A will must be proven as executed and attested according to statutory requirements; the burden lies on the propounder to dispel any suspicious circumstances.

JUDGMENT

Bhavadasan, J, Late Krishnan Nambiar and the first plaintiff had nine children. Four of them, along with their mother, instituted O.S. 85 of 2002 and the other children were shown as the defendants in the suit.

2. The suit was one for partition. Properties admittedly belonged to Krishnan Nambiar, who is no more. A schedule consists of two items of immovable properties and B schedule are movables. The plaintiffs claimed 5/10 shares.

3. The suit was mainly resisted by defendants

1 and 2, who put forward a Will said to have been executed by Krishnan Nambiar on 23.11.1996. As per that Will, 9.17 cents of land with the building therein RFA.333/2005. 2 out of 21 cents shown as item No.1 in A schedule was bequeathed to defendants 1 and 2. They therefore contended that that extent of property with the building therein was not available for partition.

4. The court below refused to accept the Will and decreed the suit as prayed for. Defendants 1 and 2 assail the preliminary decree in this appeal.

5. Learned counsel appearing for the appellants criticized the judgment of the lower court on the ground that the court below has not considered the relevant aspects and has taken into consideration irrelevant factors to come to the conclusion that the Will is not genuine. The court has been influenced by extraneous considerations and has not adverted itself to the law on the subject and has infact misdirected itself both on facts and in law. The reason given to disbelieve D.W.2, the attesting witness to the Will is totally RFA.333/2005. 3 unsustainable. There was no justification to come to the conclusion that the Will is shrouded in suspicious circumstances and it does not appear to be genuine. Learned counsel in support of the contention that the Will ought to have been accepted relied on the following decisions:

Joseph v. Ippunny (2007(4) KLT 853), Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande ((2003) 8 SCC 537) and Satyanarayana v.

Seetharatnam (2005(4) KLT SN 80).

6. Emphasizing that none of the grounds relied on by the court below to reject the Will is justified, learned counsel went on to point out that the property covered by Ext.B1 Will ought to be excluded from partition.

7. Learned counsel appearing for the respondents on the other hand contended that the court RFA.333/2005. 4 below has taken note of several suspicious circumstances, which the propounders were unable to explain to the satisfaction of the court. Only one of the attesting witnesses had been examined. The Will is of the year 1996. A reading of the evidence of D.W.2, the attesting witness, will clearly show that he was not at all familiar with the testator and the evidence of the propounder, namely, D.W.1, is far from convincing. The court below has also noticed that there is considerable difference in the signatures of Krishnan Nambiar on Ext.B1 Will and his admitted signature found in Ext.A1. Supporting the judgment of the court below, learned counsel contended that there was no reason to interfere with the preliminary decree passed by the court below.

8. The question that arises for consideration is whether the finding of the court below that the Will has not been proved is correct and justified.

RFA.333/2005. 5

9. The two main aspects, which impressed the court below, were that the genuineness of the Will was not established and the suspicious circumstances were not dispelled. While the contention of the contesting defendants is that there was no justification to suspect the genuineness of the Will and the evidence of D.W.2, the plaintiffs in the suit contend otherwise.

10. Before going into the facts and the evidence in the case, it will be useful to refer to the law regarding the making of a Will and the proof of Wills.

11. The Will is a legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death. It is revocable during the lifetime of the testator and it is known as ambulatory in nat