A will is one of the most solemn documents known to the law, and the burden of proving due execution is upon the person propounding the will. However, there is no presumption either in fact or in law that a will if propounded must be a forgery.

JUDGMENT :- This is an appeal preferred against the decree and judgment of the learned District Judge of South Kanara in O.S. No. 3 of 1953.

2. The facts are : One Juje Banja a cultivator was a resident of Modu Thonse village. He was the owner of the properties constituting the subject matter of this suit. The wife of Juje Banja is the 1st defendant, Josephine Noronha, and he had by her a son by name Denis Banja and a daughter by name Appoline Catherine Banja. This Juje Banja died on 9-4-1923 in Mudu Thonese, when he was aged 52. Subsequent to his death, the mother and son and daughter lived together. This daughter was married in 1927 to one Raymond DSouza, a resictent of Bankur. She is the 2nd defendant in this suit.

The son Denis who became a school master was married to the first plaintiff Celestine subsequent to 1927 - the wifes evidence on 1954 was "I was married 27 years back" - and had by her the children, plaintiffs 2 to 5. He died apparently in 1951-52. The wifes evidence in 1954 however was "He died about 21 years back". Subsequent to the death of Denis the mother-in-law and the daughter-in-law have fallen out. The mother-in-law had gone and resided with her daughter, the 2nd defendant.

The 2nd defendant filed a suit O. S. 61 of 1953 for partition. She claimed a 2/3rd share in the properties on the ground that her father Juje Banja died intestate and that she had acquired from her mother a third share devolving on her. In the course of contesting the suit, the present first plaintiff is stated to have come to know of a will left by her father-in-law dated 3-2-1923 and has propounded that will in O.P. 19 of 1953 which, on caveat being entered by the widow and daughter of the testator, was converted into a suit O.S. 3 of 1953.

The case for the defendants in this suit is that the will is a rank forgery and brought into existence by the widow of Denis Banja after the filing of her written statement in O.S. 61 of 1953. The learned District Judge came to the conclusion that the will dated 3-2-1923 propounded by the plaintiffs is a fabrication and dismissed the suit. Hence this appeal.

3. The short point for determination therefore is whether the will dated 3-2-1923 is a fabrication as concluded by the learned District Judge.

4. On a review of the entire circumstances of the case I have come to the conclusion, differing from the learned District Judge, that the will is true and valid and here are my reasons.

5. The execution and attestation of the will have been proved in the only way in which it was possible to do so in this case. The will has been attested by two persons by name Mudu Thonse Gabriel Luises son Lorence J.P. Luice and Mudu Thonse Kudru Salvadore Luices son Lores Luice, who is also the scribe of the document. Both these attestors have died. P.W. 4 is the son of the scribe and attestor Loren Luice. His evidence is that his father died in January 1927 and that he was also known as Kudru Lawrence Lewis.

Ex. A-15 is the entry in the funeral register of the Kalyanpur Church showing the death of Lawrence Lewis. Ex. A-16 is another entry in the funeral register of that Church showing the death of the other attestor Lawrence J.P. Lewis on 23-8-1926. These registers came from the proper custody of P.W. 2. P.W. 4 has proved the handwriting of his father in the body of the will as also his signature.

P.W. 5 who is also of the village of Mudu Thonse and who is a relative of the other attestor Lawrence J.P. Lewis has proved the signature of his relative Lawrence J.P. Lewis. From the evidence of P.W. 4, it is seen that his father was a professional document writer and he produced Ex. A-25, and Ex. A-10, containing the signatures of his father Exs. A-18 to A-21, for the purpose of comparison of signatures, and the body writing of the will. The learned District Judge came to the conclusion :

"A comparison of the proved signatures in the registered document Ex. A-10, and marked as Exs. A-18 to A-21 with the signatures purporti