Mere proof of attestation does not prove due execution in each and every case.

P.K. Misra, J.

This Appeal is directed against the Judgment in T.O.S.No. 27 of 1997 dated 20.12.2000. Aggrieved over the grant of probate of the Will executed by the testatrix, viz., late Mary Santiago, the Defendants have preferred this Appeal.

2. The parties are related as under: Mary Santiago (died on 210. 1994)

S. Santiago (P.1)

Late S. Eric Jerome Josephine Nirmala Augustin S. Thomas

(died on 26. 95) (P.2)

Josephine Jerome(D.1)

Emanuvel Antony Julith Moses

Sandanaraj (D.3) (D.4)

(D.2)

The case of the Plaintiffs is that Mary Santiago left behind a Will dated 08.07.1994, where under, she had made a bequest granting life estate to her husband-First Plaintiff and absolute estate to the Second Plaintiff, who is the ultimate beneficiary. After the death of Mary Santiago, the Plaintiffs had filed O.P.No. 748/95 for issuance of probate of the Will. The Appellants/Defendants filed caveat and therefore, O.P.No. 748/95 was converted to T.O.S.No. 27/1997 alleging that disposition made under the Will was unnatural disposition. The Plaintiffs sought probate of the Will. The Defendants contested the Suit alleging that the Will is not a true, valid and genuine one and that the Plaintiffs have committed forgery and the purported Will is not a natural Will. The Defendants inter alia contended that Mary Santiago had already left behind a registered Will dated 23. 1990 and the testatrix never intended to cancel the Will. It was further alleged that the Will is surrounded by several suspicious circumstances and therefore, the probate should not be granted.

3. On the above pleadings, the following four issues were framed:-

"1. Whether the Will executed by Mrs. Mary Santiago on 7. 1994 is true and genuine?

2. Whether the Will was duly executed by Mary Santiago and validly attested by witnesses?

3. Whether the Will is a rank forgery created to suit the convenience and benefit of the plaintiff ?

4. To what relief the parties are entitled?

4. The attesters to the Will were examined as P.Ws. 1 and 2 on the side of the Plaintiffs and exhibits P-1 to P-3 were marked. On the side of the Defendants, the First Defendant was examined as R.W.1 and exhibits R.1 and R-2 were marked.

5. Discussing all the issues together, on the evidence of attesters (P.Ws.1 and 2), the learned Single Judge held that at the time of execution of the Will the testatrix was in a sound disposing state of mind. Referring to various points the learned Single Judge concluded that the alleged suspicious circumstances are dispelled by the Plaintiffs. The learned Single Judge took the view that mere presence of the propounder would not show that they have actually participated. It was also held that another son Jerome and daughter were sufficiently provided for and there is nothing unnatural in excluding them by the testatrix.

6. Assailing the findings and conclusion of the learned Single Judge, the learned counsel for the Appellants inter alia raised the following contentions.

.(1) There is no specific evidence, far less proof, for due execution of the Will by the testatrix and the evidence on record merely prove the "attestation part".

.(2) There are many suspicious circumstances appearing which have not been clear and, on the other hand, those suspicious circumstances have been compounded further by the fact that the Propounder has not come forward to give any explanation.

7. So far as the first contention is concerned, it is submitted by the learned counsel for the appellants that the evidence of two attesting witnesses only indicates that they have seen the testatrix putting her signature on a document which was already prepared, but there is no whisper anywhere that the Will had been prepared on the basis of the instructions of the testatrix or the testatrix had put her signature after going through the contents or that the contents had been read over and explained to the testatrix and, therefore, it cannot be said that due execution of the Will has been