35. I am unable to accept the contention of the learned Senior counsel appearing for the appellants in this regard. Admittedly, the respondents 1 to 3 herein are alive, when the defendant 2 and 3 filed the suit O.S.No.226 of 1977 for declaration that they are entitled to the suit properties under the Will alleged to have been executed by Narayanaswamy Naidu and but for the Will, the plaintiffs/respondents 1 to 3 are having share in the property and therefore, the plaintiffs/respondents 1 to 3 are necessary parties in that suit and deliberately, they were not impleaded as parties. 36. 36. Further, in O.S.No.226 of 1977, the Will was not proved as per the provisions of section 63 of the Indian Succession Act and section 68 of the Evidence Act and the Will was only marked as Ex.A1 and the decree was passed on the basis of the compromise memo and hence, as rightly held by the courts below, the Will was not adjudicated in that suit and hence, it cannot be stated that the Will was proved in the earlier proceeding. 37. Further, the plaintiffs/respondents 1 to 3 were not parties to the suit O.S.No.226 of 1977 and hence, the decree passed in O.S.No.226 of 1977 is not binding on them. Even assuming that the 4th respondent, the mother of the respondents 1 to 3 was a party and admitted the Will in the earlier proceeding, that will not bind the plaintiffs, who are independently entitled to a share in the property and they are not claiming any share through their mother. Hence, the courts below rightly held that the decree passed in O.S.No.226 of 1977 and in O.S.No.1134 of 1980 are not binding on the plaintiffs/respondents 1 to 3. 38. The decisions relied upon by the learned Senior counsel appearing for the appellants, as stated above, have no application to the facts of the case. In this case, the Will was not challenged on the ground that the Will was executed under suspicious circumstances, as some of the legal heirs are disinherited. In the judgment relied upon by the learned Senior counsel appearing for the appellants, the Hon'ble Supreme Court consistently held that merely because some of the legal-heirs are disinherited, that will not lead to suspicious circumstance, when sufficient reasons have been stated in the Will for disinheriting those persons. In this case, no finding has been given by the courts below disbelieving the Will on the ground that the Will was executed in a suspicious circumstance. As stated supra, the courts below rightly held that the Will was not proved and one of the attesting witness was not examined and therefore, the appellants cannot claim any right under the Will. 39. As stated supra, the courts below rightly held that the Will was not proved and one of the attesting witness was not examined and therefore, the appellants cannot claim any right under the Will. 39. Therefore, the substantial questions of law are answered against the appellants and the decree passed in O.S.No.226 of 1977 is not binding on the respondents 1 to 3 and in O.S.No.226 of 1977 as they were not parties in that suit, Ex.A1 Will was not adjudicated and the suit was decreed on the basis of the compromise memo filed by the parties and the Will was not proved by examining the attesting witness, who is alive and the examination of DW2 son of the deceased attesting witness will not have the effect of proving the Will, as no steps were taken to examine the attesting witness, who is alive and the compromise decree passed in O.S.No.226 of 1977, wherein the 4th respondent, the mother of the respondents 1 to 3 was a party will not bind the plaintiffs/respondents 1 to 3 as they are independently entitled to share in the properties and they are not claiming any right through their mother. 40. In the result, the concurrent findings of courts below are confirmed and the second appeal is dismissed. No costs.