JUDGMENT : EASWARAN S., J. The 1 st defendant in O.S No.793 of 1998 on the the Munsiff Court, Thiruvalla is the appellant herein. 2. The facts in brief for the disposal of the appeal are as follows:- The plaintiff and the 1st defendant are brothers and children of Sri.Mathew Varghese and Smt.Annamma. Mathew Varghese and his wife Annamma jointly possessed certain extent of land as per Ext.A2 document dated 07.09.1959. Annamma died on 23.02.1973. Subsequently, Mathew Varghese executed Ext.B1 deed dated 10.11.1997 bequeathing his 1/2 share over the properties held by him under Ext.A2 and 1/3 share over 1/2 share of Annamma. Later, Mathew Varghese remarried on 13.02.1992. The plaintiff was also allotted separate share over the property of Mathew Varghese covered by Ext.A2 in the Will dated 10.11.1997. However, claiming that Mathew Varghese could not bequeath 1/3 rd of the share held by him over 1/2 share of Annamma, the plaintiff filed OS No.793 of 1998 seeking partition of 1/14 share over the entire extent of property held by the mother Annamma. According to the plaintiff, Mathew Varghese executed the Will dated 10.11.1997 and the bequeath in favour of the 1 st defendant over the 1/3 rd share held by him consequent to the death of Annamma is legally invalid. The 1 st defendant entered appearance and contested the case, whereas the other defendants remained ex-parte. The defendant contended that Mathew Varghese was perfectly entitled to bequeath the 1/3 rd share held by him over the 1/2 share of Annamma over the properties comprised in Ext.A2. In support of their contention, relied on the provisions of the Indian Succession Act, 1925 (for short, ‘the Act’), and further contended that, going by the provisions, there is no divestation of the right of a widow or widower, if they remarry. Based on the oral and documentary evidence, the trial court framed the following issues for consideration:- “1. Is the plaint schedule property partitionable? 2. Is the suit bad for partial partition? 3. Is the plaintiff entitled for injunction sought? 4. Relief and cost.” 3. The trial court basically went out to test the validity and genuineness of Ext.B1 Will and found that the 1 st defendant was unable to clear the suspicious circumstances around the execution of Ext.B1 Will. 2. Is the suit bad for partial partition? 3. Is the plaintiff entitled for injunction sought? 4. Relief and cost.” 3. The trial court basically went out to test the validity and genuineness of Ext.B1 Will and found that the 1 st defendant was unable to clear the suspicious circumstances around the execution of Ext.B1 Will. The prime reason given by the trial court for disbelieving Ext.B1 Will was that, the scribe was examined as an attesting witness, which is impermissible under law and that there is no indication as regards the presence of the scribe as an attesting witness in the body of the Will. Accordingly, ignoring the admission of the plaintiff, the trial court held that the entire property of Mathew Varghese and Annamma opens up for succession and accordingly, allowed the suit and passed a decree directing the plaint schedule property to be partitioned by metes and bounds and further declaring that the plaintiff is entitled to 1/7 share in the plaint schedule property. Though the 1 st defendant preferred an appeal, it was unsuccessful and by judgment dated 12.04.2013, the appeal was dismissed by the sub court, Thiruvalla. Against that judgment, the present appeal is preferred. 4. While admitting the appeal, this Court framed the following question of law:- “a) When there is unchallenged the evidence tendered by DW3 that he put his signature in Ext.B1 Will witnessing the execution by the testator as an attesting witness as well as the scribe, are the courts below proper in discarding the evidence and hold that the Will is invalid? b) Are not the courts below committed illegality in not following the judgment of the Supreme Court reported in Mathew Oommen Vs.Suseela Mathew AIR 2006 SC 786 while holding that Ext.B1 Will is not valid? c) When all the parties admitted execution and genuineness of the Will and dispute was raised only with respect to the proportion of the share disposed under the Will, are the Courts below justified in holding that the Will is invalid on a totally different ground which the parties to the suit had not taken up in the pleadings or in evidence?” 5. Heard Sri.K.P.Sreekumar, the learned counsel appearing for the appellant and Sri.K.Saneesh Kumar, the learned counsel appearing for the plaintiff. 6. Heard Sri.K.P.Sreekumar, the learned counsel appearing for the appellant and Sri.K.Saneesh Kumar, the learned counsel appearing for the plaintiff. 6. Sri.K.P.Sreekumar, the learned counsel appearing for the appellant took strong exception to the findings rendered by the trial court, regarding the genuineness of the Will without even framing an issue. According to the learned counsel, it was nobody’s case that Ext.B1 Will was not genuine. Ext.B1 Will was accepted by the plaintiff at one instance and it’s applicability as regards the bequeath made by Mathew Varghese regarding 1/3 rd share over 1/2 share of Annamma and over the property covered by Ext.A2 document alone was the subject matter. Therefore, the roving enquiry entered by the trial court was impermissible under law. In support of his contention, relied on the decision of this Court in Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani and others [AIR 1990 Kerala 226]. It is further pointed out that, even assuming the genuineness of the Will in question, the defendant discharged the said burden by examining DW2 and DW3 and that the trial court thoroughly misappreciated the evidence of DW3 and held that he can only be a scribe and cannot be an attesting witness. 7. Per contra, Sri.K.Saneesh Kumar, the learned counsel appearing for the plaintiff would point out that the main admission of the existence of a Will is not sufficient and that it will not tantamount to the proof regarding the Will. It is further pointed out that there is no mention in the Will as regards the status of the scribe being the attesting witness. Therefore, it is the specific case of the learned counsel that the requirement of the provisions of Section 63 (c) of the Act has not been complied in the case of Ext.B1 Will. Therefore, in the absence of a valid Will, the entire property opens for succession is the specific case pleaded before this Court. Therefore, it is the specific case of the learned counsel that the requirement of the provisions of Section 63 (c) of the Act has not been complied in the case of Ext.B1 Will. Therefore, in the absence of a valid Will, the entire property opens for succession is the specific case pleaded before this Court. In support of his contention, he places reliance on the following decisions:- Vadakkayil Gopalan and Others v. Vadakkayil Paru and Others [ 2013 (2) KHC 902 ], Gopinathan Nair Maheswaran Nair v. Madhavi Amma Nirmala Bai [ 2019 (3) KLT 484 ], Lisamma v. Saramma [ 2017 (2) KLT 1084 ], Mathew Oommen v. Suseela Mathew [ 2006 (1) SCC 519 ], Sundeep Kumar Bafna v. State of Maharashtra and Another [ 2014 (16) SCC 623 ] and N.Kamalam (Dead) and another v. Ayyasamy and another [ 2001 (7) SCC 503 ]. 8. I have considered the rival submissions raised across the Bar, and have perused the records and also the judgments of the courts below. 9. Before proceeding to consider the question of law framed by this Court, it is imperative for this Court to touch upon certain aspects as regards the claims of the parties before the trial court. In the suit, the plaintiff has specifically averred as follows:- 10. The averment as aforesaid would clearly dispel any doubt as regards the existence of a Will executed by late Mathew Varghese. It has also come out in evidence through the additional documents produced by the appellant under Order XLI Rule 27 of the Code of Civil Procedure that, in an earlier suit filed by Mathew Varghese as OS No.460 of 1994, the plaintiff impleaded itself on the strength of a Will and opposed the claim of Mathew Varghese. Though the trial court did not enter into the validity as regards the Will, the fact that the plaintiff has accepted the Will is evident from the aforesaid act. It is in this context that this Court needs to take note of the provisions of Order VIII Rule 5 of the Code of Civil Procedure, which reads as under:- “5. Specific denial. It is in this context that this Court needs to take note of the provisions of Order VIII Rule 5 of the Code of Civil Procedure, which reads as under:- “5. Specific denial. -- Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission:” 11. The principles imbibed under provisions as above regarding the necessity for specific denial in a written statement equally applies to the pleadings in the plaint. Order 7 Rule 1(e) requires the plaintiff to state the facts constituting the cause of action. Order 7 Rule 8 requires the plaintiff to state grounds on which the relief is founded. In the present case, the plaintiff had no case that ‘Will’ was bad for want of proper execution. 12. As far as, the argument of Sri.K.Saneesh Kumar, learned Counsel for the respondent/plaintiff, regarding requirement of the compliance of the mandatory provisions of Section 63 (c) of the Act or as regards the acceptability of the evidence of DW3 and the requirement to prove the Will in terms of Section 68 of the Indian Evidence Act, 1872 (for short, ‘the Act, 1872’), the same will arise only when there is a specific denial of the execution of the Will. Section 68 of the Evidence Act, 1872 deals with the mode of proving the Will. Section 68 reads as under:- “ 68. 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: [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]” 13. Therefore, the burden on the 1 st defendant to prove the execution of the ‘Will’ is discharged once he examines the attesting witnesses. In the present case, the said burden is discharged by examination of DW2 and DW3. 14. In the present case, the reading of evidence of DW2 and DW3 unequivocally shows that late Mathew Varghese had executed the Will and both these persons have seen the testator affixing a signature. Though DW2 and DW3 were, extensively cross examined, no serious contradiction has been elicited from their evidence. Therefore, even though the 1 st defendant was under no obligation to examine DW2 and DW3, the attesting witnesses, he had discharged the burden of proving the ‘Will’ by examining these two persons. 15. However, the trial court, on a thorough misappreciation of the law and the facts proceeded to hold that the scribe cannot be the attesting witness. In support of the finding, reliance was placed on the decision of the Hon'ble Supreme Court in N.Kamalam (Dead) (supra). 16. In this context, the learned counsel for the plaintiff would submit that, the decision of the Hon'ble Supreme Court in Mathew Oommen (supra) cannot be considered as a binding precedent. According to the learned counsel, the decision of the Hon'ble Supreme Court in Mathew Oommen (supra) cannot be a good law and is to be regarded as rendered ‘per incuriam’ since the said decision did not take note of the earlier decision of the Supreme Court. 17. Circumstances under which a decision is construed as one rendered per incuriam fell for consideration before the Supreme Court in Sundeep Kumar Bafna v. State of Maharashtra and Another [ 2014 (16) SCC 623 ] wherein it was held by the supreme court that if the latter decision was rendered without noticing the precedent on the point rendered by the bench of the co equal strength, the latter decision is construed as rendered ‘per incuriam’. 18. There cannot be any disputes as regards the proposition of law canvassed by the Learned Counsel for the respondents. But, before proceeding to hold whether Mathew Oommen was correctly decided or not, this court needs to consider whether there is any absolute bar for a scribe to be an attesting witness in a ‘Will”. 19. Before dealing with the aforesaid contention, this Court needs to notice the two other decisions cited across the Bar. But, before proceeding to hold whether Mathew Oommen was correctly decided or not, this court needs to consider whether there is any absolute bar for a scribe to be an attesting witness in a ‘Will”. 19. Before dealing with the aforesaid contention, this Court needs to notice the two other decisions cited across the Bar. Gopinathan Nair Maheswaran Nair v. Madhavi Amma Nirmala Bai [ 2019 (3) KLT 484 ], a learned Single Judge of this Court held that a mere subsequent assertion by a scribe in the witness box without having an indication to show the elements of intention to stand as an attesting witness from the document, may not be sufficient to sanctify the status of an attesting witness. 20. In Lisamma v. Saramma [ 2017 (2) KLT 1084 ], answering the question of law framed in that case, “whether has not the scribe of Ext.A2 attested the Will with necessary animus”, a learned Single Bench of this Court held that when the scribe has prepared the document and signed the same as a scribe, the said signature cannot be construed as that of an attesting witness. 21. The learned counsel for the plaintiff would point out that, going by the precedents cited across the Bar, the requirement of Section 63 (c) of the Act, having not been met, Ext.B1 Will cannot be construed as a genuine Will. This Court is afraid that the aforesaid contention is thoroughly misplaced for the following reasons. 22. A reading of Ext.B1 would show that late Mathew Varghese had affixed the signature and the same is a registered Will. After the testator affixed the signature, two witnesses attested the will. The first witness is Rasheed DW2 and the other is Punnoose DW3 who happened to be the scribe. The dispute raised by the plaintiff in the present case stems out of the fact that the Sri.Punnoose, while affixing his signature in the ‘Will’ chose to describe himself as the person who prepared the ‘Will’. The fact that the attesting witnesses are serially numbered is a strong indication to conclude that Punnoose, DW3 intended to sign as an attesting witness alone. The mere fact that the description of the attesting witness is mentioned as one who prepared the document will not denude, the evidentiary value of the evidence of DW3 nor erode the efficacy of the signature of the attesting witness. The mere fact that the description of the attesting witness is mentioned as one who prepared the document will not denude, the evidentiary value of the evidence of DW3 nor erode the efficacy of the signature of the attesting witness. It is pertinent to mention that there is no requirement of law under Section 63 of the Act that a scribe should affix the signature in the Will. That be so, the irresistible conclusion is that the second attesting witness had affixed the signature purely as an attesting witness and not as a scribe. Therefore, both the courts below had failed to appreciate the aforesaid facts and erred egregiously, in right perspective and thus leading to the judgment and decree which are impugned in the present appeal. 23. Now coming to the question as to whether a scribe can be an attesting witness in a “Will” and whether the decision of the Supreme Court in Mathew Oommen (supra) has to be construed as per incuriam or not, it has to be ascertained whether there is any subsequent decision of the Supreme Court in lines of Mathew Oommen (Supra). This exercise is required, basically to determine whether the decision in Mathew Oomen(supra) is a solitary decision or not. 24. In Savithri and others Vs Karthyayani Amma and other [ (2007) 11 SCC 621 ], the Supreme Court held that a scribe who saw the testator sign the will after reading it out to him can be an attesting witness. 24.1.In Dhanpat Vs Sheo Ram (deceased) through legal representatives and others [ (2020) 16 SCC 209 ] held that when the propounder of the will examines one attesting witness and the scribe who saw the execution and the registrar of the Sub registrar’s office were sufficient to hold that the validity of the will. 25. A cumulative reading of the precedents discussed above leads to an irresistible conclusion that, there is nothing in law which prevents a scribe being an attesting witness provided that he intends to affix his signature as an attesting witness. Moreover, the requirement under Section 68 of the Evidence Act 1872 and Section 63 (c) of the Succession Act 1925 cannot be laid down in a rigid manner and it requires to be interpreted depending on the facts of each case. Moreover, the requirement under Section 68 of the Evidence Act 1872 and Section 63 (c) of the Succession Act 1925 cannot be laid down in a rigid manner and it requires to be interpreted depending on the facts of each case. Suffice to say, it cannot be said that Mathew Oommen (supra) is decided ‘per incuriam’ especially since Savithri (supra) also follows the same line. 26. Coming back to the issue as regards the validity of the Ext.B1 “will”, it must be remembered that the plaintiff is also beneficiary of the ‘will’. The only ground on which the ‘will’ is sought to be invalidated is on the ground that the testator had absolute interest in the 1/2 share of his wife Late Annamma. This would show that at one hand the plaintiff is claiming the benefits under the ‘will’ and on other hand is seeking to sustain the findings of the courts below that the ‘will’ is not genuine. Such a dichotomous stand cannot be appreciated. 27. Be that as it may, the further question to be considered is whether the plaintiff is entitled to the decree of partition as claimed by him. The specific case set up by the plaintiff is that Mathew Varghese was not entitled to bequeath the 1/3 rd of the 1/2 share held by his wife Annamma. Going by the admitted facts in the present case, the date of purchase of the property is 07.09.1959 and Annamma died on 23.02.1973. On the date of the death of Annamma, the entire property opened up for succession. Thus, Mathew Varghese had derived 1/3 rd share over 1/2 share of Annamma by intestate succession. However, according to the plaintiff since Mathew Varghese remarried on 13.02.1992, he will be divested with the share of his wife Late Annamma. However, no supporting provisions in the Succession Act 1925 is brought to the notice of this court to sustain the plea. 28. The provisions governing the intestate succession is contained under Section 32 and 33 of the Succession Act1925. Sections 32 and 33 reads as under:- “ 32. Devolution of such property .— The property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this Chapter. 33. Sections 32 and 33 reads as under:- “ 32. Devolution of such property .— The property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this Chapter. 33. Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred.— Where the intestate has left a widow— (a) if he has also left any lineal descendants, one-third of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules hereinafter contained; (b) [save as provided by section 33A], if he has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are kindred to him, in the order and according to the rules hereinafter contained; (c)if he has left none who are of kindred to him, the whole of his property shall belong to his widow.” The mere fact that Mathew Varghese remarried on 13.02.1992 will not divest him of the share which he has already acquired by intestate succession under Section 32 read with Section 33 of the Act. It is not shown before me as to how, the property which has devolved upon by intestate succession will revert back and open up for succession to the other lineal descendants consequent to a remarriage by the widower. The concept of divesting of the property back to lineal descendants consequent to marriage of the widow or widower is alien to the Succession Act 1925. If that be so, the irresistible conclusion is that the suit for partition based on the plea that Mathew Varghese was not entitled to bequeath1/3 rd share of 1/2 share held by Annamma, has to fail. 29. Resultantly, in answering the question of law, it is held that Ext.B1 Will has been proved in accordance with law and the finding rendered by the trial court as confirmed by the first appellate court, is perverse and requires reversal. 29. Resultantly, in answering the question of law, it is held that Ext.B1 Will has been proved in accordance with law and the finding rendered by the trial court as confirmed by the first appellate court, is perverse and requires reversal. As an upshot of the above discussions, the appeal is allowed by reversing the judgment and decree in OS No.793 of 1998, as confirmed by the Sub court in AS No.36 of 2004.The appellant will be entitled for costs of this proceedings. Accordingly, a preliminary decree for partition is passed as follows:- 1 It is held that the Mathew Varghese was perfectly entitled to execute the will bequeathing ? share over the property held by his wife Late Annamma. 2 Ext.B1 “will” is declared to be the last testamentary ‘will’ of Late Mathew Varghese. 3 Only ? rd share of Late Annamma is available for partition. 4 The ? share in plaint schedule property will be divided into metes and bound into 7 equal shares. 5 Each of the sharer will be entitled to 2/21 share in the property of late Annamma. 6 The parties are free to apply for final decree proceedings on payment of requisite court fee. 7 The claim of the appellant for equity will be worked out during the final decree proceedings. 8 The plaintiff will be entitled to proportionate cost in the suit.