The burden of proving the genuineness of wills, the sustainability of bequeaths in light of statutory provisions, and the distinction between cancellation and revocation of wills were central legal principles established in the judgment.

Abdul Gafoor, J.

These appeals are directed against the judgment in O.S.No.1/84 granting probate at the instance of the first respondent in respect of Ext.A1 and A2 wills executed by one Mathew J. Kollamparambil. The facts of the case are as follows;

2. The plaintiff in O.S.No.1/84 filed O.P.No.1874/79 claiming himself to be the executor in terms of Ext.A2 will dated 16.11.78 and seeking probate in his capacity as the executor. Sri. A.A. Joseph, Advocate filed O.P.No.1327/1980 seeking probate in respect of Ext.A1 will dated 16.11.1972 stated to be executed by the very same testator. Respondents, the natural heirs of the unmarried testator, contested the petition contending that there was suspicious circumstances surrounding both the wills. Consequently the petitions were converted as suit; O.S.Nos.1/84 and 2/84. Both the suits were later consolidated and tried as O.S.1/84, where the contentions of all the parties were dealt with. The learned single judge granted “probate to the plaintiff in O.S.No.1/84 with exhibits A1 and A2 attached to it, with the clauses relating to revocation and charities omitted from Ext.A2 and clauses relating to specific legacies and appointment of Executor omitted from Ext.A1.” This is under challenge in MFA.No.1054/94 at the instance of defendants 11, 15 and 30 and in MFA.No.1055/94 at the instance of respondents 20 and 23. Later respondents 20 and 23 did not contest the appeal and in their place defendants 12 and 14 got transposed as the appellants to contest MFA.No.1055/94.

3. It is contended by the appellants that the propounders of the will failed to prove the genuineness of the will and therefore did not discharge their burden to obtain probate. The learned single Judge rejected the said contentions relying on the evidence on record which consists of the oral testimony of PWs.1 to 3 and DW1 and documentary evidences Exts.A1 and A2, the wills in question. PW1 is the attestor of Ext.A1 will. P.Ws.2 and 3 are the executor and one among the attestors of Ext.A2 will respectively and DW1 is the second attestor to Ext.A1.

4. It is contended by the appellants that the learned single judge failed to consider the interpolations contained in several parts of Ext.A2 will dated 16.11.1978. It is further submitted that even going by the evidence of PW3, the only attesting witness examined to prove execution of Ext.A2 will, he did not speak of the other among the attestors to the said will. The other signatory was the scribe himself. Therefore, he cannot be termed as an attestor to the will even. It is also submitted that there is difference in signatures of the testator contained in Exts.A1 and A2. It is further submitted that if the scribe has signed as an attestor his presence ought to have been spoken to by PW3. He did not speak anything about his presence at the time of execution. There is also a contention that the bequeath contained in Ext.A2 regarding charity was not specific and that the testator had died within one year provided for in Section 118 of the Indian Succession Act and therefore that bequeath cannot take effect in law.

5. The last among these contentions cannot now hold good in the light of the decision of the Supreme Court reported in John Vallamattom and another v. Union of India (2003 (6) SCC 611) whereby Section 118 of the Indian Successions Act has been declared unconstitutional. Therefore the bequeath to charity contained in Ext.A2 will, in case the will is found to be genuine will hold good.

6. It is contended on behalf of the appellants in MFA.No.1055/94 that a reading of Ext.A2 will discloses that the testator had acknowledged Ext.A1 will. But the content of Ext.A1 discloses that if any modification thereof was required the testator had intended to get back Ext.A1 from the registry where it has been deposited and to make necessary modification thereof. So the cancellation of Ext.A1 by Ext.A2 is not proper. It is further contended, relying on the decision reported in David T