The proponent of a Will must prove its due execution and attestation, and the absence of reference to the Will in relevant documents can create doubt regarding its genuineness.

(Appeal filed under Order 36 Rule 1 of O.S. Rules against the judgment of the learned single Judge dated 5.9.2000 made in T.O.S.No.28 of 2000.)

P.K. Misra, J.

Plaintiff is the Appellant.

2. Plaintiff had filed the Testamentary Original Suit No.28 of 1988 in the Original Side of the Madras High Court praying for grant of probate in respect of an unregistered Will dated 22.3.1987 allegedly executed by his mother late Mrs.D. Logambal. Defendant / Respondent is the elder brother of the plaintiff. At the time when the petition for grant of probate was filed, i.e., on 18.10.1988, the father of the parties Mr.Dyvadheenam was alive. He has filed an affidavit in support of the plaintiff's case for grant of probate. In the written statement, the case of the defendant is to the effect that the Will was not executed by the deceased mother of the parties and taking advantage of the signature of the deceased in a blank paper, such Will has been subsequently executed by the plaintiff and the plaintiff's brother-in-law (wife's brother). It is also indicated that in March, 1987, the deceased D. Logambal, the mother of the parties, was bedridden as her spinal cord had been badly affected and she was not in a sound and disposing state of mind.

3. Learned single Judge, on the above pleadings, framed the following issues :-

"1. Whether the Will propounded by the plaintiff dated 23.3.1987 is a true, genuine and a valid one ?

2. Whether the Will was executed by the deceased D. Logambal voluntarily and in a sound state of mind and health ?

3. Whether the signature under the Will dated 22.3.1987 obtained in a blank paper and the contents thereof filled up subsequently ?

4. Whether the appointment of the beneficiary under the said Will as Executor is lawful ?

5. To what reliefs are the parties entitled to ?

4. Plaintiff examined himself as P.W.1 and his brother-in-law, who had scribed the Will and also signed as an attesting witness, was examined as P.W.2 and the friend of P.W.2., who was the other attesting witness, was examined as P.W.3. Defendant examined himself as a witness.

5. The learned single Judge, while discussing all the issues together, disbelieved the due execution of the Will. The main reasonings given by the learned single Judge are as follows :-

1. The materials on record did not indicate that under Ex.P-2, the so called deed of family settlement, any property was given to the defendant and no document was produced to show that the conditions stated in Ex.P-2 had been complied with.

2. The Testatrix had signed only in the first page of Ex.P-1 Will and there is no signature in the second page, even though there is continuation of the Will in the second page and there is no explanation from the plaintiff (P.W.1) as to why the testatrix did not sign the second page.

3. Even though the father of the parties was alive, he had not attested the Will and according to the plaintiff his father came to know about the Will only after the death of his mother.

4. The evidence of P.Ws. 2 and 3 that the testatrix's husband took part in the preparation of the Will is contradicted by the plaintiff himself, who stated that his father came to know of the Will only after the death of the testatrix.

5. There is no reason as to why the testatrix chose P.W.2.,the brother-in-law of the plaintiff, who was practically a stranger, for writing the Will.

6. Evidence of the scribe, P.W.2., indicates that testatrix signed the Will only after the attestors signed the Will and as such the evidence of the scribe does not establish the valid execution and attestation of the Will.

7. There is no convincing evidence that the defendant was provided with some properties and that is the reason why he is disinherited under the Will.

8. The evidence of P.W.3 does not corroborate with the evidence of P.W.2 relating to scribing of the document and it is surprising that he was called as an attesting witness, even though he was a stranger to the family.

9. There are contradictions in th