The burden of proof in establishing the execution of a Will, the effect of suspicious circumstances on the genuineness of a Will, and the admissibility and reliance on expert opinions in proving the authenticity of a Will.

JUDGMENT :

The plaintiff in O.S.No.298/2003 on the files of Munsiff Court, Ranny, is the appellant herein and she assails decree and judgment in the above case dated 30.09.2016, confirmed as per judgment dated 12.04.2019 in A.S.No.105/2016 on the files of Additional District Court-II, Pathanamthitta. The respondents herein are the defendants in the above Suit.

2. Heard the learned counsel for the appellant/plaintiff and the respondents/defendants at length. Perused the records of the trial court as well as the appellate court and the relevant decisions placed by both sides.

3. As on 12.06.2019, my learned predecessor admitted this Second Appeal after raising the following substantial questions of law:

(i) Did the courts below go wrong in finding that the signatures in Ext.B3 Will were the signatures of the testator ignoring the opinion of expert (PW4) that there was no semblance of similarity in the disputed signatures and the admitted signatures?

(ii) Were the courts below right in relying on Exts.B6 and B7 fingerprint reports of a private expert obtained by the defendants privately, without proof of authenticity of the reports?

(iii) Was there misappreciation of evidence on the part of the courts below in holding that the testator was in a sound and disposing state of mind at the time of execution of Ext.B3?

4. Short facts: In this case Susamma is the plaintiff/appellant, who is the daughter of one K.T.Mathai. The respondents/defendants are the wife and children of one Thomas, who is the son of K.T.Mathai. Precisely, they are in loggerheads in respect of the property in the name of K.T.Mathai. According to the plaintiff, before the death of K.T.Mathai, he executed Will deed No.17/1992 and thereby allotted properties to the plaintiff and the defendants together. Accordingly, the plaintiff sought for declaration of title over the plaint schedule property on the strength of Will deed No.17/1992. Whereas defendants raised contention that subsequent to execution of Will deed No.17/1992, K.T.Mathai executed another Will deed No.6/1998 and thereby the property covered by Will deed No.17/1992 was bequeathed in favour of defendants 1 and 2. Accordingly defendants placed thrust upon Will deed No.6/1998 to assert their title over the plaint schedule property.

5. Thus the genuineness of Will deed Nos.17/1992 and 6/1998 is the dispute adjudicated by the trial court as well as the appellate court. While addressing the genuineness of Will deed No.17/1992 marked as Ext.A1 and Will deed No.6/1998 marked as Ext.B3, the learned Munsiff addressed the evidence consisting of PW1 to PW5, Exts.A1 to A5, DW1 to DW3 and Exts.B1 to B7. That apart, Exts.C1 to C2(a) and Exts.X1 to X8(d) were also considered. Finally, the learned Munsiff found that Ext.B3 is the last Will of K.T.Mathai and, therefore, Ext.A1 would not confer title upon the plaintiff. Accordingly, the Suit was dismissed.

6. A.S.No.105/2016 challenging the said verdict filed before the District Court, Pathanamthitta also was dismissed.

7. In this connection, it is argued by the learned counsel for the plaintiff that the trial court as well as the appellate court went wrong in relying on Exts.B6 expert opinion and A3 finger print expert's opinion at the instance of the defendants to prove the authenticity of Ext.B3 Will without examining the experts, since the said procedure is not permitted under law.

8. Refuting this contention, the learned counsel for the defendant placed a decision of this Court reported in [1989 (2) KLT 288], Kannan v. Nanu, wherein this Court considered admissibility of report of handwriting expert in tune with Order 26 Rule 10 and 10A of the Code of Civil Procedure, and submitted that in view of Order 26 Rule 10A read along with Rule 10 the report shall be evidence in the suit and shall form part of the records even without examination of the experts. In paragraph 5, this Court held as under:

“5. Then the only question is the effect of the two expert opinions on the plea of dis