Very many suspicious circumstances have been pointed out concurrently by the courts below to discard Ext. B1 Will put forward to resist the suit for partition. The lower court records were called for and I concur with the courts below to hold that Ext. B1 Will does not inspire confidence by its very look and also in the manner in which it is written in a sheet of paper. The document looks very shabby (unlikely to be prepared in such a manner by a licensed scribe) and the ink is also blurred. The spacing of the lines also goes on decreasing in order to compress the contents in a sheet of paper. No schedule is attached to Will which is unregistered and the signature of the scribe seen therein is in a different handwriting.
2. The Courts below were justified in holding that the suspicious circumstances surrounding the due execution of Ext. B1 Will have not been dispelled by the propounder. Ext. B1 Will falls short of the requisite proof envisaged under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. Ext. B1 Will was also not R.S.A. No. 1498 of 2013 2 pressed into service in an earlier suit filed by the legal heirs of the testators against the Kerala State Electricity Board. Moreover Ext. B1 Will saw the light of the day only after 14 years after it is allegedly executed.
3. Sri. S.V. Balakrishna Iyer, Senior Advocate contends that the trial court has not framed an issue as regards the genuineness of Ext. B1 Will even though the lower appellate court has focused on that point. Firstly an appeal is a re-hearing of the suit wherein the issues could be re-framed and the points focused. Secondly the trial court has framed issues as to whether the property is partible and about the share to be alloted to the plaintiff. These issues certainly take in the issue as to whether the plaintiff has to be denied the share in the wake of Ext. B1 Will relied on by the defendants. The finding of the courts below are rested on evidence and calls for no interference in this Regular Second Appeal.
There is no question of law much less any substantial question of law in the Regular Second Appeal. The Regular Second Appeal is dismissed.
DCS V.CHITAMBARESH JUDGE