MARAGATHAMMAL Vs. SEETHA ALIAS MUTHAMMAL

JUDGEMENT

(1.) THE following substantial questions of law were framed at the time of admission:

(2.) THE learned counsel for the appellant, contended the acceptance of the second Will was not correct. THE plaintiffs brother was examined as P.W.I and he had accepted that the Will dated 24.5.1974 (Ex -Al). As per Ex -Al, the property was given equally both to the first respondent (plaintiff) and to the first defendant. But according to P.W.I Ex -Al was cancelled in 1982 by Ex -A2, cancellation deed and Ex -A3 is the Will set up by the first respondent. According to the counsel fpr the first respondent, Exs -A2 and A3 had been duly proved and it is enough if one attesting witness has been examined to prove the due execution of the Will. Since the learned counsel for the appellant requested that for the purpose of testing the genuineness of the evidence the Will must be looked at. Ex -A3, Will was also seen by me. In Ex -A2,, Sankaravadivammal has referred to the earlier Will, Ex -Al, and that under Ex -Al, Schedule No.l property which are the suit properties were given to her husband's brother's grandson who is the first defendant and the Schedule 2 property was given to the brother's daughter, the first respondent herein and that subsequently, she felt that the said Will was wrong and that some problems may arise and therefore, she had cancelled the Will. THE extracts from Ex -A2 are as follows:

(3.) ,ssf Further according to P.W.I, Sankaravadivammal had made the mark in the first three pages. But even a fleeting glance at the Will shows that the same person who made mark of Sankaravadivammal also wrote this is the mark of Sarkaravadivammal because it is a one continuous stroke and this mark is found in all the four pages and not only in three pages as stated by P.W.I. Of course, it is possible for a testator to make a valid Will by either signing a Will or affixing his/her mark to the Will, or having it signed by some third person in his/her presence and by his/her direction. So, it would have been perfectly in order if Sankaravadivammal had directed the scribe to make the mark on her behalf. But, if so, the evidence of P.W.I should have been to the effect that she asked that person to make the mark at her behest. The evidence is, she made the mark with pen. This is clearly false.