Judgment :- 1. The plaintiffs, three in number, plaintiffs 2 and 3 being minors, sued as the heirs on intestacy of their deceased father, Vishnu Nambeesan by name, for the recovery of possession of twelve items of immovable properties, from the first defendant, their father's brother, and for other reliefs. In opposing the suit, the first defendant set up title to the properties by virtue of a will left by his brother. The District Judge of North Malabar, negativing the plaintiff's contentions, held the will to be valid and genuine, and dismissed the suit. The first plaintiff, on his behalf, and as the next friend of plaintiffs 2 and 3 has preferred this appeal. 2. Vishnu Nambeesan was a follower of Marumakkathayam law, and was the karnavan of the tavazhi, which consisted of himself, the first defendant, his sister the second defendant, his nephew the third defendant and others. For some time before his death, which took place on December 9,1947, he had been suffering from diabetes. He lost his wife, the plaintiff's mother, about six months before his death. The plaintiffs were minors and were living with him. Apparently, as if to make some provision for the plaintiffs, he took an assignment, Ext. B4, for their benefit on August 2, 1947, on tenancy rights in about nine acres of land. Later, on September 10, 1947, he made a gift to the plaintiffs of about twenty-eight acres of land, over which he had similar rights, by deed Ext. B3. On November 20,1947, he was said to have made a disposition of all his assets in favour of the 1st defendant by will, Ext. Bl, which was registered seven days later, on presentation by Sankaran Nambiar, who was his karyasthan, and also the holder of his power-of-attorney evidenced by Ext. B6 dated March 13,1946. The sole controversy in this appeal relates to the truth and the validity of Ext. B1. In this, defendants 2 and 3 supported the 1st defendant; but they denied the exclusive title of Vishnu Nambeesan to items 8 to 10 and 12 and set up special rights to be reserved to them in item 9. B6 dated March 13,1946. The sole controversy in this appeal relates to the truth and the validity of Ext. B1. In this, defendants 2 and 3 supported the 1st defendant; but they denied the exclusive title of Vishnu Nambeesan to items 8 to 10 and 12 and set up special rights to be reserved to them in item 9. Counsel agreed before us, that the dispute as to the title to items 8 to 10 and 12 need not be decided, and we accordingly leave it open; but the finding of the learned District Judge on the special rights claimed in item 9 was not impeached. 3. It is the duty of the party propounding a will, to prove the due execution of it. Due execution in relation to a will has three aspects, first, that it was signed by the testator, second, that the testator was of sound disposing mind at the time, and third, that he understood the effect of the dispositions made. As observed by the Supreme Court in H. Venkatachala v. B. N. Thimmajamma, A. I. R.1959 S. C 443: "ordinarily, when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. If there are any suspicious circumstances surrounding the execution of the will, the propounder must remove the said suspicions from the mind of the court". The evidence adduced has to be viewed in the light of these principles. 4. The first defendant called three witnesses to speak to the writing and the execution of Ext. Bl. Dw. 3 was the scribe, who first prepared a draft, which was corrected by Vishnu Nambeesan; he then made the fair copy and handed it over to Vishnu Nambeesan together with the draft. Without sufficient foundation being laid by the plaintiffs by the cross-examination of the first defendant or the defence witnesses, as to what happened to the draft, we think no point could be made of its non-production at the trial. It is not known what Vishnu Nambeesan did with it, after the execution of Ext. Bl. Dw. 3 too, was the scribe of the earlier will Ext. It is not known what Vishnu Nambeesan did with it, after the execution of Ext. Bl. Dw. 3 too, was the scribe of the earlier will Ext. B2, of March 14,1947 left by Vishnu Nambeesan's uncle who bore the same name and may be referred to as Vishnu Nambeesan, senior. The uncle of Dw. 3, also a document writer, in whose office Dw. 3 was working, had written several documents for Vishnu Nambeesan, and was also an attestor in Ext. B2. It is difficult to imagine, that Dw. 3 would have let down Vishnu Nambeesan by being a party to a scheme of fraud. Dw. 3 being no stranger to Vishnu Nambeesan, there was no improbability, as contended, in the latter's explaining to him, in answer to a query by him, why he did not give properties to his children under Ext. Bl. When the fair copy was under preparation, Dw.1 who had come to the neighbouring house to meet his uncle living there and not finding him there, stepped in at the house of Vishnu Nambeesan; at his request, Dw.1 attested Ext. Bl after it was executed. Dw.1 appears to be a witness of some position in life, and was the President of a Panchayat Board. His relationship with the first defendant, elicited in his cross-examination, is too remote to suspect his veracity. He denied also the suggested business relationship with the first defendant during the period when Ext. Bl was attested by him. Dw. 2 was the family Sanskrit tutor, and was at the time giving tuition to the first plaintiff and to the other children in the household. Vishnu Nambeesan sent for him and he attested Ext. Bl. Dw. 2 cannot be discredited as an interested witness, for the reason, that he continued to be the family tutor for some time after the death of Vishnu Nambeesan. It seems to us, that Dws.1 and 2 would not have been instruments in the hands of the first defendant, to bring about a false document, and to support it afterwards by perjured testimony. The first defendant is a school master, and as explained he had gone to school that day; it seems Sankaran Nambiar, who brought Dw. 3 was not also there at the time of the writing and the execution of the will. The first defendant is a school master, and as explained he had gone to school that day; it seems Sankaran Nambiar, who brought Dw. 3 was not also there at the time of the writing and the execution of the will. The evidence of the first defendant was also that he knew about the will only a few days before the death of, Vishnu Nambeesan, when it was handed over to him. These are not circumstances, which, by themselves ought to entail a rejection of the evidence furnished by Dws.1, 2 and 3. The learned District Judge, who examined these witnesses has believed them, and sitting in appeal we do riot find good and convincing reasons to depart from his opinion as to their credibility. We also agree with the learned judge in thinking, that there is close resemblance between the signature of Vishnu Nambeesan in Ext. B1, and the admitted signatures in Exts. B7 to B9 5. The omission to examine Sankaran Nambiar is explicable. After Vishnu Nambeesan's death, he continued to be in the service of the first defendant, as karyasthan of the tarwad till the year 1950; he then fell out with him and left his service. From the year 1952, he had been in the employment of another, whose daughter was after wards married by the first plaintiff. The first defendant had therefore reason to think, that Sankaran Nambiar might be hostile to him; this did not preclude the plaintiffs from examining him, if they thought that his evidence was necessary, or was useful to advance their case, or to elucidate the truth. It is obvious, that Ext. B1 had come into existence before Vishnu Nambeesan died; it is extremely doubtful, that Sankaran Nambiar, about whose relations with the testator, no adverse suggestion had been made in the cross-examination of the first defendant or of Dw. 2, the family tutor, would have let himself to a fraud of this kind upon his master, for no apparent advantage for himself. The presentation of the document for registration by Sankaran Nambiar at the Registry, instead of its registration being arranged at the residence of Vishnu Nambeesan is not of any significance, when once it is noted, that several documents, such as Exts. B7, B8, B3 and B5, mentioning them in their chronological order, were presented by Sankaran Nambiar for registration pursuant to the power-of-attorney. B7, B8, B3 and B5, mentioning them in their chronological order, were presented by Sankaran Nambiar for registration pursuant to the power-of-attorney. The registration of the will, Ext. B2, by Vishnu Nambeesan Senior at his residence, can afford no precedent, as admittedly, he had not availed himself of the facility, as Nambeesan had done, of acting through a constituted attorney. We hold that Ext. B1 was executed by Vishnu Nambeesan. 6. Was Vishnu Nambeesan in a sound and disposing state of mind at the time of the execution of Ext. B1, is the next question for determination. The making of a provision for his children by Exts. B3 and B4, is no doubt an indication, that he did not expect to live long. It was common ground, that at about that time he was suffering from diabetes. But the plaintiffs had no case in the plaint, which they had afterwards at the trial, and which they attempted to develop, that he had been ailing for about five years, that he was completely bed-ridden for three months before his death, and that during this period, his condition had so far deteriorated that he was not able to know or understand what he was about; in the plaint the relevant allegation was only, that he "died of diabetes and other allied ailments" and that the first plaintiff was attending on him during his illness. According to the first defendant, Vishnu Nambeesan though ailing, was in sound mental condition, at the material time, and his witnesses also testified to it. The plaintiffs cited Pw. 2, a physician, to give evidence that, when he called on Vishnu Nambeesan on November 20, the date on which Ext. B1 was executed, his condition was critical, he was unconscious and unable to talk, and did not even open his eyes, except for a few moments in the evening. The first plaintiff as Pw. 1, flatly contradicted this, by his evidence that Vishnu Nambeesan was able to talk to Pw. 2, when he came, and that it was only a week thereafter, contradicting what he himself had stated in another part of the deposition, that he became so bad as to be unable to speak. In this conflict of testimony, the belated theory attempted by the plaintiffs at the trial has to be rejected. Pw. 2 produced his diary, Ext. 2, when he came, and that it was only a week thereafter, contradicting what he himself had stated in another part of the deposition, that he became so bad as to be unable to speak. In this conflict of testimony, the belated theory attempted by the plaintiffs at the trial has to be rejected. Pw. 2 produced his diary, Ext. A9, which was not acted upon by the learned judge for good and sufficient reasons; there is no entry in it, of his visits to the patient on other days, which were many, or of the condition of the patient, of which he spoke, when he paid his last visit on the date in question. Pw. 2 appeared to be interested in the plaintiffs. We do not believe Pws.1 and 2. If the plaintiffs' case, that Vishnu Nambeesan's condition was bad for about three months, were true, not only Ext. BI, but also Ext. B3 might suffer from the same infirmity; whatever be the state of the evidence, Para.10 of the plaint has made it clear, that the plaintiffs have accepted Exts. B3 and B4. On October 21,1947, Vishnu Nambeesan executed a promissory note, Ext. B5, and borrowed money; as rightly observed by the learned judge, there is no reason to think, that this is also a spurious document. Just three days before his death, he executed an assignment, Ext B5, in favour of Dw. 5, which was also presented for registration by Sankaran Nambiar, and under which Dw. 5 advanced a consideration of Rs. 1,000/-. It is too much to think, that Ext. B5 also was brought about by Sankaran Nambiar, or that Dw. 5 would have advanced such consideration as he did, upon a forged document. The only defect in the evidence of Dw. 5 was, that, apparently, he got confused in stating that the attestation in Ext. B5 was made in the Registry. This is of no moment. The circumstances and the evidence therefore point to the conclusion, that though Vishnu Nambeesan was preparing himself for his end, his testamentary capacity was not impaired at the date of Ext. B1. 7. Had he so intended, nothing prevented Vishnu Nambeesan from making over all his properties and assets, to his children by Ext. B3 itself; that he did not do so is strong evidence against such intention. There appears to be good reasons why it should be so. B1. 7. Had he so intended, nothing prevented Vishnu Nambeesan from making over all his properties and assets, to his children by Ext. B3 itself; that he did not do so is strong evidence against such intention. There appears to be good reasons why it should be so. His was a family in which apparently the Marumakkathayam instinct was particularly strong. Vishnu Nambeesan Senior gave the bulk of his properties to his nephew Vishnu Nambeesan, the father of the plaintiffs, and some to the first defendant, by Ext. B2, making but a provision by way of legaices, to one of his wives and children and others. Items 1 to 6, which constitute no inconsiderable part of the properties disposed of by Ext. BI, were those obtained by Vishnu Nambeesan under Ext. B2, Item 7 of the suit properties belonged to the tavazhi of Vishnu Nambeesan, in respect of which, he and the first defendant had together executed a kanam for Rs. 5,000/-in favour of Vishnu Nambeesan Senior. Under Ext. B2, the right under the kanam was bequeathed to both of them. As stated by the Ist defendant, the tavazhi was questioning the validity of the kanam, and in the tavazhi partition deed, Ext. B12, of September 17,1948, the property was set apart to the share of the second defendant and others, without reference to the kanam, in other words ignoring the kanam right. Items 8 to 10 were acquired in the joint names of Vishnu Nambeesan and the first defendant, and it was only the half right over these and the kanam right in item 7, that was claimed by the plaintiffs, as the heirs of their father. A part of item 11 had been disposed of by him, and what remained was also conveyed by the first defendant. Item 12, over which Vishnu Nambeesan had a lease-hold right, was given over by the first defendant to the tarwad, which partitioned its properties by Ext. 13, allotting this item to the share of the second defendant's group. Some of these properties were also subject to encumbrances; besides, Vishnu Nambeesan had debts which had to be cleared. The debts and encumbrances may now be considered. 8. Ext. B22 is a receipt passed by Lakshmikutty Amma, the widow of Vishnu Nambeesan Senior, to the first defendant for a half share of a mortgage for Rs. 1000/- over item 1 to 6. The debts and encumbrances may now be considered. 8. Ext. B22 is a receipt passed by Lakshmikutty Amma, the widow of Vishnu Nambeesan Senior, to the first defendant for a half share of a mortgage for Rs. 1000/- over item 1 to 6. It is seen from Ext. B24, that there was a kanam over item 9 to the extent of Rs. 450/- which the second defendant and others discharged, and for which a special right has now been allowed by the learned judge in her favour. Vishnu Nambeesan owed Rs. 126-under Ext. 15, and this was paid off by the first defendant; by Ext. B2 he had been charged with the payment of Rs. 500/- to Gauthaman, a son of Vishnu Nambeesan Senior, and the first defendant paid this amount and obtained receipt, Ext. B21, on October 26, 1949. A decree for about Rs. 2,400/- Ext. B16, had been obtained against Vishnu Nambeesan, the first defendant, and others, which according to the first defendant, was discharged by him, by taking an assignment of it in the name of his nominee, and afterwards securing a deed of consent; Exts. B17 and B18 are said to be the two documents connected with this. Thus the precedent furnished by Ext. B2, the history of the title of the properties as related above and the existence of debts and encumbrances which were too onerous for the plaintiffs to discharge, were weighty considerations, which might well have influenced Vishnu Nambeesan in settling his affairs and making a disposition of his properties and assets. 9. The learned judge has recorded the finding, that the suit properties are more valuable than those dealt with under Exts. B3 and B4; in judging this an allowance must of course be made, out of the value, for the amount of the encumbrances affecting them, and for the debts discharged by the first defendant. According to the defendants, the annual income from the suit properties is about 1,300 and odd rupees, while according to the plaintiffs, this is about Rs. 1,800/-. The learned judge has found that the annual income from the properties included in Exts. B3 and B4 is about Rs. 500/-, in addition to the income from the improvements on them. According to the defendants, the annual income from the suit properties is about 1,300 and odd rupees, while according to the plaintiffs, this is about Rs. 1,800/-. The learned judge has found that the annual income from the properties included in Exts. B3 and B4 is about Rs. 500/-, in addition to the income from the improvements on them. Though some evidence relating to the accounts kept in different years was adduced at the trial, it was agreed at the hearing by counsel for both parties, that the income from these properties may be deemed to be Rs. 550/- per year. For the decision of this case, it is not necessary to have more than a general idea of the relative income of the properties. Considering the amount of the debts and the liabilities which the first defendant had to discharge, the difference in the value of the two sets of properties cannot be deemed to be so considerable, as to induce us to hold, on that ground alone, that Ext, B1 was an unnatural disposition of properties which no father would have made. It was common ground that Vishnu Nambeesan was greatly affectionate to the first defendant as to his children. On these materials, we do not see adequate grounds to regard the will Ext. B1 with any suspicion; if any suspicion does arise by reason of its provisions, we also feel, that the first defendant has been successful in removing them. 10. It remains to notice some of the provisions in Ext. B12. By this deed, all the members of the tavazhi together agreed to pay a sum of Rs. 5,000/ to the plaintiffs, and the first defendant was charged with making this payment on sufficient properties being additionally allotted to him. This can only be regarded as a matter of bounty on the part of the members of the tavazhi towards the children of their late karnavan, and not as was suggested in the court below, as a provision which the first defendant had made to appease his conscience. It is important to note, that in Ext. B12 items 8 to 10 were set apart to the share of the B tavazhi of the second defendant and others, expressly on the basis of the title of the first defendant under Ext. It is important to note, that in Ext. B12 items 8 to 10 were set apart to the share of the B tavazhi of the second defendant and others, expressly on the basis of the title of the first defendant under Ext. B1; in other words, the members of the tavazhi, one of whom was the 3rd defendant, now an advocate expressly recognised the will as a genuine disposition of property. It may also be mentioned, that Lakshmikutty Amma and Gauthaman, the widow and son of Vishnu Nambeesan Senior, had also recognised the will in the receipts, Exts. B22 and B21, which they respectively passed to the first defendant. It is too much to suppose, that all these relations would have conspired against the plaintiffs by recognising, what according to the latter was nothing more than a piece of forgery. We therefore come to the conclusion, that Ext. B1 is genuine and is valid. No other question was argued before us. 11. We therefore confirm the decree of the lower court and dismiss this appeal with costs to defendants 1 and 2; one set only.