Madhavan Nair, J.
1. One Jakkarayya, an Indian Christian, died leaving some properties by a 'will'. In O.S. No. 457 of 1924 the plaintiff, one of his sons, instituted a suit for a part of the properties covered by the 'will'alleging amongst other things that the properties were owned by himself and by defendant 1, his brother, that their father had no right to the properties and that he cannot dispose of them by a will. Ha contended that defendants 2 to 7 trespassed upon the properties. Defendant 1 supported the case of the plaintiff. Defendant 7 in the suit is the son of a deceased daughter of Jakkarayya. Ha contended that the properties were the self-acquisition of Jakkarayya, that they were bequeathed by Jakkarayya under a 'will'to the plaintiff, defendant 1 and himself in equal shares and that the suit properties fell to his share under a partition. The plaintiff's contentions were rejected by the lower Courts and his suit was dismissed. No second appeal has been preferred against the appellate decree and we are not now concerned with the contentions raised by the parties in this litigation.
2. The present second appeal arises out of O.S. No. 513 of 1924 which was tried and disposed of along with O.S. No. 457 of 1924 referred to above. This suit was instituted by defendant 7 in O.S. No. 457 of 1924 for a partition of the rest of the properties of Jakkarayya which ha says ho got under the will but which were not divided at the previous partition referred to in O. S. No. 457 of 1924. His case is that he got a third share of the properties under the will, that most of the other properties were divided and that these properties were left undivided at the partition. Defendants 1 and 2 in the suit are the sons of Jakkarayya, defendant 1 being the plaintiff in O.S. No. 457 of 1924 and defendant 2, defendant 1 in the same suit. They and the other defendants amongst other things contended that the will left by Jakkarayya is 'not valid in law': (see para. 3 of the written statement of defendants 1 to 3). Issue 6 in the case which relates to the contentions regarding the will is:
Is the will alleged by plaintiff true valid and binding on the defendants?
3. The District Munsif holding that the will is genuine and that it was executed by Jakkarayya when he was in a sound disposing state of mind decreed the suit in favour of the plaintiff. His discussion of the question is found in para. 15 of his judgment which deals with issue 1 in the connected suit. In the appeal preferred against this decree, A.S. No. 48 of 1927, the learned District Judge held that the plaintiff had not proved that the will in question was executed by Jakkarayya and on this finding he set aside the decree of the lower Court and dismissed the plaintiff's suit. This second appeal has been filed by the plaintiff against the District Judge's decree.
4. Mr. Lakshmanna on behalf of the appellant contends that the learned District Judge was wrong in disposing of the case on the ground that there is no proof that the 'will'was duly executed, inasmuch as that plea was not raised in the pleadings or in the issues. The defendants' contention being only that the 'will'was invalid as the executant was not in a sound disposing state of mind when he executed it. He also contends that, if the District Judge thought that proof of the execution of the 'will'was necessary, then he should have framed an issue on that point and remitted the case to the lower Court for fresh evidence.
5. The will is Ex. land is dated 10th April 1907. It bears the mark of Jakkarayya, he being a marksman. There are three attestors to the will. The first attestor is Samuel, defendant 1 in the connected suit and, as already pointed out, one of the sons of the deceased Jakkarayya. The 'will'was written by one Ammiraju now dead and it was registered on the very day it was executed. Evidence regarding the execution of the will is given by the plaintiff who was examined as D.W. 1 in the connected case. He states thus:
Jakkarayya executed a will...signature 'Samuel'is defendant 1's.... The attestors Ellore Ranganayakulu and Talloori Stephen went abroad. Their whereabouts are not known.
6. The District Judge says that the witness at the time of the execution of the will being only 10 or 15 years old:
his statement that Jakkarayya executed the will can at best be only hearsay evidence and cannot be taken as proof that he saw Jakkarayya execute the will.
7. P.W. 6 was examined to prove the signature of one of the attestors and the son of the writer of the documents speaks to his handwriting. This is all the evidence that has been brought to my notice regarding the execution of the 'will.'I shall first consider whether on this evidence it can be held that the plaintiff has proved that the 'will'was executed; and then deal with the question whether the District Judge was right in disposing of the case on this point without framing a fresh issue whether the will is proved to have been executed by the deceased Jakkarayya.
8. The deceased Jakkarayya being a Christian is governed by the Succession Act. Section 63 of the Act, which deals with the execution of wills, enumerates certain rules which the testator has to follow in executing a 'will.'Rule (c) says that a will shall be attested by two or more witnesses, each of whom should see that the testator signs or affixes his mark to the will, etc. Section 68, Evidence Act states 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 called for the purpose of proving such execution if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.
9. From these provisions it follows that the 'will'of Jakkarayya is a document required by law to be attested and if there is at least one witness alive, subject to the process of Court and capable of giving evidence it shall not be used as evidence until he has been called to prove its execution. Section 71, Evidence Act enacts that
if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
10. In this case though the whereabouts of two attesting witnesses are unknown it is admitted that one of the attesting witnesses is alive and is capable of giving evidence. This witness is defendant I in O.S. No. 457 of 1924. He has not been examined as a witness in the case, and so, even if the plaintiff saw Jakkarayya executing the 'will 'it cannot be said that the execution of the will has been proved unless the available attesting witness has been examined to prove its execution. Mr. Lakshmanna states that admittedly his interests are opposed to the interests of the plaintiff and that being so, no useful purpose will be served by calling him as a witness and that 'the plaintiff is not therefore bound to examine him in the case. This very argument was put forward in Dhira Singh v. Moti Lal  63 I.C.266, and overruled by the learned Judges of the Patna High Court. In that case the appeal arose out of a suit upon a mortgage bond, which is a document required by law to be attested. There were four attesting witnesses one of whom was alive. He was not summoned nor examined by the plaintiff. Dealing with the argument that he was a hostile witness and could not be examined the learned Judges say that
the fact that when called he will prove hostile does not excuse the party producing the document from this duty. The learned Subordinate Judge was therefore wrong in thinking that it was not necessary to call defendant 2.
11. To the same effect is the decision in Gobinda Chandra Pal v. Pulin Behary : AIR1927Cal102 which also deals with a mortgage bond: see also Karimullah v. Gudar Koer : AIR1925All56 . These decisions show shat the provisions of Section 68, Evidence Act are mandatory and that the plea of the appellant that defendant 1, if called, will prove hostile to him will not relieve him from the duty of examining him as a witness. No doubt the plaintiff in his evidence speaks to the signature of the attesting witness, defendant 1 but that is not in law sufficient to prove that he has attested the document. So also the evidence of P. W. 6 who speaks to the handwriting of another attestor does not amount to proof of the execution of the will. Mr. Lakshmanna has drawn my attention to a decision in Ponnuswami v, Kalyana Sundara: : AIR1930Mad770 , in support of his contention that in certain circumstances the Court may hold that the execution of a document has been proved when the signatures of 'the attesting witnesses'are proved to its satisfaction. Obviously this decision is inapplicable to the present case: for all the attesting witnesses are not dead or have turned hostile or are not available in this case and further the judgment does not deal with a document which is required by law to be attested as a mortgage or a will. It is incumbent on the plaintiff, who relies on a will to prove that the will was executed by the deceased testator. For the reasons which I have given I agree with the learned District Judge in holding that the plaintiff has failed to prove that Ex, 1 was executed by the deceased Jakkarayya. The facts that it was registered and that it was acted upon, relied on by the appellant, will not help him, if he has not proved that it was executed by the deceased testator.
12. The next point for consideration is whether, having regard to the pleadings and the issue in the case the appellant is absolved from the obligation of proving the 'will 'and whether the learned Judge was right in disposing of the case without giving an opportunity to the appellant to adduce evidence in proof of it. It is true that the objection that the 'will 'was not executed by Jakkarayya is not specifically stated in the written statement but it states in two paragraphs that the 'will 'is not valid in law and that the issue as framed would certainly include within its scope the proof of exeution of the will as one of the points arising for decision; it is also true that a considerable portion of the evidence adduced in the case deals with the question regarding the state of mind in which Jakkarayya was when the will was executed; but I cannot agree with the appellant's contention that the parties accepted the execution of the will as an admitted fact and that the defendants only objection was that the 'will'was invalid as it was executed at a time whan Jakkarayya was not in a sound disposing state of mind. That the execution of the will must be proved was present in the mind of the plaintiff appears to be clear from the evidence given by him which I have already extracted. He states that Jakkarayya executed the will. Then he says that the signature 'Samuel 'is defendant 1's and that the other attestors went abroad and their whereabouts were not known. Then he speaks about the writer whose handwriting is spoken to by his son. I think this evidence and the evidence of P. W. 6 regarding the signature of one of the attestors was intended--though it does not do so--to prove the execution of the will.
13. If the execution of the will was admitted I do not see any reason why such a detailed reference in evidence should have been made to its execution and attestors. The learned District Munsif refers to this evidence in discussing Issue 1. Though he does not give his finding specifically any where that the execution of the will is proved, having regard to the evidence that was given by defendant 1, I think the learned District Judge was perfectly justified in deciding the question whether there was legal proof that Ex. 1 was executed by Jakkarayya. As I have already stated it is incumbent on the plaintiff, who relies on a will and wants to enforce it, to prove that it was executed by the testator. In this case though there is no specific issue on the point I think, the pleadings and the issue cover the question regarding proof of execution of the will and the plaintiff has given evidence though insufficient to prove its execution. The plaintiff would not examine the attestator available, namely, defendant 1, as he was hostile to him, putting forward that ground as a sufficient justification in law for not calling him. By asking for permission to adduce fresh evidence as regards the execution of the will it seems to me that the appellant is now really seeking 'to patch up the weak parts of his case and fill up the omissions,'a procedure not warranted by the rules of the Code of Civil Procedure: see Pursotim Thakur v. Lal Mohar Thakur . In these circumstances I cannot agree with the contention that the learned District Judge has disposed of the case on a new point raised for the first time in the Court of appeal, not covered by the pleadings or issue and on which no evidence was given. For these reasons I do not think that there is any need to frame a new issue and to send the case to the lower Court for disposal after taking evidence on it.
14. In the result, the second appeal is dismissed with costs.