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2013 DIGILAW 353 (KAR)

T. S. Prakash, Bangalore v. Mukunda

2013-03-19

K.BHAKTHAVATSALA

body2013
Judgment 1. This is defendant No.2's Appeal filed under Section 96 of the Code of Civil Procedure, challenging the impugned judgment and decree dated 20.2.2009 made in O.S. No.2010/1997 on the file of XXXVIII Addl. City Civil Judge, Bangalore City. 2. For the purpose of convenience and better understanding, 'the appellant' and 'the respondent Nos.1 to 3' are hereinafter referred to as 'defendant No.2' and 'plaintiff Nos.1 to 3', respectively. 3. Brief facts of the case leading to the filing of the Appeal may be stated as under: On 11.3.1997, plaintiffs filed a Suit against the defendants for partition and separate possession of half share in the suit schedule house property, mesne profits from the date of Suit till plaintiffs are put in separate possession of their share and for permanent injunction restraining defendants from alienating the suit schedule property till plaintiffs are put in separate possession. It is the case of the plaintiffs that T.S. Ananda (husband of plaintiff No.3 and father of plaintiff Nos.1 and 2) and defendant No.2/T.S. Prakash are the children of defendant No.1/T.D. Somasundaram, who was the Kartha of the Joint Hindu Family. T.S. Ananda died on 19.6.1977. It is pleaded in para-5 of the plaint that 1st defendant, who is owner of the suit house bearing No.709, situated at 42nd Cross, 3rd Block, Rajajinagar, Bangalore- 560 010 constructed out house, for which T.S. Ananda who was working as a driver, contributed. It is further pleaded that during the life time of T.S. Ananda, the 1st defendant had decided to give half share in the suit property to T.S. Ananda, but unfortunately T.S. Ananda pre-deceased his father-defendant No.1. After the death of T.S. Ananda, the relationship between the plaintiffs and the defendants strained and they were thrown out of the house. Finally on 18.1.1997 the plaintiffs demanded the defendants to effect partition in the suit schedule property but in vain. Further, the defendants threatened the plaintiffs with dire consequences. They also learnt that the defendants will dispose of the suit schedule property so as to deprive the legitimate claim of the plaintiffs. Therefore, the plaintiffs filed a Suit for the relief as stated above. On 24.3.1997, summons was issued to the defendants. Case was called on 20.12.1997. Defendant No.1 was absent. Defendant No.2 entered appearance through his Advocate and prayed for time to file written statement. Therefore, the plaintiffs filed a Suit for the relief as stated above. On 24.3.1997, summons was issued to the defendants. Case was called on 20.12.1997. Defendant No.1 was absent. Defendant No.2 entered appearance through his Advocate and prayed for time to file written statement. Defendant No.1 died on 7.5.1998 and his contesting sole LR was already on record. Defendant No.2 filed written statement on 30.9.2004 admitting that T.S. Ananda is his elder brother and his father-1st defendant who was absolute owner of the suit property has bequeathed the suit property in his favour and prayed for dismissal of the Suit. He has denied the other averments of the plaint including the plaintiffs' relationship with the deceased-T.S. Ananda. As per para-6 of the written statement the defendant No.2 has enclosed a copy of will marked as document No.1. Plaintiffs filed their rejoinder to the written statement of the 2nd defendant. They have contended that the Will dated 19.12.1977 is created, forged and manipulated after the death of 1st defendant. It is further contended that the 2nd defendant appeared before the trial Court on 20.12.1997, but filed his written statement on 30.6.2004 by creating the alleged unregistered Will after the death of the 1st defendant. On 23.1.2004, the trial Court held that written statement was not filed and adjourned the case to 30.6.2004 for production of documents and plaintiffs' evidence. Thereafter, the defendant No.2 filed an application to recall the order dated 23.1.2004 and permit him to file written statement on 30.6.2004. It is further contended that the defendant has obtained khata in respect of the suit schedule property without notice to them and also suppressing pendency of the suit. In view of the pleadings on record, the trial Court framed as many as 7 issues. In support of the case of the plaintiffs, plaintiff No.1 and plaintiff No.3 have got themselves examined as P.Ws.1 and 2, besides examining one Ramu and Venkataramana as P.W3 and 4, respectively, and got marked Exs.P1 to P8. In rebuttal, defendant No.2 got himself examined as D.W-1 besides examining one Ananthram as D.W-2 and got marked Exs.D1 to D25. The trial Court, after hearing arguments, perusing oral and documentary evidence on record, decreed the Suit of the plaintiffs holding that the they are entitled for partition and separate possession of half share and future mesne profits at the rate of Rs. The trial Court, after hearing arguments, perusing oral and documentary evidence on record, decreed the Suit of the plaintiffs holding that the they are entitled for partition and separate possession of half share and future mesne profits at the rate of Rs. 4,500/- per month from the date of Suit till they are put in possession and enjoyment of their share in the suit schedule property. This is impugned in this Appeal. On 9.3.2010, the impugned judgment and decree were stayed by this Court, subject to a condition that the appellant/defendant shall deposit mesne profits at the rate of Rs. 4,500/- per month as directed by the trial Court, within four weeks from 9.3.2010 before this Court and also continue to deposit mesne profits at the rate of Rs. 4,500/- per month until further orders. Subsequently, the appellant filed an application to recall the order dated 9.3.2010, but the same was rejected by order dated 9.4.2010. In spite of that the order dated 9.3.2010 is not complied with. On 21.4.2011, the appellant/defendant No.2 filed an application under Order XLI Rule 27 of CPC seeking permission to produce certain documents. The respondents/plaintiffs also filed an application seeking permission to produce certain documents. Both the applications were allowed directing the parties to appear before the trial Court for adducing further evidence as prayed for. During the course of perusal of trial Court records and comparing the document No.1 (xerox copy of the Will filed with written statement) and the original Will at Ex.D25, I have noticed that the signature of the Testator is overlapping with the text "Testator" and in witness No.2's address in between Sadashivanagar and Bangalore-6, there is a 'comma' in Ex.D25, but there is 'asterisk'(*) mark in the document No.1. Hence, the trial Court was directed to give an opportunity to the defendant No.2 (appellant herein) to adduce further evidence with reference to the Will at Ex.D25 and document No.1. After the suit was remanded to the trial court for limited purpose, P.W-1 was recalled and further examined in chief and got marked Exs.P9 to P13. D.W-1 was also recalled and further examined in chief and got marked Exs.D26 to D29. The trial court has returned the records. Thereafter, the appellant/defendant No.2 filed an application on 1.7.2011 seeking permission to examine one Prasad Kamath, S/o L Ramakanth. D.W-1 was also recalled and further examined in chief and got marked Exs.D26 to D29. The trial court has returned the records. Thereafter, the appellant/defendant No.2 filed an application on 1.7.2011 seeking permission to examine one Prasad Kamath, S/o L Ramakanth. For the reasons stated in the order dated 9.8.2011, the said application (Misc.13586/2011) was rejected with exemplary costs of Rs. 5,000/-. On 19.8.2011, the matter was referred to Bangalore Mediation Centre for amicable settlement, but in vain. Copy of the xerox copy of Will marked as document No.1 and filed along with written statement by defendant No.2 is kept in a sealed cover. 4. Heard arguments of the learned Counsel for the parties. 5. Sri Naganand, learned Senior Counsel appearing along with Smt. Swetha Anand, for appellant, has submitted as under: i. that the suit property is self acquired property of late Sri Somasundaram (defendant No.1) and as such suit for partition was not maintainable during the life time of defendant No.1, but the learned trial Judge lost sight of the same; ii. that the trial Court ought to have framed an issue with regard to the plaintiffs' relationship with the deceased-T.S. Ananda and in the absence of framing an issue on that point, the trial Court erred in answering issue Nos.1 and 5 in favour of the plaintiffs; iii. that the trial Court erred in misdirecting itself and exceeding its jurisdiction, in so far as the Will when there was no challenge regarding execution and validity of the Will; and iv. that the trial Court erred in decreeing the Suit for partition and other reliefs though the Will was proved in evidence. He has cited the following decisions: i. AIR 2003 SC 761 (JANKI NARAYAN BHOIR Vs. NARAYAN MANDEO KADAM); ii. (1994) 1 SCC 407 (SURJIT KAUR Vs. GARJA SINGH AND OTHERS); iii. AIR 1996 MADRAS 442 (AMMU BALACHANDRAN Vs. MRS. U.T. JOSEPH (DIED) AND OTHERS); and iv. AIR 1999 DELHI 226 (SMT. SUMITRA DEVI KOCHHAR AND OTHERS Vs. THE STATE AND OTHERS). 6. NARAYAN MANDEO KADAM); ii. (1994) 1 SCC 407 (SURJIT KAUR Vs. GARJA SINGH AND OTHERS); iii. AIR 1996 MADRAS 442 (AMMU BALACHANDRAN Vs. MRS. U.T. JOSEPH (DIED) AND OTHERS); and iv. AIR 1999 DELHI 226 (SMT. SUMITRA DEVI KOCHHAR AND OTHERS Vs. THE STATE AND OTHERS). 6. On the other hand, learned Counsel appearing for the respondents/plaintiffs submits that the plaintiffs have proved that plaintiff Nos.2 and 3 are born out of the wedlock between plaintiff No.1 and the deceased T.S. Ananda; the plaintiff No.3's husband/T.S. Anand pre-deceased-father defendant No.1/and since defendant No.1 died during the pendency of the Suit and the plaintiffs are entitled for partition and separate possession of the suit schedule property and other consequential reliefs. He further submitted that the Will in question is concocted with an intention to deprive the claim of the plaintiffs and filed written statement on 30.6.2004 though the Suit was filed on 11.3.1997; the copy of the will-Document No.1 does not tally with the Original will and apart from that the will at Ex D-25 was not proved and on the ground of number of suspicious circumstances, the trial Court has rightly answered issue No.4 in the negative in favour of the plaintiffs and against defendant No.2 and decreed the suit and the same does not call for interference by this court. He relied upon the following decisions: i. AIR 1981 KAR 40 (DB) (SMT. PARAMESHWARI BAI Vs. MUTHOJIRAO SCINDIA); ii. (1996) 11 SCC 88 (SHANTINATH RAMU DANQLE AND ANOTHER Vs. JAMBU RAMU DANOLE AND OTHERS); iii. ILR 2000 KAR 3837 (LAKSHMAMMA Vs. KAMALAMMA & ANOTHER); iv. ILR 1999 KAR 2539 (B R RANGASWAMY Vs. D. SYED YOUNOUS & OTHERS); v. AIR 2004 SC 1772 (UMA DEVI NAMBIAR AND OTHERS Vs. T C SIDHAN (DEAD); vi. AIR 2003 SC 3109 (RAMABAI PADMAKAR PATIL (DEAD) BY L.RS. AND OTHERS Vs. RUKMINIBAI VISHNU VEKHANDE AND OTHERS); vii. AIR 2009 SC 1766 (BHARPUR SINGH & ORS. Vs. SHAMSHER SINGH); and viii. AIR 2003 SC 761 (JANKI NARAYAN BHOIR Vs. NARAYAN NAMDEO KADAM) 7. In view of the arguments addressed by the learned Counsels for the parties, I formulate the following points for my consideration: i. Whether the trial Court is justified in holding that plaintiffs are entitled for half share in the suit schedule property as wife and children of the T.S. Ananda, who pre-deceased his father/defendant No.1. ii. NARAYAN NAMDEO KADAM) 7. In view of the arguments addressed by the learned Counsels for the parties, I formulate the following points for my consideration: i. Whether the trial Court is justified in holding that plaintiffs are entitled for half share in the suit schedule property as wife and children of the T.S. Ananda, who pre-deceased his father/defendant No.1. ii. Whether the trial Court is justified in answering issue No.1 that the defendant No.2 failed to prove that the suit schedule property was bequeathed by defendant No.1 in his favour under the Will dated 19.12.1977. iii. Whether the trial Court is justified in holding that the plaintiffs are entitled for future mesne profits at the rate of Rs. 4,500/- per month. iv. Whether the impugned judgment and decree call for interference by this Court. v. What order. 8. Before I take up the points for consideration, it is necessary to state certain admitted facts. Plaintiffs filed the Suit on 11.3.1997. As per order dated 29.8.1997 Summons issued to defendant Nos.1 and 2 by RPAD was served on them, but summons sent through Court were returned un-served. On 20.12.1997, when the case was called, defendant No.1 was absent. Defendant No.2 appeared and prayed for time. Defendant No.1 died on 7.5.1998. On 23.7.1998, Advocate, Sri M.G. Srinivas, filed power for defendant No.2. On 14.12.2001, prayer to file written statement was allowed, as a last chance, on payment of costs of Rs. 200/-, and adjourned to 5.2.2002. But, written statement was not filed on 5.2.2002. Suit was posted for evidence. On 30.6.2004, Sri B Manjunath, Advocate, filed power for defendant No.2 with NOC of the previous Counsel. On 30.9.2004, defendant No.2 filed written statement. Reg. Point Nos.(i) and (vi) For the purpose of convenience, I take up all the points together for consideration. Case of the plaintiffs is that plaintiff No.1 and plaintiff No.2 are son and daughter of plaintiff No.3, and they are born out of lawful wedlock with T.S. Ananda. T.S. Ananda is the eldest son of defendant No.1/T D Somasundaram. Defendant No.2 is younger brother of T.S. Ananda. Though defendant No.1 was alive when the Suit was filed and suit summons was served on him, he did not enter appearance nor filed written statement. Defendants Nos.1 and 2 were residing in the same house. Suit summons sent by RPAD was served on defendant Nos.1 and 2. Defendant No.2 is younger brother of T.S. Ananda. Though defendant No.1 was alive when the Suit was filed and suit summons was served on him, he did not enter appearance nor filed written statement. Defendants Nos.1 and 2 were residing in the same house. Suit summons sent by RPAD was served on defendant Nos.1 and 2. Defendant No.1 died on 7.5.1998. Though defendant No.2 entered appearance in the Suit on 20.12.1997, he filed his written statement on 30.9.2004 contending that the suit schedule property was bequeathed in his favour by defendant No.1 under a Will (enclosed a Xerox copy of the Will marked as Document No1). He has not stated the date of will in the written statement nor furnished copy of the will to the plaintiffs. Defendant No.2 has denied the relationship of the plaintiffs with the deceased T.S. Ananda. So as to establish that plaintiff No.3 is the wife of deceased T.S. Ananda, who was working as a Driver, and Plaintiff No.1 was born to them on 31.7.1973 in KC General Hospital, Bangalore (registered on 4.8.1973, she has produced birth certificate as Ex.P2 (issued by Bangalore Mahanagara Palike). Likewise she has produced birth certificate of Plaintiff No2 as Ex.P.3. According to that Plaintiff No.2 was also born in KC General Hospital, Bangalore, on 18.1.1976 and it was registered on19.1.1976 in the Office of the BMP. As per Ex.P4A/Karnataka State Assembly Voters List' 1975 (relating to Rajajinagar Constituency), the Plaintiff No.3 and her husband T.S. Anand were living in the House bearing No.1007-8. Ex.P6 is the original Transfer Certificate issued by Primary School in respect of plaintiff No.1, wherein father's name has been shown as T.S. Ananda and date of birth as 31.7.1973. Likewise, Ex.P7/SSLC original certificate of plaintiff No.2, shows that her date of birth as 19.1.1976 and father's name as T.S Anand. An old photograph of plaintiff No.3 and her husband with their child plaintiff No.2 was produced, but it was not marked on the ground that negative thereof was not produced. Plaintiffs have produced M O Acknowledgments (Ex.P9 bearing Post Office seal dated 17.1.1976 and 21.1.1976; Ex.P10 dated 17.5.1977 and 19.5.1077) to show that T.S. Ananda had sent money to Dharmasthala Temple. They have also produced money order acknowledgment as Ex.P.11 (bearing post office seal dated 23.3.1977) to establish that T.S. Ananda, sent Rs. 100 by MO to plaintiff No.3, from Hotel Cauvery, Room No.6, Mercara. They have also produced money order acknowledgment as Ex.P.11 (bearing post office seal dated 23.3.1977) to establish that T.S. Ananda, sent Rs. 100 by MO to plaintiff No.3, from Hotel Cauvery, Room No.6, Mercara. By way of rebuttal evidence, the defendant has produced birth register extract from K C General Hospital (obtained under Right To Information Act) and the same has been marked as Ex.D26 with reference to birth of a male child-plaintiff No.1 on 31.7.1973. At Sl. No.9496/521 of Ex.D26, Vardharajamma is scored out and written as Honna Rajamma. It has been attested. In that also it is mentioned that Plaintiff No.3 herein is the wife of T.S. Ananda, residing at No.1007, 1st Block, Rajajinagar, at Bangalore. Birth register extract of plaintiff No.2 born on 18.1.1976 (vide Sl. No.224) also discloses the name of parents and address. As against the last column pertaining to profession of husband, it is mentioned as 'Driver'. The document at Ex.D26 supports the case of plaintiffs to hold that the plaintiff No.3 is the wife of the deceased-T.S. Ananda and plaintiff Nos.1 and 2 were born to them. P.W3-Ramu, s/o late Hanumanthappa, aged about 54 years, has deposed that he used to come along with his mother to the suit schedule premises to meet plaintiff No.3 on friendship and at that time he has seen the plaintiffs and T.S. Ananda, 1st defendant and 2nd defendant were staying in the suit schedule premises and the plaintiffs are the legal heirs of the deceased T.S. Ananda, who was working as a Car Driver for film actress-Mrs. Jayanthi and others. P.W4-Venkataramana, s/o Venkatappa, aged about 58 years, has deposed that plaintiff No.3 is the wife of T.S. Ananda and plaintiff Nos.1 and 2 are the children of plaintiff No.3 and T.S. Ananda used to purchase provisions from his shop situated nearby the suit schedule premises at II stage, Rajajinagar, Bangalore. He has further deposed that T.S. Ananda married to plaintiff No.3 and after their marriage they started living with 1st defendant in the suit schedule ground floor and out of their lawful wedlock, plaintiff Nos.1 and 2 were born. Nothing worthwhile is elicited in the cross-examination of P.Ws.1 to 4 to disbelieve that T.S. Ananda is not the husband of plaintiff No.3 and plaintiff Nos.1 and 2 are not the children born to plaintiff No.3 and T.S. Ananda. Nothing worthwhile is elicited in the cross-examination of P.Ws.1 to 4 to disbelieve that T.S. Ananda is not the husband of plaintiff No.3 and plaintiff Nos.1 and 2 are not the children born to plaintiff No.3 and T.S. Ananda. The plaintiffs have established beyond doubt that they are the legal heirs of the deceased T.S. Ananda as children and wife, respectively. The trial Court is justified in holding that the plaintiffs are the legal heirs of T.S. Ananda as children and wife, respectively. As per Ex.D2-original sale deed in respect of the suit property came to be executed on 11.6.1973 and registered on 4.7.1973 in favour of defendant No.1 when he was 60 years old. It is the case of the plaintiffs including the deceased T.S. Ananda were living together in the suit schedule premises and the deceased T.S. Ananda contributed for construction of out house on the suit schedule property. But, there is no document to show that neither the deceased T.S. Ananda nor the defendant No.2 contributed for construction of the house on the suit schedule premises. It is the case of the plaintiffs that during the lifetime of defendant No.1, he wanted to give half share in the suit schedule property in favour of the plaintiffs. Therefore, they filed a Suit for partition. Since the suit schedule property is the self acquired property of defendant No.1, filing a Suit for partition was not justifiable. But, during the pendency of the Suit, defendant No.1 died. It is the case of the plaintiffs that defendant No.1 died intestate. Therefore, suit for partition became maintainable. Thus, the legal representatives of the pre-deceased son of defendant No.1 are entitled to seek partition in the suit property. As mentioned above, defendant No.2 though contends that defendant No.1 has bequeathed the suit schedule property under a Will dated 19.12.1977, though he entered appearance before the trial Court on 20.12.1997, he filed written statement on 30.9.2004 along with copy of the alleged Will as Document No.1. As per order of the trial court, suit summons sent by post was served on both the defendants, who were living in the same house. But summons sent to defendant No.2 through court was returned unserved. The plaintiffs have filed rejoinder to the written statement contending that un-registered Will was concocted after the death of defendant No.1. Heavy burden was on defendant No.2 to prove the Will. But summons sent to defendant No.2 through court was returned unserved. The plaintiffs have filed rejoinder to the written statement contending that un-registered Will was concocted after the death of defendant No.1. Heavy burden was on defendant No.2 to prove the Will. Merely because defendant No.1 has got khata transferred in respect of the suit schedule property on the basis of the alleged Will and suppressing the pendency of the suit and without notice to the plaintiffs, it cannot be said that the plaintiffs have no right over the suit schedule property. The trial Court has held that the Will dated 19.12.1977 alleged to be executed by defendant No.1 in favour of defendant No.2 was not proved in evidence. With regard to marriage is concerned, the Division Bench of this Court, in the decision reported in AIR 1981 KAR 40 (SMT.PARAMESHWARI BAI Vs. MUTHOJIRAO SCINDIA), has held that whenever a man and woman lived as husband and wife for a fairly long time and were so reputed to be such among their relatives and acquaintances, the burden of the showing that a marriage did not exist is on those so asserting and law presumes that they are living as husband and wife and not in a state of concubine. In the decision reported in (1996) 11 SCC 88 (SHANTINATH RAMU DANOLE AND ANOTHER Vs. JAMBU RAMU DANOLE AND OTHERS), the Apex Court has held that testimony of witnesses in support of the marriage cannot be rejected merely on ground of they being relatives and friends. The Division Bench of this Court in the decision reported in ILR 2000 KAR 3837 (LAKSHMAMMA Vs. KAMALAMMA & ANOTHER), has held that if a man and woman professing to be husband and wife, cohabited for a long length of time and if the Society has recognized their relationship, a presumption would arise that they are legally wedded wife and husband. The above-said decisions cited by the learned Counsel for the respondents/plaintiffs are applicable on all the fours and support the case of the respondents/Plaintiffs and thereby I hold that the trial Court is justified in holding that plaintiff No.3 is the wife of T.S. Ananda and plaintiff Nos.1 and 2 are born out of their wedlock. In so far as the Will is concerned, it is pertinent to mention that a Division Bench of this Court in AIR 1999 KAR 2539 (B.R. RANGASWAMY Vs. In so far as the Will is concerned, it is pertinent to mention that a Division Bench of this Court in AIR 1999 KAR 2539 (B.R. RANGASWAMY Vs. D SYED YOUNOUS & OTHERS), has held that non-filing of a rejoinder by the plaintiff contesting a claim put forth by a defendant in a written statement does not amount to admission. In the decision reported in 1995 AIR SCW 2884 (P.K. GOPALAN NAMBIAR Vs. PPK BALAKRISHNAN NAMBIAR), the Apex Court has observed that a Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a profounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. It is also held that in view of Section 63 of the Indian Succession Act and the proviso to Section 68 of the Evidence Act, the requirement of law would be fully satisfied if only one of the attesting witnesses is examined to prove the Will. In the decision reported in AIR 2009 SC 1766 (BHARPUR SINGH & ORS. Vs. SHAMSHER SINGH), the Apex Court has held that in a case where the Will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator. (vide para-11). The Apex Court, in the decision reported in AIR 2003 SC 761 (JANKI NARAYAN BHOIR Vs. NARAYAN NAMDEO KADAM), has held in para Nos.9 and 10 as under: 9. It is thus clear that one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory. 10. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested 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 an evidence. According to the said Section, a document required by law to be attested 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 an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a Will in a Court of law by examining at least one attesting witness even though Will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But, what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a Will. But, what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words, if one attesting witness can prove execution of the Will in terms of clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of Will at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act." So as to prove the Will, the defendant has got examined one Ananthram, Attestor to the Will, as D.W2. In his evidence, he has deposed that he has signed the Will on 19.12.1977 in the presence of the Testator-T.D. Somasundaram and he has identified signature of the Testator and his signature and they were marked as Ex D.25 (a) and (b). D.W2 has further deposed that he does not know how many persons have signed the Will at Ex.D25. It is elicited in the cross examination of D.W2 that when the Testator has signed Ex.D25 and when he signed the Will, no other person/s present. Even in his affidavit evidence he has not stated that any other person attested the will. D.W2 has further deposed that he does not know how many persons have signed the Will at Ex.D25. It is elicited in the cross examination of D.W2 that when the Testator has signed Ex.D25 and when he signed the Will, no other person/s present. Even in his affidavit evidence he has not stated that any other person attested the will. There is no evidence on record to establish that Rule namely clause (c) of Section 63 of the Indian Succession Act was complied with. Ex.D25 consists of two separate sheets. The first sheet of Ex.D25 is not signed by the Testator or any other person. The second page bears one signature [Ex.D25(a)] of the Testator. As against witness at Sl. No.2, there is a mention as "K.Ramakanth, Advocate, No.316, XV Cross Road, Sadashivanagar, Bangalore- 6. "signature of the 2nd attestor to the will is not proved. T.S. Ananda died on 19.6.1977. The alleged will is made on 19.12.1977, that is exactly after lapse of 6 months from the date death of T.S. Ananda. In the first page of the will (not signed by the testator) it says that his elder son T.S. Ananda died as bachelor. If that was the case, there was no need to execute the will as the defendant No.2 being sole heir would succeed to his estate. It pertinent to note that the will was alleged to be made on 19.12.1977 and the testator died on 7.5.1998, that is after the lapse of 20 years 4 months and 18 days from the date of the will. The trial Court has rightly observed (vide para-23 of the judgment) from the cross-examination of D.W2, it clearly goes to prove that he was not present when the 2nd attestor signed the Will. But, the recitals of the Will at Ex.D25 shows that the Testator has signed Ex.D25 in presence of both the attesting witnesses and both the attesting witnesses have signed the Will in the presence of each other and also in the presence of the Testator. The trial Court has taken serious note as to the factum of not mentioning the date of execution of Will in the written statement. On appreciation of evidence of D.W2, and the suspicious circumstances, the trial Court has held that the deceased-T.D. Somasundaram died intestate and defendant No.2 failed to prove execution of the Will by defendant No.1 by executing Ex.D25. On appreciation of evidence of D.W2, and the suspicious circumstances, the trial Court has held that the deceased-T.D. Somasundaram died intestate and defendant No.2 failed to prove execution of the Will by defendant No.1 by executing Ex.D25. At the cost of repetition, it is useful to note the following: Defendant No.2 entered appearance on 20.12.1997. If there was really a Will executed by defendant No.1 on 19.12.1977, there was no impediment to file written statement immediately after entering appearance. But, he filed his written statement on 30.9.2004. Even in the written statement, he has not mentioned the date of the Will except stating that he has enclosed the copy of the Will as document No.1. When document No.1 annexed with written statement is compared with Ex.D25, I have noticed that at page No.2 of Ex.D25 as against Sl. No.2 of witness, after the word Sadashivanagar, there is a 'comma'; whereas in document No.1 filed along with written statement, there is an 'asterisk' (*) mark. Further, the signature of the Testator overlaps on the word typed as Testator, but there is no such overlapping in Ex.D25. The discrepancy is not explained and no evidence is adduced in that regard in spite of remanding the matter to the trial Court with a specific direction. Further, the signature of the Testator overlaps on the word typed as Testator, but there is no such overlapping in Ex.D25. The discrepancy is not explained and no evidence is adduced in that regard in spite of remanding the matter to the trial Court with a specific direction. In my view, the following are the suspicious circumstances: (a) if T.S. Ananda had died as a bachelor, as mentioned in Ex.D25, there was no need to execute the Will as defendant No.2 would succeed to the estate of defendant No.1 as a sole LR; (b) defendant No.1 was served with summons through RPAD, but he did not enter appearance and file written statement nor stated as to the execution of the Will in favour of defendant No.2; (c) defendant No.2 alone entered appearance on 20.12.1997, but filed the written statement on 30.9.2004; (d) there is no explanation why the first page of the Will (Ex.D25) was not signed by the Testator; (e) why the first page was made in a separate sheet instead of making on a single sheet; (f) there is no mention in the Will as to who drafted the Will; (g) there is no mention in the Will as to who typed the Will; (h) there is no mention as to the sources of the will in question; and (i) the discrepancy in document No.1 (copy of the Will filed along with written statement) and Ex.D25 not explained. In my considered view, I am of the opinion that defendant No.2, with an intention to deprive the plaintiffs' right in the suit schedule property, has concocted the Will by using the signature of defendant No.1 made on a blank sheet of paper. In view of the above, I am of the opinion that the trial Court has rightly decreed the Suit. I see no illegality or infirmity in the impugned judgment and decree. The decisions cited by the learned Counsel for the appellant are of no avail. 9. In the result, I pass the following order: Appeal is dismissed with exemplary costs of Rs. 1,00,000/-, which amount shall be deposited by the appellant in the trial Court, within a month from today. Further, appellant is directed to deposit the entire arrears of mesne profits at the rate of Rs. 4,500/- per month, within the trial Court, as ordered by the trial Court, within a month from today.