Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 10TH DAY OF OCTOBER 2023 / 18TH ASWINA, 1945 RFA NO. 238 OF 2017 AGAINST THE JUDGMENT AND DECREE DATED 20.12.2016 IN OS NO.265/2014 ON THE FILES OF THE SUB COURT, ERNAKULAM APPELLANT/1ST PLAINTIFF: SASIKUMAR MENON, AGED 68 YEARS, S/O.LATE T.K.MENON, SOUPARNIKA, MANAKULANGARA P.O., KAROOR, KODAKARA, THRISSUR DIST., PIN-680684. BY ADVS. SRI.R.PADMARAJ SRI.P.J.ANTONY JOSEPH MARIADAS SRI.R.AJITH KUMAR V.K.EDOM SRI.A.ADARSHACHANDRAN RESPONDENTS/DEFENDANT & LR OF 2ND PLAINTIFF: 1 KRISHNANKUTTY MENON, AGED 82 YEARS, S/O.LATE T.K.MENON, 41/1999, PUTHENMADAM, ARANGATH CROSS ROAD, KOCHI-682018. 2 MEENA MENON, AGED 58 YEARS, D/O.K.MADHAVIKUTTI AMMA, THACHAPPILLIL HOUSE, ELAMKUNNAPUZHA P.O., KOCHI-682503. SRI.K.PAUL KURIAKOSE FOR R1 SRI.T.A.RAFEEK FOR R1 THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 10.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RFA No.238 of 2017 2 P.B.SURESH KUMAR & P.G.AJITHKUMAR, JJ. ----------------------------------------------- R.F.A. No.238 of 2017 ----------------------------------------------- Dated this the 10th day of October, 2023.
JUDGMENT
P.B.Suresh Kumar, J.
The first plaintiff in a suit for partition is the appellant. The second plaintiff was the sister of the first plaintiff and the sole defendant was the brother of the first plaintiff. The subject matter of the suit is a residential property
held by the mother of the parties, Ambujakshy Amma.
2. The suit property is one acquired by
Ambujakshy Amma in the year 1972. Ambujakshy Amma died on 04.09.1986. The case of the plaintiffs is that the suit property devolved on the plaintiffs and the defendant on the death of Ambujakshy Amma; that they are holding the same as co-owners; that the suit property needs to be partitioned for its RFA No.238 of 2017 3 convenient enjoyment, and that the defendant is not heeding to the requests made by the plaintiffs in this regard. The defendant contested the suit contending that the suit property is not partible inasmuch as he is the absolute owner of the same in terms of a Will executed by Ambujakshy Amma on 28.08.1984.
3. As permitted by the court in terms of Rule 1 of
Order XVIII of the Code of Civil Procedure, the defendant began
the evidence as DW1 and produced the Will stated to have been executed by his mother in his favour on 28.08.1984. Ext.B1 is the Will. The defendant also examined two witnesses on his side as DW2 and DW3. On the side of the plaintiffs, the first plaintiff gave evidence as PW1. Another witness was also examined on their side as PW2. Exts.A1 to A5 are the documents produced by the plaintiffs. The trial court found that Ext.B1 Will is one duly and validly executed by Ambujakshy
Amma and that there are no suspicious circumstances surrounding its execution. Consequently, the suit was dismissed. The second plaintiff died after the judgment. As RFA No.238 of 2017 4 noted, the first plaintiff is aggrieved by the decision of the trial court.
4. Heard the learned counsel for the appellant,
the first plaintiff, as also the learned counsel for the first respondent, the defendant. No one represented the second respondent who is the sole legal representative of the deceased second plaintiff.
5. It is for the propounder to prove the due and
valid execution of a Will. If its execution is shrouded in mystery or surrounded by suspicious circumstances, it is the obligation of the propounder to remove the same also. There cannot be any dispute to the aforesaid propositions. Similarly, there cannot also be any dispute to the proposition that the question whether the due and valid execution of a Will has been proved by the propounder and the question whether the propounder has removed the mystery and suspicious circumstances, if any, surrounding its execution, are questions to be decided on the
facts of each case.
6. Section 67 of the Indian Evidence Act provides RFA No.238 of 2017 5
that if a document is alleged to be signed by a person, the signature of the said person must be proved to be of his handwriting. Similarly, Section 68 of the Indian Evidence Act provides that if a document is required by law to be attested, it shall not be used as evidence until one of the attesting witnesses at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. Likewise, Section 63 of the Indian Succession Act requires that a Will shall be attested by two or more witnesses, each of whom has seen the testator sign the Will and each of them shall sign the Will in the presence of the testator. There is no dispute in this case as regards the compliance of the requirements contained in Section 63 of the Indian Succession Act. The dispute, on the other hand, revolves around the execution of Ext.B1 Will. The points that arise for consideration, therefore, are whether the defendant has proved the due and valid execution of Ext.B1 Will and whether the testator has
removed the mystery and suspicious circumstances, if any, RFA No.238 of 2017 6 surrounding its execution.
7. The points : In order to prove the due and valid
execution of Ext.B1 Will, the defendant relies on the evidence tendered by the witnesses examined on his side. Among them, one was the scribe of Ext.B1 Will and the other was one of its attestors. DW2, who is a lawyer by profession, is the scribe of Ext.B1 Will. DW2 was examined in the suit about 32 years after the alleged execution of the Will. At the time of examination, he was 85 years old. DW2 had no prior acquaintance with Ambujakshy Amma. DW2 testified that his friend Adv.Unni
Madhavan sought his assistance to prepare a Will for Ambujakshy Amma towards whom Adv.Unni Madhavan was stated to be maintaining a motherly affection; that he went to the house of Ambujakshy Amma accordingly and prepared Ext.B1 Will for her as per her instructions. DW2 also testified that Ambujakshy Amma affixed her signatures on Ext.B1 Will in his presence and thereafter, the attestors to the Will also affixed their signatures on the same. Adv.Unni Madhavan referred to by DW2 in his deposition is one of the attestors to
RFA No.238 of 2017 7
Ext.B1 Will who was examined as DW3. At the time of examination, DW3 was aged 82 years. DW3 gave evidence consistent with the evidence tendered by DW2. DW3 identified his signature in Ext.B1 Will and testified that the testator affixed her signature in the Will in his presence and that he affixed his signature in the Will in the presence of the testator. In addition, DW3 also testified that he was residing during his college days with his sister and brother-in-law in the house
opposite to the house of Ambujakshy Amma and had acquaintance with her from that period onwards. Although DWs 2 and 3 were subjected to exhaustive cross-examination by the counsel for the plaintiffs, he could not discredit their evidence in any manner, whatsoever, as both of them withstood the test of cross-examination with ease by giving rational answers to all the questions put to them. Needless to say, we do not find any reason to disbelieve the evidence tendered by DWs 2 and 3.
8. Before delving into the question as to whether there exists any mystery or suspicious circumstances surrounding the execution of Ext.B1 Will and the question as to RFA No.238 of 2017 8
whether the same have been removed by the propounder of the Will, it is necessary to mention that there are a few circumstances in the case which would probabilise the due and valid execution of Ext.B1 Will. The testator had only three children, namely, the plaintiffs and the defendant. It has come out that the second plaintiff was given away in marriage in accordance with the custom and was financially helped by her parents later during the period of her house construction. Ambujakshy Amma had only two immovable properties, of which one was at Amballur and the other is the suit property. It has also come out in evidence that Ambujakshy Amma had executed Ext.A1 Will in respect of the property at Amballur and also in respect of her movables including her gold ornaments, in favour of the first plaintiff as early as on 28.07.1972 itself. It is recited by Ambujakshy Amma in Ext.A1 Will that she is contemplating to give other properties to the defendant. The relevant portion of Ext.A1 Will reads thus:
"ഇതൻ പക രമള ത ഴ പടകവഹകള മകള ൽ വവരച പക രമള കറവക സ ഖ യ ഫർണ ചർ വ ടപ തങൾ സ%ർണ ഭരണങൾ മതല യവയ എഴ+ മരണ വഴര ഞ ൻ സർവസ% തനയ യ വ പരച എഴ+ ക ലശ2ഷ വലത ഉണ യരന ൽ എഴ+ RFA No.238 of 2017 9 ഇളയമകന യ 22കമ റന; മ ത പരപർണ വക 2മണ യരകനത ഴണന; ഇതന ൽ നശയചഴവചരകന. മകൾ ജമയനഴയ കട ബ സതഴE തവണ ഴമയ ഭരണ മതല യവ ഴക ടത അവഴര വവ ഹ ക ചഴക ടതടളത കന. മതമകൻ കഷൻകട ശമശന ന ശമഴലഴതയ മകൾ ജമയനക ശവഴറ വഹകൾ തരച ഴക ടകനതന നശയചരകകയ ൽ അവർE; ഇശO ൾ ഒന ഴക ടകനതന ഉശQ2കന ല . "
It is a few years after the execution of Ext.A1 Will that Ext.B1 Will was executed by Ambujakshy Amma. The first plaintiff has no case that Ext.A1 Will has not taken effect or that he did not get the properties mentioned in Ext.A1 Will on the death of Ambujakshy Amma. It has come out in evidence that the medical shop which was being run by the husband of Ambujakshy Amma during his lifetime and thereafter by the defendant, has been sold immediately after the death of Ambujakshy Amma and the proceeds thereof have been distributed equally among the plaintiffs and the defendant. According to us, the aforesaid facts probabilise and justify a Will in the nature of Ext.B1 in favour of a person to whom Ambujakshy Amma did not give any of her properties, movable or immovable.
9. Let us now deal with the circumstances pointed RFA No.238 of 2017 10
out by the learned counsel for the appellant, which according to him, would cast serious suspicions surrounding the execution of Ext.B1 Will. The first and the foremost among them is that the materials would prima facie show that the signatures of Ambujakshy Amma in Ext.B1 Will are forged. The said circumstance was attempted to be established by the learned counsel by requiring the court to make a comparison of the signatures of Ambujakshy Amma in Ext.B1 Will as also in Ext.A1 Will. It was pointed out that in Ext.A1, the letter 'K' has a twist at the top and all letters have a slanting towards right and Ambujakshy Amma has signed in running letters without any break in the first part of the name 'Ambujakshy'. It was also pointed out that in the second part of the name 'Amma', both 'm' are not clearly identifiable. It was argued that whereas in Ext.B1, there is no such twist for the letter 'K' and all letters are either straight or slanting towards left and has a break in between 'Am' and 'bujakshy' in the name Ambujakshy and both the letters 'm' in Amma are clearly identifiable. It was also argued that a person who writes in slanting letters to the right
RFA No.238 of 2017 11 direction, would never write slanting left or straight. It was also argued by the learned counsel that the full stop in the signature after the letter 'K' is in the bottom line in the signature in Ext.A1, but it is in the middle line in the signature in Ext.B1. It was also argued by the learned counsel that there
is considerable difference between the five signatures contained in Ext.B1, especially in the letter 'y' which in the first page of Ext.B1 curves towards left, in the second page towards down and in the third page towards right. It was asserted by the learned counsel that there is absolutely no resemblance between the admitted signatures of Ambujakshy Amma in Ext.A1 and her disputed signatures contained in Ext.B1. According to the learned counsel, the discrepancies in the nature aforesaid would occur only while forging signature.
10. It is common knowledge that changes would
naturally occur in the signatures of persons due to passage of time and the changes vary from person to person having regard to the nature of activities undertaken, health conditions etc. But, the question as to what extent, such changes would RFA No.238 of 2017 12 occur in the case of a particular person after a period of 12 years and the question whether the changes occurred in the signatures of a person in a given case is consistent with permissible variations etc. are questions on which opinions could be formed only by experts in the field. According to us, where the court is not in a position to identify the characteristics of signatures, it may not venture into an exercise of comparison as permissible under Section 73 of the Indian Evidence Act [See State (Delhi Admn.) v. Pali Ram, (1979) 2 SCC 158 and Ajit Savant Majagvai v. State of Karnataka,
(1997) 7 SCC 110]. In this context, we would profitably quote a passage from the decision of the Apex Court in Thiruvengadam Pillai v. Navaneethammal, (2008) 4 SCC 530 also, which reads thus:
“16. While there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an
RFA No.238 of 2017 13
analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal.”
No doubt, the signatures of Ambujakshy Amma in Ext.B1 Will are not exactly identical to her signature in Ext.A1 Will. They can be said to be only similar. It has to be mentioned at once here that Ext.A1 is a document executed as early as on 28.07.1972, whereas Ext.B1 is one stated to have been executed almost 12 years thereafter, on 28.08.1984. Despite
several attempts, we are unable to understand the characteristics of the signature of Ambujakshy Amma, and therefore, in the absence of any expert assistance, we are of RFA No.238 of 2017 14 the view that any attempt on the part of the court to compare the disputed signatures of Ambujakshy Amma with her admitted signature, in exercise of the power under Section 73 of the Indian Evidence Act, would be an adventure.
11. As observed by the trial court in the impugned
judgment, even though the initial burden to prove the signature in a Will is on the part of the defendant, when the said burden was discharged by him by examining DWs 2 and 3, the first plaintiff could have certainly taken steps to send the disputed signatures for comparison to a handwriting expert and the said course has not been adopted by him. The first plaintiff could have also, in the said circumstances, brought in documents containing contemporaneous signatures to substantiate his contention that the signatures contained in Ext.B1 Will are not that of Ambujakshy Amma. The first plaintiff has not attempted the said course as well. In the above circumstances, according to us, there is no substance in the argument advanced by the learned counsel for the first plaintiff that there is difference in the signatures of Ambujakshy Amma contained in the admitted
RFA No.238 of 2017 15 and disputed documents.
12. Another circumstance pointed out by the
learned counsel for the first plaintiff as suspicious is the alleged conduct of the defendant in causing to issue a lawyer's notice to the plaintiffs demanding partition of his 1/3rd right in the suit property. According to the learned counsel, if as a matter of fact, a Will has been executed by Ambujakshy Amma in respect of the suit property in favour of the defendant, there would not have been any occasion for the defendant to cause to issue a lawyer's notice demanding partition of his share in the suit property. Ext.A4 is the lawyer's notice. Ext.A4 is seen issued by one Adv.C.P.M.Sundaram. The defendant in his evidence deposed that he did not instruct Adv.C.P.M.Sundaram to issue
Ext.A4 notice to the plaintiffs. The brother of Adv.C.P.M.Sundaram, who was also a lawyer practising with Adv.C.P.M.Sundaram, and who was examined as PW2 on the side of the plaintiffs deposed that he is conversant with the signature of Adv.C.P.M.Sundaram and that the signature contained in Ext.A4 is that of C.P.M.Sundaram. He also deposed
RFA No.238 of 2017 16 that Ext.A4 which is a printed document is one printed in the
computer printer maintained at the office of Adv.C.P.M.Sundaram. Even though it was suggested to PW2 that the signature contained in Ext.A4 is not one that was put by Adv.C.P.M.Sundaram, in the absence of any other material, we do not find any reason to disbelieve the evidence tendered by PW2 that the signature contained in Ext.A4 is that of
Adv.C.P.M.Sundaram. No doubt, PW2, the brother of Adv.C.P.M.Sundaram who is conversant with the signature of Adv.C.P.M.Sundaram is competent to depose as to whether the signature appearing in Ext.A4 as that of Adv.C.P.M.Sundaram is one affixed by Adv.C.P.M.Sundaram. But, inasmuch as he has not seen Adv.C.P.M.Sundaram printing Ext.A4 notice making use of the printer kept by him, the evidence of PW2 that Ext.A4 is the document printed in the computer printer kept by
Adv.C.P.M.Sundaram, cannot be accepted. As noted, Ambujakshy Amma died on 04.09.1986. It has come out that soon after the death of Ambujakshy Amma, the first plaintiff left Ernakulam and settled down with his family at Kodakara RFA No.238 of 2017 17
near the residence of his wife. It is thereafter that Ext.A4 lawyer's notice is seen to have been issued on 08.03.1988. The plaintiffs have not pleaded anything about Ext.A4 notice in the plaint instituted several years after the alleged issuance of Ext.A4 notice. The plaintiffs have also not stated anything about Ext.A4 notice in the proof affidavit filed in the suit as well. Ext.A4 notice was produced in court only while the defendant was giving evidence in the suit. The recitals contained in Ext.A4 notice would indicate that the same was issued seeking partition of all properties held by Ambujakshy Amma both movable and immovable including the property covered by Ext.A1 Will executed in favour of the first plaintiff. Even though the first plaintiff has stated in his evidence that he caused to issue a reply to Ext.A4 notice, the same has not been produced before the court. He has also not produced the postal receipt evidencing dispatch of the reply notice, or the acknowledgement card if any, signed by the defendant on receipt of the reply. In other words, it has to be taken that the first plaintiff has not sent any reply to Ext.A4 notice, if at all the
RFA No.238 of 2017 18
same was one issued by the defendant. There is no satisfactory explanation from the first plaintiff as to why he has not sent any reply to Ext.A4 notice, especially since partition is sought in terms of the said notice in respect of the property covered by Ext.A1 Will as well. Inasmuch as the signature contained in Ext.A4 notice is one put by Adv.C.P.M.Sundaram, according to us, the possibilities are either that Ext.A4 is a document issued by Adv.C.P.M.Sundaram as instructed by the defendant without the knowledge of the existence of the Wills executed by Ambujakshy Amma or that it is one fabricated by the plaintiffs in a signed blank paper kept by Adv.C.P.M.Sundaram. Among the said possibilities, according to us, having regard to the peculiar facts of this case, the more probable possibility is that Ext.A4 is one caused to be issued by the defendant himself without the knowledge regarding the existence of Ext.A1 and Ext.B1 Wills. From the conduct on the part of the defendant in not pursuing further action based on Ext.A4 notice and from the conduct on the part of the first plaintiff in not causing even a reply to Ext.A4 notice, it could be inferred that the existence
RFA No.238 of 2017 19
of Exts.A1 and B1 Wills must have come to the knowledge of the defendant after the issuance of Ext.A4 notice and the parties might have accordingly settled the issues by accepting Exts.A1 and B1 Wills. The fact that a suit of this nature is instituted only after almost 30 years after the said notice, strengthens the aforesaid conclusion of ours. Needless to say, the suit is the result of an afterthought and one instituted without any basis. The question that arises in this context is whether Ext.A4 notice caused to be sent by the defendant would affect, in any manner, the right claimed by the defendant in the suit based on Ext.B1 Will. There is no difficulty in answering the said question in favour of the defendant, for if Ext.B1 is a Will duly and validly executed, its legal consequence would follow on the death of the testator and the defendant would not be precluded from claiming the benefit of such a document merely for the reason that he has caused to issue a lawyer's notice without knowing the existence of Ext.B1 Will in his favour. Needless to say, the arguments advanced by the learned counsel for the first plaintiff based on Ext.A4 lawyer's
RFA No.238 of 2017 20 notice are only to be rejected.
13. Another circumstance pointed out by the
learned counsel for the first plaintiff as suspicious is that the case spoken to by DWs 2 and 3 that Ambujakshy Amma who was physically fit and aged only 66 years during 1984 had called PW2 to her residence for the purpose of preparing a Will and PW2 who is a senior lawyer had gone to the house of Ambujakshy Amma, cannot be believed, as such a conduct is not consistent with the common course of natural events and human conduct. We do not find any merit in this argument also. According to us, merely for the reason that a senior lawyer had gone to the residence of a person who is physically fit and aged only 66 years to get instructions from her for preparation of a Will, the same cannot be viewed as a suspicious circumstance. It all depends on the personal relationship between the parties and the persons involved in the matter as also the difficulties to which the parties are subjected to at the relevant time, an exhaustive account of which may not be available in all cases.
14. Yet another circumstance pointed out by the RFA No.238 of 2017 21
learned counsel for the first plaintiff as suspicious is that Ambujakshy Amma who got her earlier Will registered would not have executed an unregistered Will, especially when she was physically fit and in a steady and disposable state of mind. The argument, according to us, is flimsy. There is nothing on record to indicate the background in which Ext.A1 Will was executed by Ambujakshy Amma. True, the materials indicate that the Will was one prepared by a document writer and registered. But insofar as registration is not mandatory for Wills, it cannot be inferred from the said circumstance alone that ten years later, she would not have executed an unregistered Will, after obtaining legal advice.
15. It was deposed by DW3 in his evidence that
Ambujakshy Amma executed Ext.B1 Will in the manner spoken to him as she wanted to keep its execution discreet. Yet another circumstance pointed out by the learned counsel for the first plaintiff is that if as a matter of fact, Ambujakshy Amma wanted to keep the execution of Ext.B1 Will discreet, she would not have called PW2 to her house where she is
RFA No.238 of 2017 22
residing with both the first plaintiff, defendant and their respective spouses. This argument is also flimsy as it is not brought out in evidence that on the day on which Ext.B1 Will was executed, the first plaintiff and his spouse were present in the house of Ambujakshy Amma. The only material brought out in evidence is that other than Ambujakshy Amma, the wife of the defendant alone was there in the house on the day on which Ext.B1 Will was executed. Be that as it may, on a close reading of the evidence of DW3, it could be seen that what was spoken to by DW3 in this regard is only that Ambujakshy Amma never wanted the lawyers who are known to her and residing in the surroundings of her residence, know about the execution of Ext.B1 Will. In other words, the possibility of Ambujakshy Amma executing Ext.B1 Will with the concurrence of the first plaintiff also cannot be ruled out and if that was the position, the presence of the first plaintiff and his spouse in her house does not make any difference.
16. Yet another circumstance pointed out by the learned counsel for the first plaintiff as suspicious is that the RFA No.238 of 2017 23
evidence tendered by the defendant as to the time at which he came to know of the existence of Ext.B1 Will is not consistent. To reinforce the argument based on the said circumstance, it was also pointed out by the learned counsel that it is unbelievable that the wife of the defendant who was very much present in the house on the date of execution of Ext.B1 Will and
the brother-in-law of the defendant who is an attestor to Ext.B1 Will would not tell the defendant about the document. We find this argument also flimsy as the reliability or otherwise of the evidence tendered by DWs 2 and 3 cannot be decided based on the discrepancy aforesaid in the evidence of the defendant in a case of this nature where the witnesses were giving evidence after a period of almost 30 years.
17. Another circumstance pointed out by the
learned counsel for the first plaintiff is that the evidence tendered by DW3 is not reliable inasmuch as it has come out that he is very close to the defendant and they used to indulge in drinking alcohol together. To reinforce the same, it was also pointed out by the learned counsel that the defendant as DW1 RFA No.238 of 2017 24
admitted that on the previous day of the examination of DW3 in court, the defendant met him at the residence of the brother of DW3. Equally flimsy, according to us, the argument. DW3 being a person who was residing in the neighbourhood of the residence of Ambujakshy Amma during his college days, the defendant who is almost in the same age group of DW3, developing an acquaintance with him is only natural and merely on account of the said reason, it cannot be said that after about 60 years, an octogenarian would come and say falsehood before a court of law. Similarly, merely for the reason
that the defendant met DW3 on the previous day of examination, it is unimaginable to hold that he would give a false testimony in a court of law at his age, especially since he was a practising lawyer who knows the impact of such conduct and its effect on his personality.
18. Yet another circumstance pointed out by the learned counsel for the first plaintiff is the alleged conduct of Ambujakshy Amma in entrusting the task of making arrangements for the execution of Ext.B1 Will with DW3, with RFA No.238 of 2017 25
the aid of DW2, who are persons permanently settled at Alathur in Palakkad District when there are several other lawyers around the place where Ambujakshy Amma was residing, at the time of execution of the document. The fact that Ext.B1 Will was prepared on a few papers torn off from a register like book of legal size paper, the fact that Ext.B1 Will does not contain a schedule of property as insisted in registered instruments, the fact that the expressions used in Ext.B1 Will are similar to the expressions in Ext.A1 Will, the fact that DW2 did not ask Ambujakshy Amma about the previous Wills executed by her at the time of preparation of Ext.B1 Will, the inconsistencies in the evidence tendered by DWs 2 and 3 as regards their knowledge about Ext.A1 Will and whether a draft of the same was given to DW2 for the preparation of Ext.B1 Will etc. have all been highlighted by the learned counsel to contend that the evidence tendered by DWs 2 and 3 cannot be relied on. According to us, none of the above, on the peculiar facts of this case, are reasons to doubt the reliability of the evidence tendered by DWs 2 and 3.
RFA No.238 of 2017 26 For the aforesaid reasons, we do not find any merit in the appeal and the same is, accordingly, dismissed. Sd/- P.B.SURESH KUMAR, JUDGE. Sd/- P.G.AJITHKUMAR, JUDGE. YKB