JUDGMENT : This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.88 of 2013 dated 26.09.2019 on the files of the Court of the Principal District Judge, Kottayam arose from the decree and judgment in O.S. No.188 of 2011 dated 26.02.2013 on the files of the Munsiff Court, Vaikom. The appellants herein are defendants and respondents are plaintiffs in the above suit. 2. Heard the learned counsel for the appellants, on admission. Perused the relevant materials and the verdicts under challenge. 3. I shall refer the parties in this appeal with reference to their status before the trial court. 4. In this matter, plaintiffs filed suit for partition of the plaint schedule property originally belonged to Smt.Ambujakshi by virtue of sale deed No.431/1981 of Vaikom S.R.O. According to the plaintiffs, Smt.Ambujakshi died intestate on 10.02.2011 and the plaint schedule property devolved upon the plaintiffs and 1st defendant. Since, the demand for separate possession was refused by the defendants, the present suit was filed claiming ¼ share each to the plaintiffs and the 1st defendant. 5. The 1st defendant filed written statement and resisted the suit raising contention that the plaint schedule property is not partible since, he got title over the same on the strength of Will Deed No.15/2011 of Kuthiyathodu S.R.O. It was also contended that, later he had executed settlement deed No.1194/2011 of Vaikom S.R.O, in favour of his daughter, who is the 2nd defendant. 6. The trial court recorded evidence and tried the matter after addressing rival contentions. PWs 1 to 4 examined and Exts.A1 and A2 marked on the side of the plaintiffs. DWs 1 to 4 examined and Exts.B1 to B4 marked on the side of the defendants. Exts.X1 and X2 were also marked. 7. Finally, the trial court decreed the suit and allowed partition after holding that Ext.B1 Will failed to be proved by the 1st defendant after removing the doubtful circumstances surrounding thereof. 8. Though, appeal was filed before the Appellate Court, vide A.S. No.88/2013, the Appellate Court also re-appreciated the evidence and concurred the finding of the trial court. 9. 7. Finally, the trial court decreed the suit and allowed partition after holding that Ext.B1 Will failed to be proved by the 1st defendant after removing the doubtful circumstances surrounding thereof. 8. Though, appeal was filed before the Appellate Court, vide A.S. No.88/2013, the Appellate Court also re-appreciated the evidence and concurred the finding of the trial court. 9. While assailing the concurrent verdicts, negating the claim raised by the 1st defendant, on the strength of Ext.B1 Will, the learned counsel for the defendants placed a decision of the Division Bench of this Court reported in Ajay P. Asher v.Kirit P.Asher and Another [ 2011 (3) KHC 288 ], wherein this Court considered the manner in which a Will to be proved and the manner in which suspicious circumstances to be removed. The relevant paragraphs of the above decision are extracted hereunder: “The only case projected by the plaintiff, that too, by way of an amendment to the plaint when Ext. B9 Will was pressed into service under the written statement of the 1st defendant to resist the claim of partition, was that such testament was vitiated by undue influence, however, without furnishing any specific particulars how it was vitiated. The fact that a challenge to the Will was made only on the aforesaid ground, no doubt, would not relieve the propounder from establishing the genuineness of the Will, and if, there is any circumstance arousing suspicion in its making, why it should not be taken as a suspicious circumstance affecting the validity of the Will. The propounder of the Will has to show that it was signed by the testator. He was at the relevant time having a sound disposing state of mind and he understood the nature and effect of the dispositions. He has put his signature to the testament of his own free will and he has signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. The mandate under Section 63 of the Indian Succession Act as regards the due execution of a Will complying with the requirements as aforesaid are to be established by the propounder of the Will. How due attestation of the Will is to be proved is spelt out under Sections 68, 69 and 71 of the Indian Evidence Act depending on the facts and circumstances indicated thereunder. How due attestation of the Will is to be proved is spelt out under Sections 68, 69 and 71 of the Indian Evidence Act depending on the facts and circumstances indicated thereunder. Once the propounder establishes the elements indicated as above satisfying the statutory requirements referred to in the proof of a Will, the onus rests upon him is discharged. Now, so far as the circumstances presented as suspicious circumstances by the learned counsel for the appellant to impeach Ext. B9 Will, we may state that most of them cannot be treated as suspicious circumstances surrounding the execution of that testament. We find that without even mounting the box, nor producing any materials whatsoever, the appellant after having practically conceded the testamentary capacity of his father as and when Ext. B9 Will was made, and also due attestation of that testament, has attempted to assail the validity and genuineness of that testament highlighting some circumstances, all of which taken separately or together, on critical analysis, are found to be incapable of casting any suspicion over the genuineness of Ext. B9 Will nor its due execution by the testator on his own free will. The dismissal of the suit by the Court below, in the proved facts and circumstances of the case, upholding Ext. B9 Will as genuine, is unassailable, and the challenge thereto must fail. However, in cases where there are suspicious circumstances surrounding the execution of the Will, such as the testator, at the time of making of the testament is shown to be weak and infirm or under severe stress and strain, or vested interests of third parties in the making of the testament and also the likelihood of such persons influencing him to get hold of his property is visible, or from such other circumstances indicating that the dispositions made by him under the testament are unnatural, improbable and unfair or there is disparity of his signature in the Will with his admitted signatures, the propounder has to explain and dispel them satisfactorily, to get the Will accepted as genuine and duly executed by the testator. In a case where the propounder had taken an active role in the execution of the Will and under the Will, substantial benefit is shown to be conferred on him, it may amount to a suspicious circumstance, and he must remove the suspicion, if any, surrounding the execution of the Will. In a case where the propounder had taken an active role in the execution of the Will and under the Will, substantial benefit is shown to be conferred on him, it may amount to a suspicious circumstance, and he must remove the suspicion, if any, surrounding the execution of the Will. In examining whether there are suspicious circumstances and also the evidence required from the propounder to dispel any doubt over the genuineness of the Will, it cannot be determined under a strait-jacket formula or by yardsticks uniformly applicable, but only with reference to the totality of the circumstances surrounding the making of the Will and also the testamentary capacity of the maker. What is required to be established by the propounder to dispel circumstances which are indicative of arousing suspicion, is only satisfaction of the conscience of the Court for removal of such suspicion, which a reasonable man may entertain in the facts and circumstances of the case. In the context it is apt to take note of the observations of the Apex Court in the matter, which spell out thus: “….. it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain.” 10. The legal position as argued by the learned counsel for the defendants is not in dispute. In the decision reported in Ramaswami P. N. v. B. Seshambal [2024 KHC OnLine 102 : 2024 KHC 102 : 2024 KER 10604], this Court extensively considered the ingredients to prove a Will and the manner in which the doubtful circumstances to be removed, after referring decisions of the Apex Court in this regard. In paragraph Nos. 18, 19 and 20, this Court espoused the principles as under: “18. As regards to the mandate to prove the execution of a Will, the law is well settled. On reading S.63 of the Succession Act with S.68 of the Indian Evidence Act, it is the mandate that a person propounding the Will shall prove that the Will was duly and validly executed. As regards to the mandate to prove the execution of a Will, the law is well settled. On reading S.63 of the Succession Act with S.68 of the Indian Evidence Act, it is the mandate that a person propounding the Will shall prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of S.63 of the Succession Act. It is true that S.68 of the Indian Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness to be called for proving the due execution of the Will as envisaged in S.63. Although S.63 of the Succession Act requires that a Will has to be attested at least by two witnesses, S.68 of the Indian Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose or proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. However, S.68 provides that those who want to prove and establish a Will in a Court of law, to do so, by examining at least one attesting witness even though the Will has to be attested at least by two witnesses mandatorily under S.63 of the Indian Succession Act. But what is relevant and noteworthy is that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words, if one attesting witness can prove execution of the Will in terms of Clause (c) of S.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 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 S.63 of the Indian Succession Act. Where one attesting witness examined to prove the Will under S.68 of the Indian Evidence Act fails to prove the due execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to depose the attestation of the Will by the other witness, there will be deficiency in meeting the mandatory requirements of S.68 of the Indian Evidence Act. The said legal position emerges from the decisions reported in (2003 KHC 808: 2003 (2) SCC 91 : AIR 2003 SC 761 ), Janki Narayan Bhoir v. Narayan Namdeo Kadam; (2009 KHC 4790: 2008 (15) SCC 365 : AIR 2009 SC 1389 : 2009 (2) CHN 41: 2009 (2) Guj LR 1700: 2009 (1) APLJ 6 : 2009 (1) SCALE 328 ), Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria & Ors., (2009 KHC 4382 : 2009 (11) SCC 1 : 2009 (1) KLT SN 52: 2009 (3) SCALE 508 ), Rur Singh & Ors. v. Bacahan Kaur, ( 2013 (7) SCC 490 : AIR 2013 SC 2088 ), M. B. Ramesh (dead) by LRs v. K. M. Veeraje Urs (dead) by Lrs. 19. It is equally well settled that the burden to prove execution of Will and to show that it came out of free will of the testator is only on the propounder. A Will obtained by fraud, coercion or importunity is void under S.61 of the Act. 19. It is equally well settled that the burden to prove execution of Will and to show that it came out of free will of the testator is only on the propounder. A Will obtained by fraud, coercion or importunity is void under S.61 of the Act. The testator, therefore, should have had necessary testamentary capacity to execute the Will and propounders claiming rights under the Will would have to establish that the testator was in sound disposing state of mind at the relevant period of time. The testator could be presumed to be of sound disposing state of mind when he was in a position to understand the nature and effect of the disposition he made and also when he acted on his own free will. If there are suspicious circumstances affecting the genuineness of Will, the burden is still on the propounder to remove them and explain the circumstances. Decisions reported in (1959 KHC 498: AIR 1959 SC 443 : 1959 Supp (1) SCR 426: 1959 Mys LJ 424), H. Venkatachala Iyengar v. B. N. Thimmajamma & Ors.; (1964 KHC 465: AIR 1964 SC 529 ), Shashi Kumar Banerjee & Ors. v. Subodh Kumar Banerjee since deceased and after him his legal representatives & Ors.; (2013 KHC 4372: 2013 (2) KLJ 797 : 2013 (2) KLT SN 136: AIR 2013 SC 2088 : 2013 (7) SCC 490 :2013 (3) SCC (Civ) 576: 2013 (4) KCCR 2945 : 2013 (4) ALD 104: 2013 (127) AIC 155 : 2013 (3) CTC 650 :2013 (99) ALR 487), M. ?. Ramesh (D) By L.R.S v. K. M. Veeraje Urs (D) by LRS. & Ors. and (1995 KHC 399 : 1995 (2) KLT 862 : 1995 (2) KLJ 577 : ILR 1996 (1) Ker. 566), Natarajan v. Sree Narayana D.S. Trust, illustrated the said legal mandates. 20. When a Will is surrounded by suspicious circumstances, the person propounding the Will has a very heavy burden to discharge. This has been authoritatively explained by the Apex Court in H. Venkatachala iyengar v. B. N. Thimmajamma's case (supra). 566), Natarajan v. Sree Narayana D.S. Trust, illustrated the said legal mandates. 20. When a Will is surrounded by suspicious circumstances, the person propounding the Will has a very heavy burden to discharge. This has been authoritatively explained by the Apex Court in H. Venkatachala iyengar v. B. N. Thimmajamma's case (supra). The Apex Court in paragraph 20 of the judgment held that in a case where the testator's mind is feeble and he is debilitated and there is no sufficient evidence as to the mental capacity of the testator or where the deposition in the Will is unnatural, improbable or unfair in the light of the circumstances or it appears that the bequest in the Will is not the result of the testator's free will and mind, the court may consider that the Will in question is encircled by suspicious circumstances. The said ratio has been followed in ( 2010 (5) SCC 770 ), Balathandayutham & anr. v. Ezhilarasan.” 11. Now, the question herein is to be considered is, whether the propounder of the Will, who is the 1st defendant, proved Ext.B1 Will as mandated under Section 68 of the Indian Evidence Act and under Section 63(c) of the Succession Act? 12. It is submitted by the learned counsel for the defendants that, defendants examined DW2, one among the attesting witnesses to prove Ext.B1 Will. But the trial court as well as the Appellate Court disbelieved the deposition of DW2 mainly on the ground that DW2 is a relative of the wife of the 1st defendant. In paragraph No.18 of the Appellate Court’s judgment, the Appellate Court held so and extracted certain anomalies in the evidence of DW2 to disbelieve him. In fact, the other attesting witnesses of Ext.B1 was not examined, though DW3, another person who signed the Will not as an attesting witness also was examined. 13. In fact, the Appellate Court held that the 1st defendant not succeeded in dispelling the suspicious circumstances surrounding the execution of Ext.B1 Will. It was found by the Appellate Court that Ext.B1 Will was executed on 11.01.2011 and the executant, Smt.Ambujakshi passed away on 10.02.2011. Admittedly, at the time of execution of Ext.B1 Will, Smt.Ambujakshi was 84 years old and she was suffering from blood pressure, diabetics, lack of vision and suffocation etc. It was found by the Appellate Court that Ext.B1 Will was executed on 11.01.2011 and the executant, Smt.Ambujakshi passed away on 10.02.2011. Admittedly, at the time of execution of Ext.B1 Will, Smt.Ambujakshi was 84 years old and she was suffering from blood pressure, diabetics, lack of vision and suffocation etc. started at the age of 70 onwards and she had lost her memory at the age of 80. It was also observed by the Appellate Court that on 08.01.2011, Smt.Ambujakshi was taken by the 1st defendant from the house of the 2nd plaintiff, on the premise of giving her treatment, by a doctor in Alleppey and during this period Ext.B1 Will was executed. The trial court also found the suspicious circumstances surrounding the Will, while disbelieving the execution of the Will for the same reasons, as observed by the Appellate Court. 14. The legal position as regards to the execution and proof of Ext.B1 Will already extracted. Here, the trial court as well as the Appellate Court, disbelieved Ext.B1, as already observed. Now what emerges is that the executant, Smt.Ambujakshi, who was admittedly aged 84 years and had memory loss, was taken by the 1st defendant on 08.01.2011 from the house of the 2nd plaintiff and got executed Ext.B1 Will on 10.01.2011. On completion of thirty days thereafter, Smt.Ambujakshi died. Therefore, the concurrent finding as regards to the doubtful circumstances attached to Ext.B1 Will found by the trial court and confirmed by the Appellate Court does not require any interference at the hands of this Court. 15. In view of the above discussion, no substantial question of law emerges in this matter to be formulated to maintain and admit this regular second appeal. Order XLII Rule 2 of CPC provides thus: “2. Power of Court to direct that the appeal be heard on the question formulated by it.-At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.” 16. Section 100 of CPC provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso stipulates that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 17. In the decision reported in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168 ] Nazir Mohamed v. J. Kamala and Others, the Apex Court held that: The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [ (1999) 3 SCC 722 ]. 18. In a latest decision of the Apex Court in Government of Kerala v. Joseph, reported in [ 2023 (5) KHC 264 : 2023 (5) KLT 74 SC], it was held, after referring Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179] (three – Judge Bench), as under: For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court. 19. The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of CPC, the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of CPC must be complied to admit and maintain a second appeal. 20. In this matter, no substantial question of law arises for consideration so as to admit this second appeal. It is the well settled law that a second appeal involving no substantial question of law cannot be admitted. Therefore, the decree and judgment under challenge do not require any interference and no substantial question of law to be formulated to adjudicate in this regular second appeal. 21. Accordingly, this regular second appeal stands dismissed, without being admitted, as indicated above. All interlocutory applications pending in this regular second appeal stand dismissed.