JUDGMENT : The defendants 1 and 2 in O.S. No.605 of 2008 on the files of the Court of the Additional Subordinate Judge, Palakkad are the appellants in R.S.A. No.222 of 2016 filed under order XLII Rule 1 and 2 read with Section 100 of the Code of Civil Procedure. The respondents herein are the plaintiff as well as the 3rd defendant. The appellants assail decree and judgment in A.S. No.129 of 2010 dated 29.11.2014 on the files of the II Additional District Court, Palakkad arose from decree and judgment in O.S. No.605 of 2008 dated 29.01.2010 on the files of the Additional Sub Court, Palakkad. 2. R.S.A No.603 of 2015 has been filed under order XLII Rule 1 and 2 read with Section 100 of the Code of Civil Procedure challenging the decree and judgment in A.S. No.115 of 2010 dated 29.11.2014 on the files of the II Additional District Court, Palakkad arose from decree and judgment in O.S. No.272 of 2007 dated 29.01.2010 on the files of the Additional Sub Court, Palakkad. The appellant herein is the plaintiff in O.S. No.272 of 2007 and the respondents herein are the defendants. 3. Heard both sides in detail. 4. Parties in this appeal shall be referred as “plaintiff” and “defendants” with reference to their status before the trial court. 5. At the time of admission, as per order dated 08.11.2017, my learned predecessor formulated the following question of law in R.S.A. No.222 of 2016: "Have not the courts below gone wrong in interpreting the property scheduled as item No.5 in C schedule to Exhibit-A1, merely as superstructure alone without the land appurtenant thereto?" 6. R.S.A. No.603 of 2015 being connected with the above, arose out of common judgment, also got admitted to decide the said substantial question of law. 7. Facts in O.S. No.272/2007 are as under: This suit is one for partition and separate possession filed by Sri.N.C.Aravindakshan, who is the plaintiff/appellant. The defendants/respondents herein are N.C. Mohandas, Kanakarathanam, Prasanna and M.Abindas. According to the plaintiff, the father of the plaintiff as well as defendants 1 and 3 obtained item Nos. 1 to 4 in the plaint schedule as per the A-schedule to the partition deed No.1347/1973 of Parali S.R.O. Similarly, plaint schedule item No. 5 was purchased by the father Mr. The defendants/respondents herein are N.C. Mohandas, Kanakarathanam, Prasanna and M.Abindas. According to the plaintiff, the father of the plaintiff as well as defendants 1 and 3 obtained item Nos. 1 to 4 in the plaint schedule as per the A-schedule to the partition deed No.1347/1973 of Parali S.R.O. Similarly, plaint schedule item No. 5 was purchased by the father Mr. Chinnan as per the registered assignment deed No.313/1964 of Parali S.R.O. Since, the father died, properties are liable to be partitioned in between the plaintiff and defendants 1 to 3. The 2nd defendant is the wife of Mr.Chinnan. The 4th defendant got arrayed in the party array since some extent of property in the schedule is covered by 'Will deed' executed in favour of the 4th defendant also. 8. The defendants 1 and 2 filed joint written statement raising the following contentions: The pleadings contained in paragraph 1 of the plaint are not fully correct. It is false to say that the plaint schedule item No.5 was purchased by father Chinnan as per the assignment deed executed in the year 1964. Father Chinnan had no right over the entire property shown in the schedule to the plaint at the time of his death. Father sold 55 cents of land from the plaint schedule item No.2 to Smt.Kamalakshy as per the registered assignment deed dated 10.11.1997. Father had freely and voluntarily executed a Will on 04.02.1994. The 4th defendant got right over the plaint schedule item No.3 as per the Will executed by father Chinnan. The first defendant got right over the plaint schedule item No.4 as per the Will executed by the father. Father Chinnan sold 5 cents of land from the plaint schedule item No.5 to Appukuttan and his wife Kanakavalli as per the registered assignment deed dated 28.03.1998. Similarly, father Chinnan had assigned 10 cents of land from the plaint schedule item No.5 to Smt.P.Dhanalakshmy by virtue of the assignment deed dated 03.11.2001. The assignees are in possession and enjoyment of the properties purchased by them. The first defendant got right over 1 acre and 49 cents of land forming part of the plaint schedule item No.5 as per the Will executed by father Chinnan. Similarly, the 4th defendant got right over 75 3/4 cents of land as per the Will executed by the father. The first defendant got right over 1 acre and 49 cents of land forming part of the plaint schedule item No.5 as per the Will executed by father Chinnan. Similarly, the 4th defendant got right over 75 3/4 cents of land as per the Will executed by the father. The first defendant purchased 1 acre of land from the plaint schedule item No.5 from father Chinnan as per the assignment deed dated 10.05.1994. The first defendant has been in possession and enjoyment of the property purchased by him. The plaint schedule item No.5 is not partible. The extent and boundaries of item No.5 mentioned in the plaint schedule are incorrect. A portion of the land out of item No.5 was surrendered by father Chinnan for the formation of a Panchayat road. 9. The 4th defendant also filed written statement contending that he obtained title over item No.3 and a portion of item No.5 property on the strength of a Will deed No.20/1994 and therefore, the said items of property were not liable to be partitioned. 10. O.S. No.605 of 2008 is also a suit for partition filed by N.C. Aravindakshan in respect of the property scheduled therein on the ground that his father, Mr. Chinnan owned the same. The relief sought for was partition of C schedule in item No.5 of Ext.A1 over the superstructures. 11. The said suit also was resisted by the contesting defendants 1 and 2, contending that the superstructures were not partible. 12. The learned Sub Judge, Palakkad jointly tried the above cases treating O.S. No.272 of 2007 as the main case. PW1 examined and Exts.A1 to A5 marked on the side of the plaintiff. DW1 to DW3 examined and Exts.B1 to B13 marked on the side of the defendants. 13. After hearing both sides and on appreciation of evidence, the trial court decreed O.S. No. 272 of 2007 as under: 1. The plaint schedule item No.1, the plaint schedule item No.2 excluding the property shown in the schedule to Ext.B1 sale deed and the plaint schedule item No.5 excluding the properties described in the schedules to Exts. B2 to B4 and B13 shall be divided into 4 equal shares and one such share each shall be allotted to the plaintiff and defendants 1 to 3. 2. B2 to B4 and B13 shall be divided into 4 equal shares and one such share each shall be allotted to the plaintiff and defendants 1 to 3. 2. The plaintiff is entitled to get share of profits from the first defendant from the date of suit till the date of actual delivery of the property to the plaintiff. The quantum of share of profit shall be decided in final decree proceedings. 3. The plaintiff and defendants 1 to 3 are entitled to get costs and costs shall come out of the estate. The 4th defendant shall bear his costs. 4. The sharers are at liberty to file application for passing final decree for partition. The defendants shall remit required court fee for getting their shares allotted in final decree proceedings. 5. The suit is adjourned sine die. 14. Similarly, O.S. No.605 of 2008 decreed as under: 1. It is declared that the plaintiff and the first defendant have 5/12 shares each and the defendants 2 and 3 have 1/12 share each over the house, bathroom and the well situated in the plaint schedule property. 2. Whether actual division of the properties is feasible or not, and how the same is to be enjoyed by the co-owners, shall be decided in final decree proceeding. 3. The parties are directed to bear their respective costs. 4. The parties are at liberty to file application for passing final decree for partition. The defendants shall remit necessary court fee if they wanted to get their share separated in final decree proceedings. 5. The suit is adjourned sine die. 15. Though, separate appeals had been filed challenging the said verdicts, the learned Appellate Judge, by common judgment in A.S. Nos.115 and 129 of 2010 along with the cross-objection filed thereof, dismissed the appeal suits as well as the cross-objection. Aggrieved by the concurrent verdicts, the appellants are before this Court. In R.S.A. No.603 of 2015, cross-objection No. 28 of 2016 also has been filed. 16. Aggrieved by the concurrent verdicts, the appellants are before this Court. In R.S.A. No.603 of 2015, cross-objection No. 28 of 2016 also has been filed. 16. The learned senior counsel, Adv.T. Sethumadhavan, appearing for the appellant in R.S.A. No.603 of 2015 and for the respondents in Cross Objection No.28 of 2016 and R.S.A. No.222 of 2016, submitted that the grievance of his parties is confined in the matter of the finding of the trial court as well as the Appellate Court regarding the genuineness of Ext.B13 Will in favour of the 4th defendant and the 1st defendant. According to the learned senior counsel, only one attesting witness of the Will -Ext.B13 was examined and he, in fact, did not support the case of the propounder of the Will and accordingly he was declared as hostile. Although he was questioned with permission of the Court as provided under Section 154 of the Evidence Act, he did not fully support the attestation as mandated by law. 17. It is argued further that, even though DW3, the scribe of Ext.B13 was examined, his status is not that of an attesting witness in tune with the statutory mandate under Section 63(c) of the Succession Act and as such the Courts below went wrong in relying on the evidence of DW2 and DW3 to hold that Ext.B13 was proved by its propounder, clearing the doubts surmounting thereof. 18. Whereas, Adv. Sajan Varghese K., the learned counsel appearing for the otherside, would contend that the 1st attesting witness of Ext.B13 Will was no more at the time of examination and therefore the available attesting witness was examined and an overall reading of the evidence rendered by DW2, the same is sufficient to prove the execution of Ext.B13. Therefore, the trial court as well as the Appellate Court held that Ext.B13 Will was proved and accordingly, the properties covered by Ext.B13 Will transferred in the name of the 1st and 4th defendants in O.S. No.272 of 2007 were excluded. 19. The learned counsel also pointed out the fact that certain other items of property also were transferred, as per Exts.B1, B2, B3 and B4. Therefore, the trial court excluded those items inclusive of properties covered by Ext.B13 from the purview of partition and the preliminary decree was passed excluding those items. 20. 19. The learned counsel also pointed out the fact that certain other items of property also were transferred, as per Exts.B1, B2, B3 and B4. Therefore, the trial court excluded those items inclusive of properties covered by Ext.B13 from the purview of partition and the preliminary decree was passed excluding those items. 20. Adverting the arguments, first of all, I am inclined to formulate and decide the following substantial questions of law in R.S.A. No.603 of 2015: (1) What are the essential requirements to prove a Will? (2) Whether Ext.B13 Will is proved as per the mandate of Section 63(c) of the Indian Succession Act read with Section 68 of the Evidence Act? (3) How far Section 71 of the Indian Evidence Act to be roped into to prove a Will? 21. In this matter, the learned senior counsel Adv. T. Sethumadhavan, argued further that the proof of a Will shall be in accordance with the mandate of Section 68 of the Evidence Act and under Section 63(c) of the Succession Act. Even if, Section 71 of the Evidence Act assumed to be akin to a proviso to the mandate contained in Section 63 of the Succession Act and Section 68 of the Evidence Act, it has to be assuredly construed harmoniously therewith and not divorced therefrom with a mutilative bearing. Though, it is permissible to prove a Will by resorting to provision under Section 71 of the Evidence Act, the same shall be subject to the conditions dealt under Section 71 of the Act. In this connection, the learned counsel placed decision of the Apex Court reported in [ AIR 2015 SC 2149 ] Jagdish Chand Sharma v. Narain Singh Saini and Others. In the said decision the Apex Court dealt with many earlier decisions viz. MANU/SC/0092/1955 : AIR 1955 SC 346 Bhaiya Guruji Dutt Singh v. Gangotri Dutt Singh MANU/SC/0115/1958 : AIR 1959 SC 443 H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors., (1974) 2 SCC 600 Kewal Pati (Smt.) v. State of UP and Ors, (1995) 4 SCC 459 Surendra Pal and Ors. v. Dr. (Mrs.) Saraswati Arora and Anr, MANU/SC/1155/2002 : (2003) 2 SCC 91 Janki Narayan Bhoir v. Narayan Namdeo Kadam, MANU/SC/0819/2005 : (2005) 8 SCC 67Pentakota Satyanarayana and Ors. v. Pentakota Seetharatnam and Ors., MANU/SC/0462/2013 : (2013) 7 SCC 490 M.B. Ramesh (D) by L.Rs. v. Dr. (Mrs.) Saraswati Arora and Anr, MANU/SC/1155/2002 : (2003) 2 SCC 91 Janki Narayan Bhoir v. Narayan Namdeo Kadam, MANU/SC/0819/2005 : (2005) 8 SCC 67Pentakota Satyanarayana and Ors. v. Pentakota Seetharatnam and Ors., MANU/SC/0462/2013 : (2013) 7 SCC 490 M.B. Ramesh (D) by L.Rs. v. K.M. Veeraje Urs (D) by L.Rs and Ors, MANU/SC/0530/1976 : (1977) 1 SCR 925 Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors., (2001) 9 SCC 503 Neki Ram and Ors. v. Ama Ram Godara and Ors, MANU/SC/1155/2002 : (2003) 2 SCC 91 Janki Narayan Bhoir v. Narayan Namdeo Kadam and analyzed the evidence of the attesting witnesses, who were examined to prove the Will in question as AW1 and AW5. In the said case, since the evidence of AW1 and AW5, the attesting witnesses found to be insufficient to prove the execution of the Will, AW3 the Sub Registrar who registered the Will also was examined, where the Apex Court drawn the distinction between Section 71 of the Evidence Act with that of Section 68 of the Evidence Act and Section 63(c) of the Succession Act, and held in paragraph Nos. 41, 42 and 45.1 as under: 41. Qua Section 71 of 1872 Act, it was held to be in the form of a safeguard to the mandatory provision of Section 68 to cater to a situation where it is not possible to prove the execution of the Will by calling the attesting witnesses though alive, i.e. if the witnesses either deny or do not recollect the execution of the Will. Only in these contingencies by the aid of Section 71, other evidence can be furnished. It was further clarified that Section 71 of Act 1872 would have no application to a case where one attesting witness who alone had been summoned fails to prove the execution of the Will and the other attesting witness though available to prove the execution of the same, for reasons best known, is not summoned before the Court. 42. This Court underlined that Section 71 of the Act 1872 was meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility and cannot be let down without any other opportunity of proving the due execution of the document by other evidence. 42. This Court underlined that Section 71 of the Act 1872 was meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility and cannot be let down without any other opportunity of proving the due execution of the document by other evidence. That, however, Section 71 cannot be invoked so as to absolve the party of his obligation Under Section 68 read with Section 63 of the Act and to liberally allow him, at his will or choice, to make available or not, necessary witness otherwise available and amenable to jurisdiction of the Court, was highlighted in emphatic terms. That no premium upon such omission or lapse so as to enable him to give a go-bye to the mandates of law relating to proof of execution of a Will, as contemplated by these statutory provisions, was precisely underlined. In the facts and circumstances of that case, as the second attesting witness though available had not been summoned, the benefit of Section 71 of Act 1872 was not extended. The Will was thus held to be not proved for the failure of the attesting witness so produced, to testify as per the ordainment of Section 63 (c) of the Act. 45.1 Viewed in premise, Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of 1872 Act does not in any manner efface or emasculate the essence and efficacy of Section 63 of the Act and Section 68 of 1872 Act. The distinction between failure on the part of a attesting witness to prove the execution and attestation of a Will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted Indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. Any unwarranted Indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. The propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either denies/deny the execution of the document or cannot recollect the said incident. Not only, this witness/witnesses has/have to be credible and impartial, the evidence adduced ought to demonstrate unhesitant denial of the execution of the document or authenticate real forgetfulness of such fact. If the testimony evinces a casual account of the execution and attestation of the document disregardful of truth, and thereby fails to prove these two essentials as per law, the propounder cannot be permitted to adduce other evidence under cover of Section 71 of the 1872 Act. Such a sanction would not only be incompatible with the scheme of Section 63 of the Act read with Section 68 of the 1872 Act but also would be extinctive of the paramountcy and sacrosanctity thereof, a consequence, not legislatively intended. If the evidence of the witnesses produced by the propounder is inherently worthless and lacking in credibility, Section 71 of Act 1872 cannot be invoked to bail him (propounder) out of the situation to facilitate a roving pursuit. In absence of any touch of truthfulness and genuineness in the overall approach, this provision, which is not a substitute of Section 63 (c) of the Act and Section 68 of the 1872 Act, cannot be invoked to supplement such failed speculative endeavour. 22. Referring to the decision reported in Commission of Income Tax, Madras v. Ajax Products Limited [ AIR 1965 SC 1358 ] in paragraph No. 45.2, the Apex Court further observed as under: 45.2 Section 71 of the 1872 Act, even if assumed to be akin to a proviso to the mandate contained in Section 63 of the Act and Section 68 of the 1872 Act, it has to be assuredly construed harmoniously therewith and not divorced therefrom with a mutilative bearing. This underlying principle is inter alia embedded in the decision of this Court in the Commission of Income Tax, Madras Appellant v. Ajax Products Limited Respondent MANU/SC/0139/1964 : AIR 1965, Supreme Court 1358. 23. The learned senior counsel, Adv. This underlying principle is inter alia embedded in the decision of this Court in the Commission of Income Tax, Madras Appellant v. Ajax Products Limited Respondent MANU/SC/0139/1964 : AIR 1965, Supreme Court 1358. 23. The learned senior counsel, Adv. T. Sethumadhavan also placed another decision of the Apex Court reported in [ AIR 2001 SC 2802 ] N. Kamalam (Dead) and Others v. Ayyasamy and Others, to canvas the position that examination of one among the attesting witnesses is mandatory to prove a Will as per Section 68 of the Evidence Act and under Section 63(c) of the Succession Act. 24. Repelling this contention, Adv. Sajan Varghese K. has placed certain decisions and also he has highlighted page No.2802 of Law of Evidence (20th Edition) written by Woodroffe and Amir Ali and read out the circumstances under which Section 71 of the Evidence Act can be roped into. The following is the text relied on by the learned counsel: This section is one of the exceptions to the rule relating to proof of documents, required by law to be attested, which is laid down in s.68. It provides that if the attesting witness denies, or does not recollect the execution of the document, its execution may be proved by other evidence. This is a sort of a safeguared introduced by the legislature to the mandatory provisions of s 68, where it is not possible to prove the execution of the document by calling attesting witnesses, though alive. The section can only be requisitioned when the attesting witnesses, who have been called, fail to prove the execution of the document by reason of either denying their own signatures, or denying the signature of the testator, or having no recollection as to the execution of the document." Applicability of s 71 would depend upon exhausting examination of all attesting witnesses. The fate of a document is not necessarily at the mercy of the attesting witnesses. The mere fact that the attesting witnesses to a document repudiate their signatures or make statements suggesting that they attested at the instance of persons other than the executant does not invalidate the document, if it can be proved by evidence of a reliable character that they have given false testimony. The mere fact that the attesting witnesses to a document repudiate their signatures or make statements suggesting that they attested at the instance of persons other than the executant does not invalidate the document, if it can be proved by evidence of a reliable character that they have given false testimony. The principle is well-settled that when the evidence of the attesting witnesses is vague, doubtful or even conflicting upon some material point, the court may take into consideration the circumstances of the case and judge from them collectively whether the requirements of the statute were complied with; in other words, the court may, on consideration of the other evidence or of the whole circumstances of the case, come to the conclusion that their recollection is at fault, that their evidence is of a suspicious character or that they are wilfully misleading the court, and accordingly disregard their testimony and pronounce in favour of the document. The section presupposes that the witness is actually produced before the court, and then, if he denies execution, or his memory fails, or if he refuses to prove, or turns hostile, other evidence can be admitted to prove execution. Before the section can be applied it is necessary to comply with s 68, Evidence Act, and to call as a witness one at least of the attesting witnesses. 25. Adv. Sajan Varghese K. also placed the decision of the Apex Court reported in [ AIR 1959 SC 498 ] Rameshwar Proshad Khandelwal v. Commissioners, Land Reforms and jagirs, Madhya Bharat (Now Madhya Pradesh) and Others to contend that even though the mandate to prove a Will in dispute is by examining one among the attesting witnesses, Section 71 of the Evidence Act carves out an exception when the attesting witnesses either deny or do not recollect the execution of the document. The learned counsel has placed a decision of the Apex Court reported in [ (2003) 2 SCC 91 ] Janaki Narayan Bhoir v. Narayan Namdeo Kadam in this regard. In the said decision, in paragraph No. 11 the Apex Court dealt with Section 71 of the Evidence Act and held as under: 11. The learned counsel has placed a decision of the Apex Court reported in [ (2003) 2 SCC 91 ] Janaki Narayan Bhoir v. Narayan Namdeo Kadam in this regard. In the said decision, in paragraph No. 11 the Apex Court dealt with Section 71 of the Evidence Act and held as under: 11. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling the attesting witnesses, though alive. This section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence, Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause (c) of Section 63 of the Succession Act, it cannot be said that the will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will. Yet another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the will is to avert the claim of drawing adverse inference under Section 114 Illustration (g) of the Evidence Act. Yet another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the will is to avert the claim of drawing adverse inference under Section 114 Illustration (g) of the Evidence Act. Placing the best possible evidence, in the given circumstances, before the Court for consideration, is one of the cardinal principles of the Indian Evidence Act. Section 71 is permissive and an enabling section permitting a party to lead other evidence in certain circumstances. But Section 68 is not merely an enabling section. It lays down the necessary requirements, which the court has to observe before holding that a document is proved. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility, cannot be let down without any other means of proving due execution by "other evidence" as well. At the same time Section 71 cannot be read so as to absolve a party of his obligation under Section 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a goby to the mandate of law relating to the proof of execution of a will. 26. The decision of the Apex Court reported in [2013 KHC 4372] Ramesh M.B. (D) by Lrs v. K.M. Veeraje Urs (D) by Lrs and Others also has been given emphasis to support this contention. 27. Apart from the Apex Court's decisions, Adv. Sajan Varghese K. placed a Division Bench judgment of this Court reported in [ 2007 (4) KLT 853 ] Joseph v. Ippunny, where this Court considered the essentials to prove a Will. In the said case, PW3 who had written the Will in his handwriting as an assistant of the document writer also was examined. In the said case, this Court held that what is necessary is that obligation of the propounder is to examine at least one of the attesting witnesses, if he is alive, to prove that the Will was executed as per law. In the said case, this Court held that what is necessary is that obligation of the propounder is to examine at least one of the attesting witnesses, if he is alive, to prove that the Will was executed as per law. Even if the attesting witnesses speak against the execution of the Will, the courts are not powerless. The Court can take into account other evidence to consider whether the Will was properly attested. Whether evidence of attesting witness is indefinite, doubtful or conflicting on material points, the court can consider all circumstances and accept the Will, if proper attestation is proved by other evidence. 28. Another decision of the Chattisgarh High Court reported in [2020 KHC 5177] Chengti Bai (dead) through LRs v. Shiv Ratan (died) through LRs is given heavy reliance by Adv. Sajan Varghese K. to contend that when the attesting witness denies or does not recollect the execution of the Will, the Will can be proved as provided under Section 71 of the Evidence Act and the learned counsel brought the facts of the said case to the notice of this Court. In the said case, admittedly, one of the attesting witnesses was no more and the other attesting witness though examined, he denied the execution of the Will. In the said decision following the decisions of the Apex Court, the Chattisgarh High Court held that Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility cannot be let down without any other means of proving due execution by “other evidence” as well. At the same time S.71 cannot be read so as to absolve a party of his obligation under S.68 read with S.63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go by to the mandate of law relating to proof of execution of a will. It was further held that it is clear that in a case where none of the attesting witnesses are found, a party can take recourse to S.71 of the Act of 1872 and lead other evidence to prove execution of Will. It was further held that it is clear that in a case where none of the attesting witnesses are found, a party can take recourse to S.71 of the Act of 1872 and lead other evidence to prove execution of Will. In another situation, where one attesting witness has been examined but has denied execution of Will and other attesting witness though available has not been examined, it has been held that it is not open for a party to take recourse to S.71 of the Act of 1872 and lead other evidence to prove execution of Will when another witness, though available, has not been called as witness to prove execution of Will. In yet another situation where out of two, only one witness is available who has denied execution of Will, recourse could be taken to S.71 of the Act of 1872 and evidence could be led to prove and evidence of other witness than attesting witness could be led to prove execution of Will. 29. In this context, it is relevant to refer decision of the Apex Court reported in [1959 KHC 498] H. Venkatachala Iyengar v. B.N. Thimmajamma where the Apex Court discussed the mode of proof of a Will on the part of the propounder and held that the propounder of a Will will have to prove the Will by satisfactory evidence and the following aspects shall be proved: (i) the Will was signed by the testator, (ii) he at the relevant time was in a sound and disposing state of mind, (iii) he understood the nature and effect of the dispositions, and that (iv) he put his signature to the document of his own free will. 30. In the decision reported in [1974 KHC 491] Surendra Pal and Others v. Dr. (Mrs.) Saraswati Arora and Another, the Apex Court followed the same ratio. In another decision reported in [1955 KHC 366] Girja Datt Singh v. Gangotri Datt Singh, the Apex Court dealt with the essentials to prove a Will in paragraph Nos. 14 and 15 and held as under: 14. It still remains to consider whether the attestation of the signature of the deceased on the will, Ext. A36 was in accordance with the requirements of S.63, Indian Succession Act. 14 and 15 and held as under: 14. It still remains to consider whether the attestation of the signature of the deceased on the will, Ext. A36 was in accordance with the requirements of S.63, Indian Succession Act. S.63 prescribes that: "(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.........." In order to prove the due attestation of the will Ext. A36 Gangotri would have to prove that Uma Dutt Singh and Badri Singh saw the deceased sign the will and they themselves signed the same in the presence of the deceased. The evidence of Uma Dutt Singh and Badri Singh is not such as to carry conviction in the mind of the Court that they saw the deceased sign the will and each of them appended his signature to the will in the presence of the deceased. They have been demonstrated to be witnesses who had no regard for truth and were ready and willing to oblige Gur Charan Lal in transferring the venue of the execution and attestation of the documents Ext. A23 and Ext. A36 from Gonda to Tarabganj for reasons best known to themselves. If no reliance could thus be placed upon their oral testimony, where would be the assurance that they actually saw the deceased execute the will in their presence and each of them signed the will in the presence of the deceased. It may as well be that the signature of the deceased on the will was appended at one time, the deceased being there all alone by himself and the attestations were made by Uma Dutt Singh and Badri Singh at another time without having seen the deceased sign the will or when the deceased was not present when they appended their signatures thereto in token of attestation. We have no satisfactory evidence before us to enable us to come to the conclusion that the will was duly attested by Uma Dutt Singh and Badri Singh and we are therefore unable to hold that the will Ext. A36 is proved to have been duly executed and attested. 15. When this position was realised the learned counsel for Gangotri fell back on an alternative argument and it was that the deceased admitted execution and completion of the will Ext. A36 and acknowledged his signature thereto before the Sub Registrar at Tarabganj and this acknowledgment of his signature was in the presence of the two persons who identified him before the Sub Registrar, viz., Mahadeo Pershad and Nageshur who had in their turn appended their signatures at the foot of the endorsement by the Sub Registrar. These signatures it was contended were enough to prove the due attestation of the will Ext. A36. This argument would have availed Gangotri if Mahadeo Pershad and Nageshur had appended their signatures at the foot of the endorsement of registration 'animo attestandi". But even apart from this circumstance it is significant that neither Mahadeo Pershad nor Nageshur was called as a witness to depose to the fact of such attestation if any. One could not presume from the mere signature of Mahadeo Pershad and Nageshur appearing at the foot of the endorsement of registration 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. S.68, Indian Evidence Act requires an stetting witness to be called as a witness to prove the due execution and attestation of the will. This provision should have been complied with in order that Mahadeo Pershad and Nageshur be treated as attesting witnesses. This line of argument therefore cannot help Gangotri. 31. Adv. Sajan Varghese K. would submit that the facts dealt in Jagdish Chand Sharma's case (supra) is not analogues to the facts involved in these cases. According to him, in the said case AW1 and AW5, the attesting witnesses given evidence as dealt in paragraph Nos. 15.5, 15.6, 17, 27 to 29 as under: 15.5 Be that as it may, AW 1 Mr. Kumar deposed on oath that he was enrolled as a lawyer in or about 1971 and used to assist his father who was a deed writer in Urdu language. 15.5, 15.6, 17, 27 to 29 as under: 15.5 Be that as it may, AW 1 Mr. Kumar deposed on oath that he was enrolled as a lawyer in or about 1971 and used to assist his father who was a deed writer in Urdu language. The witness stated that he used to come to Tis Hazari Court for attending his cases. He testified to have seen the Will Ex. A1 which he claimed had been drafted by him. He failed to remember as to whether the testator, Mr. Nathu Ram Singh had come to his father in his presence or that his father had given him instructions to write the Will. The witness even failed to remember whether the Will had been given to him by his father or to the testator. He also could not recall as to whether he was present when the testator had signed the Will. The witness, however, admitted that Ex. A-1 did bear his signatures as an attesting witness but deposed that due to lapse of time, he did not remember whether any other person was also present and had attested the document when he had signed it. He, however, stated to have been present in the office of the Sub Registrar when the Will, Ex. A-1 was presented for registration. He also admitted to have signed the document on the backside thereof in the presence of the clerk of the office. The witness stated that he had also identified the testator before the Sub Registrar but clarified that it was as per the prevalent practice for an identifying witness to do so. He added by stating that he had signed the document only in that capacity. The witness deposed further, that he could not say whether the thumb impression and the signatures of the testator at the time of the registration and appearing on the back of page one of the Will had been obtained in his presence or not. He even failed to recall as to whether the contents of the Will had been read over and explained to the testator by him or by his father. 15.6 This witness was declared hostile and was cross-examined on behalf of the Appellant in course whereof he deposed that he could not say whether he had signed the Will in presence of the testator. 15.6 This witness was declared hostile and was cross-examined on behalf of the Appellant in course whereof he deposed that he could not say whether he had signed the Will in presence of the testator. When confronted, he admitted to have signed the certificate at the foot of the application in Section 276 of the Act praying for grant of Letter of Administration but denied to have done so as an attesting witness of the Will. He stated instead that he had put his signatures as the Appellant wanted him to do so. He even denied to have read the contents of the certificate. He refuted the suggestion that he had made a false statement in Court being won over by the Respondents. 17. Before reverting to AW 3 in the ordinary sequence, the testimony of AW 5 figuring in the chain of attestation as presented by the Appellant would be referred to. This witness, Mr. Budh Ram claimed to have known the deceased/testator. He stated on oath that he had seen the document Ex. A1 and identified his signatures thereon. He deposed to have signed the document in presence of the testator. He, however, hastened to add that he had not seen the testator signing the Will. He denied to have appeared before the Sub Registrar or to have identified the testator before the said authority. He stated that he had signed the document outside the office. Though, he asserted that testator was mentally alert on the date on which he (witness) had signed the Will, he clarified that he did not do so on the asking of the testator. The witness, however, admitted the presence of the testator at that time. 27. The evidence of AW 1, as a whole is, therefore clearly deficient vis-à-vis with the requirements of Section 63 (c) of the Act. Noticeably, he does not deny either the execution of the Will or has not failed to recollect the said event. In clear terms, this witness stated that though he had signed the document, he was not sure that he did so in the presence of any other person attesting the same. He could not also remember as to whether he was present when the testator had signed the Will. He clarified in no uncertain terms that his signatures on the Will before the Sub Registrar were only as an identifying witness. He could not also remember as to whether he was present when the testator had signed the Will. He clarified in no uncertain terms that his signatures on the Will before the Sub Registrar were only as an identifying witness. His is thus not a stance of either denial of the execution of the Will or of failure to recollect such execution as contemplated in Section 71 of the Act 1872. 28. To cap it all, he even endeavoured to represent that he had signed the certificate at the foot of the application for the Letter of Administration not voluntarily but on being insisted upon by the Appellant. He was categorical in his testimony to the effect that he had not signed the certificate acknowledging the fact that he was an attesting witness. The evidence of AW 1 Mr. G.C. Kumar, Advocate thus does not inspire confidence to be acted upon in proof of the execution and attestation of the Will, EX. A-1. 29. AW 5 Mr. Budh Ram was categorical in owning his signatures on the Will at points "C" AND "Y-2" and claimed to have to put the same in the presence of the testator. He, however, was unhesitant in testifying that he had not seen the testator signing the document at the points "B", "Y-1". He denied to have appeared before the Sub Registrar or to have identified the testator before the said authority. His unambiguous statement on oath is that he had signed the document outside the office of the Sub Registrar. His evidence as well cannot be construed to be one of denial of execution of the Will. This witness, as his evidence would clearly demonstrate, also did neither falter nor, was equivocal so as to suggest that he failed to recollect the execution of the document. The conditions, precedent for application of Section 71 of the Act 1872, therefore, are also not available in the context of the evidence of this witness. 32. As per the above evidence of AW1 in the said case, he stated that he could not recall as to whether he was present when the testator had signed the Will and he did not remember whether any other person was also present and had attested the document. He also admitted that he had signed the document on the back side thereof in the presence of the clerk of the office. He also admitted that he had signed the document on the back side thereof in the presence of the clerk of the office. Similar is the version of AW5. Accordingly, in the said case, when the attesting witnesses miserably failed to prove the execution of the Will, the Apex Court held in the said case that Section 71 of the Evidence Act cannot be resorted to prove of the Will. 33. While summarizing the answers to the substantial questions of law formulated in R.S.A. No. 603 of 2015 it is held as under: I. The proof of a Will shall be as mandated under Section 68 of the Evidence Act and Section 63 of the Succession Act. II. 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 acknowledgement of his signature or mark, or 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 by present at the same time, and no particular form of attestation shall be necessary. III. Will being a document 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. IV. 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 the 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. attestation by two attesting witnesses in the manner contemplated therein, the examination of the 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 the other witness also it falls short of attestation of Will at least by two witnesses, since 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. V. The propounder of a Will will have to prove the Will by satisfactory evidence and the following aspects shall be proved: (i) the Will was signed by the testator, (ii) he at the relevant time was in a sound and disposing state of mind, (iii) he understood the nature and effect of the dispositions, and that (iv) he put his signature to the document of his own free will. VI. Section 71 of 1872 Act, is in the form of a safeguard to the mandatory provision of Section 68 to cater to a situation where it is not possible to prove the execution of the Will by calling the attesting witnesses though alive, i.e. if the witnesses either deny or do not recollect the execution of the Will. Only in these contingencies by the aid of Section 71, other evidence would suffice. VII. Section 71 of Act 1872 has no application in a case where one attesting witness who alone had been summoned fails to prove the execution of the Will and the other attesting witness though available to prove the execution of the same, failed to be examined. VIII. Section 71 of the Act 1872 is meant to lend assistance and would come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility and cannot be let down without any other opportunity of proving the due execution of the document by other evidence. IX. VIII. Section 71 of the Act 1872 is meant to lend assistance and would come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility and cannot be let down without any other opportunity of proving the due execution of the document by other evidence. IX. Section 71 cannot be invoked so as to absolve the party of his obligation Under Section 68 read with Section 63 of the Act and to liberally allow him, at his will or choice, to make available or not, necessary witness otherwise available and amenable to jurisdiction of the Court. No premium upon such omission or lapse so as to enable him to give a go-bye to the mandates of law relating to proof of execution of a Will, as contemplated by the statutory provisions. X. Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of 1872 Act does not in any manner efface or emasculate the essence and efficacy of Section 63 of the Act and Section 68 of 1872 Act. XI. The distinction between failure on the part of a attesting witness to prove the execution and attestation of a Will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted Indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. XII. The benefit of Section 71 of the 1872 Act to be available to the propounder only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either denies/deny the execution of the document or cannot recollect the said incident. Not only, this witness/witnesses has/have to be credible and impartial, the evidence adduced ought to demonstrate unhesitant denial of the execution of the document or authenticate real forgetfulness of such fact. Not only, this witness/witnesses has/have to be credible and impartial, the evidence adduced ought to demonstrate unhesitant denial of the execution of the document or authenticate real forgetfulness of such fact. If the testimony evinces a casual account of the execution and attestation of the document disregardful of truth, and thereby fails to prove these two essentials as per law, the propounder cannot be permitted to adduce other evidence under cover of Section 71 of the 1872 Act. XIII. If the evidence of the witnesses produced by the propounder is inherently worthless and lacking in credibility, Section 71 of Act 1872 cannot be invoked to bail the propounder out of the situation to facilitate a roving pursuit. In absence of any touch of truthfulness and genuineness in the overall approach, this provision, which is not a substitute of Section 63 (c) of the Act and Section 68 of the 1872 Act, cannot be invoked to supplement such failed speculative endeavour. XIV. Section 71 of the 1872 Act, even if assumed to be akin to a proviso to the mandate contained in Section 63 of the Act and Section 68 of the 1872 Act, it has to be assuredly construed harmoniously therewith and not divorced therefrom with a mutilative bearing. 34. Reverting back, it is submitted that, in the case at hand, out of the two attesting witnesses, one witness is no more at the time of evidence and the remaining witness got examined as DW2 and he supported the due execution of the Will by filing chief affidavit and when he was cross-examined, he turned hostile to prosecution. Then, he stated that, he did not see Krishnan signing Ext.B13. It is also pointed out by Adv. Sajan Varghese K. that, during further cross-examination after declaring DW2 as hostile, he had given evidence supporting the execution of the Will. But, when he was cross-examined by the counsel for the plaintiff, he had given evidence that, he did not witness either Chinnan (the testator) or Krishnan (the other witness) signed Ext.B13. 35. According to Adv. Sajan Varghese K., in fact, when the evidence as a whole of DW2 is taken together he supported the execution of Ext.B13 Will. But, when he was cross-examined by the counsel for the plaintiff, he had given evidence that, he did not witness either Chinnan (the testator) or Krishnan (the other witness) signed Ext.B13. 35. According to Adv. Sajan Varghese K., in fact, when the evidence as a whole of DW2 is taken together he supported the execution of Ext.B13 Will. If at all his evidence is taken as one of denial, then Section 71 of the Evidence Act shall come to the rescue of the propounder so that evidence of DW3 who is the scribe of Ext.B13 should be read in consonance with Section 71 of the Evidence Act to hold that Ext.B13 Will was proved in the manner provided under law as found by the trial court as well as the Appellate Court, concurrently. 36. Whereas, the learned senior counsel Adv. T. Sethumadhavan submitted that, DW2 is not a reliable witness and his evidence in the chief affidavit is contrary to his evidence when he was further examined in chief by the party who summoned and examined. Accordingly, he was cross-examined by the party who brought the witnesses with permission of the Court. When he was cross-examined by the learned counsel for the plaintiff, his evidence is contrary in the matter of putting of signature by Chinnan and Krishnan. During further cross-examination by the plaintiff's counsel, he testified that he did not witness putting of signature by them. If so, the evidence available as that of DW2 could not be held as denial or DW2 cannot be held as a witness who could not recollect the execution, so that Section 71 of the Evidence Act can roped into to prove the Will and in the instant case Section 71 would not apply. 37. In this case, I have meticulously analyzed the evidence of DW2 to see whether he supported the Will or denied the Will. It is interesting to note that he had filed a chief affidavit and supported the Will and affirmed that the testator as well as the witnesses including himself signed the Will and all of them witnessed the signing each other. But, when he was further examined in chief by the counsel for the plaintiff, he denied putting of signature by Krishnan. But, when he was further examined in chief by the counsel for the plaintiff, he denied putting of signature by Krishnan. At the same time, he had given evidence during cross-examination by the learned counsel for the plaintiff that, what all stated in the chief affidavit are true. He also stated about the presence of the testator as well as the witnesses before the Sub Registrar Office. It is true that when a last question was asked as to whether he witnessed putting of signature by Krishnan and the other attesting witnesses, he denied the same. 38. Over all evaluation of the evidence of DW2 would go to show that he is aware of the execution of the Will and he had seen putting of signature by the testator as well as the other witnesses and his intention is to deviate from the same during his examination at the box, for the reasons known to him. Be it so, the evidence of DW2 to be read as one denying the execution of the Will deliberately, while he was at the box and in such circumstances, Section 71 of the Evidence Act should have to be roped into in this particular case, so as to look into the evidence of DW3, who is the scribe of Ext.B13. The scribe, though not an attesting witness, his evidence is very convincing and cogent to prove execution of Ext.B13, without any iota of ambiguity and therefore, his evidence can be acted upon safely. 39. In view of the matter, I am to hold that the trial court as well as the Appellate Court correctly found that the propounder of Ext.B13 proved the same to the manner known to law and also cleared all doubts surmounting thereof. Therefore, the preliminary decree and judgment passed in O.S. No.272 of 2007 are found to be genuine. Accordingly, R.S.A. No.603 of 2015 must fail and the same stands dismissed. 40. Coming to the challenge in RSA 222 of 2016, it appears that as per the trial court judgment as well as the Appellate Court judgment, it was declared that the plaintiff and the 1st defendant therein have 5/12 shares each and the defendants 2 and 3 have 1/12 share each over the house, bathroom and well situated in the plaint schedule property as provided under Ext.A1 partition deed as C-schedule in item No.5 therein. On perusal of Ext.A1, there is nothing to suggest that item No.5 in C-schedule to Ext.A1 includes the land appurtenant there to and the same is confined to superstructures alone. No evidence is forthcoming to hold otherwise. Therefore, the Courts below not went wrong in holding so. The substantial question of law in R.S.A. No.222 of 2016 answered thus. In view of the matter, I am to hold that finding of the trial court as well as the Appellate Court in O.S. No.605 of 2008 does not require any interference. Accordingly, R.S.A. No. 222 of 2016 must fail and the same stands dismissed. Coming to the cross-objection filed in R.S.A. No.603 of 2015, the challenge is that in view of Ext.B12, the 3rd defendant executed a release deed and released her right in favour of defendants 1 and 2. However, it appears that the right to get the property in the name of the executant was not opened at the time of execution of Ext.B12, since it was generated on 08.07.1988 where the father died on 26.07.2006. Thus the finding of the Courts below that the 3rd defendant has no right to transfer any right in the property as on the date of execution of Ext.B12 is perfectly in order. As such, the cross-objection also must fail. Accordingly the same also stands dismissed.