IMPORTANT POINTS
(1) Rejoinder – Pleadings incorporated in a rejoinder will never form part of plaint.
(2) Will – Execution – Beneficiary can only prove that Will was properly executed by testator in presence of two witnesses who have witnessed and attested execution – No law or judgment provides that when scribe of Will is one of attesting witness, he is best witness and he alone is competent to depose about execution of Will.

JUDGMENT

Mary Joseph, J.—Appeal on hand is filed by the unsuccessful plaintiff in O.S. No.292/04, which is a suit for partition on the files of Subordinate Judges (Additional) Court, Palakkad. The suit for partition was dismissed by the trial court on arriving at a finding that the plaint schedule property is not partible for the reason that a Will was executed by the deceased Narayanankutty in favour of his wife, the 1st defendant and the Will has been acted upon, on his death.

2. The contention of Sri.P.S.Appu, the learned counsel for the appellant/plaintiff was that the judgment and decree under challenge are passed by the trial court erroneously on the basis of improper appreciation of evidence. According to the learned counsel, the appellant and defendants are governed by Hindu Mitakshara Law and on the death of original plaintiff’s son, intestate, the plaintiff being the mother is entitled to get 1/4th share of the plaint schedule property. According to him, the alleged execution of the Will marked in evidence as Ext.B1 is shrouded with suspicion and it ought not to have been relied upon by the trial court for declining the relief of partition against the plaintiff. According to him, Ext.B1 is silent of the recitals about the cause for the testator to disinherit his mother and devoid of any special reason stated therein as to why the entire property belonging to the testator has been bequeathed solely to his wife, leaving his mother and even the two daughters he was having. It is contended by the learned counsel that the Will recites payment of Rs.2,50,000/- each to the married and unmarried daughter and the proposition is unnatural. At the time when the testator has executed the Will, the marriage of the 1st daughter was over and she might have been married away, spending huge money and giving gold ornaments. According to the learned counsel, it is unlikely for the testator to direct the beneficiary of the Will, the 1st defendant to pay Rs.2,50,000/- each to the married and unmarried daughter and that should tend the Court to view the Will with suspicion.

3. Inviting the attention of this Court to the evidence tendered by the 1” defendant, the learned counsel contended that there was no reason for deceased Narayanankutty, the alleged testator of the Will to execute the same at his age of 45 years, when he was in a state of healthy physical condition and devoid of any disease. According to the learned counsel, the execution of a Will by the testator at his youth and healthy condition, creates suspicion and the trial court ought to have adverted to that aspect while appreciating the evidence. It is contended by the learned counsel that the deceased Narayanankutty has two daughters and the bequeath of the entire property in favour of his wife evading the two daughters is also a suspicious circumstance to doubt the genuineness of Ext.B1. Inviting the attention of this Court to page No.2 of the Will, it is contended by the learned counsel that the writings there is dissimilar to that found in other pages of the Will. According to him, in page 2, more matters have been incorporated, without leaving adequate space and that gave an indication of obtaining signed papers from the deceased Narayankutty by the 1st defendant and making use of those for creation of Ext.B1. According to the learned counsel, if the document was a genuine one the contents must have been entered in a proportionate manner and signatures of deceased Narayanankutty must have been obtained in each pages.

4. The learned counsel has also drawn the attention of this Court to the attestors of the Will to contend that neither the friends of Mr.Narayanankutty nor his relatives were made to sign it. According to him, the 1st witness Devadas is the brother of the 1st defendant and the 2nd witness Rajith is the first cousin of the 1st defendant. The learned counsel urged that non-procuring of any of the relatives or friends of deceased Narayanankutty to attest the Wi