1. This is an appeal against the judgment of the Subordinate Judge, Vijayawada, in O. S. 124 of 1959 by which he dismissed the plaintiff's suit for possession of the plaint schedule properties and for profits and other reliefs. The plaintiff is the appellant.
2. One Bonthu Venkatareddi, hereinafter be referred to as Reddi, of Telaprolu died possessed of the properties claimed in the suit. The planitiff is the son of the said Reddi's sister He is a minor and is represented by his mother Vintha Suhbamma, the sister of late Reddi. The 1st defendant in the suit is the widow of the said Reddi The 2nd defendant is the tenant of the lands of the said Reddi which were leased to him. The said Reddi was abut 38 years when he died. He died issueless. He had previously gifted about 57 cents of hill land to his sister's daughter. Subsequently he gifted an acre of land to his wife under a dakhaldeed, Ex. A-2 dated 12-6-1959. At the time of his death he left him surviving a young widow who was 25 years when she deposed on 22-7-1961.
3. It is the plaintiff's case that Reddi executed a will at about 11 a.m., on the day of his death, i.e., on 16-11-1959 at Vijayawada in the house of one Sura Reddy. The said Sura Reddy was no other than the brother of Reddi's sisters son-in-law, P. W. 1. Reddi is said to have died the same day at 8 p.m., in his house at Telaprolu. Telaprolu is said to be about 7 or 8 miles from Gannavaram and Gannavaram is said to be about 8 or 10 miles from Vijayawada. The plaintiff's case of the circumstances under which the will was executed by late Reddi is set out in para 4 of the plaint which may be appropriately read here:
' Late Bonthu Venkata Reddy was suffering from heart disease for some time past and he found no hope of survival and he came to Vijayawada for treatment along with his sister and her son-in-law. He was advised to get himself X-rayed and an X-ray photo was taken at Vijayawada in the clinic of Dr. C. Balakrishna Rao. The X-ray examination revealed that his condition was serious. Having realised the seriousness of his condition, he wanted to execute a will immediately bequeathing all his remaining properties in favour of his sister's son, the plaintiff herein, as he had already made up his mind and announced his desire to bequeath all his remaining properties to the plaintiff in view of the love and affection he had to the plaintiff and the cordial relations he had with the plaintiff's family, which had been very helpful to them throughout his life. Accordingly, he executed a will on 16-11-1959 at about 10 a. m., in a sound and disposing state of mind- He wanted to get the will registered the next day at Gannavaram and reached that place by 5 p.m. But his illness took a very serious turn by 6 p.m., and he was advised to he removed immediately to his native place and accordingly he was immediately removed to Telaprolu where he died at about 8 p.m. '
Alleging that the 1st defendant trespassed on the lands, and the 2nd defendant was set up as a tenant under the deceased, the suit was laid on 4-12-1959
4. The 1st defendant repudiated the alleged will as a forgery and pleaded inter alia that her husband never suffered from heart disease, that on 16-11-1959 the plaintiff's mother told her that she would take her brother to a Doctor at Gannavaram and bring him back the same evening, that she left Telaprolu by bus along with her husband at 9-45 a.m., and returned to Telaprolu with the corpse of her hubsand in a taxi at about 7 p.m., and that it was false to say that her husband died at Telaprolu at 8 p.m., that day She also pleaded that the plaintiff- his mother and brother-in-law attended the funeral ceremony, but did not tell anybody about the execution of the will by the deceased, and that it was not also stated that the will was executed when the 2nd defendant, the tenant attorned to her on the last day of the karma. She denied the allegations of trespass.
5. The 2nd defendant pleaded that he was a lessee and supported the case of the 1st defendant that he attorned to her and that he was not told that any will was executed by late Reddi
6. On these pleadings the main issue in the case was whether the will alleged to have been executed by late Bonthu Venkata Reddi on 16-11 1959 was true and valid. The learned Subordinate Judge found the issue against the plaintiff and dismissed the suit. The plain tiff is therfore the appellant before me.
7. The learned counsel for the appellant has contended that the learned trial Judge misdirected himself in the appreciation of the evidence. He contended that the Court below erred in not observing the rule laid down by the Privy Council in Harmes v. Hinkson, AIR 1946 PC 156 that there should not be an obdurate persistence in disbelief nor should the Judge be observed by a resolute and impenetrable incredulity even in cases where the will is charged with suspicion. He contended that the entire judgment proceeded on suspicion rather than in weighing the evidence dispassionately. He invited my attention to the principles indicated by the Supreme Court in the matter of proof of wills in Shashi Kumar v. Subodh Kumar, : AIR1964SC529 reiterating the principles laid down in Venkatachala Iyengar v. Thimmajamma, : AIR1959SC443 and Rani Purnima Debi v. Khagendra Naravan Deb. : 3SCR195 . In all these decisions the general principles have been indicated that the onus lay on the propounders of the will to prove that the will propounded was the last will of a capable testator and that all suspicions if any surrounding the execution of the (will) had to be removed. Sufficient to refer to the passage in : AIR1959SC443 . occurring at page 452 (Para 22).
'It may however be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicious from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties'
The matter is essentially one of appreciation of evidence and as observed by the Supreme Court in the aforesaid case, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence.
8. In the instant case the propounders of the will on behalf of the minor plaintiff are P. W. 1 and the plaintiff's mother P. W. 5. It may be recalled that P. W. 1. married the minor plaintiff's sister P. W. 5's evidence, that is the plaintiff's mother's evidence, is that the plaint was drafted by the Advocate on the instructions of P. W. 1 and she added that she was conducting the suit herself. P. Ws. 1 and 5 claimed to be with Reddi at all material times, that is to say, when Reddi left Telaprolu, when he visited Dr. Railu's hospital at Gannavaram and the X-ray clinic of Dr. Balakrishna Rao at Vijayawada, when he executed the will in Sura Reddy's house at Vijayawada and on his way back again when he visited Dr. Railu's hospital at Gannavaram and then on his way back to his house at Telaprolu. P. W. 1 is an attestor of the will and P. W. 5 claimed to be present when the will was written and attested. Under the will, Ex. A-1, all the properties of Reddi were bequeathed to the minor plantliff. i.e., to the son of P. W. 6. The other attestor is P. W. 3 of Chagantipadu. P. W. 1 belonged to Kollavaripalem. which is hamlet of Chagan-tipadu. The scribe is Marreddi Bhadrayya (P. W. 2) also of Chagantipadu. Changatipadu and Kallamvaripalem are villages in the vicinity of Vijayawada.
9. The events which occurred on 16-11-59 were stated by P. Ws. 1 and 6 to this effect. P. W. 5 sent word P. W. 1 asking him to come and see. She did not particularly say whom he should see. P. W. 1 therefore went to Telaprolu. He stayed in P. W. 5's house. P. W. 5 is his mother-in-law. He also went to Reddi's house which was at a distance of half a furlong from his mother-in-law's house, Reddi was moving about in his house. He told him that he wanted to get to Gannavaram to be examined by a Doctor. The witness did not know his ailment then. Then he, Reddi and his mother-in-law left by 6 a.m., bus for Gannavaram They were at Gannavaram for half an hour in Dr. Railu's hospital. P. W. 1 did not know if any person of Telaprolu travelled in the same bus. Dr- Railu asked them to get an X-ray in Vijaywada at a dispensary on Eluru Road He, his mother-in-law and Reddi left for Vijayawada by another bus. They reached Vijayawada before 8 a.m. X-Ray was taken in the clinic of Dr. Balakrishna Rao. He said that X-Ray photo was given in half an hour. Dr Balakrishna Rao said that there was no use of staying at Vijayawada and that they should take Reddi to Dr. Railu at Gannavaram. They did not go immediately to Gannavaram as advised by that Doctor. In spite of his advice, they stayed at Vijayawada till 4 p.m. From Dr Balakrishna Rao's dispensary they went to house of P. W. 1's brother, Sura Reddi, They went there to take meals. Reddi said that the Doctor was speaking suspicions about his life and so asked him and his mother-in-law to take a document from him for his property, P. W. 1 then went in search of Sura Reddy who was not at home He returned with Seetaramareddy another attestor (P. W. 3) and Bhadrayya. the scribe (P. W. 2), both of Cha-gantipadu Reddi told Bhadrayya that his house and lands should be written to Vintha Venkat-eswara Reddi, his nephew They had taken while paper from the bazar Bhadrayya considered and wrote Reddi signed on all the three pages. The attestors signed. Thereafter the other attestor Seetaramareddy and the scribe left. Then they stayed there till evening because Reddi was not keeping fit. According to P. W. 5 they wanted to start after it cooled down. They left Vijayawada and reached the Doctor's house at Gannavaram when it was getting dark. The doctor saw the X-ray and asked them to lake the patient home. He did not say anything about the medicine. They reached Telaprolu at 8 p.m. and Reddi died shortly thereafter.
10. With regard to the writing of the will, the propounders' version is that no draft was prepared but Reddi gave the scribe some documents taking them from a hand bag of cloth, that the scribe, who Is a document writer, wrote the will and that after seeing the documents given by Reddi he wrote the schedules, that the scribe returned the documents to Reddi, that the scribe read over the contents to Reddi, that Reddi signed thereafter and the attestors affix-ed their signatures to it. Ex. A-1 is that will. The scribe said that Reddi was in sound health then. The other attestor P. W. 3 said that he was alright then P. W. 1, the other propounder-attestor, also said that he was in a sound state of health then P. W. 5, the other propounder, did not say anything about the state of health of Reddi then.
11. The learned Subordinate Judge did not believe the execution of the will by Reddi. He observed that a lot of suspicion was attached to the execution of the will and that the evidence furnished by the propounders did not remove that suspicion. About P. W 1 he said that he was not an independent witness About P. W. 2 he remarked that it was difficult Io rely on him. About P. W 3 he commented that he was a resident of the same village as P. W. 1 and it was curious that P. Ws. 1, 2 and 3 had met by chance before the alleged execution of the will.
12. The learned counsel has commented that there was no reason to disbelieve the evidence of P. Ws. 2 and 3 assuming that P. W. 1 was not an independent witness. The learned counsel has also argued that the learned Judge considered that the non-registration of the will was a circumstance which went against the propounders of the will and that that was not the correct approach as a will is not compulsorily registerable The learned counsel has also argued that the will giving properties to the nephew is natural having regard to the misunderstandings between Reddi and his wife. (13) Sri Ramchandra Reddi has contended that the case of the execution of the will as pleaded has not been established by any reliable evidence He would say that there was no evidence that Reddi was suffering from heart disease that there was no evidence that the Doctor at Vijayawada had apprised him of the serious condition so that he wanted to execute the will immediately that there was no proof that the will was executed at 11 a.m in Surareddi's house as not even the inmates of Sura Reddy's house were examined, nor any neighbours nor anybody at Vijayawada and that there was no information about the execution of the will either at the funeral or at the Chinna Dinam or at the ceremony or even when the tenant attorned to the widow in the presence of the propounders about 15 days after the death of Reddi. He would say that the counter case pleaded by the widow is more probable, viz. that Reddi's sister only took Reddi to Vijayawada by the 9-30 a.m. bus on 16-11-l959 and returned with the dead body of Reddi in a private car or jeep by night fall, that P. W. 1 did not accompany them and that Reddi did not take any documents in the handbag.
14. The evidence of the widow as D. W. 8 may be appropriately read here:
'Subbamma P. W. 5 had taken my husband to Gannavaram on the day when he died. She said that they would return by evening. They went by 9.30 a.m. bus. P. W. 1 did not go with them and he was not in our village on that day. My husband did not take any documents with him. They returned by the time of lighting. Subbamma P. W. 5 returned with my husband's corpse in a small car. Neighbours came to our house when the corpse was brought. P. W. 5 did not tell about writing of any will. My father spent for cremation and funeral expenses.'
She denied the suggestion that her husband was always taking a bag of documents with him whenever he was going out.
15. The learned Government Pleader (Sri Ramchandra Reddy) has argued that the counter version stated by the widow is supported by the independent evidence of neighbours and of persons against whom nothing was stated or suggested D. W. 4 Vintha China Mangi Reddy is the immediate neighbour. His house adjoins the house of Reddi. He came to know about Reddi's death after he was brought to the village in a small taxi. On hearing the cries, he went to his house immediately. Many people came there. P. W. 1 was not seen there. There was no talk about the will. The 1st defendant's father, i.e. the widow's father and D. W. 1 were there attending to the ceremonies after the death. He Attended the ceremony on the 15th day after death. At that time also there was no talk about the will by P. W. 1 or P. W. 5. One Nageswara Rao (D. W. 5) conducted the ceremonies as Purohit. In cross-examination he said that immediately after the car stopped there crying started and that he went there and denied the suggestion that P. W. 1 came in the car with Reddi.
16. D. W. 1 is a resident of Telaprolu. He stated that on the morning of the day when Reddi died, the 1st defendant i.e the widow had sent for him. Plaintiff's mother i.e. P. W. 5 was also there. She said that she would take Reddi to Gannavaram to show him to the Doctor. She said that she would show him to Dr. Railu and bring him back in the evening. He agreed that it might be done Then the plaintiff's mother took him in a bus at 9-30 or 9-45 a.m P. W. 1 was not present then P. W. 5 returned with the corpse of Reddi at 7 p.m in a small car He went to Reddi's house on hearing the news Neighbours also came there. There was no mention of writing a will at Vijavawada. He also asserted that A-1 did not bear the signature of Reddi. The only comment made is that the 1st defendant is his mother's sister's sister's daughter. But then if has to be said that relationship by itself is no ground for discrediting the witness. Such matters as he has spoken to could be known to a relation only and it would be an entirely wrong approach to say that a relation is interested in giving a false story or distorted story unless something is elicited from him to show that he was so interested against the propounders. A reading of his evidence does not show that there was any material to attribute any such hostility or proneness to give a false version. The mere comment that he is a relation would therefore be insufficient to discredit the witness.
17. D. W. 3 is a resident of Telaprolu. He also belongs to Vintha family. He is Vintha Sura Reddi. He said that he saw the corpse of Reddi, and that his wife and P. W. 5 were there and many people gathered there There was no talk of the will. He also stated in cross-examination that Reddi's body was brought about 7 p.m. He was not alive when he was bronught home. He denied the suggestion that he was on bad terms with Suhbamma, P. W. 5. This is another witness who has said that Reddi was dead by the time he was brought home at 7 p.m. and it does not appear that he saw P. W. 1 at that time. My comment about relationship being an insufficient reason for discrediting a witness equally applies to this wilness.
18. It therefore emerges that the widow's version of what look place on 16-11-1959 receives independent corroboration from the evidence of D. Ws. 1, 3 and 4, the malerial facts of the counter version being that P. W. 1 did not accompany Reddi when he left Telaprolu at about 9-30 or so in the morning and that Reddi's dead body was brought by about 7 p.m. in a small car or jeep. It is now seen that if this version is accepted as true, the propounders' version shows that P. W. 1. one of the propounders. gives himself a major role in the execution of the will.
19. I am inclined to agree with the learn ed Government Pleader's contention that the execution of the will at 11 a.m as stated is rendered very doubtful by two facts, firstly that P. W. 5 and Reddi left for Vijayawada only at 9-30 a.m or thereabouts by bus and secondly by evidence of D. W. 2. the X-Ray technician at Dr. Balakrishna Rao's clinic that he had returned Reddi's X-Ray photo at about 3 or 3-30 p. m. that day. The evidence of D. W. 2 is important in the set up of the propounders' case which I may recall at the risk of repetition that the X-Ray examination revealed that his condition was serious and that having realised the seriousness, he wanted to execute a will immediately.
20. Sri Kuppuswamy has commented that it is difficult to trust this witness's recollection that Reddi's X-ray photo was returned at 3 or 3-30 p.m. But I think that it is equally unfair to reject his evidence when he was the person who had handed the X-ray photo. The fact that P. W. 1 evaded to apprise the Court of even the approximate time when they readied Gannavaram, when they reached Vijavawada, etc. as appears from his deposition is also to be noted in this context. The question and answer elicited in the examination of P. W. 1 relevant in this context are these:
'Q. At what time did you reach Gannavaram and go to Dr Railu's Hospital?
A. 1 cannot state the time.' The learned Judge made a comment thus:
'Witness was asked to state roughly but he is evading by saying how can I know time. He is not even answering as to how much time it took to come from Telaprolu to Gannavaram.'
P. W. 5's examination also discloses that she was in no mood to help the court in this regard.
'Q. When did he (Dr. Railu at Gannavaram) examine your brother and when did vougo to him?
A. I do not know hours or so. We reached there after the day had some what risen'
'Q. Can you say whether the photo was given in how many hours?
A. I cannot say hours because I do not know hours
'Q. Was it given in the lime which took for your bus for coming from Gannavaram to Vijayawada?
A. I cannot say.'
All that she would vehemently say is that they did not start by 9-30 a.m. bus by early morning bus.
21. This reticence on the part of the witness to commit themselves to any lime appears to be deliberate because if it is a case of Reddi leaving Telaprolu by bus by about 9-30 or so, then it would seriously militate against the story of the execution of the will at 11 a.m. as spoken to in evidence or at 10 a.m. as stated in the plaint.
22. I am also inclined to accept the contention of the learned Government Pleader that the two doctors, who should have been examined, Dr Railu of Gannavaram and Dr. Bala-krishna Rao of Vijayawada, were kept away from court. There is no doubt that in the set up of the case of the propounders these witnesses came in at very material times It was Dr. Railu of Gannavaram who advised an X-Ray photograph to be taken at Vijayawada. It was the X-Ray photograph laken at Balakrishna Rao's clinic that made Reddi know that bis condition was serious and that he bad to execute a will. It was again Dr Railu of Ganavaram who saw Reddi on his return journey and curiously it was said by P W 5 that he asked them to take the medicine The suggestion which P. W 6 denied was that Reddi died before reaching Tetaprolu.
23. In the set up of the propounders' case I have no doubt that these are material witnesses and their non-examination would mean thal the propounders had not placed before the Court the material information necessary to satisfy the conscience of the court.
24. I also agree with the comment of the learned Government Pleader that no inmates of Sura Reddy's house were examined. Sura Reddy's house la the place where the alleged will was executed. The evidence of P.W. 1 is significantly this:
'Neighbours of Sura Reddy's house were not there. Female inmates of Sura Reddy's house did not see the execution of the will.'
It is not easy to conceive that the inmates of Sura Reddy'g house did not see the execution of the will executed in their house.
25. It is contended by Sri Kupuswami that P. Ws. 2 and 3 are independent witnesses whose evidence should not be rejected for the reason that they belonged to Chagantipadu. I agree that just for that reason they do not stand discredited. But we find that these two witnesses have asserted that they saw Reddi in sound health and that his condition was alright when he executed the will which certain-ly is not the case of the propounders This shows a clear proneness on these witnesses part to support the case set up that the will was executed in a sound and disposing state of mind.
26. Nest there is the improbability about Reddi carrying documents in a hand-bag when he was going to consult the Doctor. The pro-pounders would have it that he was constantly carrying the documents in a hand-bag. This was suggested to the widow which she denied.
27. The will, Ex. A-1, purports to give details of the lands with survey numbers. It is written on plain paper consisting of nearly 2 1/2 pages of closely written Telgu script. The writing also shows that a person versed in writing documents had written this. If it is improbable that Reddi while going to consult a Doctor would have carried the documents giving schedules, suspicion would arise that the will could not have been executed in the circumstances stated.
28. There are also certain inconsistencies as to where P. W. 1 and P. Ws. 2 and 3 met before going to Sura Reddy's house. P. W. 2, the scribe, would say that they met in Durga Vilas. P. W. 1 would say that they had met on Beasent road.
29. There is also prevarication in respect of the documents alleged to have been given by Reddi to the scribe The scribe said that Reddi gave the documents taking them out of a hand-bag and that he returned the documents to him. But P. W. 6, who claimed that she was present at the time of the execution of the will, said that the scribe delivered back the documents to her and that since then they were with her. Curiously, this is what appears in the deposition of the witness (P. W. 5);
'Q. Can you produce those documents if given time?
A (Witness thinks for a while and says) What documents you want to be filed? Again says, I will file them'.
It is said that they were not filed.
30. Examining the writing in Ex. A-1, it shows that it must have taken considerable time to write that document and that the schedules must have been written from other documents. As I said, in the circumstances it is not likely that these documents were given by Reddi to the Scribe at the time and in the situation as stated by the propounders and their witnesses.
31. Thus it emerges that P. W. 1 has apparently been given a role to play in the execution of the will. P. Ws. 2 and 8 have also played a part in getting up the will. The alleged time of execution of the will does not fit in with the case set up by the propounders and there are undoubtedly infirmities which are inherent in the transaction itself.
32. Apart from these, there is another fact which has a bearing on the execution of the will as propounded, viz. that the execution of the said will was not disclosed at the funeral or at the ceremony three days later or even at the fifteenth day ceremony, P.W. 1 said thus:
'I stayed there till the evening after the third day of death Small Karma was performed on third day. Relatives and elders of the village came to the house on that day. The will was not shown to them. Everybody came to know of the execution of the will. 1 think I might have also told my friends there. Nobody else mentioned about the will to others in my presence. I again came for big Karma on 15th day..... Village elders came to the house on 15th day and the will was not shown to any of the elders.'
P. W. 5 stated thus:
'Respectable persons came for small Karma and big Karma. I cannot tell their names. We did not show the will but we had told that will was written. I did not say to any particular person but I said before many persons. Nobody asked the contents of the will and I did not tell. P W. 1 was not present there ..... mmediately after the death 1 announced the writing of will. I cannot say who were present. I was crying that he executed a will and died.' The witness was obviously overstating things when she said that she was crying that he executed a will and died, because it is not the evidence of anybody else that the will was disclosed at the funeral.
33. Thus it is manifest from the evidence of the propounders that the will was not disclosed either at the funeral or at the ceremonies
34. There is the evidence of D. W. 7, the tenant, that he was sent for on the fifteenth day of Reddi's death and he was asked to pay Rs. 150/- as he was cultivating Reddi's land. The 1st defendant's father asked him. He promised to pay after the harvest. That was in the presence of P W 5 and her son-in-law P. W. 1 He was not asked not to pay to the 1st defendant as the will was in their favour i.e P. W. 5's sons favour.
35. The widow has said as D. W. 6 that she came to know of the will after receiving the notice in the suit The 2nd defendant, the tenant (D. W. 7) has pleaded in his written statement that till he received the injunction order and the notice in the suit he was not aware of the execution of the will.
36. This evidence that the will was not disclosed when in the ordinary course of human affairs it should be disclosed, is a circumstance which detracts from the execution of the will in the circumstances stated by the propounders.
37. The learned Subordinate Judge also referred to non-registration of the document as a suspicious circumstance. The evidence is that the Sub-Registrar's Office was about a furlong or so from Dr Railu's hospital at Gannavaram, It is the propounders' case that after the execution of the will Reddi visited Dr. Railu's hospital on his way back to the village. It is also the propounders' case that he wanted it to be registered. If so, there is no convincing reason why Reddi, if he executed the will, had put off registration having visited Gannavaram, where there was a Sub-Registrar's Office, on his way back to the village
38. Sri Kuppuswamy has cited the Privy Council case, Madhavayva v. Achamma. AIR 1949 P. C. 325. He has read the head note (c) which is in these terms:
'No adverse inference could be drawn because of non-registration of will, specially when will did not require registration for its validity.'
Paras 32 and 33 are noted in support of this head note. But a reading of the paras shows that their Lordships could not in the circumstances draw an inference adverse to the respondent because of the omission to register the the will. The head note is manifestly far wide of the mark and the observations of the learned Judges do not support such a general statement.
39. True it is that the will is not a document compulsorily registerable for its validity. But where as in this case Reddi is said to have wanted the will to be registered and he had passed very near the Registrar's Office on his way back to the village, there is no convincing reason why he did not get it registered if he had executed the will in the circumstances, the non-registration of the will raises also a doubt in the mind of the court. The evidence adduced by the propounders, far from removing suspicions gives rise to more and more suspicions and it is difficult to say that the propounders have proved the case set up by them that the will was executed by Reddi at Vijayawada at 11 a.m. in Sura Reddy's house in the circumstances stated by them At all material limes referred to in the case, the evidence offered creates doubts and suspicions which certainly militate against the acceptance of the will. Ex. A-1 as executed by Reddi.
40. Sri Kuppuswamy has contended that Ex. A-2 is a document tinder which the widow was gifted an acre of land, that the document, Ex. A-2. recited that misunderstandings had arisen between him and his wife, that they did not like to live together and that he had agreed to arrange for her maintenance. He read the recitals of Ex A-2 and argued that If this was the situation in which Reddi was placed, it was only natural that he had wished to give his properly to his nephew for whom he had affection. The widow has stated that she was with her husband and cooked food for him and was never separate from him and that there was no such affection for the nephew, The learned Government Pleader argued that Reddi had already given 57 cents, of land to his niece i.e. the sister of the minor plaintiff some time ago. She is the wife of P. W. 1. He would say that if he had such affection for his nephew, he would have also given him some land then, and that showed that the present story of affection for the nephew was. a trumped up story. He would also say Unit the story of Reddi's wife having lived away from him was not true and that there is the testimony of independent witnesses who said that she cooked for him and lived in the house. He argued that the recitals in the alleged will had been manufactured so as to probabilise the execution of the will on the recitals of Ex. A-2, and that the theory of natural disposition contended for by the learned counsel cannot be believed. It seems to me that the story of execution of the will is riddled with serious infirmities. The argument of natural disposition cannot be supported
41. The learned counsel. Shri Kupppuswami has contended that the widow has not produced the original document in her favour Ex. A-2. so as to enable the court to compare the signature or even take the help of an expert. It would appear that 57 cents of land had been gifted to the plaintiff's sister in 1954 (the correct date of the document itself is not stated) and Ex A-2 was executed in May 1959. Neither party produced the original for comparison of signatures. The learned Government Pleader would say that it lay on the propounders to establish the execution.
42. Be that as it may, it has been observed by a Bench of this Court in R. Kameswara Rao v. B. Suryaprakasa Rao. : AIR1962AP178 thus :
'It has been repeatedly held that expert's opinion with respect to the handwriting must always be received with great caution.' The Bench referred to a passage in In re, Venkata Row, ILR 36 Mad 159, 165 where it was observed:
'It must be confessed, however, that if is of the lowest order of evidence or of the most unsatisfactory character.'
I need not adopt all that was said. But suffice it to say that when the direct evidence offered of execution of the will is unreliable, the situation may not be improved by a comparison of signatures. I say this because execution does not consist merely in speaking to signatures on papers Execution must and does imply that the recitals in the document executed were known to the author who signed and that in approval thereof he had affixed his signature thereto This is not shown by mere identification of signatures. I do not therefore see much force in this contention that the Court could have found on the genuineness of the signature by resorting to section 78 of the Evidence Act or taken the opinion of an expert.
43. For alt these reasons, I find no ease for differing from the learned Subordinate Judge on the main issue, finding it against the plaintiff.
44. No other points are taken before me.
45. The appeal therefore fails and is dismissed with costs.