KAMALAKSITY Vs. MADHAVI AMMA

JUDGEMENT

(1.) THE defendants in a suit for redemption of Ext. P1 mortgage executed by one Govinda Pillai on 25-12-1102 in favour of one Krishna Pillai are the appellants. THE 1st defendant is a daughter of Govinda Pillai. After the death of Govinda Pillai, the 1st defendant and her children defendants 2 and 3, obtained Ext. D2 release of the mortgage on 17-7-1121 , and on the same day they executed Ext. D3 mortgage in favour of Kamalakshi Pillai in respect of one of the items included in Ext. D2. Ext. D3 was followed by a purakkadom Ext. D4 dated 25-7-1123 THE plaintiff's mother obtained the rights under Ext. D3 and D4, by assignment. THE plaintiff alleged that Govinda Pillai had executed Ext. P6 will bequeathing all his properties in favour of his son Sreedhar Pillai, and Sreedhar Pillai had, in bis turn, by Ext. P3 deed 18-12-1965 gifted the equity of redemption over the properties covered by Ext. P1 mortgage deed in favour of the plaintiff on the strength of which the suit for redemption was instituted against the defendants who are the assignees of the mortgagee under Ext. A mortgage deed. THE contention of the defendants was that the will and the gift relied on by the plaintiff are invalid, and they had not come into effect. THEre are other contentions like bar by adverse possession and limitation etc. , with which we are not directly concerned in this Second Appeal. THE trial court decreed the suit rejecting the contentions of the appellant-defendants; in appeal, the decree and judgment of the trial court have been confirmed

(2.) SRI. P. Sukumaran Nair, the Counsel for the appellants, mainly put forward two contentions: (1) Ex. P6 will was not proved in accordance with the provisions contained in S. 68 of the Evidence Act; and (2) there was no proof of acceptance of the gift evidenced by Ex. P3 during the life time of the donor Sreedhar Pillai S. 68 of the Indian Evidence Act reads 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 Registration act XVI of 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. " Clause (c) of S. 63 of the Indian Succession Act requires that 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 of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. It is clear that S. 68 is squarely attracted to the case; there is no case put forward that the proviso to the clause is attracted to the facts.

(3.) SRI. Sukumaran Nair contended that assuming, without admitting, that the execution of the will as such is not categorically denied by the defendants, even then though it was allowed to be marked as Ext. P6, in terms of S. 68 of the Evidence Act, it cannot be used as evidence until it is proved according to the provisions contained in that Section. In support of the contention he relied on the decision of the Supreme Court in Sait Tarajee Khemchand & Others v. Yelamarli Satyam &. Others (AIR 1971 SC 1865 ). He also relied on the decision of the Supreme Court in Venkatachala Iyengar v. B. N. Thimmajamma & Others (AIR. 1959 SC. 443 ).