Mani, rep. by next Friend/Mother Ramayi Vs Ammakannu and Ponnusamy

@JUDGMENTTAG-ORDER

V. Dhanapalan, J.@mdashAggrieved by the judgment and decree dated 10.01.2006 passed by the Sub-Court, Kallakurichi in A.S. No. 31 of 2004 in reversing the judgment and decree dated 24.11.2003 passed by the Principal District Munsif Court in O.S. No. 535 of 2001 before, Kallakurichi, the plaintiff has preferred this appeal. The plaintiff''s case, in short, is that he inherited the suit property from his grand father, by name, Manickam who died on 21.02.2004, through a registered Will dated 01.06.1999; the Will came into force after his death; on his behalf, his mother Ramayee is in possession and enjoyment of the property till date without any hindrance; in the Will itself, Ramayee was given power to maintain the property in question; the suit property and other properties are self-acquired properties of Manickam; the first defendant is the wife of the deceased Seivaraj, who is none other than Manickam''s son; since the first defendant did not give due respect to her husband and her father-in-law, Manickam himself arranged marriage for his son Seivaraj with Ramayee Ammal and the plaintiff is born out of the said wedlock; Manickam has executed a Will in favour of the second defendant, Ponnusamy, who is his other son and the plaintiff''s mother by dividing the suit property into two parts; and the defendants are attempting to interfere with the peaceful possession and enjoyment of the suit property and hence, the suit for permanent injunction.

2. The defendants filed a written statement contending that it is for the plaintiff to prove the genuineness of the Will; on the date of the Will, Manickam was not in good health and consciousness and he was bed-ridden; at that time, Manickam''s grand daughter Ramayee Ammal created the forged Will; though Manickam was a permanent resident of Thimmalai Village, no person from the said village attested the Will and only persons from Veeracholapuram signed in the Will as attestors; the Will has been prepared at Veeracholapuram without the knowledge of anyone and it is invalid; Manickam has not executed the Will with full knowledge and he has no right to execute the Will in respect of the entire property. The defendants'' further case is that the family consisting of Manickam, Ponnusamy and Seivaraj has several ancestral properties; Ponnusamy has purchased the suit property as Family Manager from the income of the joint family properties; hence, the entire properties are joint family properties consisting of Manickam, Ponnusamy and Seivaraj; each one of them is entitled to 1/3 share in the joint family property; after the death of Selvaraj, his 1/3rd share devolved upon his wife Ammakannu, the first defendant; after the death of Manickam, his 1/3rd share devolved upon Ponnusamy and the first defendant equally, i.e., 1/6th share each; as such, Ammakannu is having half share in all the properties and Ponnusamy is having right over the remaining half share; Ramayee is not the second wife of Selvaraj because she was already married to one Kolanji, S/o. Samban of Thimmalai Village and no marriage took place between Selvaraj and Ramayee Ammal; moreover, minor Mani, the plaintiff herein is also not born to Selvaraj and Ramayee Ammal and hence, he has no right or title in the suit property; the plaintiff has never enjoyed any portion of the suit property; only defendants 1 and 2 are in possession and enjoyment of the suit properties; after 01.06.1999, Manickam sold some of the suit properties; since the Will dated 01.06.1999 was not executed by Manickam in a sound state of mind, he has no intention to bring the Will in force; hence he sold some properties found in the Will and as such, it cannot be construed as a valid one and the suit is liable to be dismissed.

3. The Trial Court, considering the facts and circumstances of the case and placing reliance on the deposition of D.Ws. 1 and 2, holding that the Ex. P.1, Will is a registered valid document, decreed the suit, thereby granting an order of permanent injunction to the minor plaintiff.

4. Aggrieved by the said judgment of the Trial Court, the defendants went on appeal before the Subordinate Judge, Kallakurichi and the Subordinate Judge, holding that

a. the deposition of D.Ws.1 and 2 is not sufficient to prove the genuineness of the Will;

b. the attestors to Ex.P.1, Will have not been brought to the box; and

c. the exhibits marked on the side of the plaintiff are either subsequent to the filing of the suit or at the time of filing of the suit and as such, credence cannot be attached to the same;

set aside the judgment of the Trial Court, thereby allowing the appeal and dismissing the suit. Calling in question the judgment of the lower appellate Court, the plaintiff has preferred the present Second Appeal.

5. This Court, on 11.08.2006, admitted this Second Appeal on the following substantial questions of law:

(i) Whether in law the Lower Appellate Court was right in holding that the Will Ex.A1 was not proved when the respondents had admitted to its genuineness and as admitted facts need not be proved vide AIR 1954 SC 355 and Section 18 of the Indian Evidence Act, 1872? and

(ii) Whether in law the Lower Appellate Court was not wrong in dismissing the suit when admittedly the second respondent had put the Will Ex.A1 into effect by taking possession of the properties bequeathed to him and that the appellant was also entitled to enjoy his bequests?

6. Heard Mrs. Hema Sampath, learned Senior Counsel for the appellant and Mr. P. Valliappan, learned counsel for the respondents.

7. As regards the genuineness of Ex.P.1, Will, the learned counsel for the appellant has contended that when the defendants themselves have admitted its execution and that its testator also was in a sound state of mind till his death and when the second defendant also is in enjoyment of his share of property by virtue of the same, the lower appellate Court ought not to have held that it is not a genuine one stating that it was created by the plaintiff for the purpose of the case. It is also her contention that even if it is assumed that the plaintiff''s mother is not the legally wedded wife of the deceased Selvaraj, the plaintiff would still be entitled to the suit property on the strength of Ex.P.1, Will, the execution of which is admitted by the defendants.

8. In support of her contentions, learned Senior Counsel for the appellant has relied on the following judgments:

(i) Bishwanath Prasad and Others Vs. Dwarka Prasad and Others,

"There is no merit even in the contention that because these three statements - Exs. G, G-2 and H - had not been put to the first plaintiff when he was in the witness box or to the eighth defendant although he had discreetly kept away from giving evidence, they cannot be used against him. Counsel drew our attention to Section 145 of the Indian Evidence Act. There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case an admission by a party is substantive evidence if it fulfills the requirements of Section 21 of the Evidence Act; in the latter case a prior statement is used to discredit the credibility of me witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore: in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by Section 145 of the Evidence Act. This distinction has been clearly brought out in the ruling in Bharat Singh case. This Court disposed of a similar argument with the following observations:

"Admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in me witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness u/s 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence."

(ii) B.L. Sreedhar and Others Vs. K.M. Munireddy (Dead) and Others,

"Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. An estoppel which enables a party as against another party to claim a right of property which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority.

Estoppel, then, may itself be the foundation of a right as against the person estopped, and indeed, if it were not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Where rights are involved estoppel may with equal justification be described both as a rule or evidence and as a rule creating or defeating rights. It would be useful to refer in this connection to the case of Depuru Veeraraghava Reddi Vs. Depuru Kamalamma and Another, where Vishwanatha Sastri, J. Observed:

"An estoppel though a branch of the law of evidence is also capable of being viewed as a substantive rule of law in so far as it helps to create or defeat rights which would not exist and be taken away but for that doctrine."

Of course, an estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it."

(iii) 2004 (3) L.W. 143, Rome Gowda (D) by L.Rs. vs. M. Varadappa Naidu (D) by L.Rs. and another - (para 10)

"The "settled possession" must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase "settled possession" does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The Court laid down the following tests which may be adopted as a working rule for determining the attributes of "settled possession":

(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;

(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;

(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and

(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession.

(iv) Divisional Manager, United India Insurance Co. Ltd. and Another Vs. Samir Chandra Chaudhary,

"11. ...Admission is the best piece of evidence against the persons making admission. As was observed by this court in Avadh Kishore Das Vs. Ram Gopal and Others, in the backdrop of Section 31 of Indian Evidence Act, 1872 (in short the ''Evidence Act'') it is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong; but they do raise an estoppel and shift the burden of proof placing it on the person making the admission on his representative-in-interest. Unless shown or explained to be wrong, they are an efficacious proof of the facts admitted. As observed by Phipson in his Law of Evidence (1963 Edition, para 678) as the weight of an admission depends on the circumstances under which it was made, these circumstances may always be proved to impeach or enhance its credibility. The effect of admission is that it shifts the onus of a person on the person admitting the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so, and until the presumption is rebutted, the fact admitted must be taken to be established. An admission is the best evidence that an opposing party can rely upon, and though not conclusive is decisive of the matter, unless successfully withdrawn or proved erroneous...."

(v) AIR 2005 Karnataka 136, B. Manjunath Prabhu (D) by L.Rs. vs. C.G. Srinivas and others - (paras 12 to 14)

"...The plaintiff in his evidence has stated that his elder brother C.G. Rama Rao came to the house and was living with them after the death of his father and left the house only in the year 1972. Further, admittedly, C.G. Rama Rao died on 25th August, 1977. In the plaint he stated that he noticed the Will Exhibit PI6 in the locker of his father. In this connection, it is useful to extract the statement made in the plaint which reads as hereunder:

"...the plaintiff was able to find the original Registered Will dated 20th April, 1970, in a old locker of Sri C.G. Sastry kept in the upstairs. The plaintiff was searching for some documents and accidentally came across the Registered Will and after going through the contents of the document, the plaintiff received a shock of his life that his eldest brother, viz., the deceased first defendant had cheated him."

However, in his deposition he has stated that he came across the Will Exhibit P16 in the chest of the Godrej bureau of his mother. The same reads as hereunder:

"In the month of June or July, 1982,1 came to know about the execution of the Will by my father as per Ex.P16 for the first time. I was searching for my personal document, I was searching for my said document thinking that they may be in the Godrej Bureau "Chest" of my mother, at that time accidentally I came across a file in which Ex.P16 was filed."

Therefore, it is clear that there is contradiction in the pleadings and in the evidence with regard to the manner in which he traced the Will Exhibit P16. This contradiction to our mind, appears to have taken place on account of total falsity of the case put forward by him. It is impossible to believe that for a long period of eleven years, when the Will and other records were kept in the locker, the plaintiff, who was in the house, would not have noticed the existence of the Will in the locker either of his mother or father as claimed by him. Would he have not searched for his personal documents earlier? How did his personal documents get mixed up with the Will? For all these and many other question the plaintiff cannot have any satisfactory and acceptable explanation. The very assertion made by the plaintiff that he for the first time noticed the Will Exhibit P16 in the year 1982 is itself sufficient to disbelieve his version that he had no knowledge of the said Will at any time earlier. He has admitted in his evidence that he has accepted the Will Exhibit Dl and it is only after he came to know of the Will Exhibit P16 in July, 1982, he started suspecting the genuineness of the Will Exhibit D1. The plaintiff did not call in question the correctness of Will Exhibit Dl during the life time of his brother C.G. Rama Rao. As noticed by us earlier, admittedly, he has accepted the Will Exhibit Dl. He has acted upon the said Will, constituted a partnership firm along with his brother, mother and sister by means of Exhibit D11 dated 15th April, 1971 and was a party to Deed of Dissolution of partnership Exhibit D12 dated 11th May, 1972 and collected a sum of Rs. 3.82 lakh as his share in the partnership business; was a silent spectator for the development of the property by investment of huge money by the fifth defendant, by his conduct he held out to the entire world including the 5th and 6th defendants that he has accepted the Will Exhibit Dl, and he had not acquired any right on the property in question as a legatee under Will Exhibit P16. The evidence of P.W.1 clearly shows that he doubted the genuineness of Will Exhibit Dl for the first time when he saw the Will Exhibit P16 in the month of July, 1982. In this connection it is useful to refer to his evidence, which reads as hereunder:

"When I saw Exhibit P16 (first Will) in the month of July, 1982,1 doubted the genuineness of Exhibit D-1 (second Will)."

This statement of P.W. 1 clearly shows that he has accepted the Will Exhibit Dl to be a genuine will, but he doubts its genuineness only after he came to know about the existence of the Will Exhibit P16. In our view, the genuineness of the second Will Exhibit Dl cannot be doubted only on account of the existence of the first Will. Further, P.W.1 clearly shows that he has accepted the Will Exhibit Dl to be a genuine will, but he doubts its genuineness only after he came to know about the existence of the Will Exhibit P16. In our view, the genuineness of the second Will Exhibit Dl cannot be doubted only on account of the existence of the first Will. Further, P.W. 1 has also admitted the signature of M.R. Krishnan in exhibit Will Exhibit Dl in his deposition...."

9. The learned counsel for the respondents, per contra, has contended that the plaintiff''s mother Ramayee Ammal is not the second wife of the deceased Selvaraj and that Manickam has not executed Ex.P.1, Will, bequeathing the suit property to the plaintiff. It is his further contention that the finding of the lower appellate Court that the non-examination of the witnesses to the Will is fatal to the case of the plaintiff, is perfect and is in accordance with Section 68 of the Indian Evidence Act. He has further argued that the plaintiff was never in possession of the suit property and it was only the defendants who were in possession of the suit property and as such, the plaintiff does not deserve the relief sought in the suit.

10. The learned counsel for the respondents has placed strong reliance on the following judgments in support of his contentions:

(i) Girja Datt Singh Vs. Gangotri Datt Singh,

"...One could not presume from the mere signature of Mahadeo Pershad and Nageshur appearing at the foot of the endorsement of registration that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. Section 68, Indian Evidence Act requires an stetting witness to be called as a witness to prove the due execution and attestation of the will. This provision should have been complied with in order that Mahadeo Pershad and Negeshur be treated as attesting witnesses. This line of argument therefore cannot help Gangotri.

(ii) AIR 1962 Madras 149, Alagi Alamelu Achi vs. Ponniah Mudaliar - (para 2)

"...The question in the present suit is not whether the first defendant has a subsisting title. Once the Lower Appellate Court found that the plaintiffs possession is wrongful, it immediately followed that such possession is not entitled to protection by an injunction, because such an order will be only assisting the plaintiffs in their wrongful possession. No court can by its own order help a party who is found to be in wrongful possession as against the lawful owner. The fact that if the lawful owner were to institute a suit, he might possibly fail on the ground that he was not in possession within 12 years of suit, could make no difference and that cannot, in my opinion, be a proper justification for the issue of an injunction virtually maintaining or advancing the wrongful act of the plaintiffs. I hold, therefore, that the lower appellate court went wrong in granting an injunction against the first defendant."

(iii) AIR 1990 Kerala 146, Paranru Radhakrishnan vs. Bharathan - (para 6)

"The moot point for decision is whether Ext. B1 Will can be considered for any collateral purpose when the defendant himself relies on the Will to prove his right on the property. Section 68 of the Evidence Act postulates that 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 examined to prove its execution, if there be an attesting witness alive, and subject to the process of die Court and capable of giving evidence. The proviso to Section 68 envisages that it shall not be necessary to call an attesting witness in proof of die execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act unless its execution by the person by whom it purports to have been executed is specifically denied. Thus, from a reading of Section 68, it is evident that a document which is required by law to be attested shall not be used as evidence until one of the attesting witnesses at least has been examined to prove its execution. The imperative and stringent wording of Section 68 makes it clear that it does not permit the use of a document which is required by law to be attested as evidence until it is proved strictly in accordance with me provisions of the section. From a reading of Section 68 and its proviso it is not possible to hold that the rigour of the section can be watered down to a case where a will which is required by law to be attested can be used in evidence for collateral purposes without strictly complying with the section."

(iv) 1990 (1) A.L.T. 17, Penumetcha Peddiraju alias Venkata Subbaraju, represented by Power of Attorney holder, Jampana Subbaraju vs. Penumetcha Viswanadha Raju and others - (para 5)

"In P. Suryanarayana vs. Achamma, this Court held that when this execution of the Will is admitted and when the attestors are dead, evidence of a person who is acquainted with the hand writing of an attestor can be sufficient proof, and there is no necessity of calling for the attestors in compliance with the provisions of Section 68 of the Evidence Act. It is true that the proviso to Section 68 has no application to the age of a will and the application of examining one witness in proof of the execution when the document is a will is a mandatory requirement of the section. It is also seen that the proviso speaks of specific denial in respect of other documents. However, it is seen if a party admits execution of the will u/s 58 of the Evidence Act, no proof is necessary. What is the effect of not examining the attestors in compliance with the provisions of Section 68 has been considered in that judgment. But when the parties have adduced evidence in support of their contention in proof of the Will and if that evidence has been found unacceptable, they cannot gain any strength from any of the rulings that because of the admission of the will they could not prove or produce any document to that effect."

(v) Purna Bai and others Vs. Ranchhoddas and others,

"During the course of cross-examination of P.W.2 the signature of Dwaraka Das on Ex.B1 was shown to him and he admitted it to be that of Dwaraka Das. The contention is that since the signature on Ex. B1 is admitted to be that of Dwaraka Das by P.W.2 himself, it has to be inferred that P.W.2 has also admitted the execution of Will Ex.B4, by Purandas. Therefore, according to the learned counsel, when once the execution is admitted by P.W.2, there is no need to prove the instrument, Ex.B4, since according to Section 58 of the Evidence Act admitted facts need not be proved.... There is absolutely no dispute with the proposition of law that no proof is required in the face of an admission. But the question is whether the admission of execution of a particular document extends to the execution of another document recited in the former document. Firstly in the case on hand there is no evidence except that of D.W. 1 to show that Ex. B1 was filed before the income tax Authorities in Madhya Pradesh. Even taking that it was so filed, still the admission of the signature on Ex. B1 by P.W.2 cannot be said to be extending even to Ex.B4, the Will referred to in Ex. B1. As already commented supra, the attestations to the Will Ex.B4 are not proved. In Girijadutt vs. Gangotri Putt, AIR 1955 SC 347, it is held that in order to prove due attestation of the Will the propounder of the Will has to be prove that the two witnesses saw the testator signing the Will and that they themselves signed the Will in the presence of the testator. Inasmuch as the attestation is not proved and that the admission cannot extend to the execution of the Will, the Court below has rightly exchewed the Ex.B4 Will from consideration."

(vi) J. Venkataraman and Another Vs. V. Mathibooshanam,

"There is one fallacy in this argument. In Ex.P1 which is a type-written document, there is a declaration that the testator signed in the presence of the testator. After the same was typed, that portion has been scored out entirely and we find that portion has also been signed by the executant of that document. We can only presume from this that the declaration that the executant as well as the attestors mutually saw each other affixing the signature was intentionally scored out and witness appearing in Ex.P1 might not have affixed the signature as sworn to by P.W.2. There is an explanation by P.W.2 for the same. According to him, it was the Sub Registrar who wanted the said portion to be scored out and he wanted the testator to sign in his presence, I cannot believe this statement, for a will is presented only after due execution which includes attestation also. There could not have been any necessity for the Sub-Registrar, while registering the document, to direct the testator to score out that portion of the document mentioned above. P.W.2 further states that at the time when he signed the document before the Sub Registrar, he signed the same only in his capacity as document writer and that he had no other intention in his mind. If that be so, there can be only one conclusion, i.e., that he never attested the will, nor had he any intention to attest the same."

(vii) AIR 2000 SC 3522 (1), Kannian and another vs. Sethurama - (para 2)

"2. The Will was an unregistered one. There were stated to be three attesting witnesses -two of them are dead and one was not produced. The trial Court did not rely upon the evidence of the scribe for the purpose of establishing the validity of the Will. The Lower Appellate Court merely stated, while reversing the decree, that the scribe had been examined to prove the will. How the scribe was examined, what was stated by him and whether that statement amounted to the scribe being regarded as an attesting witness was not held by the Lower Appellate Court. The High Court on the other hand dealt with the evidence of the scribe and then came to the conclusion that he could not be regarded as an attesting witness."

(viii) N. Kamalam (Dead) and Another Vs. Ayyasamy and Another,

"...Arunachalam has signed the document as a scribe not as a witness, if there were no signatures available as witness, probably we would have to specifically deal with such situation and consider that aspect of the matter but presently in the facts situation of the matter under consideration, we have the advantage of two attesting witnesses, none of whom have been examined and the factum of their non-availability also has not satisfactorily been proved. The evidence of one person namely Arunachalam, cannot displace the requirement of the statute when Arunachalam himself has specifically identified himself as Writer and not as a witness though in his evidence, he tried to improve the situation, but this improvement however, cannot be said to be accepted. The Will thus fails to have its full impact and its effect stands out to be non est."

(ix Gondrala Sithamahalakshmi and Another Vs. Pulipati Rajarao and Others,

"...Neither Section 68 nor Section 69 of the Evidence Act postulates the examination of scribe treating the scribe as attesting witness. The facts of the case are squarely covered by a decision of the Supreme Court in N. Kamalam (dead) and another vs. Ayyasamy. Their Lordships of the Supreme Court having not only taken note of legislative changes that took place with regard to the position of attesting witness but also having considered the case law held at paragraph 28:

"The statutory requirement as noticed above cannot thus be transposed in favour of the writer rather goes against the profounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the Court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to the proof of due attestation unless the situation is so expressed in the document itself - this is again however, not the situation existing presently in the matter under consideration."

(x) AIR 2005 Allahabad 199, Mohd. Yusuf vs. Board of Revenue, U.P. Allahabad and others - (para 8)

"...No doubt, a scribe can be said to be an attesting witness, provided the two attesting witnesses are dead or incapable to give evidence even after being summoned for giving evidence if the test laid down by the Apex Court is fully satisfied to the effect that the witnesses should have put his signature animo attestandi i.e. For the purpose of attesting and he has seen executant sign and has received from him a personal acknowledgement of his signatures at the time of registration. This clearly goes to prove that scribe in the present case does not satisfy the requirements laid down by the Apex Court and cannot be said to be an attesting witness."

11. While the plaintiff relies mainly on Ex.P.1, Will, to substantiate his case that the suit property is inherited by him, conversely, according to the defendants, the said exhibit was created by the plaintiff for the purpose of the case inasmuch as its testator was sound neither physically nor mentally. This stand of the defendants has been explicitly stated in their written statement.

12. The main point which emerges for consideration in this appeal is with regard to the genuineness of Ex.P.1, Will, the answer to which would guide this Court in deciding the substantial questions of law.

13. At this juncture, it is quite pertinent to note that both the defendants have uniformly deposed that the testator was enjoying a sound physical and mental health. In fact, D.W.2, the second son of the testator has gone to the extent of deposing that the testator stood on his own legs till his last breath and that he cannot be easily deceived by anyone. Admittedly, this aspect of the matter has been clearly taken note of by the Trial Court and the lower appellate Court as well. In this case, the peculiarity is that when the Trial Court has interpreted the oral evidence of the defendants as regards the execution of Ex.P.1, Will, in favour of the plaintiff, the lower appellate Court has taken a view that their deposition alone is not sufficient to come to the conclusion that Ex.P.1, Will, is genuine and had given the benefit of doubt to the defendants. While doing so, the reasoning given by the lower appellate Court is that since the testator of Ex.P.1, Will, sold a part of the property under Ex.D.2, Ex.P.1 loses its validity. This reasoning given by the lower appellate Court, in my opinion, needs a re-look for the reason that the genuineness of Ex.D.2 has not at all been discussed and examined. Even assuming but without conceding that Ex.D.2 is genuine, there is no clue as to why there is a significant and notable difference between the recitals in the defendants'' written statement and their oral evidence. Trite it is that the oral evidence and documentary evidence should go hand in hand and they cannot be contrary to each other. But, here is a case where the defendants, in their own written statement, while stating that the testator was in a sound physical and mental health, have quite contrarily deposed in their cross. Of course, it is a settled proposition of law that cross-examination is an unequal duel between a rustic and a refined person. However, as already stated, it is also to be noted that, the significant difference between the defendants'' written statement and their oral evidence only leave", this Court with no option but to arrive at a conclusion that the defendants are not clean-handed. Thus, I am of the considered opinion that the lower appellate Court has miserably failed to take cognizance of this important aspect of the matter while dismissing the suit.

14. Yet another reasoning given by the lower appellate Court in not giving credence to Ex.P.1, Will, is that none of the two attestors, though alive, has been brought into the box to speak about the execution of the said exhibit. Of course, Section 68 of the Indian Evidence Act contemplates that if a document is to be used as a piece of evidence, at least, one attesting witness has to be called to the box for the purpose of proving its execution. But, in the instant case, D.W.2 has categorically deposed that he is in possession of a portion of the suit property by virtue of Ex. P.1, Will. D.W.2, when he accepts his possession of a portion of the suit property by virtue of Ex. P.1, Will, is estopped from disputing the execution of the same exhibit as regards bequeathing of the suit property to the plaintiff. Thus, the reliance placed by the counsel for the respondents on a catena of decisions to the effect that as per Section 68 of the Evidence Act, at least one attestor to the document should have been examined cannot be made applicable to the case on hand for the reason that even in one of those judgments relied on by him in Penumetcha Peddiraju''s case (1990 (1) ALT 17), it has been candidly held that when the execution of the Will is admitted and when the attestors are dead, evidence of a person who is acquainted with the handwriting of an attestor can be sufficient proof, and there is no necessity of calling for the attestors in compliance with the provisions of Section 68 of the Evidence Act; if a party admits execution of a document, no proof is necessary and also in view of the fact that in the instant case, the execution of Ex.P.1, Will, has categorically been admitted by both the defendants themselves. In view of the above discussion, both the substantial questions of law have to be answered favouring the appellant/plaintiff and they are accordingly answered.

In fine, confirming the judgment and decree of the Trial Court, the judgment and decree of the lower appellate Court are set aside and consequently, the Second Appeal stands allowed. However, there is no order as to costs.