S.B.SINHA, J. - (1.) FLORINE D' Souza executed a will on or about 06.05.1992. She had two daughters Olivia and Olympia. Both of them had become nuns. The 1st daughter Olivia died in 1975. The 2nd daughter Olympia died on 27.09.1993.
(2.) APPELLANT herein was one of the beneficiaries of the will. He was, however, not in any way related to the testatrix. The testatrix was owner of the following properties which were subject-matter of the said will : JUDGEMENT_626_TLPRE0_2007Html1.htm Whereas the property described in Schedule 'A' appended to the said will was bequeathed in favour of the appellant, the property described in Schedule 'B' thereto was bequeathed in favour of the respondent. Florine died on 13.03.1994. An application for grant of Letters of Administration with a copy of the will annexed, in terms of Section 276 of the Indian Succession Act, 1925 (for short 'the Act') was filed by the appellant. Respondent entered a caveat. The plea raised by the respondent in the suit was that the testatrix was an aged woman and did not have a proper frame of mind at the time of purported execution of the will to understand the contents thereof.
(3.) THE learned Trial Judge held that the execution of the will had been proved, stating : "Circumstances go to show that the defendant had constructed his own house in one portion of the land that belonged to the old lady. 23 cents of land was given to the defendant under the will and 16 cents of land including the old house was given to the plaintiff who attended the old lady during her old age. I do not find anything unnatural in the bequest made by the old lady. She has given larger extent of land to the defendant who is the son of the sister of the Testatrix. That shows that the disposition made by her was consistent with the natural course of human conduct." It was held that as the propounder did not take any interest in the matter of execution of the will, no suspicious circumstances existed. The High Court, however, reversed the said finding of the learned Trial Judge by reason of the impugned judgment, opining : i) PW-2, the only attesting witness, examined in the matter, admitted that she had put her signature on a handwritten will, whereas the will had in fact been typed in Kannada language. Hence the due execution of the will was not proved. ii) The will contained various overwritings and cuttings, which establish existence of suspicious circumstances. iii) Evidence of PW-2 does not prove either execution or attestation of the will as per Ex. P-2, as the thumb mark affixed by Florine D' Souza on it was not got marked in the evidence of PW-2 and she had not identified the thumb mark on Ex. P-2 as the thumb mark which was affixed by Florine D' Souza in her presence. iv) Mere fact that the will was a registered one would not dispense with the requirements of proof of due execution and attestation of the will for grant of Letters of Administration. ;