Research › Search › Judgment

Kerala High Court · body

2024 DIGILAW 1035 (KER)

MANNARAKKAL MADHAVI (DIED) W/O RARU v. NANGANADATH PULPARAMBIL DEVADASAN (DIED) S/O RARU

2024-08-14

C.S.SUDHA

body2024
JUDGMENT : C.S. SUDHA, J. 1. Are both the attesting witnesses in a Will required to attest simultaneously? Is it mandatory that one attesting witness testify regarding attestation by the other witness also? What should be the course followed in case the testimony of the attesting witness/witnesses is found unsatisfactory or when attestation is denied, or they fail to recollect the execution of the document? Is the propounder left with no or any remedy? These questions inter alia arise for consideration in this appeal. 2. This appeal has been filed by defendants 1 to 3 and 5 against the judgment dated 23/09/1996 on the file of the Subordinate Judge's Court, Kozhikode. The respondents are the plaintiff and defendants 4 and 6 to 9. The parties in this appeal will be referred to as described in the suit. 3. Initially, the appeal came up before a Division Bench of this Court. One learned member of the Bench upheld the impugned judgment and dismissed the appeal, whereas the other learned member, allowed the appeal and set aside the impugned judgment. The last paragraph of the said judgment dated 12/10/2010 reads: “Since we have delivered two separate judgments, one confirming and another setting aside the judgment and decree of the trial court and since the proviso to Section 98(2) of the C.P.C. does not apply, we confirm the decree passed by the court below and the appeal shall stand dismissed. There will be no order as to costs.” 3.1. The matter was taken up by the defendants before the Apex Court. By order dated 14/01/2020 in Civil Appeal No. 201 of 2005, the matter has been remanded to this court. The relevant part of the order reads: “C.A. No. 201 of 2005 The issue involved in this appeal is already answered by the Constitution Bench of this Court vide judgment dated 25.02.2016 passed in Civil Appeal Nos. 201 of 2005 and 8576 of 2014. As a result, the parties will have to be relegated before the High Court for hearing of the remanded appeal by the third Judge as required in terms of Section 23 of Travancore-Cochin High Court Act, 1125. We order accordingly. The appeal and pending applications are disposed of in the above terms. We make it clear that we have not expressed any opinion on the merits of the controversy. We order accordingly. The appeal and pending applications are disposed of in the above terms. We make it clear that we have not expressed any opinion on the merits of the controversy. All contentions available to both sides are left open.......” Thus, the matter has come up before me. 4. The plaintiff and defendants 2 to 5 are the children of late Pulparambil Raru. The first defendant is the wife of Raru. Defendants 6 to 9 are the wife and children of a pre-deceased son of Raru. Plaint B schedule properties were acquired by Raru as per various documents. The C schedule are the movables that belonged to Raru, and D schedule is the cash Raru had at the time of his death. Raru passed away on 19/09/1992 and hence the plaint schedule properties have devolved on the plaintiff and defendants 1 to 9. The plaintiff and defendants 1 to 5 have 1/7 share each in the property. Defendants 6 to 9 jointly have 1/7 share in the property. The third defendant is now looking after the properties on behalf of all the co-owners. The plaintiff sought partition of his share by issuing a notice to the third defendant who has sent a reply raising untenable contentions. The contention in the reply notice that the deceased had executed Ext.B12 Will dated 01/11/1989 is false and incorrect. Raru did not have the testamentary capacity to execute a Will. Raru was laid up from 19/10/1989 onwards and he had not executed any Will on his own free will as contended by the third defendant. Even if there was any such Will, it was executed under undue influence and fraud of the third defendant and without Raru understanding the contents of the document. 5. Defendants 1 to 7 filed a joint written statement admitting the title of Raru in respect of plaint B schedule properties. However, according to them the C schedule movables never belonged to Raru. Almost all the items scheduled therein exclusively belong to the third defendant, who has a ‘kopra’ business of his own and is also running an oil mill. He has also lorries of his own. D schedule cash was never available with Raru at the time of his death. However, according to them the C schedule movables never belonged to Raru. Almost all the items scheduled therein exclusively belong to the third defendant, who has a ‘kopra’ business of his own and is also running an oil mill. He has also lorries of his own. D schedule cash was never available with Raru at the time of his death. In respect of the B schedule properties, the deceased had executed Ext.B12 Will dated 01/11/1989 by which he bequeathed 10 cents out of the B schedule in favour of the 10th defendant and the rest of the properties in favour of the 3rd defendant. As per the Will, the first defendant has a life interest in the property. The plaintiff and other defendants have no right over the properties and therefore they are not entitled to any share in the same. 6. The 10th defendant, one of the sons of the plaintiff, got himself impleaded in the suit and contended that as per Will No. 22/1989 executed on 10/04/1989, half right in the B schedule properties had been bequeathed by Raru in his favour and the other half to the third defendant. The said Will was the last Will of Raru. Ext.B12 Will relied on by the 3rd defendant is invalid. He supported the case of the plaintiff in respect of Ext.B12 Will. Based on the Will contended to have been executed by Raru in his favour, the 10th defendant claimed one half share in the property, for which he paid necessary court fee also. 7. Necessary issues were framed by the trial court. The parties went to trial based on the aforesaid pleadings. PWs.1 to 3 were examined and Exts.A1 to A9 were marked on the side of the plaintiff. DWs.1 to 3 were examined and Exts.B1 to B12 were marked on the side of the contesting defendants. Ext.C1 was also marked. 8. The trial court on an appreciation of the oral and documentary evidence and after hearing both sides, disbelieved the case of the third defendant regarding Ext.B12 Will. A preliminary decree for partition was passed by which plaint B schedule properties and movable items 1 to 155 and 162 to 168 described in Ext.C1 report were found to be partible among the plaintiff and defendants 1 to 9. The plaintiff has been held entitled to 1/7 share in the property. A preliminary decree for partition was passed by which plaint B schedule properties and movable items 1 to 155 and 162 to 168 described in Ext.C1 report were found to be partible among the plaintiff and defendants 1 to 9. The plaintiff has been held entitled to 1/7 share in the property. Aggrieved, the defendants have come up in appeal. 9. The only point that arises for consideration in this appeal is whether there is any infirmity, illegality or irregularity in the findings of the trial court calling for an interference by this Court. 10. Heard both sides. 11. It was argued by the learned counsel for the defendants/appellants that the trial court grossly erred in decreeing the suit ignoring Ext.B12 Will executed by late Raru, the predecessor-in-interest of the parties. The trial court was unnecessarily carried away by a stray sentence in the deposition of DW3, the scribe, who testified that PW3, one of the attesting witnesses in Ext.B12 Will was no more. The evidence let in by the defendants clearly proves the execution of Ext.B12 Will and hence the trial court ought to have dismissed the suit. In support of the arguments, he relied on the dictums in Kalyan Singh v. Smt. Chhoti, 1990 KHC 709 : (1990) 1 SCC 266 ; Varghese v. Oommen, 1994 KHC 396; Joseph Thomas v. Jospeh, 1999 KHC 504; Satyanarayana v. Seetharatnam, 2005 KHC 1828 : (2005) 8 SCC 67; Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, 2007 KHC 3166 : (2006) 13 SCC 433; Ajay P. Asher v. Kirit P. Asher, 2011 (3) KHC 288 ; Mahesh Kumar v. Vinod Kumar, 2012 KHC 4170 : (2012) 4 SCC 387 ; Leela Rajagopal v. Kamala Menon Cocharan, 2014 KHC 4571 : (2014) 15 SCC 570 ; Dhanpat v. Sheo Ram, 2020 KHC 6308 : (2020) 16 SCC 209 ; Madhavi v. Bhagyam, 2022 KHC 5728. 11.1. Per contra, it was submitted on behalf of the plaintiff that the legal formalities as contemplated under Section 63(c) of the Indian Succession Act, 1925 (the ISA) and Section 68 of the Indian Evidence Act, 1872 have not been complied with. The testimony of PW3 and DW2, the attesting witnesses, is most unsatisfactory to prove the execution of the Will. Hence the trial court was justified in rejecting Ext.B12 Will and decreeing the suit, goes the argument. The testimony of PW3 and DW2, the attesting witnesses, is most unsatisfactory to prove the execution of the Will. Hence the trial court was justified in rejecting Ext.B12 Will and decreeing the suit, goes the argument. In support of the argument, reference was made to the dictums in Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91 ; Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 ; Balathandayutham v. Ezhilarasan, (2010) 5 SCC 770 ; Jagdish Chand Sharma v. Narain Singh Saini, AIR 2015 SC 2149 ; Tushara Dicroos v. Priyanka Paily, RFA No. 54/2007 dated 24.05.2022; Rajagopal v. Venugopal, ILR 2024 (3) Kerala 327; Ramani v. Radha, RFA No. 67/2015 dated 25.07.2024. 12. To prove Ext.B12 Will, the third defendant examined himself as DW1 and the attesting witnesses and the scribe as DW2, PW3 and DW3 respectively. DW1 interalia deposed that apart from the B schedule properties, his father had other properties relating to which the latter had executed Ext.B1 Will; that after the death of his father, the properties in Ext.B1 are being enjoyed by the beneficiaries therein; that his father had also executed Ext.B12 Will dated 01/11/1989; that when the said Will was executed, his father had the necessary testamentary capacity; that 10 cents has been given to the 10th defendant as per Ext.B12 Will; that PW1 (the plaintiff) always used to trouble his father and hence the reason why the former was residing separately; that Sukumaran (DW2), a witness in the Will is his paternal aunt’s son; that he is residing in item no. 1 of B schedule; that while his father was alive they were all residing together; that the allegation that his father did not have the necessary testamentary capacity is incorrect; that apart from old age issues, his father had no other health issues and that after the death of his father, he is entitled to the B schedule properties except 10 cents given to the 10th defendant. 12.1. 12.1. The first attesting witness in Ext.B12 Will when examined as DW2 deposed that Raru was his uncle; he is the second attesting witness in Ext.B1 Will executed by Raru; that he is also an attesting witness to Ext.B12 dated 01/11/1989; that he had seen Raru signing in Ext.B12; that Raru saw him and the second attesting witness (PW3) sign Ext.B12 and that he is also the identifying witness in Ext.B12. To a leading question as to whether Raru had the necessary testamentary capacity at the time of execution of Ext.B12 Will, DW2 answered that he never felt that Raru had any problems DW2 further deposed that to his knowledge, Raru had signed Ext.B12 fully understanding the contents of the same and that he had taken back Ext.B12 from the office of the Registrar and given it to Raru. In the cross examination DW2 deposed that he did not read the contents of Ext.B12; that he does not know the scribe of Ext.B12; that he cannot say whether Raru had read and understood the contents of Ext.B12; that he cannot say in which desom and amsom Ext.B12 was signed; that he cannot say whether it was Raru or the witnesses who had first signed Ext.B12; that he does not know the other attesting witness and that he cannot say what all ailments Raru had or his mental state or memory power. 12.2. DW3, Sreenivasan the scribe, deposed that deceased Raru had given him instructions to prepare Ext.B12 Will; that he had prepared Ext.B12 in his own handwriting; that he had seen Raru and the attesting witnesses, namely, DW2, and Raman (PW3) signing Ext.B12; that Raru saw the two attesting witnesses sign Ext.B12; that the two attesting witness saw Raru signing Ext.B12; that Raru signed Ext.B12 after understanding the contents by reading it and at the time of executing the Will, Raru was mentally and physically sound. He has signed Ext.B12 as the identifying witness also. In his cross examination, he deposed that the second attesting witness to Ext.B12, that is, Raman (PW3), was no more. DW3 was examined before the court on 13/08/1996. The defendants did not take any steps to examine the second attesting witness. Hence, the plaintiff on 05/09/1996 examined the other attesting witness, namely, Raman, as PW3. 12.3. PW3, Raman, admitted his signature in Ext.B12 as a witness. DW3 was examined before the court on 13/08/1996. The defendants did not take any steps to examine the second attesting witness. Hence, the plaintiff on 05/09/1996 examined the other attesting witness, namely, Raman, as PW3. 12.3. PW3, Raman, admitted his signature in Ext.B12 as a witness. However, he deposed that he had not seen Raru or DW2 sign Ext.B12; that when he signed neither Raru nor DW2 was present; that when he signed Ext.B12 there were no signatures in the document; that he signed Ext.B12 as instructed by DW3, the scribe; that he knows the scribe for a long time; that he takes money when he signs documents; that he was paid money by the scribe when he signed Ext.B12 and that he has been earning his livelihood for the past ten years by signing documents presented for registration. In the cross examination, PW3 deposed that he does not know Raru and that he had not seen Raru. When he was asked as to why he had signed before Raru and DW2 had signed, answered that DW3, the scribe, told him that the latter knew Raru and so PW3 may sign; that he signed believing the words of DW3; that when he signed Ext.B12, the sentence to the effect that Raru had signed in his presence was never there. PW3 denied the suggestion that he knew Raru; that it was in the presence of Raru he had signed Ext.B12 and that he was deposing falsehood at the request of the plaintiff. In short, PW3 denied everything seen in Ext.B12 except his signature. 13. What can be discerned from the decisions relied by either side is that , unlike other documents, a Will speaks from the death of the testator and so when it is propounded or produced before a court, the testator who has already departed from the world, cannot say whether it is a Will or not and hence this aspect introduces an element of solemnity in the decision of the question as to whether a document propounded is proved to be the last Will and testament of the departed testator. A Will is one of the most solemn documents known to law. A Will is one of the most solemn documents known to law. By the Will, a dead person has expressed his wish as to the manner in which his survivors are to deal with his properties and as it is impossible that he can be called either to deny his signature or to explain the circumstances in which it was executed, it is essential that trustworthy evidence should be given in compliance with the necessary formalities of law. The initial burden is always on the propounder to prove due execution, attestation and a sound disposing state of mind of the testator. Any plea of undue influence and or falsity, forgery will have to be substantiated by the person who takes up the plea. Section 68 of the Evidence Act mandates that at least one attesting witness be examined to prove due execution of the Will. Section 63 ISA mandates that the Will must be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other persons sign it, in the presence and on the direction of the testator, or has received from the testator, personal acknowledgment of a signature or mark, or the signature of such other persons and that each of the witnesses has signed the Will in the presence of the testator. However, the law does not say that when the attesting witnesses testify, they must use the language of Section 63 to prove the requisite matters thereof. 14. Relying on the dictum in Janki Narayan Bhoir (Supra), it was submitted by the learned senior counsel for the plaintiff that when an attesting witness is examined, he will have to testify not only regarding the attestation of the Will by himself but also of the other attesting witness. 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 would fall short of attestation of the Will. This test/requirement has not been satisfied in this case by either DW2 or PW3 and hence the execution of Ext.B12 has not been proved. 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 would fall short of attestation of the Will. This test/requirement has not been satisfied in this case by either DW2 or PW3 and hence the execution of Ext.B12 has not been proved. Per contra, relying on the dictums in Varghese and Mahesh Kumar (Supra), it was submitted on behalf of the defendants that it is not necessary for both the attesting witnesses to be present at the same time and that it is also not necessary for an attesting witness to testify that he had seen the other attesting witness also sign the Will in his presence. 15. Section 63 of the ISA reads thus: “63. Execution of unprivileged wills - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules: (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (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, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” (Emphasis supplied) 15.1. Section 68 of the Indian Evidence Act reads: “Proof of execution of document required by law to be attested - If a document is 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.” 16. A reading of Section 63(c) of the ISA itself makes the position clear that presence of more than one witness at the same time is not necessary. In Mahesh Kumar (Supra) it has been held that the signature of the two attesting witnesses is not required to be appended simultaneously. In Rur Singh v. Bachan Kaur, 2009 (1) KLT SN 48 (C. No. 52) SC it has been held that in a way, Section 68 of the Evidence Act, gives a concession to those who want to prove and establish a Will in a court of law by examining one attesting witness even though a Will has to be attested at least by two witnesses mandatorily under Section 63 of the ISA. But what is significant and to be noted is that one attesting witness examined should be able to prove the execution of a Will. In other words, if one attesting witness can prove execution of the Will in terms of Clause (c) of Section 63 of the ISA, namely, attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. However, one attesting witness examined in his testimony must satisfy the attestation of a Will by him and the other attesting witness to prove 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 would fall short of attestation of the 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 ISA. 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 must be called to supplement his evidence to make it complete in all respects. 16.1. In Varghese (Supra), a Division Bench of this Court held thus: “...........We are of the opinion that the two Supreme Court decisions referred to, AIR 1955 SC 346 and AIR 1967 SC 155 would not support the proposition that for the purpose of satisfying the requirements under Section 68 of the Evidence Act, the only attesting witness called before the court should speak as to the attestation by the uncalled witness also. We say so, since the witness called before the court may not be in a position to speak the fact of attestation by the other witnesses. For valid attestation, unlike the English Law, as it stood before the amendment of English Wills Act, 1837 Indian Law does not insist that the two attesting witnesses also should be present at the same time when the will is executed, it is possible for executing a will with proper attestation by the attesting witnesses signing at different times and without knowing each other. Since the requirement of Section 63 Succession Act is only that there should be two attesting witnesses in the will and that there is no insistence that the attesting witnesses also should be present at the same time, we find it difficult to extend the provision of Section 68 of the Evidence Act so as to make it obligatory even when only one attesting witness is called and the propounder is not in a position to call the other witness, to elicit a fact which the attesting witness called may not be in a position to speak honestly before the court. We feel that such an insistence would only be an addition of an unnecessary technicality and that it may lead to witness called for proving, execution and attestation of wills deposing falsehood before the court......” (Emphasis supplied) 17. A Will, required by law to be attested, cannot be used as evidence until one attesting witness at least has been examined by the propounder to prove its execution. A Will, required by law to be attested, cannot be used as evidence until one attesting witness at least has been examined by the propounder to prove its execution. If by the examination of one attesting witness, the formality contemplated under Section 68 of the Evidence Act is satisfied, then the examination of the other attesting witness can be dispensed with. It is only in cases where the attesting witness examined is unable to speak about the attestation by the other witness, that the necessity of examining the latter arises. The attesting witnesses need only testify that they had seen the testator affix his signature or mark to the Will or that they saw some other person sign the Will on behalf of the testator in the presence and direction of the testator or that they received from the testator a personal acknowledgment of his signature or mark or of the signature of the person who signed on behalf of the testator. Section 63 ISA nowhere says that both the attesting witnesses must be present at the same time or that they must sign simultaneously or that they must also speak of the attestation by the other witness. When one attesting witness is unable to speak of the attestation by the other witness, the propounder can examine the other attesting witness to satisfy the mandatory requirements contemplated under the aforesaid Section [See also Johnson v. Annie, 2019 (4) KHC 417 ]. Therefore, the argument that both the attesting witnesses must also speak of attestation by the other witness, is liable to be rejected. 18. In the case on hand, both the attesting witnesses have been examined, though not by the propounder. PW3 does not at all support the case of execution of Ext.B12 Will by Raru. Except his signature in Ext.B12, PW3 denies everything in the document. Therefore, his evidence is in no way helpful to prove the execution of Ext.B12. 18. In the case on hand, both the attesting witnesses have been examined, though not by the propounder. PW3 does not at all support the case of execution of Ext.B12 Will by Raru. Except his signature in Ext.B12, PW3 denies everything in the document. Therefore, his evidence is in no way helpful to prove the execution of Ext.B12. The trial court was not inclined to accept the testimony of DW2, the other attesting witness, as it did not find his testimony satisfactory because in the cross examination he deposed that he does not know the scribe of Ext.B12; that he cannot say whether Raru had read and understood the contents of Ext.B12; that he cannot say whether it was Raru or the witnesses who had first signed Ext.B12 and that he cannot say what all ailments Raru had or about Raru’s mental state or memory power. Merely because DW2 deposed that he does not remember whether it was Raru or the witness who had signed Ext.B12 first, in my opinion, need not be taken as a ground to disbelieve his entire testimony. DW2 admittedly is the nephew of Raru, that is, the son of the plaintiff's paternal aunt. The plaintiff has no case that DW2 is in inimical terms with him and hence the reason why the latter deposed falsely in support of the case of the defendants. DW2 is admittedly an attesting witness in Ext.B1, which Will is admitted by the plaintiff also. So, I do not find any reasons why DW2 should be disbelieved, especially taking into account the fact that all the children of Raru except the plaintiff and the 10th defendant, none other than the son of the plaintiff, dispute the execution of Ext.B12 Will. Even the first defendant, the widow of Raru and mother of the plaintiff, also supports the case of the Will. 19. What should be the course followed in case the testimony of the attesting witness/witnesses is found not satisfactory or when attestation is denied or they fail to recollect the execution of the document? The position is no longer res integra. Here I refer to the dictums in T.T. Joseph v. K.V. Ippunny, 2007 (3) KHC 797 ; George v. Varkey, 2004 KHC 16 and Venugopalan P.A. and Others v. P.A. Gouri, 2014 KHC 3033. The position is no longer res integra. Here I refer to the dictums in T.T. Joseph v. K.V. Ippunny, 2007 (3) KHC 797 ; George v. Varkey, 2004 KHC 16 and Venugopalan P.A. and Others v. P.A. Gouri, 2014 KHC 3033. After considering various decisions of the Hon'ble Supreme Court and the High Courts, it has been held that even if the attesting witness denies or does not recollect the execution of the document, the execution can be proved by other evidence by resorting to Section 71 of the Evidence Act. 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. When evidence of attesting witness is indefinite, doubtful or conflicting on material points, the Court can consider all the circumstances and accept the Will, if proper attestation is proved by other evidence. Similar view was taken in K.M. Varghese v. K.M. Oommen, 1994 KHC 396; Ittoop Varghese v. Paulose, 1974 KHC 198 and Brahmadat Tewari v. Chaudan Bibi, AIR 1916 Calcutta 374. 19.1. I also refer to the dictum in Venugopalan P.A. v. P.A. Gouri, 2014 KHC 3033, in which it has been held that 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 Section 71 of the Evidence Act can be applied, it is necessary for the propounder to comply with Section 68 of the Evidence Act and to examine at least one of the attesting witnesses. Before Section 71 of the Evidence Act can be applied, it is necessary for the propounder to comply with Section 68 of the Evidence Act and to examine at least one of the attesting witnesses. Section 71 of the Evidence Act is permissive and an enabling Section permitting a party to lead other evidence in certain circumstances. But Section 68 of the Evidence Act is not merely an enabling section. It lays down the necessary requirements, which the Court must observe before holding that a document is proved. Section 71 of the Evidence Act 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 of the Evidence Act cannot be read so as to absolve a party of his obligation under Section 68 of the Evidence Act read with Section 63 of the ISA 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 bye to the mandate of law relating to proof of execution as a Will. The force of the rule is spent when the attesting witness is called. It is not necessary that he should speak favourably. If he positively denies execution, or his memory fails or he pretends not to recollect, it entitles the party to give other evidence of execution. This section lays down the mode of proof when attesting witness denies execution. Where attesting witness denies execution, forgets, refuses to prove or is hostile, other evidence is admissible to prove the document. If may be proved in the manner of documents not required by law to be attested. It must however be remembered that Section 71 of the Evidence Act comes into play only when all the attesting witnesses alive have been called or every attempt made to enforce their attendance, and they deny or do not recollect execution. If may be proved in the manner of documents not required by law to be attested. It must however be remembered that Section 71 of the Evidence Act comes into play only when all the attesting witnesses alive have been called or every attempt made to enforce their attendance, and they deny or do not recollect execution. When only one attesting witness is called and he is not believed, it cannot be said that the provisions of Section 68 have been complied with and no further evidence of execution and attestation is necessary. If the attesting witnesses for reasons best known to them chose not to support the propounder in proving the due execution of the Will, it is not as if that the propounder has no other option. Section 71 of the Evidence Act comes to his aid and enables him by circumstantial evidence or other evidence to prove the due execution [See also Chacko v. Elizabeth John, 1997 (1) KLT 739 ]. 20. The law is thus clear on the point. Even if the attesting witnesses do not support the propounder’s case, the propounder can adduce other items of evidence or rely on the circumstances to prove that the Will was duly executed by the testator. Inadequacy of the evidence of the attesting witnesses would not prevent the court from granting reliefs provided there are other pieces of evidence to substantiate the case of the propounder. Like for instance, in a case where other persons were present at the time of execution of the Will, their evidence of due execution and attestation may be sufficient. Otherwise, if the Will is a registered document, the evidence of Sub Registrar may also be sufficient to prove the due execution of the Will. There may be compelling circumstances also which would point to the due execution of the Will. 21. In the case on hand, the provisions of Section 68 of the Evidence Act have been exhausted. Apart from the testimony of the attesting witnesses, there is the testimony of DW3, the scribe also to substantiate the case of execution of the Will. However, the trial court was disinclined to believe DW3 because he deposed in his chief examination, which was reiterated in his cross examination that PW3, the second attesting witness in Ext.B12 was no more. Apart from the testimony of the attesting witnesses, there is the testimony of DW3, the scribe also to substantiate the case of execution of the Will. However, the trial court was disinclined to believe DW3 because he deposed in his chief examination, which was reiterated in his cross examination that PW3, the second attesting witness in Ext.B12 was no more. Therefore, according to the trial court, DW3 can never be believed as he would go to any extent to support the false case set up by the defendants. I am afraid I am unable to agree with this finding. It is true that the statement of DW3 that PW3 is dead is apparently false. But that alone cannot be made a ground to disbelieve his entire testimony. As stated earlier, all the children of Raru except the plaintiff support the case of Ext.B12 Will. As per the Will, it is only the third defendant and the 10th defendant who have been given shares in the B schedule properties. None of the other defendants, admittedly the wife and other children of Raru, have been given any share in the property. Despite the same, they support the case of the third defendant regarding the execution of the Will. The plaintiff has no case that his mother or his siblings are in inimical terms with him. Therefore, there is no reason why his mother or his other siblings should support the case of the third defendant regarding Ext.B12 Will. That being the position, I find that the testimony of DW3 regarding execution of the Will by Raru and its due attestation by PW3 and DW2 need not be disbelieved. 22. The plaintiff refers to certain suspicious circumstances surrounding the execution of Ext.B12 Will. The plaintiff when examined as PW1 deposed that the contention in the reply notice of the defendants regarding Ext.B12 Will is incorrect; that he is completely ignorant of Ext.B12 Will; that if at all there is such a Will the same was created by undue influence and fraud; that his father had not executed such a Will on his own free will; on 01/11/1989 his father was not keeping well; that his father had breathing issues and rheumatic complaints and that his father was unable to walk without assistance of another person. PW2, another witness examined, presumably to substantiate the case that the testator did not have the necessary testamentary capacity, deposed that he knew Raru and that he used to go to Raru’s property for plucking coconuts. However, PW2 deposed that he does not know whether Raru was laid up before his death. He also deposed that he was told by Raru’s wife (first defendant) that Raru was sick. But he had not seen Raru. The testimony of neither PW1 nor PW2 helps in substantiating the case of the plaintiff that Raru did not have the necessary testamentary capacity to execute a Will or that there were any vitiating circumstances surrounding the execution of the Will. 23. The next suspicious circumstance pointed out is that the third defendant played a prominent role in the execution of Ext.B12 Will. According to the trial court, though there is no direct evidence regarding the role played by the third defendant in executing the Will, the circumstances pointed out that there was every reason to infer that he had played a prominent role in the execution of the Will because Ext.B12 was to his advantage, and he took a substantial benefit under the document. Ext.B12 excludes all the other children of the testator. The first defendant, the widow, was only given a life interest in the property. By Will no. 22/1989 dated 10/04/1989 executed by Raru, he bequeathed half share in the B schedule property to the 10th defendant, his grandson. No reasons have been shown as to why Raru should have canceled the said Will and executed Ext.B12 Will by which the entire properties excluding mere 10 cents should be bequeathed exclusively to the third defendant. Therefore, in the view of the learned trial Judge, these suspicious circumstances had not been dispelled by the defendants and so it could not be found that Ext.B12 had been duly executed by Raru, the testator, after fully understanding the nature of the disposition. 24. I am afraid I cannot agree to this finding also of the trial court. No evidence whatsoever has come on record to the effect that the third defendant had played any role in the execution of the Will. None of the witnesses speak of the presence of the third defendant at the time of execution of the Will. 24. I am afraid I cannot agree to this finding also of the trial court. No evidence whatsoever has come on record to the effect that the third defendant had played any role in the execution of the Will. None of the witnesses speak of the presence of the third defendant at the time of execution of the Will. Merely because Raru was residing with the third defendant, is no ground to conclude that the latter played an active or prominent role in the execution of the Will or had fraudulently induced his father to execute the Will. The mere fact that barring 10 cents in B schedule, the remaining properties was bequeathed to the third defendant is also no ground to disbelieve the Will because the whole idea behind the execution of the Will is to interfere or deviate from the normal line of succession. Moreover, the reason why Raru did not give any share to the plaintiff has been made clear by the former in Ext.B1 Will, which Will is admitted by the latter. The relevant portion reads thus: The recitals roughly translated reads: “I have two sons and three daughters. I am giving no rights to my eldest son, Devadas, as per this Will. The share ensured to be given to him is given to his children, namely, Nanganadathu Pulparambil Raru Sunilkumar, Sheena, and Sreejith. The funds for the marriage expense of Shaji, aged 20 years, working as Clerk (Kozhikode Corporation) is to be raised from the schedule property No. 10 and to this end, I bequeath schedule property No. 10 in the name of my son, Nanganadathu Pulparambil Vasudevan. At the time of Shaji’s wedding, Vasudevan will either sell the schedule property No. 10 and use the sale price for her wedding or provide the market price prevailing at that time for the said property to conduct her marriage, and in case where Shaji’s marriage is conducted by Vasudevan without selling the schedule property No. 10 , but by providing the market price prevailing at that time, then the said property will thereafter fully devolve on Vasudevan, and nothing contrary to the same shall be done by Vasudevan. In case Shaji’s marriage takes place, before my death, I will personally sell schedule property No. 10 to finance her wedding. In case Shaji’s marriage takes place, before my death, I will personally sell schedule property No. 10 to finance her wedding. In such an event, Shaji after her marriage will have no rights or claims in the property mentioned in the Will. Since, I have given my eldest son, Devadas, a total sum of Rs. 58,500/- in cash for his business purposes, I have not given him any share as per the Will.” The plaintiff apparently was given his share in Raru’s property and that explains why the latter did not deem it necessary to give any further share to the plaintiff when Ext.B12 was executed. 25. Further, if the plaintiff is to be believed, Raru was hale and healthy when Ext.B1 Will dated 26/09/1989 was executed, but Raru did not have the necessary testamentary capacity when Ext.B12 was executed on 01/11/1989, that is, about 35 days after the execution of the earlier Will. It is true, as in the words of the famous author Paulo Coelho, -“Life moves very fast. It rushes from heaven to hell in a matter of seconds”. In matters like the health or wellbeing of a person, things can change drastically or suddenly within a matter of few seconds/hours/days. It is also true that one cannot assume or presume that a person who was hale and healthy a month back would remain so after a month also. But, in such cases evidence must be brought in to show that the situation has changed, and that the person no longer continued to be hale and healthy. In the case on hand, there is absolutely no evidence to substantiate the case of the plaintiff that Raru did not have the necessary testamentary capacity at the time of execution of Ext.B12 Will. Raru did not die immediately after the execution of the Will. On the other hand, he died on 19/09/1992, that is, nearly three years after the execution of Ext.B12. It is not just one Will that he executed. He is stated to have executed three Wills. The first Will, namely, Will no. 22/89 dated 10/04/1989 relied on by the 10th defendant, was never produced or proved. The second Will, that is, Ext.B1 is not disputed. The third one is Ext.B12, the disputed one. 26. Yet another suspicious ground raised is that Ext.B1 Will was written by one scribe whereas Ext.B12 Will was written by another scribe. The first Will, namely, Will no. 22/89 dated 10/04/1989 relied on by the 10th defendant, was never produced or proved. The second Will, that is, Ext.B1 is not disputed. The third one is Ext.B12, the disputed one. 26. Yet another suspicious ground raised is that Ext.B1 Will was written by one scribe whereas Ext.B12 Will was written by another scribe. Merely because another scribe was engaged would also not be a ground to suspect the case. Moreover, the plaintiff has no case that Will no. 22/1989 relied on by the 10th defendant who is none other than his son was written by the same scribe who prepared Ext.B1 Will. The plaintiff admits that the first defendant and the third defendant were looking after the affairs of Raru till his death. That could have also been the reason that prompted Raru to cancel the earlier Will and execute Ext.B12 Will. Further, the fact that Ext.B12 is a registered Will and is presented by the testator himself for registration is also a strong circumstance to support the genuineness of the Will. 27. For the aforesaid reasons, I find that the trial court went wrong in finding against Ext.B12 Will and hence the impugned judgment is liable to be reversed. 28. In the result, the appeal is allowed. The impugned judgment in O.S. No. 361/1993 on the file of the Subordinate Judge's Court, Kozhikode is set aside, and the suit is dismissed without costs. The parties are directed to suffer their respective costs in the appeal.