JUDGMENT : VENUTHURUMALLI GOPALA KRISHNA RAO, J. The Appeal Suit, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the first defendant challenging the decree and judgment, dated 10.12.2007 in O.S.No.105 of 1997 passed by the Senior Civil Judge, Madanapalle [for short 'the trial Court']. The Cross Appeal, under Order 41 Rule 22 of C.P.C., is filed by the plaintiffs 4 to 8 challenging the decree and judgment, dated 10.12.2007 in O.S.No.105 of 1997 passed by the Senior Civil Judge, Madanapalle, to the extent of finding given by the trial Court that Will is proved. Since the appeal suit and the cross appeal are filed against the judgment passed in O.S.No.105 of 1997, a common judgment is being pronounced in both the appeal suit and the cross appeal. 2. The appellant in the appeal suit is 1 st defendant and respondents in the appeal suit are plaintiffs and other defendants; the Cross Appellants in Cross Appeal are Plaintiff Nos.1, 4 to 8 and 1 st respondent in cross appeal is 1 st defendant and the remaining respondents in cross appeal are other plaintiffs and defendants in O.S.No.105 of 1997. During the pendency of the first appeal, the 12 th respondent died and his legal representatives were brought on record as respondent Nos.13 to 16 and the respondent Nos.18 to 20 were impleaded as per the order, dated 02.07.2015 in ASMP No.2090 of 2014. 3. The plaintiffs filed the suit for partition and separate possession of the plaint schedule property into four equal shares and allotment of three shares to the plaintiffs and for other ancillary reliefs. 4.Both the parties in the Appeal Suit will be referred to as they are arrayed before the trial Court. 5.The brief averments of the plaint, in O.S.No.105 of 1997, are as under: The plaintiffs 1 and 2 and one S. Maqbul are the children of Syed Meeran Sahib. S. Maqbul died on 01.06.1997 intestate. The plaintiffs 1 and 2 had two more sisters by name Khasim Bee and Mashmath Bee, who died prior to the date of the death of Maqbul. The 1 st defendant is the wife of said Maqbul and she did not beget any issue out of the wedlock. Maqbul died intestate leaving behind the 1 st defendant as his legal heirs for his estate. The 1 st defendant is the wife of said Maqbul and she did not beget any issue out of the wedlock. Maqbul died intestate leaving behind the 1 st defendant as his legal heirs for his estate. During the lifetime of Maqbul, he was doing grill work and other iron works earned properties which are detailed in the plaint schedule for the last 7 to 8 years, he was maintaining a Hardware shop under the name and style of Saleem Hardware pertaining to the grill works, angles, flats square rods, beeruvas, shelves, etc., with which he earned the properties. After the death of Maqbul, the plaintiffs and 1 st defendant succeeded according to the principles of Mohammadan Law. Thus, the plaintiffs and the defendants are co-owners as soon as Maqbul died intestate. Maqbul was brought by the plaintiffs and other two sisters as their father died when Maqbul was a small boy and thereupon the plaintiffs and their other sisters brought up Maqbul. The sisters of Maqbul performed the marriage of their brother Maqbul with the 1 st defendant. The 1 st defendant developed ill motive and planned to defeat and circumvent the legal right and succession by the plaintiffs who are entitled to share as per law. The plaintiffs participated in the funeral and performed all rituals and did their best. But, the 1 st defendant is saying that she would not allow the plaintiffs to claim any property and take the fruits of the property left by late Maqbul and she is planning to sell away the property which is highly illegal and unjust. The 1 st defendant is planning to create some spurious and fictitious documents, detrimental to the legal rights of the plaintiffs and they are all void ab initio and not binding on the plaintiffs. The 2 nd defendant is a formal party as he is a co-owner as per the sale deed, dated 29.06.1985 in plaint Item No.5 and he is no way concerned with item Nos.1 to 4 of the plaint schedule property. Since he is a co-owner in item No.5, he is also a necessary party. The 1 st plaintiff during the pendency of the suit, died leaving behind the plaintiffs 3 to 10 and the 3 rd defendant as her legal heirs. Since he is a co-owner in item No.5, he is also a necessary party. The 1 st plaintiff during the pendency of the suit, died leaving behind the plaintiffs 3 to 10 and the 3 rd defendant as her legal heirs. The 3 rd defendant has become mentally upset on account of death of the 1 st plaintiff, who has been associating with him for the past 40 to 50 years. Hence, he has not come along with the plaintiffs to file this suit and therefore he is added as 3 rd defendant. The 3 rd defendant died on 17.08.2001 leaving behind him, the newly added defendants 4 to 8 and they have succeeded to the suit properties as tenants in common along with the other co-owners in this matter and that the plaintiffs are constrained to file the suit. 6.The 1 st defendant filed written statement denying all the averments mentioned in the plaint. The brief facts in the written statement are as follows: The plaintiffs are utter strangers to the family of the 1 st defendant vis-a-vis her husband S. Maqbul. The marriage of the 1 st defendant was solemnized with the said Maqbul on 12.01.1969. The plaintiffs never visited the house of the 1 st defendant at any time. The 1 st defendant is the wife of deceased Maqbul. She got no children. The said Maqbul later on got married Parveen as his second wife through whom also no child was born and as she did not pull on with the 1 st defendant and Maqbul which lead to serious differences. There was no reproachment or reconciliation between S. Maqbul and his second wife Parveen. Item No.1 is concerned, S. Maqbul during his lifetime has bequeathed the same in favour of the 1 st defendant by assigning the cogent satisfactory reasons for making such a testamentary dispossession in favour of the 1 st defendant. As per the intention reflected by the testator in the registered Will, dated 22.09.1986, the 1 st defendant alone became entitled to Item No.1 of the schedule properties and none else. It was duly acted upon and given effect, after the death of S. Maqbul on 01.06.1997. These facts have been known to all including the relatives of S. Maqbul on his parents side. It is executed by him in a sound and disposing state of mind. It was duly acted upon and given effect, after the death of S. Maqbul on 01.06.1997. These facts have been known to all including the relatives of S. Maqbul on his parents side. It is executed by him in a sound and disposing state of mind. Item No.2 of the schedule property was purchased by S.Maqbul with the financial assistance of the 1 st defendant from the previous legitimate owner, under a registered document dated 11.09.1975 for Rs.13,275/- which was only a vacant site then. The 1 st defendant advanced money to her husband for construction of shop room to carry on business in Hardware, for which also he borrowed amount of Rs.2,77,800/- during his lifetime. In fact, in the Income Tax returns, the name of the 1 st defendant is also shown as one of the creditors from whom S. Maqbul has taken amounts. The plaintiffs cannot have a right for the stock in trade found Item No.2. Even according to the principles of Mohammadan Law, the debts of the deceased Maqbul have got a paramount charge and precedence over the other claims of sharers. Maqbul during his lifetime, he had orally gifted Item No.2 of the schedule property along with the movables found in it and item Nos.3 and 5, unconditionally delivered possession of the same to the 1 st defendant in the presence of S. Jaafer, N. Sharfun and others. The gift so made by him was without any reservations and in full compliance of the principles of Mahommadan Law. Due to such affinity, the 1 st defendant could not obtain the registered document but none the less the oral gift made by S. Maqbul concerning to Item No.2 of the schedule property and movables thereon, item Nos.3 and 5 perfectly valid, legally enforceable against all including the plaintiffs, even if they are said to be sisters of S. Maqbul. Under the circumstances stated, the 1 st defendant alone is absolute owner of the properties. 7. Based on the above pleadings, the trial Court framed the following issues: (1) Whether the registered Will, dated 22.09.1986 is true and binding on the plaintiffs? (2) Whether the valuation made and court fee paid are not correct? (3) Whether the suit is bad for mis-joinder of parties? (4) Whether the oral gift set up by the 1 st defendant in respect of items 2, 3 and 5 is true? (2) Whether the valuation made and court fee paid are not correct? (3) Whether the suit is bad for mis-joinder of parties? (4) Whether the oral gift set up by the 1 st defendant in respect of items 2, 3 and 5 is true? (5) Whether the schedule properties are liable to be partitioned, and if so to what share the plaintiffs are entitled to? (6) To what relief? The trial Court also framed the following additional issue on 19.03.2002: Whether the plaintiffs 3 to 10 and defendants 3 to 8 have nothing to do with the suit property? 8. During the course of trial in the trial Court, on behalf of the Plaintiffs, PW1 to P.W.7 were examined and Ex.A1 to Ex.A14 and Ex.X.1 to Ex.X.6 were marked. On behalf of the Defendant No.1, DW1 to DW4 were examined and Ex.B1 to Ex.B.7 were marked. 9.After completion of the trial and on hearing the arguments of both sides, the trial Court decreed the suit preliminarily with costs vide its judgment, dated 10.12.2007, against which the present appeal is preferred by the 1 st defendant in the suit questioning the Decree and Judgment passed by the trial Court. 10. The cross appeal is filed by the plaintiffs 1 and 4 to 8 challenging the finding given by the trial Court relating to Will and the brief facts of the cross appeal are as follows: The Cross Appellants filed O.S.No.105 of 1997 for partition and separate possession relating to items 1 to 5 of the suit schedule property. The 1 st respondent who is 1 st defendant in the suit is the wife of the deceased S. Maqbul, who claims that her husband had executed a registered Will, dated 22.09.1986 in her favour relating to item No.1 of the suit schedule property and also made oral gift in her favour relating to item No.2 of the suit schedule property and movables thereon. She also denied the relationship between the plaintiffs 1 and 2 as sisters of her husband and hence claimed for dismissal of the suit. She also denied the relationship between the plaintiffs 1 and 2 as sisters of her husband and hence claimed for dismissal of the suit. The trial Court believed the registered Will said to have been executed by the deceased, but held that the Will is valid only to the extent of 1/3 rd share in item No.1 and directed that remaining 2/3 rd of share shall be divided as 1/4 th to the wife and 3/4 th to the sisters i.e., plaintiffs. The plaintiffs being aggrieved by the finding relating to the Will in respect of item No.1 of the suit schedule property, challenging which this cross appeal is being filed within the time. 11. Heard Sri Rajendra Bussa, learned counsel for the appellant and heard Sri M.R.S. Srinivas, learned counsel for the respondents/cross objectors. 12. Now the points for determination in the first appeal are: 1) Whether the relationship of the plaintiffs 1 and 2 with the 1 st defendant was established by the plaintiffs? 2) Whether the trial Court has erred in conferring 1/3 rd share in the properties shown in Ex.B.1 Will executed by Maqbul in favour of appellant holding the testamentary power of a Mahommadan to dispose of his property by Will to the extent of 1/3 rd share? 3) Whether the registered Will, dated 22.09.1986 proved in accordance with law and the same is binding on plaintiffs 4 to 8/cross objectors? 4) Whether the trial Court is justified in decreeing the suit for partition in respect of plaint schedule properties? 13. Point No.1: Whether the relationship of the plaintiffs 1 and 2 with the 1 st defendant was established by the plaintiffs? The 1 st defendant contended that the evidence produced by the plaintiffs would not establish the relationship of plaintiffs 1 and 2 with the deceased Maqbul i.e., husband of appellant/1 st defendant. In the case on hand, originally the plaintiffs 1 and 2 instituted a suit for partition against the defendants. The specific case of the plaintiffs 1 and 2 is that they are the sisters of Maqbul/husband of the 1 st defendant. The appellant/1 st defendant specifically denied the relationship of plaintiffs 1 and 2 with her husband, therefore, the burden casts upon the plaintiffs 1 and 2 to prove the same. To discharge their burden, the plaintiffs relied on the evidence of P.W.2 to P.W.7. The appellant/1 st defendant specifically denied the relationship of plaintiffs 1 and 2 with her husband, therefore, the burden casts upon the plaintiffs 1 and 2 to prove the same. To discharge their burden, the plaintiffs relied on the evidence of P.W.2 to P.W.7. The plaintiffs relied on Ex.A.1 and Ex.A.2. Ex.A.1 is marriage certificate and Ex.A.2 is the death extract of Maqbul i.e., the husband of 1 st defendant, it shows father name of Maqbul is Syed Meeran Sahib. 14. The plaintiffs relied on Ex.X.3 to Ex.X.5 and Ex.A.3 to Ex.A.14 which shows that the father of 1 st plaintiff is Meeran Sahib. The plaintiffs also relied on marriage video cassette under Ex.A.12. In its judgment, the trial Court held that video cassette is displayed during the course of trial and arguments and the video cassette and photos exhibited by the plaintiffs as Ex.A.5 and Ex.A.6 established about the relationship in between the plaintiffs 1 and 2 with the defendants. Ex.A.3 is the certificate issued by the Secretary, A.P. State Haj Committee, Hyderabad. Ex.A.4 is the ownership certificate issued by the Committee, Madanapalle Municipality. Ex.A.5 and Ex.A.6 are family photos of Maqbul. Ex.A.7 is bunch of photos with negatives. Ex.A.8 is study certificate, dated 22.10.1997. The documentary evidence produced by the plaintiffs establishes that the plaintiffs 1 and 2 are none other than the sisters of Maqbul i.e., husband of 1 st defendant. 15. In Civil cases the preponderance of probability constitutes a sufficient ground for decision, if the facts and circumstances are such that no reasonable man would draw a particular inference from them or if the degree of probability in the case is such that as to include any hypothesis besides one to be proved then the party who relies on a particular theory cannot be said to have discharged the onus of proof of establishing that theory. But, if the evidence strongly preponders in favour of any of the two theories set up, the Court is entitled to act on it. It is a trait law that witnesses might lie, but the documents would not do so. In the case on hand, the plaintiffs 1 and 2 proved by producing oral and voluminous of documentary evidence to prove that they are none other than the sisters of Maqbul i.e., husband of 1 st defendant. Accordingly, point No.1 is answered against the appellant/1 st defendant. In the case on hand, the plaintiffs 1 and 2 proved by producing oral and voluminous of documentary evidence to prove that they are none other than the sisters of Maqbul i.e., husband of 1 st defendant. Accordingly, point No.1 is answered against the appellant/1 st defendant. 16.Point Nos.2 and 3: (2) Whether the trial Court has erred in conferring 1/3 rd share in the properties shown in Ex.B.1 Will executed by late Maqbul in favour of appellant holding the testamentary power of a Mahommadan to dispose of his property by Will to the extent of 1/3 rd share? (3) Whether the registered Will, dated 22.09.1986 proved in accordance with law and the same is binding on plaintiffs 4 to 8/cross objectors? The specific case of the appellant/1 st defendant is that during the lifetime of her husband, her husband Maqbul executed a registered will, dated 22.09.1986 in her favour bequeathing item No.1 of the suit schedule property. The plaintiffs herein are disputing the said registered will. Therefore, the burden casts upon the preponder of the will to prove the same. In order to prove the same, the 1 st defendant examined one of the attestors in the will as D.W.2 and the scribe of the will is examined as D.W.4 and the original registered will is marked as Ex.B.1. The law is well settled that even though the alleged will is a registered will, no importance will be given to the said registered will and it cannot be treated as a genuine will unless it is proved in terms of Section 68 of the Indian Evidence Act, 1872 r/w Section 63 of the Indian Succession Act. Section 68 of the Indian Evidence Act, 1872 read as follows: 68. Proof of execution of document required by law to be attested. Section 68 of the Indian Evidence Act, 1872 read as follows: 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 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] 17. It is evident that in cases where the documents sought to be proved is required by law to be attested, the same cannot let be in the evidence unless at-least one of the attesting witnesses has been called for the purpose of proving the attestation, if any, such attesting witness is alive and capable of giving evidence and is subject to the process of the Court. Section 63 of the Indian Succession Act deals with the execution of unprivileged wills and inter alia, provides that every testator except those mentioned in the said provision shall execute his will according to the rules stipulated therein. Section 63 of the Indian Succession Act defines as follows: 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. (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 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 be present at the same time, and no particular form of attestation shall be necessary. 18. In the case on hand, the original registered will is marked as Ex.B.1. The preponder of the will to discharge her burden examined one of the attestors in the said registered will as D.W.2 and the scribe of the said registered will examined as D.W.4. As seen from the evidence of D.W.2, he narrated in his evidence how Ex.B.1 will is executed. He also stated at the time of execution of will, the testator Maqbul is in sound and disposing state of mind and the will was scribed by D.W.4, as per the instructions of executant, later the scribe read over the contents of the will in their presence and the testator also admitted the same. He is the first attestor in the registered will, one Munwar Husssain is second attestor. D.W.2 identified the signature of the testator in the registered will Ex.B.1 and he further stated it was registered in Sub-Registrar Office on 22.09.1986. 19. D.W.4 the scribe of the will also narrated in his evidence that as per the instructions given by the testator, he scribed Ex.B.1 will and after Ex.B.1 will is scribed, he read over the contents to the testator in the presence of the attestors and the testator admitted the same and after that it was registered in the Sub-Registrar Office. 20. 20. Both D.W.2 and D.W.4 are uninterested witnesses and they are the Hindus and both the parties in the suit are Muslims and though D.W.2 and D.W.4 are subjected to cross examination, their evidence is not shattered on material aspects of the case. The ingredients of Section 63 of the Indian Succession Act are not missing in the evidence of D.W.2 and D.W.4. Both DW.2 and D.W.4 stated at the time of execution of the registered will, the testator is in a sound and disposing state of mind. The date of execution of registered will Ex.B.1 is 22.09.1986. The testator died on 01.06.1996. The gap in between execution of registered will and death of testator is 14 years. As stated supra, both D.W.2 and D.W.4 are Hindus and uninterested witnesses and both the parties in the suit proceedings are Muslims. In fact, there are no suspicious circumstances surrounded the execution of Ex.B.1 will. For the aforesaid reasons, I am of the considered view that Ex.B.1 will is proved in accordance with law. On appreciation of the entire evidence on record, the learned trial Judge also came to the same conclusion that Ex.B.1 registered will is proved in accordance with law. 21. It was contended by the learned counsel for the appellant that the trial Court erred in conferring 1/3 rd share in the properties shown in Ex.B.1 will executed by late Maqbul in favour of the appellant/1 st defendant holding that the testamentary power of Mahommadan to dispose of his property by will is limited to the extent of 1/3 rd share. As stated supra, Ex.B.1 registered will is proved by preponder of the will in according to law. In fact, there are no suspicious circumstances surrounding the will. As per Muslim Law, a Muslim can bequeath only 1/3 rd of his right in item No.1 of the suit schedule property by virtue of the will and the 1 st defendant get only 1/3 rd share in item No.1 of the suit schedule property under Ex.B.1. The trial Court held in its judgment that “Under Section 118 of principles of Mahommadan Law Mulla, the testamentary power of a Mahommadan is regulated according to which a Mahommadan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts”. 22. The trial Court held in its judgment that “Under Section 118 of principles of Mahommadan Law Mulla, the testamentary power of a Mahommadan is regulated according to which a Mahommadan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts”. 22. For the aforesaid reasons, the learned trial Judge rightly held in its judgment that by virtue of Ex.B.1 will, 1 st defendant got 1/3 rd share in item No.1 of the suit schedule property under Ex.B.1 will. 23. Point No.4: Whether the trial Court is justified in decreeing the suit for partition in respect of plaint schedule properties? As stated supra, the relationship of Plaintiffs 1 and 2 with Maqbul i.e., husband of 1 st defendant is proved by the plaintiffs by producing oral and documentary evidence, the plaintiffs 1 and 2 are none other than the sisters of Maqbul i.e., husband of 1 st defendant. During the pendency of the suit, the 1 st plaintiff died leaving behind plaintiffs 3 to 10 and one Quddus Ahmand as her legal heirs. Since, she has not joined with the plaintiffs to prosecute the suit proceedings, she was added as 3 rd defendant in the suit by the plaintiffs and the 3 rd defendant died during the pendency of the suit and the legal representatives of the 3 rd defendant are brought on record defendant Nos.4 to 8. Since the 1 st plaintiff also died during the pendency of the suit, plaintiffs 3 to 10 are brought on record as legal representatives of the 1 st plaintiff. 24. It is the specific case of the appellant/1 st defendant that her husband orally gifted the remaining properties in the presence of S. Jaaffer Khan and N. Sharfun. Under Mahommadan Law oral gift is also permissible. The oral gift has to be proved by way of producing oral evidence. The first defendant relied on the evidence of D.W.3. N. Sharfun is only examined as D.W.3 by the 1 st defendant. The other witness to the alleged oral gift as stated by 1 st defendant by name S. Jaaffer Khan is not examined as witness by the 1 st defendant. The first defendant relied on the evidence of D.W.3. N. Sharfun is only examined as D.W.3 by the 1 st defendant. The other witness to the alleged oral gift as stated by 1 st defendant by name S. Jaaffer Khan is not examined as witness by the 1 st defendant. In fact, the date and month and year of alleged oral gift is not even spoken by the 1 st defendant either in the written statement or in the evidence, likewise D.W.3 also not stated the same in his evidence about the date and month and year of alleged oral gift in favour of the 1 st defendant made by her husband. Maqbul executed a registered will on 22.09.1986 in favour of the 1 st defendant bequeathing item No.1 of the plaint schedule property, in such a case, what prevented him to execute a registered gift deed in favour of the 1 st defendant or at-least he has to mention about the other property in the said original registered will itself instead of making alleged oral gift in favour of the 1 st defendant. Therefore, the alleged oral gift as pleaded by the 1 st defendant is not at all proved. 25. By giving cogent reasons, the learned trial Judge rightly granted preliminary decree of partition. After careful consideration, this Court views that the trial Court correctly evaluated the oral and documentary evidence in all aspects and rightly decreed the suit. Therefore, I align with the conclusion drawn by the trial Court. For the aforesaid reasons, the appeal suit and the cross appeal are liable to be dismissed. 26. In the result, the appeal suit and the cross appeal are dismissed. Considering the facts and circumstances of the case, each party do bear their own costs in the appeal suit as well as in the cross appeal. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.