How must the execution of a Will be proved, and does registration of the Will dispense with that requirement?

The first plaintiff in O.S. No 121 of 2010 before the Principal Sub Judge, Nagercoil, is the appellant. The first plaintiff along with the first respondent in the second appeal filed O.S. No. 121 of 2010, seeking partition and separate possession of four items of properties set out in Schedule A to C.

The second appeal was admitted by this Court on 26.04.2019 on the following substantial questions of law: "1) When the defendants claiming under the Will marked as Ex.B8, dated 23.11.2000, had not examined any one of the attesting witnesses and in the absence of proving of the said Will in the manner required under Sections 68 and 69 of the Indian Evidence Act, 1872, whether the Courts below were correct in accepting the said document and non-suit the plaintiff with regard to items 1 and 2 of 'A' schedule property? 2)When the defendants claiming under the Will marked as Ex. B9 dated 06.12.2000 had examined any one of the attesting witnesses and in the absence of proving of the said Will in the manner required under Sections 68 and 69 of the Indian Evidence Act, 1872, whether the Courts below were correct in accepting the said document and non-suit the plaintiffs with regard to 'B' schedule property?

Whether the Courts below committed an error in considering Ex. B24 when it had not been mentioned in the pleadings of the defendants, since it is a settled proposition that there cannot be any evidence without pleadings?” 3. I have heard Mr. V. Raghavachari, learned Senior Counsel, assisted by Mr. TKS. Maniam, learned counsel for the appellant / first plaintiff and Mr. G. Prabhu Rajadurai, learned counsel appearing for the sons, the defendants 2 and 3 and Mr. V. Maharajan, learned counsel for the fifth respondent / fifth defendant.

For the sake of convenience, the parties are referred to as per their rank before the Trial Court.

Brief facts, that may be necessary for adjudicating the substantial questions of law, are as follows: The plaintiffs 1 and 2 in O.S. No.121 of 2010 are sisters, who are admittedly daughters of the first defendant, viz. S. Padmanabhan. The defendants 2 and 3 are their brothers, sons of the first defendant. Even according to the plaintiffs, their mother Marimuthu had executed a Will in respect of some of her properties, giving a benefit to all her children vide Will dated 27.09.1996 was in fact registered Will. On her demise, on 03.01.2001, the beneficiaries including the plaintiffs and the defendants took their respective entitlement and have been in possession and enjoyment. It is however contended by the plaintiffs that apart from the properties covered under the said Will, the mother / Marimuthu had four others properties, in respect of which the suit claim has been made.

The suit was resisted by the defendants with the father/ Padmanabhan of the plaintiffs himself choosing to file a written statement, contending that his wife Marimuthu had executed a Will dated 23.11.2000, which was also registered in Document No. 2111/2020 on the file of the Sub Registrar Office, and that under the said Will, items 1 and 2 of A Schedule properties were bequeathed to the sons, defendants 2 and 3. Insofar as B Schedule property, it is contended by the first defendant that the property was purchased benami in the name of Marimuthu and therefore, the plaintiffs are not entitled to any share. Insofar as Schedule C property, it is contended by the first defendant that the Schedule C property was jointly purchased in the name of Sivaraman and the second defendant, another son of the first defendant, and the other half share belonging to Sivaraman was inherited by Marimuthu and on 23.11.2000, Marimuthu and the first defendant jointly executed a Settlement Deed in respect of a one half share of Schedule C property, in favour of the second defendant. Therefore, according to the first defendant, Schedule C is not available for partition.

The fourth defendant is the purchaser of C Schedule property who filed an independent written statement, stating that she is a bonafide purchaser and in any event, the plaintiffs cannot claim any share in C Schedule property.

The fifth defendant is also a purchaser of one of the items in Schedule B, namely item No.5. He filed an independent written statement, contenting that he is a bonafide purchaser from the first defendant and that the plaintiffs cannot claim any share in the said item.

The plaintiffs filed a reply statement denying the truth and genuine of the Wills said to have been executed by their parents and reiterated the claim for partition in respect of the suit properties.

Before the Trial Court, the second plaintiff, examined herselfas P.W.1 and one Dr. Kannan was examined as P.W.2 and 19 documents were marked as Ex. A1 to Ex. A19. On the side of the defendants, the second defendant examined himself as D.W.1, one other witness was examined as D.W.2 and the defendants 4 and 5 were examined themselves as D.W3 and D.W4 and 40 documents were marked as Ex. B1 to Ex. B40.

The Trial Court, after analysing the oral and documentary evidence available on record accepted the Wills under which the defendants claimed right and consequently, dismissed the suit in toto. Aggrieved by the same, the plaintiffs preferred an appeal in A.S.No.29 of 2014 and the First Appellate Court allowed the appeal in-part, confirming the findings with regard to the Will, however, granted a decree in respect of item Nos.3 and 4 of A Schedule properties to the plaintiffs, while rejecting the appeal in respect of item Nos.1 and 2 covered by the alleged Will as well as Schedule B and C.

Aggrieved by the same, the first plaintiff has filed the present Second Appeal. Arguments of Mr. V. Raghavachari, learned Senior Counsel for the appellant:

Mr. V. Raghavachari, learned Senior Counsel for the appellant/ first plaintiff would state that though the plaintiffs admitted to the factum of the Will having been executed by the mother in 1996, the plaintiffs did not admit the execution of the alleged second Will, which was in respect of some of the items of the suit property. He would contend that the Trial Court as well as the First Appellate Court have shifted the burden erroneously on the defendants, to establish the defence ignoring the fundamental principle, that the propounder has to prove due execution of the Will as required under Section 63(c) of the Indian Succession Act read with 68 of the Indian Evidence Act. In this regard, it is the submission of the learned Senior Counsel that none of the attesting witnesses to the Wills were examined on the side of the defendants/propounders and despite the same, besides also erroneously shifting the burden on the plaintiffs, the Courts below have also given weightage to the evidence of the scribe, who cannot take the place of an attesting witness. Mr. V. Raghavachari, learned Senior Counsel would attack the findings of the Courts below and contend that in the absence of evidence that the scribe had also signed as attesting witness, his evidence was of no value and cannot be substituted for the evidence of an attesting witness, and that there is no proof of due execution and attestation of the Will in the present case.

The learned Senior Counsel relied on N. Kamalam (Dead) and Anr v. Ayyasamy and Anr, reported in (2001) 7 SCC 503, where the Hon'ble Supreme Court held that the signature of the scribe of a Will cannot be treated on par with the signature of an attesting witness and the Hon'ble Supreme Court further held the propounder has not examined the attesting witness and had not also taken steps to produce them before Court and the evidence of the scribe cannot displace satisfactory requirement under Section 68 of the Indian Evidence Act and 63 of the Indian Succession Act.

The Hon'ble Supreme Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam, reported in (2003) 2 SCC 91held that execution of a Will can be proved by examining at least one of the attestors in the manner contemplated under Section 63(c) of the Indian Succession Act. The Hon'ble Supreme Court, even in the said decision reiterated, the principle that a scribe cannot be treated as an attesting witness.

In Meena Pradhan and Ors v. Kamla Pradhan and Anr, reported in (2023) 9 SCC 734, the Hon'ble Supreme Court held that since the person who executed the Will, viz., testator or testatrix is not available for deposing, in such circumstances under which the Will was executed have to be necessarily proved to rule out possibility of any manipulation and therefore the Will must necessarily satisfy the requirements prescribed under Section 63(c) of the Indian Succession Act and must also be proved in accordance with Section 68 of the Indian Evidence Act.

Mr. V. Raghavachari, learned Senior Counsel taking me through the evidence of doctor who was examined as P.W.2 contends that, he has clearly spoken about the mental incapacity and unsoundness of the testatrix and the Courts below have failed to give due weightage to the same. In Chinu Rani Ghosh v. Subhash Ghosh and Ors, reported in (2024) 20 SCC 125, the Hon'ble Supreme Court held that onus of proving a Will is on the propounder. Lastly, he would rely on the judgment in Ramesh Chand (D) Thr. Lrs. v. Suresh Chand and Anr, reported in 2025 SCC OnLine SC 1879, where the Hon'ble Supreme Court held that in terms of Section 68 of the Indian Evidence Act, it is mandatory to examine at least one of the attesting witnesses to prove due execution of the Will, as required under Section 68 of the Indian Evidence Act and the mere fact that the Will is a registered document does not, by itself, dispense with the statutory requirement of proof or confer validity upon the Will. Arguments of Mr. G. Prabhu Rajadurai, learned counsel for the Respondents 2 and 3:

Per contra, Mr. G. Prabhu Rajadurai, learned counsel for the respondents 2 and 3 in second appeal/cross appellants would firstly invite my attention to the application filed in CMP (MD) No.7705 of 2026, seeking to examine one of the attesting witness to the Will of the father, the first defendant dated 06.12.2000, bequeathing the Schedule B properties absolutely to the sons, viz., defendants 2 and 3. In this context, he would state that though the partition suit was partly decreed by the First Appellate Court, a cross objection has been filed. The learned counsel would further state that the First Appellate Court clearly erred in granting a decree allotting entire items 3 and 4 of Schedule A property to the plaintiffs. The learned counsel would pray for the said miscellaneous application being ordered. On merits, the learned counsel contended that the Courts below have rightly discarded the evidence of the doctor P.W 2, who admittedly did not treat the testatrix. He would further state that though one of the attesting witnesses was not alive, and other witness was in jail and therefore he could not be examined. The learned counsel therefore contends there is no infirmity or irregularity committed by the Courts below in going by the evidence of the scribe in such peculiar circumstances. He would therefore pray for the second appeal to be dismissed and the cross appeal to be allowed.

Mr. G. Prabhu Rajadurai, contends that the father himself had filed a written statement expressing anguish over the conduct of his daughter, the plaintiffs and had clearly indicated at paragraph No.8 of the written statement that he had already made arrangements with regard to his properties, to come into effect after his lifetime and that the plaintiffs did not have any right in the suit properties. It is therefore the submission of Mr. G. Prabhu Rajadurai that the testator himself had filed a written statement as the first defendant in the suit, clearly indicated that he was unhappy with his daughters, the plaintiffs and therefore, the Court is not in error in holding that the Will executed by the father, though not proved by the examination of the attesting witnesses, was true and genuine. In this regard, Mr. G. Prabhu Rajadurai, has relied on the Division Bench of this Court, of which I was a member, in Boomathi (died) & Ors v Murugesan (died) & Ors, reported in (2023) 2 LW 162.

It is also the submission of Mr. G. Prabhu Rajadurai that in CMP (MD) No.7705 of 2026 has been filed seeking permission to examine one of the attesting witnesses to the Will in order to ensure complete justice between the parties. He would contend that the attesting witness to the Will of the father has to be necessarily examined, especially, when the father died pending the suit and no issue was also framed with regard to the truth and genuineness of the father's Will. He would also state that there was no occasion for the respondents 2 and 3, who examined the attesting witnesses, since both the Trial Court as well as the First Appellate Court had accepted the truth and genuineness of the father's Will.

As regards the item Nos.3 and 4 in Schedule A and B allotted admittedly to the plaintiffs, the learned counsel, Mr. G. Prabhu Rajadurai, would state that the First Appellate Court has clearly fell in error in declaring the entirety of item Nos.3 and 4 property, when admittedly, for the Will, defendants 2 and 3, being the sons of the testator, would also have been entitled to 1/4th share each in the said items of the suit properties.

I have carefully considered the submissions advanced by the learned counsel for the parties. Analysis:

It is not in dispute that the mother executed a registered Will in 1996 under which all her children were given benefit. However, insofar as the properties standing in her name and not part of the said Will, the suit for partition came to be filed. The suit was resisted by the husband of the deceased, testatrix and the sons contending that Marimuthu, the wife of the first defendant and the mother of the defendants 2 and 3 and the plaintiffs, had executed a second Will on 23.11.2000, in and by which items 1 and 2 of Schedule A had been bequeathed to the sons. Further, a Will executed by the first defendant, marked as Ex.B9 dated 06.12.2008 is also relied upon by the sons, who contend that the father had executed his last Will, bequeathing his properties to them. It is also an admitted case of the parties that some of the items had been sold by the father and sons and purchased by defendants 4 and 5. The purchasers only contended that they are bonafide purchasers for value and their title is intact and the plaintiffs do not have any right in any of the suit items.

Though the Trial Court dismissed the suit in respect of all the suit items, the First Appellate Court, on re-appreciation of facts, while confirming the Wills executed by both the father and mother, which were marked as Ex.B8 and Ex.B9, partly allowed the appeal in favour of the plaintiffsand allotted entire items of 3 and 4 of Schedule A property to the plaintiffs, dismissing the appeal in so far as item Nos.1 and 2 of Schedule A property as well as the Schedule B and C property. In respect of item Nos.3 and 4 of the Schedule A property, being allotted to the plaintiffs, the cross objection has been filed.

Now, coming to the Will of the father, the father himself was a party to the lis as the first defendant in the suit before the Trial Court. He had filed a detailed written statement along with his two sons, defendants 2 and 3. In his written statement, as pointed out by Mr. G. Prabhu Rajadurai, learned counsel for the petitioners, no doubt there is an indication at Para 8 of the written statement that the first defendant has made some arrangements, to come into effect after his lifetime. It is in this context that Mr. G. Prabhu Rajaduari strongly relied on the decision in Boomathi (died) & Ors v Murugesan (died) & Ors, reported in (2023) 2 L.W 162 and also my judgment in S.A. No.607 and 608 of 2017 [Periyathal (died) v. Vadivel] dated 30.04.2026, where I had an occasion to remit the matter for the purpose of proving the Will.

Coming to the facts on hand, before applying the law, though the father had filed a written statement, he had not indicated even the date of the Will, leave alone there being any specific reference to execution of Ex. B9 Will. There is also no specific reference to any date on which the 1st defendant had made any such arrangements. The written statement does not even spell out that under the said arrangement the first defendant has not given any benefit to his daughters, the plaintiffs. Therefore, on these facts, I am unable to see how the ratio laid down in Boomathi's case can apply to the facts of the present case.

In Boomathi's case, the testator himself, relying on the Willhe had executed, had filed a civil suit where there was not only specific reference to the said Will, but the Will had also been filed along with the plaint, as one of the suit documents. In such circumstances, we had proceeded to apply Section 17 of the Indian Evidence Act and held that an admission of the testator himself would be sufficient proof of execution of the Will. In fact, we had elaborately discussed the effect of such an admission vis-à-vis, specific denial and non-specific denial. For instance, where a Will is specifically denied and even where, not specifically denied, then certainly the Will would require proof as contemplated under Section 68 of the Indian Evidence Act read with Section 63(c) of the Indian Succession Act. We also took note of the fact that Section 68 of the Indian Evidence Act does not require proof of admitted documents and also referring to Section 17 of the Indian Evidence Act, dealing with admissions and the order in which Sections have been placed in the Evidence Act under various Chapters, we held that once the Will has been specifically admitted, thenit qualifies to be applied as an admission under Sections 17 and 58 of the Indian Evidence Act, and no further proof would be required and consequently there would be no necessity to fall back on Section 68 of the Indian Evidence Act, requiring proof of the document.

Insofar as the reliance placed on by Mr. V. Raghavachari, on the decisions of the Hon'ble Supreme Court in Rajeev Gupta V. Prashant Garg, reported in 2025(3)CTC730 andMeena Pradhan’s case and Ramesh Chand’s case, no doubt the Apex Court held that even if the Will was not seriously disputed or denied, then the Will would have to be necessarilyproved by, examining one of the attesting witnesses. There is no quarrel with regard to the said legal position. When execution of the Will has been specially denied or even not specially denied, then there can be no second opinion that the mandate of Sec 68 of the Indian Evidence Act read with Sec 63(c) of the Indian Succession Act would have to be complied with. However, such requirement would be unnecessary where the execution of a Will has been admitted, which would attract Sections 17 and 58 of Indian Evidence Act straight way. The judgements of the Hon’ble Supreme Court will have to be read in the context in which they were rendered. In all these cases the Apex Court held that even if the will was not specifically denied,even then it would have to be proved as required under Section 68 of the Indian Evidence Act read with Sec 63(c) of the Indian Succession Act. These case before the Hon’ble Supreme Court were cases where the execution of the Will had not been admitted. A distinction therefore has to be necessarily drawn in cases where execution of the Will is admitted. In such cases there is no triable issue arising with regard to proof of due execution of Will requiring the propounder to comply with the mandate of Sec 68 of the Indian Evidence Act read with Sec 63(c) of the Indian Succession Act. In all cases where the execution of the Will has been admitted by the contesting party, then there is no reason to insist upon the proof of Will by complying with the above provision of law. As held in Boomathi’s case, Section 68, is not without a specific reason, placed after Section 58 of the Indian Evidence Act. Therefore, proof of a Will in terms of Section 68 will become necessary only when it does not satisfy the test of sec 58 of the Indian Evidence Act. In any event, as I have already held that the said decision in Boomathi's case will not apply to the facts of the present case, therefore, the respondents 2 and 3 have to be necessarily non suited for non-examining at least one of the attesting witnesses.

As already discussed, in the facts of the present case, there is not even any reference to even a Will, leave alone Ex. B9 Will executed by the first defendants in his written statement. In such circumstances, merely because, 1st defendant’s, written statement states that the first defendant has made arrangements to come into effect, after his lifetime, this certainly cannot qualify to be an admission, in order to take benefit of Section 58 of the Indian Evidence Act. I am unable to countenance the arguments of Mr. G. Prabhu Rajadurai, in this regard. Admittedly, the attesting witnesses have not been examined. No doubt, an issue has not been framed with regard to the truth and genuineness of the Will of the father. However, consciously the parties have referred to the said Will and let in evidence with regard to his Will also. Admittedly the defendants 2 and 3 have not taken any steps to prove the execution and attestation of the Will and only before this Court, they have taken out an application in CMP(MD)No.7705 of 2026, for examining the attesting witnesses to the father's Will. Though Mr. G. Prabu Rajadurai would contend that there was no occasion for the defendants 2 and 3 to examine the attesting witness, since the Trial Court as well as the First Appellate Court had held the Will to be proved, I am unable to countenance the said argument for the simple reason that it is during trial that the propounder has to prove the Will. Merely because the Trial Court had arrived at erroneous findings, ignoring settled principles of law, it cannot clothe the propounder with a right to seek examination of the attesting witness before the Second Appellate Court. Hence, I do not see any merit in the argument, when admittedly in respect of the father's Will, both the witnesses have not been examined. The only conclusion, therefore, that can be drawn is that the Will has not been proved as required under law and the Trial Court as well as the First Appellate Court have clearly fell in error, in giving undue weightage to the general averments in the written statement, without specific reference to the Will executed by the father in Ex.B9.

Coming to CMP (MD)No.7705 of 2026, pending the second appeal, the appellants want to examine the attesting witness to Ex. B9 Will dated 06.12.2000, which was executed by their father. The said Will of the father has been exhibited even during trial of the suit. No attempt was made by the defendants to prove the said Will by examining one of the attesting witnesses. In the second appeal, therefore, an attempt cannot be made for filling up the lacuna and patch up the weakness in the case of the defendants. The mandate of Order XLI Rule 27 CPC has not been made out in the present case and hence, I am not inclined to allow the petition. Accordingly, CMP(MD)No.7705 of 2026 is dismissed.

Now, the only question that survives for consideration is as to whether Exs.B8 and B9 have been duly proved in the manner known to law. Insofar as the Will of the father, first defendant admittedly none of attesting witnesses have been examined, even though the Will has been marked as Ex. B9.I have already discussed herein above as to the defendants attempt to fill up the lacuna, by attempting to examine the attesting witness at this stage. In such circumstances, in the absence of any proof whatsoever and both the attesting witnesses also not being examined, the Courts below were clearly in error in upholding Ex.B9Will, contrary, to the well settled principles enunciated by the Hon'ble Supreme Court as well as this Court in matters pertaining to proof of Wills, under Section 68 of the Indian Evidence Act, read with Section 63(c) of the Indian Succession Act.In such view of the matter, the findings of the court below in upholding Ex B9 Will are clearly unsustainable in the eye of law and liable to be overturned in second appeal, in exercise of powers conferred upon me under Sec 100 of CPC, especially when I have already pointed out not only the perversity in the findings arrived at by the courts below and in also view of settled dictum of the Supreme Court as well as this court not being followed.

Coming to the Will of the mother, the Courts below have accepted the evidence of the scribe, who was examined as D.W.2. The Courts have also recorded the fact that steps were taken to examine the attestors and that summons sent to one of the attesting witnesses returned with an endorsement, “dead” and to the other witnesses, with an endorsement “he is in Central Prison, Palayamkottai”. Merely because one of the attesting witnesses was serving sentence in Central Prison, it does not in any manner impede the examination of the Witness. No steps have been taken by the propounder to record the examination of the attesting witness, who was admittedly alive and in prison. Instead, the scribe D.W.2 has alone been examined.

Insofar as the evidence of Doctor P.W.2, though Mr. V. Raghavachari, learned Senior Counsel would vehemently contend that the evidence of P.W.2 clearly established that the testator was not of sound disposing mind and relied upon the medical certificate issued by the hospital in which he was serving, he has clearly spoken about that testatrix suffering from cancer and such a patient cannot take independent decisions. As rightly contended by Mr. G. Prabhu Rajadurai, the evidence of P.W.2 is nothing more than his personal opinion. Admittedly, Marimuthu was suffering from cancer, and P.W.2 himself deposed that Marimuthu's mental faculties were intact. Therefore, his testimony does not establish that the testator lacked a sound disposing state of mind as well and therefore, he would contend that no error was committed by the Courts below, in rejecting the evidence of P.W.2- Doctor.

Be that as it may, I do not find the evidence of the Doctor- P.W. 2 adding any value. Firstly, P.W.2 did not treat Marimuthu and secondly, his evidence in chief examination appears to be more of his perceptions and in the nature general observations and not with specific reference to the deceased Marimuthu. In such circumstances, the Courts below, in my considered opinion, did not commit any error in disbelieving the evidence of P.W.2. At the same time, merely because I am discrediting the evidence of P.W 2 the doctor it does not automatically absolve the propounder or discharge him from the onus of proving due execution and attestation of the Will of the mother.

However, the mere fact the evidence of P.W 2 doctor has been discredited does not automatically merit acceptance of due proof of execution and attestation of the Will of the mother. No doubt as pointed out by Mr. G. Prabhu Rajadurai, the learned counsel for respondents 2 and 3, there is an indication that the 1st defendant was unhappy with the plaintiffs, his daughters. There is also reference in paragraph No.8, his father has made some arrangements for property to be taken after his lifetime.

Mr. G. Prabhu Rajadurai the learned counsel for the respondents 2 and 3, namely the sons, would firstly contend that the second Will of the mother has been proved by examination of the D.W.2 the scribe, and the non examination of attesting witnesses is not fatal. He would further contend that said Will is a registered instrument and further the propounder has satisfactorily established that he was not in position to examine the both the attesting witnesses to the second Will of the mother. It is in this regard, he takes me through the discussion before the courts below with regard to steps taken to summon both the attesting witnesses to give evidence regarding the Will. Mr. G. Prabhu Rajadurai would therefore contend that the propounder did what best he could do and admittedly when it is not in dispute that one attesting witness had already passed away and other attesting witness was in prison, serving sentence in a criminal case, the propounder cannot be faultedfor not examining both the attesting witnesses. It is therefore his contention that in such circumstances the evidence of scribe examined as D.W 2 becomes relevant and was rightly factored by both the courts below.

Mr. G. Prabhu Rajadurai the learned counsel would also take me through the evidence of D.W.2, who had spoken about the fact that he had prepared the Will, and on the same day the Will was also read over and thereafter signed it. It is therefore the argument of the counsel that the scribe was in fact, an attesting witness and the evidence has been rightly relied upon by the Courts below, in this regard, the learned counsel would rely upon a decision inKarpagam v. E. Purushothaman, reported in (2010)3LW282.

Even with respect to the mother’s Will, the very same discussion would equally apply with regard to the requirement of examination of at least one of the attesting witnesses would equally apply to the mother’s Will as well. However, it is the contention of Mr. G. Prabhu Rajadurai, that the scribe in this case clearly spoke about would the execution of the Wills and also the factum of mother having executed a Settlement Deed on the same date, which has also not been challenged. He would therefore contend that when the defendants had pleaded that the documents were brought about by undue influence, fraud and coercion, the execution of the Will of the mother has been admitted bythe plaintiffs themselves and in such circumstances, the scribe's evidence, who had clearly spoken about the mother/Marimuthu having signed the document would be sufficient to establish due execution and attestation and his evidence would satisfy the requirement of proof of due execution of attestation of Ex.B8 Will. It is also his submission that the mother and father had consciously taken a joint decision not to give any properties to the daughters, in view of their conduct and the father himself had actively participated in the execution of the Will of his wife Late. Marimuthu.He would therefore state that the said decision arrived at by Marimuthu was only in consultation and on advice of her husband / first defendant and it would not amount to undue influence or coercion and in fact it is his further argument that such exercise of influence as long as it is not undue is certainly permissible in law. It is also his further contention that the father himself had clearly spoken about the execution of the second Will by the mother in Ex. B8 and also about his participation in bringing about the Ex. B8 Will. It is therefore the submission of Mr. G. Prabhu Rajadurai that on an overall assessment of the facts and circumstances of the present case, the evidence of the scribe can be taken as a substitute for evidence of an attesting witness.

With regard to the arguments of Mr. G. Prabhu Rajadurai that the propounder had taken all necessary steps to require the attendance of attesting witness and when the court was aware of the return of the witness summons sent to the attesting witness who was lodged in Central Prison, Palayamkottai. Mr. G. Prabhu Rajadurai contents that it is duty of the court to have redirected the summons to the Prison and it is was not the duty of the respondents 2 and 3. In this context, he also relied on the judgment of this Court in Karpagam v. E.Purushothaman, reported in (2010) 3 LW 282. In the said decision, this Court has referred to imprisonment of a witness as one of the illustrative circumstances to bring it within the category of “attesting witness cannot be found”. However, I do not see this as a binding precedent. In fact, Order XVI-A has been specifically incorporated by way of amendment through the Code of Civil Procedure. The said order deals with attendance of witness confined or detained in prisons. Rules 6 and 7 of Order XVI-A specifically provide for the manner in which a prisoner can be brought to court and also be examined on commission in the prison itself. The respondents 2 and 3 have not taken recourse to this specific provision available, for which they can only blame themselves and not the court. As regards, the judgement of this court in Karpagam’s case, the view expressed in the said decision appears to be a more general andfleeting observation by including a witness in prison within the category of “no attesting witness found”, especially without noticing Order XVI-A of CPC which specifically provides the procedure for examining a witness who is in Prison. Therefore, I am unable to accept to the contention that illustrative instances carved out in Karpagam's case are applicable to the facts of the present case.

Mr. G. Prabhu Rajadurai would also rely upon my decision in Periyathal (died) v. Vadivel in SA. Nos. 607 and 608 of 2017. However, that was a case where even before the First Appellate Court, the matter had been remitted to the Trial Court for the purpose of examination of the attesting witnesses, to prove the testamentary instrument. It is not a matter of right for a propounder to seek for examination of attesting witnesses, having lost an opportunity earlier. Therefore, I am unable to apply the ratio in Periyathal’s case to the facts of the present case.

This now leads as to whether the evidence of the scribe can be treated as evidence of an attesting witness. The scribe, in his chief examination has stated that he has prepared all documents, viz., Ex. B6, 7 and 8. Ex. B6, being the first Will, which is admitted by both the parties, Ex. B7, Settlement Deed in which the mother settled the property and Ex. B8 being the second Will of the mother. In his chief examination, he has merely stated that he prepared the document; I don’t find any further evidence regarding its execution, “gj;jpuq;fisgbj;Jg; ghh;j;Jrhpjhd; vdifnaOj;JNghl;lhh;fs;.”. Therefore, D.W.2 does not state that he saw the testatrix signing the Will or that the Will was signed in his presence and in the presence of two witnesses. Even the further requirement, that the two witnesses had signed in the presence of the testatrix has not been stated. Therefore, there is absolutely animo attestandi in the present case, to treat the evidence of the scribe as the evidence of attesting witnesses. Unfortunately, the Courts below have misdirected themselves, in upholding the Ex. B8 Will, even in the absence of one of the attesting witnesses being examined, erroneously treating the evidence of the scribe, as the evidence of an attesting witness. As already discussed hereinabove, in a catena of decisions, the Hon'ble Supreme Court, time and again, has reiterated that a scribe cannot take the place and role of an attesting witness, unless there is strong evidence to establish that the scribe signed the Will animo attestandi and he in fact put his signature in the Will even as an attesting witness. I do not see any such evidence in the present case, warranting the evidence of this scribe to be treated as the evidence in the attesting witness.

For various reasons discussed hereinabove, the Wills dated 23.11.2000 and 06.12.2000 having not been proved in a manner known to law, with none of the attesting witness being examined, there is a clear failure to establish due compliance with the requirements of Section63(c) of the Indian Succession Act read with Section 68 of the Indian Evidence Act. The Courts below erroneously fell in error upholding the said Will, in the absence of due proof of execution and attestation of Ex. B8 and Ex. B9. Thus, the Courts below have committed a grave error in upholding the Will of the mother, contrary to the well-settled legal principle enunciated with regard to the proof of execution of attestation of the Wills.The substantial questions of law 1 and 2 are answered in favour of the appellants.

Though reliance is also placed on Ex. B24, which is said to have been signed by the parties, after the demise of the father, the first defendant, as rightly pointed out by the learned counsel for the appellant, all the Wills Ex. B7, B8, B9 as well as Ex. B24 were marked only subject to objection. Ex. B24 is an unregistered document having no evidentiary value. Though Mr. G. Prabhu Rajadurai, would state that the document can be looked into at least for the limited purposes that the parties were aware of the mother having executed two Wills, when the documents were marked subject to objection on the side of the plaintiffs and there also being absolutely no whisper about Ex. B24 in the pleadings, the documents have been introduced for the first time during chief examination of D.W.1, the courts below ought not to have looked into the same Ex. B24. It is settled law that no evidence can be adduced in the absence of pleadings.

In view of the above findings regarding both the Wills of the father and mother having not been proved, as a natural coronary, plaintiffs are entitled to partition. However, in respect of Schedule C properties, the mother Marimuthu even during her lifetime has executed a Settlement Deed. The plaintiffs have not challenged the Settlement Deed as well. Therefore, plaintiffs are not entitled to seek partition in respect of Schedule C property.

Insofar as C Schedule property, the mother being the sole surviving legal heir of her pre-deceased son Sivaraman, became entitled to the entire C Schedule property, in respect of which also Ex. B7 Settlement Deed has been executed. Thus, the plaintiffs are not entitled to relief of partition even in respect of C Schedule property. The Courts below have rightly dismissed the suit in so far as Schedule C properties and the said findings do not warrant interference in Second Appeal.

The First Appellate Court, while upholding Wills, dismissed the suit in so far as item 1 and 2 of Schedule A alone, while allotting items 3 and 4 of Schedule A in entirety to the plaintiffs. It is aggrieved by this that the Cross Objection has been filed.

I have already condoned the delay by a separate order in preferring the cross objection. The First Appellate Court clearly fell in error in declaring item Nos.3 and 4 of Schedule A property to be the absolute property of the plaintiffs, ignoring the fact that the sons namely respondent 2 and 3 are also legal heirs, entitled to an equal share in the said items. In view of the above, the cross objection will have to be necessarily allowed.

In fact, the plaintiffs, in and by their reply statement, to the written statement filed by the defendants 1 to 3, did not specifically deny the execution of Settlement Deed by the mother and had merely stated that the document was forged, fabricated and brought about by undue influence. When such pleas are taken, the burden is upon the plaintiffs to establish the documents were brought about by fraud, coercion, or undue influence. Further,the plaintiffs had also not chosen to amend the plaint by seeking necessary declaration regarding Ex. B7 Settlement Deed executed by the mother. In this regard, I am therefore unable to countenance the arguments of the counsel of the plaintiffs that since the execution of the documents have been denied and defendants have not chosen to examine at least one of the attesting witnesses to Ex. B7 Settlement Deed, Ex. B7 Settlement Deed, is not admissible in evidence. As already discussed hereinabove, the plaintiffs have not specifically denied the execution of Ex. B7 Settlement Deed and on the contrary by alleging in their reply statement that it was brought about by undue influence etc., it only implies that the document was in fact admittedly executed by the mother. In such circumstances, I am unable to accept the line of arguments that non examination of one of the attesting witnesses to Ex. B7 Settlement Deed is fatal and Ex. B7 Settlement Deed cannot be looked into.

In fine, the Second Appeal is partly allowed. The Cross Objection is also allowed. The plaintiffs, viz., the appellant and the first respondent and respondents 2 and 3 (defendants 2 and 3) are equally entitled to 1/4thshare in all items of Schedule A and B properties, while the dismissal of the suit in respect of Schedule C property concurrently by the Courts below stands confirmed. Considering the relationship between the parties, there shall be no order as to costs. CMP(MD)No. 7705 of 2026 is dismissed. CMP(MD)No.4416 of 2019 is closed. 17.07.2026