Registration of a Will does not dispense with the mandatory requirement of proving execution through attesting witnesses.

The Plaintiff (Respondent 1), daughter of the second defendant through his first wife, filed a suit for partition of two items of property.

Item 1 was claimed as ancestral property allotted to her grandfather, Arumuga Gounder, in a 1952 partition deed.

The Plaintiff claimed an 1/8th share under the Hindu Succession Act (Amendment) Act 1 of 1990.

The Defendants (Appellants) contended that Item 1 was Arumuga Gounder’s self-acquired property, which he bequeathed to his grandson (the 5th Defendant) via a registered Will dated 20.02.1996.

They further argued Item 2 was the self-acquired property of the second defendant.

The Trial Court granted a preliminary decree for Item 1, finding it to be ancestral and the Will unproven, but dismissed the claim for Item 2.

Defendants 4 and 5 appealed the decree regarding Item 1.

Whether the Plaintiff established that Item I of the suit property was ancestral property, entitling her to seek partition?

Whether Arumuga Gounder had the right to execute a Will, whether the Will was proved as required by law, and what its legal effect was?

The Court applied Section 63(c) of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872, regarding the mandatory requirements for the attestation and proof of a Will.

It also relied on Section 29A of the Hindu Succession Act (as per the Tamil Nadu Amendment Act 1 of 1990) concerning the equal rights of daughters in coparcenary property.

Furthermore, it applied the principle from Neelavathi v. N. Natarajan regarding Section 37(2) of the Tamil Nadu Court Fee and Suit Valuation Act, 1955, establishing that a co-owner is presumed to be in constructive possession unless ouster is proved.

The Court observed that Item 1 was allotted to Arumuga Gounder in a 1952 partition amongst brothers and their mother, indicating its ancestral character.

Evidence showed that Arumuga Gounder subsequently executed mortgage deeds (Ex.A3 and Ex.A4) alongside his sons, demonstrating that he treated the property as joint family property rather than his absolute estate.

Regarding the Will (Ex.B1), the Court held that registration does not dispense with the requirement of proof under Section 68 of the Evidence Act.

The attesting witness (D.W.3) failed to testify that he saw the testator sign or that the testator saw him sign, which is a mandatory requirement under Section 63 of the Indian Succession Act.

On the issue of court fees, the Court rejected the Appellants' contention that the Plaintiff was out of possession, holding that as a co-owner, her constructive possession justified valuation under Section 37(2) of the Court Fees Act.

The alleged Will was declared invalid for failure to meet the statutory requirements of attestation and proof.

The High Court dismissed the appeal and upheld the Trial Court’s judgment.

The preliminary decree for partition of Item 1 was confirmed.

No costs were awarded.