P. Bhavadasan, J.

1. A short but interesting question regarding the genuineness of a codicil arises for consideration in this appeal. Both the courts below held that codicil has not been proved as required under law and held against the defendants and granted a decree for partition in favour of the plaintiff. The aggrieved defendants have come up in appeal.

2. The facts absolutely necessary for the disposal of this appeal are as follows: The plaintiff and defendants are the children of late Govindan Nair. Late Govindan Nair, who had extensive items of properties, by his Will dated 29.12.1974 bequeathed his assets in favour of his children. 14 items of properties were bequeathed equally to all his children. Govindan Nair died in 1975. Raman Nair, the brother of Govindan Nair, who too owned properties, by Ext.A1 Will dated 4.12.1973 bequeathed three items of properties, namely, items 15 to 17 scheduled to the plaint in favour of the plaintiff and defendants jointly. The plaintiff laying claim to the property bequeathed as per the Will of Raman Nair and Govindan Nair moved for partition.

3. The dispute regarding the partibility of the items remained confined to items 16 and 17. As far as items 1 to 15 were concerned, there was no objection on behalf of the defendants. As regards items 16 and 17, the contention was that late Raman Nair had executed a codicil dated 28.6.1974 whereby he slightly modified the earlier bequest effected by him as per Ext.A1 Will. It was pointed out by the defendants that after execution of Ext.A1 Will by which B schedule to the Will which consisted of the School and property owned and possessed by Raman Nair was to be inherited by the first defendant in the suit. However, Raman Nair changed his mind and wanted the plaintiff to have the School and its properties and also have the management of the School. He therefore applied to the educational authorities for change of management of the school in favour of the plaintiff. The intention of Raman Nair was to execute a gift deed in respect of the school, its properties and management once the educational authorities approved the change of management. With that intention in mind, he modified his Will by Ext.B1 codicil and out of the three items contained in A schedule to Ext.A1 Will, item 1 remained to be jointly bequeathed to the plaintiff and the defendants. However, the plaintiff was disinherited in respect of items 2 and 3 of A schedule to Ext.A1 Will and those items as per Ext.B1 codicil was to be shared by the defendants. They therefore contended that the plaintiff has no manner of right over items 16 and 17 scheduled to the plaint and that had to be partitioned only among the defendants.

4. On the above pleadings issues were raised by the trial court. The plaintiff did not adduce any oral evidence but had Exts.A1 to A13 marked. The contesting defendants had D.Ws.1 to 3 examined and had Exts.B1 to B4 marked. On an appreciation of the evidence in the case, the trial court came to the conclusion that the codicil has not been proved in accordance with law and its execution is surrounded by suspicious circumstances which the contesting defendants were unable to clear and to satisfy the conscience of the court that Ex.B1 codicil was in fact executed by Raman Nair. Accordingly, the trial court granted a decree for partition in respect of all the 17 items.

5. The aggrieved defendants took up the matter in appeal as A.S.40 of 2009 before the District Court, Kozhikode. The lower appellate court on an independent evaluation of the evidence concurred with the trial court and dismissed the appeal. That brings the defendants before this Court. When the second appeal came up for admission, the following questions of law were formulated by this Court:

"1. Are the courts below justified in holding that Ext.B1 will is not genuine without proper appreciation of the evidence D.Ws. 2 and 3 who are employees of the school run by the plaintiff?

2. Whether the findings of the