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13. Two questions arise for consideration. One, in the light of the above dispute, is it not necessary for the propounder of the Will to prove the due execution of the Will. The other question is even if execution of the Will is admitted, still is it not necessary for the plaintiff to prove the Will as per Section 68 of the Indian Evidence Act.

14. The law regarding Will is well settled. Section 63 of the Indian Succession Act provides for the manner in which the Will is to be drawn up. It mentions that the Will should be in writing and should be signed by the testator and also attested by two attesting witnesses. The provision stipulates that the testator should see that the attesting witnesses sign the document and vice versa. But however, it is not necessary that the attesting witnesses should see each other signing the Will. The next relevant provision is Section 68 of the Indian Evidence Act, which reads as follows:

15. A reading of the above provision clearly shows that in the case of a Will, unlike in the case of a gift deed, which if admitted need not be proved, the Will will have to be proved by examining atleast one of the attesting witnesses. There is no distinction drawn by the provision between an admitted Will and a disputed Will. In fact a reading of the provision will clearly show that in all cases in  which the Will is set up the procedure prescribed in Section 68 will have to be followed. It is useful to refer to the decisions on the point.

17. It is an accepted principle that since the Will speaks from the death of the testator, the proceedings is a solemn one. Quite often the interpretation of the Will poses considerable difficulties. But the general principle is that as far as possible the intention of the testator should be given effect to.

18. As already noticed, Section 68 of the Indian Evidence Act does not contain any distinction between an admitted Will and a disputed Will as regards the mode of proof. In the decision reported in Kathrikutty v. V.J. Pappoo (2005(2) KLJ 303) it was held as follows:

23. The question that arises is whether the evidence of P.W.2 is sufficient to prove the Will. Obviously it is not. As noticed, he is not an attesting witness to the Will. There is nothing on record to show that the attesting witnesses are not available for examination. One fails to understand why none of the attesting witnesses were examined. The observation of the court below that the defendants had admitted the Will cannot be countenanced in the light of the specific contention taken by defendants 4 and 5 in the written statement, which has already been referred to. Proof of will is not dispensed with merely because execution of the will is admitted. The result is that Ext.A4 Will is not proved in accordance with law.