UJJALABAI Vs. PUTHUKKUDY BHARATHAN

JUDGEMENT

(1.) The preliminary decree for partition is brought under challenge by the 3rd defendant mainly on two grounds that there is failure to appreciate the last testament, Ext.B1, left out by the testator, one Janaki by the trial court and secondly on the ground that the preliminary decree is not in accordance with the mandate under Sec. 15 of the Hindu Succession Act, 1956. The parties are Thiyyas among Hindus.

(2.) Regarding the genuineness and due execution of Ext.B1, one of the attesting witnesses was examined as DW2. Going by Ext.B1 Will, it is clear that there are three witnesses to the document and it was written in a diary signed by the testator.

(3.) DW2, one of the attesting witnesses was examined in proof of due execution of the Will. But going by Ext.B1, the alleged Will, it is clear that there is no attestation as mandated under Sec. 63(c) of Indian Succession Act, 1925. There is nothing in the document that the execution was effected in accordance with the mandate under Sec. 63(c) of the Indian Succession Act, which is extracted below for reference: "63(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." (emphasis supplied)