JUDGMENT : Devan Ramachandran, J. The very appellation 'Will' suggests that the document should effect that which the testator would have done; it is his will, his intention to pass his personal and real property in the particular manner outlined in the testamentary document. The foundational testamentary interpretation relating to Wills and Codicils remain the specific intent expressed in the plain language of the Will. 2. The accurate determination of a testator's donative intent is the true province of the courts while disputes relating to such testamentary documents are raised. How should a court go about determining the testator's intention? After all courts have nothing more than the words in the document itself because the testator, by definition, is not available to testify as to his intent couched in the language of his Will. 3. Determining a testator's intent has long served the hypostasis of the common law of testamentary interpretation. In his seminal analysis of the history of English Common Law, Blacksmith noted that court's collective focus on a testator's intent stems from the very foundation of the Anglo-American System of Private Property. 4. The cardinal rules that apply to the interpretation and assessment of Wills have been often spoken to by the Hon'ble Supreme Court many times in the past and the locus classicus in this area is the judgment in Gnambal Ammal v. T. Raju Ayyar and others ( AIR 1951 SC 103 ), where the Hon'ble Court in paragraph 10 spoke as under : “The cardinal maxim to be observed by Court in constructing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. ….... The Courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure. 'The Court is entitled to put itself into the testator's armchair' ….. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure. 'The Court is entitled to put itself into the testator's armchair' ….. But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So soon as the construction is settled, the duty of the Court is to carry out the intentions as expressed, and none other. The Court is in no case justified in adding to testamentary dispositions. …. In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life.” Subsequently, in Pearey Lal v. Rameshwar Das ( AIR 1963 SC 1703 ), the Hon'ble Supreme Court has lucidly declared the law as under : “.............. in constructing a will the Court should try its best to get at the intention of the testator by reading the will as a whole. We must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. Another rule which may also be useful in the context of the present will is that the words occurring more than once in a will shall be presumed to be used always in the same sense unless a contrary intention appears from the will; see Section 86 of the Indian Succession Act. So too, all parts of a will should be construed in relation to each other; vice Section 84 of the said Act. So too, all parts of a will should be construed in relation to each other; vice Section 84 of the said Act. It is also a well recognized rule of construction that the Court will look at the circumstances under which the testator makes his will such as the state of his property, of his family and the like : see Section 75 of the said Act.” It is thus now settled that it is the intention of the testator which should be the sole and primary consideration while trying to interpret a Will and that the singular duty of the court is to ascertain the same, if required, by placing itself in the position of the testator, which is now accepted as the 'arm chair doctrine'. 5. The issues in controversy in this case is not the Will executed by the testator, but a subsequent Codicil executed by him about 3½ years after he had executed his Will. The testator is late Dr. Ramakrishna Pillai, whose daughter is the plaintiff in the suit. The suit was filed by the plaintiff claiming partition of the properties that belonged to her late father on the strength of a Will and a Codicil executed by him and also for ownership and separate possession of certain extents. The suit was filed by her against her brother, sister and father's sisters, who are defendants 1 to 4 respectively. 6. As per the plaint averments, Dr. Ramakrishna Pillai died on 04.09.1978 and the plaintiff and defendants 1 and 2 were residing with him in plaint A schedule property, having an extent of 16 cents, on which a three storied building, bearing Door No.TC-27/1470 stands. The assertion of the plaintiff in the plaint is that her father had executed a Will, bequeathing his properties in a particular manner, on 07.04.1975 and that he had subsequently executed a Codicil to the said Will on 02.09.1978. She claims that she and the defendants are the legatees under the said Will and the Codicil and that she has obtained title to the plaint B schedule property as per these. The plaint B schedule property has been described to be the ground floor, second floor and portion of the first floor of the building bearing Door No.TC-27/1470 standing in the plaint A schedule property. 7. The plaint B schedule property has been described to be the ground floor, second floor and portion of the first floor of the building bearing Door No.TC-27/1470 standing in the plaint A schedule property. 7. The disputations appear to have arisen between the plaintiff and the first defendant because as per the Will dated 07.04.1975, the entire first floor of the building was set apart to the share of the first defendant but in the Codicil dated 02.09.1978, the bequest as per the Will was modified by allotting certain rooms therein, including the bed room, bath room, toilet, which were being used by the testator for his residence, along with a veranda, to the plaintiff, thus entitling the first defendant only to the rest of the portions of the first floor in the building. The records show that after Dr. Ramakrishna Pillai died, the plaintiff filed the suit praying that plaint B schedule properties be allotted to her on the strength of the Will and the Codicil. The records further reveal that the claim of the plaintiff was virtually conceded to by defendants 2 to 4 but contested vehemently only by the first defendant on the allegation that the Codicil was a fabricated one and that, at the time when it was executed, Dr. Ramakrishna Pillai had no testamentary capacity to do so. 8. The trial court took the suit to trial and the plaintiff herself was examined as PW5, while four others, including the attestors of the Codicil, were examined as PWs 1 to 4 and Exhibit A1 was marked on the side of the plaintiff. The first defendant was examined as DW1 and Exhibits B1 to B3 were marked on his side. In addition to this, Exhibits X1 to X8 were marked through the other witnesses, out of which, Exhibit X8 is the Will dated 07.04.1975 and Exhibit X3 is the Codicil dated 02.09.1978. 9. It is also revealed from the records that when the trial of the suit was in progress, on 22.09.1983 the first defendant moved I.A.No.9167/1983 seeking that his written statement be allowed to be amended, which was dismissed by the court below. This order was challenged by the first defendant before this Court by filing C.R.P.No.2680/1983, which was allowed permitting the amendment and the first respondent thus carried out certain amendments in his written statement. This order was challenged by the first defendant before this Court by filing C.R.P.No.2680/1983, which was allowed permitting the amendment and the first respondent thus carried out certain amendments in his written statement. The trial of the suit was thereafter completed and the court below, by judgment dated 18.12.1987, decreed the suit as prayed for, finding all the contentions against the Codicil raised by the first defendant to be without merit. 10. The first defendant carried the judgment and decree of the trial court in appeal before this Court. The learned Single Judge, after an elaborate consideration and re-appreciation of the evidence and materials, reversed the judgment and decree finding the Codicil to be suspect and dismissed the suit. 11. The plaintiff has thus filed this appeal impugning the judgment in A.S.No.545/1990 contending that all the circumstances that led the learned Single Judge to find the Codicil to be suspect are untenable and unsustainable in law. 12. We have heard Sri. P.G. Parameswara Panicker, the learned Senior Counsel, assisted by Sri. P. Gopal, appearing for the appellant and Sri. T. Sethumadhavan, the learned Senior Counsel, assisted by Smt. N. Deepa, appearing for the respondents. We have also examined the pleadings, the documentary evidence on record and the testimony of the witnesses very carefully. 13. Though we had heard the learned Senior Counsel on either side in great detail on and had reserved judgment on 04.04.2018, we see that a memo dated the same day has been filed by Sri. T. Sethumadhavan later that he does not intend to continue his engagement for the respondents. However, since the hearing was over and we had already reserved judgment, we place no weight on the memo and proceed to deliver the judgment. 14. For the sake of convenience and clarity, the parties and documents will be referred to herein as they are available and marked before the trial court. 15. As per the combined bequests under Exhibit X8 Will and Exhibit X3 Codicil, plaint B schedule property has been allotted to the plaintiff's share exclusively and she has thus sought partition and separate possession of the same. The suit claim is admitted by the second defendant, the plaintiff's sister and she filed a written statement averring that she and her husband Sri. L. Ramachandran Pillai were present at the time of execution of the Codicil by Dr. Ramakrishna Pillai. The suit claim is admitted by the second defendant, the plaintiff's sister and she filed a written statement averring that she and her husband Sri. L. Ramachandran Pillai were present at the time of execution of the Codicil by Dr. Ramakrishna Pillai. The third defendant, the sister of Dr. Ramakrishna Pillai, filed a written statement stating that she is an unnecessary party to the suit since she has no interest in the plaint schedule properties adding that she is already in possession of certain properties allotted by Dr. Ramakrishna Pillai under his Will dated 07.04.1975. The fourth defendant remained ex parte without filing a written statement. 16. The first defendant died pending this appeal on 01.09.2005 and his wife and two children have been brought on record as additional respondents 10 to 12. Defendants 3 and 4 also died when this appeal was pending and their respective legal heirs have also been brought on record on the applications of the plaintiff. 17. In the written statement filed by the first defendant, he contested the Codicil, while specifically accepting the Will by stating : “regarding para 5 of the Plaint, it is submitted that Plaintiff and Defendants 1 & 2 obtained title to their respective properties as per Will No.82 of 1978, which has become indefeasible by lapse of time the original of which is now in the safe custody of the Sub Registrar and not in the possession of the 1st Defendant as alleged in the Plaint. Regarding the alleged 'codicil', it is submitted this Defendant had produced before the Sub Registrar only a sealed cover presumed to contain a codicil which however contained a document which in no sense forms part of Will No.82 of 1978 and hence not a 'codicil' as alleged by the Plaintiff.” Subsequently, as stated earlier, when the trial commenced, he filed I.A.No.9167/1983 praying that he may be allowed to amend the written statement, which was allowed by this Court in C.R.P.No.2680/1983. Subsequent to the permission granted by this Court, the first defendant amended the written statement by incorporating the following averments: “The said codicil is a void document fraudulently created by the plaintiff herself with ulterior motives for her wrongful gain. Subsequent to the permission granted by this Court, the first defendant amended the written statement by incorporating the following averments: “The said codicil is a void document fraudulently created by the plaintiff herself with ulterior motives for her wrongful gain. It is submitted that the day on which the said codicil is alleged to have been executed, the executor did not have the physical or mental capacity to understand what he was actually doing due to illness for he died on 4.2.1978, two days after the execution of the said codicil. The executor has signed the said codicil when he was not fully conscious and even incapable of communication due to lack of speech. Taking undue advantage of this situation and as a daughter, the plaintiff got the above said codicil signed from late Sri. Ramakrishna Pillai, without revealing as to him what were the contents of the above said document.” 18. In effect, the first defendant alleges that the Codicil is not a valid document and that the plaintiff and defendants are the legatees of Dr. Ramakrishna Pillai only under Exhibit X8 Will. He asserts that the plaintiff and defendants 1 and 2 obtained title to their respective properties as per Exhibit X8 Will, which has become indefeasible by lapse of time and that the suit is liable to be dismissed, since the Will itself provides for partition and separate possession, making the prayers made by the plaintiff unnecessary. 19. As is obvious from the above, the point of contestation between the plaintiff and the first defendant revolves on the validity of Exhibit X3 Codicil. While the plaintiff contends that the Codicil was validly executed by her father, the first defendant alleges that the Codicil is a void document, fraudulently created by the plaintiff herself and further that his father late Dr. Ramakrishna Pillai had signed the said document when he was not fully conscious and thus lacking in testamentary capacity. 20. Many of the facts involved in this case are admitted and we will first record them as under : 21. Dr. Ramakrishna Pillai owned, apart from plaint A and B schedule properties, several other properties and movables. It is virtually an admitted fact that Dr. Ramakrishna Pillai had been suffering from cancer for over three years prior to his death and that he had been under oncology treatment in a hospital at Chennai. Dr. Dr. Ramakrishna Pillai owned, apart from plaint A and B schedule properties, several other properties and movables. It is virtually an admitted fact that Dr. Ramakrishna Pillai had been suffering from cancer for over three years prior to his death and that he had been under oncology treatment in a hospital at Chennai. Dr. Ramakrishna Pillai had executed a Will on 07.04.1975, namely Exhibit X8, which was attested by Dr. Varma, who was his doctor and Advocate Sri. Gopala Pillai, who was his close friend and advisor. This Will was deposited by Dr. Ramakrishna Pillai with the District Registrar, Thiruvananthapuram and he had obtained receipt for the same as early as as in the year 1975. Under this Will, the ground and second floors of the building situated in the plaint A schedule property were allotted to the plaintiff, while the entire first floor, in which Dr. Ramakrishna Pillai was running a Medical Clinic by name 'Ramakrishna Pharmacy', was allotted to the first defendant. 22. It is also not in dispute that Dr. Ramakrishna Pillai was residing along with his wife Smt. Bharathi Amma in a portion of the first floor of the building and that the remaining portion was used for running the Medical Clinic. The Will also provides that his wife shall remain in over all management and control of the 'Ramakrishna Pharmacy Complex', which comprises of the compound, building and dispensary, during her life time. It is also provided therein that an extent of 2.8 cents on the southern side of the compound, where this building is situated, would go to the second defendant, the testator's other daughter Smt. B. Rajalakshmi. 23. Dr. Ramakrishna Pillai had provided in the Will that the Dispensary and the court yard in front of the building would go to the first defendant with a rider that he should maintain, manage and improve the working of the Dispensary without 'greatly disturbing the present set up'. The further stipulation in the Will was that the first defendant should keep a separate account of his business and that he pay at least Rs.150/- to his mother towards her expenses and take care of her needs and comforts. The further stipulation in the Will was that the first defendant should keep a separate account of his business and that he pay at least Rs.150/- to his mother towards her expenses and take care of her needs and comforts. In order to provide for an access to the plaintiff to the ground and first floors of the said building, the first defendant was asked, as per the provisions of the Will, to provide a pathway through the front court yard from the Statue Road, giving him liberty to use the first floor for conducting any of his other businesses also. 24. Dr. Ramakrishna Pillai had also meticulously provided in Exhibit X8 Will for distribution of his movable assets and shares in other immovable properties. According to the Will, all his shares in a partnership firm by name 'Bharat Medicals', of which the first defendant and a certain Sri. Karunakara Menon were also partners, was given to his nephew Sri. A. Ramachandran Nair; his shares in Cochin Refineries were allotted to his brother Sri. P. Sreedharan Nair; his shares in 'Mankombil Tharavadu' were allotted to his sister Smt. Bhavani Amma, the third defendant; his shares in the 'Madathil Tharavadu, Kavalam' were given to his other sister Smt. Bhargavi Amma, the fourth defendant; with a residuary clause that all other assets of his, not specifically included in the Will, go to his son - the first defendant. 25. It is conceded by all the parties that wife of Dr. Ramakrishna Pillai and the mother of the plaintiff and defendants 1 and 2, however, pre-deceased her husband, when she unfortunately died on 15.07.1977. 26. Dr. Ramakrishna Pillai, as we have already mentioned above, had been suffering from cancer and his condition appears to have slowly deteriorated. It is also on record that on account of the aggrevation of his disease, he became unable to eat properly and therefore, that a Ryles Tube was inserted through his nasal cavity by a certain Dr.Kesavan Nair, whose testimony has been recorded as PW6, about ten days prior to his death on 04.09.1978. 27. Until this point, there does not appear to be any controversy and the disputations between the plaintiff and the first defendant arose after certain events that happened on 02.09.1978. 28. The documents and evidence on record would show that on 02.09.1978 Dr. 27. Until this point, there does not appear to be any controversy and the disputations between the plaintiff and the first defendant arose after certain events that happened on 02.09.1978. 28. The documents and evidence on record would show that on 02.09.1978 Dr. Ramakrishna Pillai requested PW2 Govinda Pillai to go to his house and that when Govinda Pillai reached his residence, Dr. Ramakrishna Pillai got up from his bed and took out a draft of the Codicil and asked PW2 to write it on three letter heads bearing his name. The testimony of PW2 would show that he informed Dr. Ramakrishna Pillai that he will rather have it typed and that he went out and got the Codicil typed and brought it to the residence of Dr. Ramakrishna Pillai, when Sri. Karunakara Menon, who was Dr. Ramakrishna Pillai's partner in M/s.Bharat Medicals, was also present. According to PW2, Dr. Ramakrishna Pillai signed the first and second pages of the Codicil after which he and Sri. Karunakara Menon signed as witnesses and that Dr. Ramakrishna Pillai signed below their signatures on the third page. He asserts that he and Sri. Karunakara Menon saw Dr. Ramakrishna Pillai affixing his signature on all the pages. He also stated in his testimony that when the Codicil was executed, the first defendant, his wife, the plaintiff, the plaintiff's mother-in-law, Sri. Damodaran Nair (who is the husband of a niece of Dr. Ramakrishna Pillai) and Sri. Appukuttan Pillai were present and witnessing it. 29. The factual narration by PW2 in his testimony would normally have not permitted any controversy but for the fact that the first defendant asserts that his father had a fall in the morning of 02.09.1978 and that he suffered an injury on his forehead, requiring stitches, which made him semiconscious, thus being rendered without the testamentary capacity to execute the Codicil. The first defendant also disputed the statement of PW2 that he and his wife were present when Exhibit X3 Codicil was executed. According to the first defendant, the Codicil was created by the plaintiff with the help and connivance of PW2 - Sri. Govinda Pillai and he alleged that Sri. Govinda Pillai had clear knowledge of the contents of Exhibit X8 Will, because it was he who had accompanied Dr. Ramakrishna Pillai when he had gone to deposit it with the District Registrar, Thiruvananthapuram. Govinda Pillai and he alleged that Sri. Govinda Pillai had clear knowledge of the contents of Exhibit X8 Will, because it was he who had accompanied Dr. Ramakrishna Pillai when he had gone to deposit it with the District Registrar, Thiruvananthapuram. The first defendant vehemently said that PW2 had connived with the plaintiff in typing out the codicil and in having the signatures of Dr. Ramakrishna Pillai affixed thereon at a time when he was semi-conscious. In effect, the singular allegation of the first defendant is that the plaintiff had, with the help of PW2, obtained the signature of Dr. Ramakrishna Pillai on three letter heads bearing his name, when he was not in a position to understand its contents on account of the alleged fall in the morning of 02.09.1978 and on account of the aggravated medical condition caused by cancer. 30. We are aware and as has been submitted by Sri. Parameswara Panicker, the learned Senior counsel for the appellant, that while dealing with Wills and Codicils, it is the normal rule that the courts should not view it with a presumption of invalidity or approach it with suspicion. This has been so mandated by the Hon'ble Supreme Court in Madhukar D. Shende v. Tarabai Aba Shedage ( (2002) 2 SCC 85 ) and B.Venkatamuni v. C.J. Ayodhya Ram Singh and Others ((2006) 13 SCC 449). In Madhukar (supra), the words of the Hon'ble Supreme Court, which makes compelling reading, are as under : “The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. ….. The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict - positive or negative.” This view was followed in Venkatamuni (supra) reiterating that 'although, the court should not approach the question with a suspicion that the will is not a genuine one, the general guidelines laid down by this court and the High Court in this behalf should be followed'. 31. We are certainly guided by the wisdom of the Hon'ble Supreme Court and cannot treat Exhibit X3 Codicil with a pre-determined air of suspicion. We are certain that unless the first defendant, who has made the allegation of the Codicil being illegally created and got executed by the plaintiff through unfair means, is validly and cogently established and unless he is able to sufficiently demonstrate that the Codicil is vitiated by suspicious or other unnatural circumstances, which circumstances have been clearly spelt out by the Hon'ble Supreme Court afore, it would not be justified for any court to render it ineffective in any manner. This is because, in the absence of any such vitiating circumstances, it is the normal presumption that the contents of the Codicil reflect the mind and the intention of the testator, which will have to be honoured and effectuated. 32. Sri. Parameswara Panicker further shows us that the burden of proof in such cases or the onus probandi when Wills and Codicils are concerned has been dealt with as early as in the year 1946 by the Privy Council, in Harmes and another v. Hinkson (AIR (33) 1946 Privy Council 156), which is a judgment delivered in a case that originated from Canada. After explaining the concept of burden of proof, the Privy Council expounded the principles behind onus probandi relating to testamentary disposition in the following words: “The first that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. The onus of proof may be increased by circumstances, such as unbounded confidence in the drawer of the will, extreme debility, in the testator, clandestinity, and other circumstances which may increase the presumption even so much as to be conclusive against the instrument.” The Hon'ble Supreme Court adopted the views of the Privy Council in H. Venkatachala Iyengar v. B.N. Thimmajamma and others ( AIR 1959 SC 443 ) and propounded the unexpendable principles relating to the matter of proof of Wills, which has been followed thereafter by all courts including the Hon'ble Supreme Court, until this day. This judgment is singularly important to the case relating to Wills and Codicils and the view of the court, contained in paragraphs 18 to 20, needs a careful examination and is, therefore, extracted as under: “18. What is the true legal position in the matter of proof of wills? It is well known that the proof of wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under S.67, it a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss.45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss.59 and 63 of the Indian succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression “a person of sound mind” in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. 19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnify in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. 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. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Court would be reluctant to treat the document as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Court would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.” Several judgments of the Hon'ble Supreme Court have been delivered after Venkatamuni (supra) and the most important among them are Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another ( AIR 1962 SC 567 ), Shashi Kumar Banerjee and others v. Subodh Kumar Banerjee since deceased and after him his legal representatives and others ( AIR 1964 SC 529 ), Pushpavati and others v. Chandraja Kadamba and others ( AIR 1972 SC 2492 ), Beni Chand (Since Dead) now by L.Rs v. Smt. Kamla Kunwar and others ( AIR 1977 SC 63 ) and Brij Mohan Lal Arora etc v. Girdhari Lal Manucha ( AIR 1978 SC 1202 ). It is pertinent to note that all the aforementioned judgments follow the views of the Privy Council and that of the Hon'ble Supreme Court in Venkatamuni (supra) and it is, therefore, now established, without any need for restatement, that in the absence of suspicious circumstances surrounding the execution of the Will and when sufficient proof relating to the testamentary capacity and affixure of signature by the testator is shown, the courts will have to give effect to the Will even if it may be seen to be unnatural in the sense that a heir was cut off wholly or in part (see Subodh Kumar Banerjee (supra)) or that the bequests is seen to be unfair or disproportionately benefiting any or some of the legatees under it. 33. Interestingly, Sri. 33. Interestingly, Sri. T. Sethumadhavan, the learned Senior Counsel appearing for the legal heirs of the first defendant says that he is also relying on the aforesaid judgments to contend that the burden of proof is on the propounder of the Will, which, according to him, is the plaintiff in this case. He submits that unless the plaintiff is able to dispel all suspicions and allegations of unnatural circumstances surrounding Exhibit X3 Codicil, it cannot be even treated to be a Codicil, much less the desire or intent of the testator. The learned Senior Counsel submits that there was no reason for Dr. Ramakrishna Pillai to have executed the Codicil because, as per Exhibit X8 Will, the plaintiff had already been given the ground and second floors of the building in plaint A schedule property, reserving the first floor exclusively to the first defendant in order to enable him to run the existing 'Ramakrishna Pharmacy' from there. The learned Senior Counsel adds that the change made through Exhibit X3 Codicil, allotting a portion of the first floor to the plaintiff, has to be viewed with suspicion and is beset with unnatural circumstances. 34. Before we proceed to consider the submission of Sri. T. Sethumadhavan as above, we have to record certain other specific facts. 35. Pertinently, as is admitted by both sides, on 12.09.1978, i.e., eight days after Dr. Ramakrishna Pillai died on 04.09.1978, the receipt issued on deposit of Exhibit X8 Will was taken to the District Registrar, Thiruvananthapuram by the first defendant, PW2 and the husband of the plaintiff Dr.Ravindran Nair. Exhibit X8 Will was got registered on that day and it is conceded that all the bequests under it had taken effect thereafter. 36. As regards the Codicil, namely Exhibit X3, is concerned, very interestingly the said document was taken by the first defendant himself, again accompanied by PW2 and Dr. Ravindran Nair, the husband of the plaintiff, to the Sub Registrar's Office, Thiruvananthapuram on 20.09.1978 and that a petition dated the same day was made by the first defendant himself before the Sub Registrar seeking that Exhibit X3 Codicil be registered. This application, which has been marked in evidence as Exhibit X1, was supported by the deposition of the first defendant recorded on the same day, a copy of which has been marked as Exhibit X2. This application, which has been marked in evidence as Exhibit X1, was supported by the deposition of the first defendant recorded on the same day, a copy of which has been marked as Exhibit X2. It is relevant to note that neither in Exhibit X1 or X2 is there an allegation that Exhibit X3 Codicil is a fabricated one or that it was executed by Dr. Ramakrishna Pillai without the necessary testamentary capacity. In fact, in his deposition, the first defendant states rather explicitly that the document being presented by him for registration was executed by his father. Further, nine days later, on 29.09.1978, he issued Exhibit X4 letter to the Sub Registrar, Thiruvananthapuram detailing the names and addresses of the persons to whom notice may be required to be sent by the Sub Registrar with respect to the registration of Exhibit X3 Codicil. The said list contains the names of the plaintiff, defendants 2 to 4 and two other persons. 37. On the basis of Exhibits X1 and X2, the Sub Registrar caused publication of Exhibit X5 Gazette notification dated 23.01.1979, calling for objections relating to Exhibit X3 Codicil from any person. 38. While the registration proceedings were thus progressing, abruptly, the first defendant addressed Exhibit X6 letter dated 28.03.1979 to the Sub Registrar, Thiruvananthapuram resiling from Exhibits X1 and X2 and stating that Exhibit X3 Codicil is not a document forming part of Exhibit X8 Will. The reasons cited by the first defendant in Exhibit X6 letter for the Codicil to be rejected were as under: “The Codicil is seen to be signed by the testator on a day and at a time when he was not fully conscious and at a time when he did not know what he was signing. After a severe fall the same morning, when the forehead portion suffered a bad head injury he was only semi-conscious at the time of signing the Codicil. He could not and did not then know what he was signing about and why he was signing. Hence the codicil does not express the mind of the testator and has only to be rejected as not forming part of Will No.82 of 1978 of your office.” The exhibits and evidence admitted on record would reveal that consequent to the objection, the Sub Registrar did not register Exhibit X3 Codicil and the matter remained as such for sometime. 39. 39. It was later, on 27.10.1980, that the appellant filed the instant suit seeking partition on the strength of Exhibit X8 Will and Exhibit X3 Codicil. 40. In the backdrop of the above factual events, the question that arises for our consideration is who really should be construed to be the propounder of the Codicil; is it the plaintiff who relies on it in the suit or the first defendant who produced it before the Office of the Sub Registrar for its registration much before the suit was filed and the adjuvant question, thereafter, would be as to the nature of the onus probandi on the plaintiff and the first defendant and how it has been discharged by them. 41. Once we find answers to the above two issues, the issues relating to the authenticity and validity of Exhibit X3 Codicil would obtain resolution as a concomitant corollary. 42. The concept of probating a Will has been generally defined as a process through which legal action is taken to have it authenticated, as part of probate, including a formal inspection of the Will, by the court. 43. In the 1985 Edition of John Bouvier's Dictionary, the word propound has been defined as “to offer; to propose, as the onus probandi in every case lies upon the party who propounds the Will”. 44. In the Dictionary of Law of William Anderson, this concept is defined as “to bring forward; to proffer for judicial action; to propose as genuine : as to propound of a Will for probate”. 45. In his Dictionary of English Law, Charles Sweet defines the word propound as: “an executor or other person is said to propose a Will or other testamentary paper when he institutes an action for obtaining probate in solemn form”. 46. As we have noticed above, Exhibit X3 Codicil was produced for the first time before an official authority by the first defendant himself on 20.09.1978, when he presented it for registration before the Sub Registrar. The application made by the first defendant, namely Exhibit X1, followed by his deposition before the Sub Registrar, Thiruvananthapuram, namely Exhibit X2 and his letter dated 29.09.1978 (Exhibit X4) detailing the names and addresses of the persons to whom notice may be sent do not contain even a whisper that the said Codicil is suspect or not genuine. 47. The application made by the first defendant, namely Exhibit X1, followed by his deposition before the Sub Registrar, Thiruvananthapuram, namely Exhibit X2 and his letter dated 29.09.1978 (Exhibit X4) detailing the names and addresses of the persons to whom notice may be sent do not contain even a whisper that the said Codicil is suspect or not genuine. 47. The evidence of the first defendant examined as DW1 is to the effect that when he presented Exhibit X3 Codicil before the Sub Registrar, he was not aware of its contents and that he had done so only because he was directed to do so by PW2 - Sri. Govinda Pillai. Incredulous as it may seem, the first defendant maintains that he did not know anything about the Codicil until March 1979, when according to him, Sri. Damodaran Nair, the husband of his paternal cousin, informed him casually that Dr. Ramakrishna Pillai had signed on three pages two days before his death. DW1 then goes on to say that it was only when Sri. Damodaran Nair told him about this that he became suspicious of the Codicil and therefore, that he had issued Exhibit X6 letter dated 28.03.1979 to the Sub Registrar, Thiruvananthapuram. However, even though this is his specific assertion, he has chosen not to examine Sri. Damodaran Nair. We will speak on this issue in greater detail later in this judgment. 48. The pleaded and proven facts thus makes it rather luculent that the Codicil was, in fact, presented for inspection and registration before the competent authority by the first defendant on 20.09.1978 and that it is only on account of his subsequent objection, namely Exhibit X6 dated 28.03.1979, that the Sub Registrar had not registered it. 49. What is relevant here is not whether the Codicil is registered or otherwise because, Exhibit X3 Codicil is not a document that requires mandatory registration in law. The real question is whether DW1 can be seen to be the person who had, in fact, propounded the Codicil. The facts noticed by us as afore can only lead to the definite conclusion that the Codicil was, in fact, propounded by the first defendant, when he presented it for registration before the Sub Registrar on 20.09.1978. The real question is whether DW1 can be seen to be the person who had, in fact, propounded the Codicil. The facts noticed by us as afore can only lead to the definite conclusion that the Codicil was, in fact, propounded by the first defendant, when he presented it for registration before the Sub Registrar on 20.09.1978. As regards the plaintiff is concerned, when she filed the suit, she did not really propound the Codicil but she was claiming under it, asserting it to be a valid document, for partition and exclusive possession of the plaint B schedule property. Thus, even though the suit was filed by her on the strength of Exhibit X3 Codicil, we cannot find, in the singular circumstances of this case, that she is the one who had propounded it. 50. In any event of the matter, since the allegations and insinuations against the authenticity of the Codicil is made by the first defendant through Exhibit X6 letter, certainly the burden of proving that the Codicil is not genuine would also fall upon the shoulders of the first defendant. This is particularly more so because it was he who had presented the Codicil for registration and in his application and declaration before the Sub Registrar, he never had a case against the genuineness of the Codicil. His allegations against the Codicil are brought on record for the first time through Exhibit X6 letter, about six months after he had presented it before the Sub Registrar, thus making it inescapable that the burden of proving the Codicil to be a fabricated one or one executed when the testator had no testamentary capacity to do so, also has to be discharged by him beyond reasonable doubt. 51. Once we have so concluded, the next line of enquiry will have to be as to whether the reasons for execution of the Codicil by the testator are discernible from the records. 52. The original Will of the testator, namely Exhibit X8, is a holographic document, written and executed by him. As is clear from its terms, he had made specific provisions therein for the distribution of his movable and immovable asserts in the year 1975, when his wife Bharathi Amma was alive. As we have already noticed above, he had bequeathed properties not only to his children but to his sisters and brother as well. As is clear from its terms, he had made specific provisions therein for the distribution of his movable and immovable asserts in the year 1975, when his wife Bharathi Amma was alive. As we have already noticed above, he had bequeathed properties not only to his children but to his sisters and brother as well. At the time when he executed the Will, it was obvious that he expected his wife to survive him and therefore, it was stipulated that his wife Bharathi Amma will be in 'all over management and control' of 'R.K. Pharmacy Complex' comprising of the compound, building and Dispensary, which is, in fact, the plaint A schedule property. The intention of the testator is clear because he had also provided that his son, namely the first defendant, was to keep a separate account of the business, as was being done by the testator and that he was to pay an amount of Rs.150/- to Bharathi Amma towards her expenses, along with a command that all her needs and comforts be taken care of by him. 53. However, contrary to the expectations of the testator, Bharathi Amma pre-deceased him on 15.01.1977. When one glances through Exhibit X3 Codicil, it becomes luculent that the primary reason that persuaded the testator Dr. Ramakrishna Pillai to execute the Codicil was on account of the death of his wife. In fact, in paragraph 2 of Exhibit X3 Codicil, the testator records that it has become necessary to modify Exhibit X8 Will on account of the death of his wife Bharathi Amma in the year 1977. Further, Exhibit X3 Codicil states that, subsequent to the execution of Exhibit X8 Will, the property in Vanchiyoor, which was in the name of Bharathi Amma, had been settled in favour of his daughter - the second defendant and therefore, that the bequest of 2.8 cents of land in the southern side of Ramakrishna Pharmacy Complex (plaint A schedule property) made in her name in Exhibit X8 Will will require to be modified and that she will be entitled to only half of it, the balance half being allotted to the plaintiff, the other daughter. The Codicil further says that the bequest of the first floor of Ramakrishna Pharmacy Complex in Exhibit X8 Will in favour of the first defendant, as provided in paragraph B thereof, is also modified by allotting the bed room, bath room, toilet and veranda to the plaintiff. Apparently, with an intention to give a compensatory benefit to the first defendant, the Codicil goes on to say that all the shares of the testator in the partnership firm 'M/s.Bharat Medicals' is allotted to the first defendant, though, as per Exhibit X8 Will, it had been allotted in favour of his nephew. Finally, the Codicil provides that even though as per Exhibit X8 Will his shares in the 'Mankombil Tharavadu' had been originally allotted to the third defendant - his sister, that was being modified by giving it to the fourth defendant also, to be held jointly by them. 54. The Codicil makes no further amendments to Exhibit X8 Will and going by its terms, the testator appears to have executed it on account of the changed circumstances, primarily the death of his wife, subsequent to Exhibit X8 Will. 55. The first defendant does not really appear to be concerned with any of the terms of the Codicil, except to the extent to which it alters his full share over the first floor of the R.K. Pharmacy Complex. In his pleadings, he does not offer any explanation as to why the Codicil alters the shares of other legatees under in Exhibit X8 Will, including defendants 2 to 4 and he does not even concede that he had also been substantially profited by the Codicil, he having been allotted all the shares in M/s.Bharat Medicals held by Dr. Ramakrishna Pillai instead of his nephew, as was stipulated in the Will. 56. The clear truth and the conceded position is that he had not objected to the Codicil and that he had presented it before the Sub Registrar on his own on 20.09.1978, albeit, allegedly as per the directions of PW2 - Sri. Govinda Pillai. 57. The question, therefore, that arises for examination is whether the contentions of the first defendant relating to the suspicion regarding the authenticity of the Codicil is genuine or is an after thought. 58. Govinda Pillai. 57. The question, therefore, that arises for examination is whether the contentions of the first defendant relating to the suspicion regarding the authenticity of the Codicil is genuine or is an after thought. 58. We have already recorded above that as per his original written statement, the first defendant's case was that he had presented only an envelope presumed to be containing the Codicil before the Sub Registrar and that he had no information regarding the contents of the Codicil. We will, therefore, now examine whether this contention can find any credence in the facts presented. 59. The testimony of PW2 and the written statement of the second defendant, as also the testimony of the plaintiff are to the effect that when the Codicil was executed by Dr. Ramakrishna Pillai, the first defendant, the first defendant's wife, the plaintiff, the plaintiff's mother-in-law, Sri. Damodaran Nair (the husband of the niece of the testator) and Sri. Appukkuttan Pillai were present and witnessing its execution, apart from PW2 -Sri. Govinda Pillai and Sri. Karunakara Menon, who are the attestors to the Codicil. However, when the defendant was examined as DW1, he denied emphatically that he or his wife were present when the Codicil was executed. The evidence of other witnesses were so clear and unequivocal that the first defendant had a greater onus to disprove it than by merely denying it. This is more so because, his written statement is completely silent about all these even though the written statement of the second defendant had sufficiently alerted him that her version is that he and his wife were present when Exhibit X3 Codicil was executed. It was, therefore, certainly upon the first defendant to lead cogent evidence disproving this. One would imagine that the best way he could have done was by citing the second defendant herself as a witness and to test her averments in her written statement through her testimony. However, the first defendant chose not to do so and, in fact, lead no other oral evidence, apart from his own as DW1. 60. In such milieu, it will be difficult for any reasonable person to believe that the omnibus denial of the first defendant would virtually impeach the untested statements of the second defendant in the written statement as also the evidence of PW2 and the plaintiff as PW5. 60. In such milieu, it will be difficult for any reasonable person to believe that the omnibus denial of the first defendant would virtually impeach the untested statements of the second defendant in the written statement as also the evidence of PW2 and the plaintiff as PW5. Further, at page 32 of the testimony of the first defendant as DW1, even though he states that he was not present when Exhibit X3 Codicil was executed by his father, he concedes that he was available at the R.K. Pharmacy Complex, where he and his wife were residing, till 3 p.m. and that he went out only after 3 p.m. finding his father to be asleep. These circumstances can only lead inferentially to a position that the statement of the first defendant, in his testimony as DW1, that he was not present when the Codicil was executed, cannot be accepted. 61. Further, as we have seen above, the first defendant admits that it is he, along with the husband of the plaintiff and PW2 - Govinda Pillai, who had taken Exhibit X3 Codicil to the Sub Registrar's Office on 20.09.1978 to have it registered. He explicitly concedes that he had made Exhibit X1 petition before the Sub Registrar and had offered his deposition, marked as Exhibit X2, before the said authority on the same day. He does not dispute the Codicil in any manner, even in Exhibit X4 letter dated 29.09.1978, which was signed by him, giving the list of persons who may have to be put on notice before registration of the Codicil. 62. However, after admitting all these, the first defendant, rather incredulously, states said that he had not read the contents of the Codicil and that he had presented it before the Sub Registrar only as per the dictates of PW2-Govinda Pillai. These statements are astonishing, to say the least, since, in Exhibits X1, X2 and X4, the first defendant says, without any reservation, that Exhibit X3 Codicil had been executed by his father validly. As noticed above, he resiled from this position only when he made Exhibit X6 objection before the Sub Registrar and that too, more than six months after he had presented Exhibit X3 Codicil before the said authority. 63. As noticed above, he resiled from this position only when he made Exhibit X6 objection before the Sub Registrar and that too, more than six months after he had presented Exhibit X3 Codicil before the said authority. 63. All these circumstances read together do not inspire confidence in our mind quad hoc the version of the first defendant that he had not seen the contents of Exhibit X3 Codicil at the time when he presented it for registration or until Exhibit X6 objection was raised by him, as being credible or acceptable. 64. It is also pertinent that the first defendant had testified, while he was examined, that he became suspicious about Exhibit X3 Codicil only when Sri. Damodaran Nair, who the other witnesses say, was present when Exhibit X3 Codicil was executed, informed him that two days prior to the death of Dr. Ramakrishna Pillai, the plaintiff had obtained his signature on two papers. Even assuming that these statements can garner some support, it was certainly for the first defendant to prove them by examining Sri. Damodaran Nair, who admittedly was available at the time of trial of the suit. The refusal and failure of DW1 to do so throws a cloud on his statement regarding the alleged role of Sri. Damodaran Nair and it would be impossible for this Court to accept it without further proof, which is lacking in this case. 65. The conduct of the first defendant thus becomes susceptible to a certain degree of suspicion and this is compounded by his further allegations that his father did not have the testamentary capacity to execute the Codicil, on account of cancer of the mouth, which he was suffering from for some time and particularly on account of the fall that his father is said to have had on 02.09.1978 leading to his alleged consequent loss of consciousness, at the time when Exhibit X3 Codicil was executed. These statements of the first defendant will have to be tested with other evidence available and the attendant circumstances spoken to by the other witnesses. 66. As regards the fall of her father is concerned, PW1 - the plaintiff admits that she was aware that her father had a fall on 02.09.1978 which required to be sutured. These statements of the first defendant will have to be tested with other evidence available and the attendant circumstances spoken to by the other witnesses. 66. As regards the fall of her father is concerned, PW1 - the plaintiff admits that she was aware that her father had a fall on 02.09.1978 which required to be sutured. Though, she did not state the time when her father had the fall, it certainly lends credence to the case of the first defendant that his father had a fall on that day. However, the relevant question is not if he had a fall, but when he had a fall. The evidence of PW2 in this regard becomes very relevant. 67. As we have earlier noticed, PW2 is one of the attestors to Exhibit X3 Codicil. According to his virtually unimpeached version, he went to the residence of Dr. Ramakrishna Pillai in the morning and he saw the testator laying on his bed. According to him, when he entered the bed room, the testator sat up on his bed and gave him three of his letter heads and requested him to write out a Codicil in his handwriting. Even though it is not specifically stated in his chief examination, PW2 said while being cross-examined, that a draft of the Codicil was handed over to him by the testator and that he told him that he would rather type it out than writing it in his own hand. Then he proceeds to say that he went out and got the Codicil typed on the three letter heads and returned to finally conclude the execution of the Codicil. He emphatically says that he and Sri. Karunakara Menon, the other attestor, saw Dr. Ramakrishna Pillai signing the first two pages of Exhibit X3 Codicil and that thereafter he and Sri. Karunakara Menon signed it, the affixure of their signatures being witnessed by each other and by Dr. Ramakrishna Pillai and that finally Dr. Ramakrishna Pillai signed on the third page, beneath their signature, again witnessed by both of them. 68. A pointed question was put to Sri. Govinda Pillai, while he was examined as PW2, as to whether he found Dr. Ramakrishna Pillai to be in any manner impeded in his cognitive capacity, to which he answered in the negative with great vehemence. PW2 was, thereafter, asked whether he was aware that Dr. 68. A pointed question was put to Sri. Govinda Pillai, while he was examined as PW2, as to whether he found Dr. Ramakrishna Pillai to be in any manner impeded in his cognitive capacity, to which he answered in the negative with great vehemence. PW2 was, thereafter, asked whether he was aware that Dr. Ramakrishna Pillai had a fall and had stitches on his forehead, to which the categoric answer was that he did not find any such stitches and that he was not aware that the doctor had a fall. PW2 goes on to say that he had no doubt that, at the time when Exhibit X3 Codicil was executed, Dr. Ramakrishan Pillai was fully conscious with all his cognitive facilities intact and that he was certainly aware as to what he was signing. These statements of PW2 virtually remain unimpeached and we cannot find any circumstance which could lead us to think that these statements are in any manner unworthy of credence. 69. Further, in the original written statement filed by the first defendant, he had averred that on account of the disease that his father was suffering, he was not in a position to communicate effectively and, therefore, that Exhibit X3 Codicil could not have been dictated by him to PW2. 70. The evidence on record in this regard is the testimony of PWs 2, 4 and 6. PW2-Sri. Govinda Pillai has testified that Dr. Ramakrishna Pillai did not dictate to him the contents of the Codicil but that a draft of the same was given to him and he was asked to write it on the letter heads in his own hand. Sri. Govinda Pillai, as we have seen above, said that he told the testator that he would rather have it typed out and brought the typed Codicil back for being executed. The evidence of PW6-Dr. Kesavan Nair is also relevant because he is the person who had inserted the Ryles Tube through the nasal cavity of Dr. Ramakrishna Pillai about ten days prior to his death. This evidence is pertinent because it is also the case of the defendant that on account of the insertion of the Ryles Tube, his father was incapable of oral communication. PW6 conceded that he had inserted the Ryles Tube into Dr. Ramakrishna Pillai and when he was asked whether Dr. Ramakrishna Pillai about ten days prior to his death. This evidence is pertinent because it is also the case of the defendant that on account of the insertion of the Ryles Tube, his father was incapable of oral communication. PW6 conceded that he had inserted the Ryles Tube into Dr. Ramakrishna Pillai and when he was asked whether Dr. Ramakrishna Pillai was capable of speaking after it, he answered to the affirmative but stated that Dr. Ramakrishna Pillai was always a very soft spoken person, who spoke little and that he did not really have any conversation with him when he had inserted the tube. Further more, the evidence of PW4-Advocate Gopala Pillai, who was Dr. Ramakrishna Pillai's friend and one of the attestors to Exhibit X8 Will, is that Dr. Ramakrishna Pillai had no problem in his speech or communicative skills and that he had visited Dr. Ramakrishna Pillai on 03.09.1978, a day before his death. He also says that he had met Dr. Ramakrishna Pillai several times during the period when he was indisposed and that though he was tired, he was not cognitively impaired in any manner. As regards the Ryles Tube being inserted, PW4 said that he does not remember whether such a tube had been inserted but reiterated that Dr. Ramakrishna Pillai, though tired, was not incapacitated when he met him. He further testified that he came to know of the fall that Dr. Ramakrishna Pillai had when he went for the funeral of Dr. Ramakrishna Pillai but that he did not know the details. 71. The evidence of the witnesses make it indubitable that Dr. Ramakrishna Pillai had been suffering from cancer for a long period but that it had not affected his cognitive or testamentary capacity in any manner. In fact, this is also conceded by the first defendant, when he testified as DW1, that his father, after his radiation therapy for cancer, was fully competent and capable of executing a Codicil (see page 26 of the testimony of DW1). 72. The surviving question thus is whether his fall had, in any manner, affected the testamentary capacity of Dr. Ramakrishna Pillai as alleged by DW1. 73. As already noticed, the testimony of the first defendant as DW1 is clear that he was available at the R.K. Pharmacy Complex till 3 p.m. on 02.09.1978 (see page 32 of deposition of DW1). 72. The surviving question thus is whether his fall had, in any manner, affected the testamentary capacity of Dr. Ramakrishna Pillai as alleged by DW1. 73. As already noticed, the testimony of the first defendant as DW1 is clear that he was available at the R.K. Pharmacy Complex till 3 p.m. on 02.09.1978 (see page 32 of deposition of DW1). He further says that he went out subsequently seeing his father asleep. Thereafter, in page 37 of his deposition, DW1 says that he was informed immediately after his father had a fall and that such information was given to him either by the visitors or the patients at his father's residence over phone, while he was attending to the business at his medical firm. His testimony on this is as under : “xxx” These statements read together would make the contention of the first defendant that his father had a fall in the morning of 02.09.1978 to be extremely enervated. When we read the deposition of PW2 along with that of DW1, it would become perspicuous that in the morning of 02.09.1978, when PW2 had met Dr. Ramakrishna Pillai, he had not suffered a fall nor were there any stitches on his forehead. This is because, had it been otherwise, PW2 would have certainly seen the stitches on the forehead and he would have spoken about the condition of Dr. Ramakrishna Pillai consequent to such fall. On the contrary, the evidence of PW2 stands credible that when he met Dr. Ramakrishna Pillai in the morning, he was in good mental condition with full command over his cognitive faculties and that he did not see traces of any injury on his body. 74. The factum of Dr. Ramakrishna Pillai having had a fall on 02.09.1978 is more or less established, since even the plaintiff speaks about this and affirms that he may have had stitches on his forehead consequent to such fall. In fact, the evidence of the other witnesses, including PWs 2 and 4, also establish that they became aware that Dr. Ramakrishna Pillai had a fall either a day before or on the day of his death. In fact, the evidence of the other witnesses, including PWs 2 and 4, also establish that they became aware that Dr. Ramakrishna Pillai had a fall either a day before or on the day of his death. Hence there is hardly any reason to disbelieve the assertion of the first defendant that his father had a fall but the attendant circumstances and evidence on record speak contrary to his averment that his father fell before Exhibit X3 Codicil was prepared and executed. 75. We further fail to understand why the first defendant did not lead sufficient and proper evidence, including medical evidence, to show and establish the actual time of fall of his father, apart from making a bald allegation in the written statement and in his testimony that his father suffered the fall prior to the execution of Exhibit X3 Codicil. We are, therefore, certain that the allegation of the first defendant that his father had a fall prior to the execution of Exhibit X3 Codicil and that he was incapacitated testamentarily to execute the document cannot be accepted. Thus, taking the evidence of the plaintiff, PW2 and DW1 into account, one cannot but conclude that Dr. Ramakrishna Pillai may have had a fall, but only after Exhibit X3 Codicil had been executed. 76. The adscititious consideration will be whether the factum of a Ryles Tube having been inserted through the nasal cavity of Dr. Ramakrishna Pillai would be a circumstance to hold that he could not have executed the Codicil. As we have already recorded above, the evidence of PW2 is that Dr. Ramakrishna Pillai did not dictate to him the contents of the Codicil but that a draft was given to him with a request to write it out on his own in three letter heads bearing the name of Dr. Ramakrishna Pillai. PW2 then says that he took the draft and got the Codicil typed out and brought it back for its execution by Dr. Ramakrishna Pillai. The attempt of the first defendant in his pleadings, as well as in his evidence, is to show that Dr. Ramakrishna Pillai had no capacity to speak and thus to give instructions for preparing the Codicil. However, from the proven facts involved in this case, it is certain that Exhibit X3 Codicil was not prepared on the dictation of Dr. The attempt of the first defendant in his pleadings, as well as in his evidence, is to show that Dr. Ramakrishna Pillai had no capacity to speak and thus to give instructions for preparing the Codicil. However, from the proven facts involved in this case, it is certain that Exhibit X3 Codicil was not prepared on the dictation of Dr. Ramakrishna Pillai but on the basis of a draft that had been already prepared by him and handed over to PW2. That being so, the capacity of Dr. Ramakrishna Pillai to speak or the audibility of his words is not relevant at all and it would not affect the validity of the Codicil. These contentions are, in our view, thus completely irrelevant when we examine the genuineness of Exhibit X3 Codicil. 77. That being said, we are cognizant that the first defendant has also a case that Dr. Ramakrishna Pillai had no reason to have Exhibit X3 Codicil prepared and executed, since he had made detailed provisions with respect to the distribution of his assets through Exhibit X8 Will. We have already dealt with the reasons discernible from the Codicil itself for its preparation and execution in the earlier paragraphs of this judgment, but we feel it appropriate to refer to it again to answer the contention of the first defendant that Exhibit X3 codicil was unnecessary. 78. As we have seen, Exhibit X8 Will was prepared by Dr. Ramakrishna Pillai in 1975 when his wife Bharathi Amma was alive. He had specified the distribution of his assets to his children and siblings thereunder and a burden was cast upon his son -the first defendant to pay Rs.150/- to his mother every month and to take care of all her needs and comforts. He had also provided in Exhibit X8 Will that his wife will be in over all management and control of 'R.K. Pharmacy Complex' and he obviously, therefore, expected his wife to survive him. However, unfortunately his wife pre-deceased him on 15.07.1977 and hence the need and the attachments to the first floor for her ceased, as also the obligation cast on the first defendant to provide her Rs.150/-per month for meeting her expenses. Further, since subsequent to Exhibit X8 Will, his share in 'Kavalam Tharavadu', bequeathed to the fourth defendant, was sold by Dr. Further, since subsequent to Exhibit X8 Will, his share in 'Kavalam Tharavadu', bequeathed to the fourth defendant, was sold by Dr. Ramakrishna Pillai, his share in 'Mankombil Tharavadu', which were originally allotted to the third defendant as per Exhibit X8 Will, were jointly allotted to the fourth defendant also under the Codicil. The Codicil also modifies the rights over 2.8 cents on the southern side of the R.K. Pharmacy complex in plaint A schedule property, by allotting half of it, namely 1.4 cents, to the plaintiff, though the whole of it was originally given to the second defendant under Exhibit X8 Will. This appears to have been done because, as the Codicil says, the second defendant had been given her mother's property after her unfortunate demise. Thereafter, in an obvious attempt to equalise the shares in equity, in the Codicil it was provided that earlier allotment of the shares of Dr. Ramakrishna Pillai in M/s.Bharat Medicals to his nephew Sri. Ramachandran Nair would stand modified and that all such shares would now stand allotted to the first defendant. 79. The changes made through Exhibit X3 Codicil to the allotments proposed in Exhibit X8 Will, therefore, appear to be, as is stated therein also, primarily on account of the death of Bharathi Amma. Had she been alive, certainly there would have been no requirement to modify the terms of Exhibit X8 Will, but on her death, it is clear that Dr. Ramakrishna Pillai wanted to modify the original bequests in Exhibit X8 Will, since his wife's property had been given to the second defendant and the requirement to maintain the portion of the first floor for the benefit of his wife had ceased. It is clear from Exhibit X3 Codicil that the modifications to the Will are extremely well thought of and not made in a random manner but with a carefully calculated intent of making the division of properties clear and equal. This is clear from the way the shares of Dr. It is clear from Exhibit X3 Codicil that the modifications to the Will are extremely well thought of and not made in a random manner but with a carefully calculated intent of making the division of properties clear and equal. This is clear from the way the shares of Dr. Ramakrishna Pillai in 'Mankombil Tharavadu', were given to the fourth defendant also, though originally allotted exclusively to the third defendant and in the manner in which half of 2.8 cents on the southern side of the R.K. Pharmacy Complex room was given to the plaintiff, though the entire extent was earlier given to the second defendant, since consequent to the death of Bharathi Amma her property at Vanchiyoor was given to the second defendant through a gift deed. We cannot find any suspicious circumstances in the manner in which Exhibit X3 Codicil has been executed, when we see the meticulous care with which it has been drafted and executed by the testator. 80. That being said, we are certainly cognizant that the first defendant has averred in his pleadings that the Codicil was created and fabricated by the plaintiff with the assistance of PW2 and that he insinuates that PW2 did so for the benefit of the plaintiff to the detriment of the first defendant. The first defendant has, when he was examined as DW1, explained his suspicion about PW2-Sri. Govinda Pillai, by saying that since PW2 was aware of Exhibit X8 Will, it was easy for him to create Exhibit X3 Codicil referring to the specific terms of Exhibit X8 Will and then obtaining the signature of Dr. Ramakrishna Pillai, so as to help the plaintiff. 81. The above allegation, made by the first defendant, apart from being completely unsubstantiated, fails for another particular reason. The evidence shows that PW2-Sri. Govinda Pillai's son is married to the daughter of the third defendant and therefore, it will be difficult to countenance the allegation of the first defendant that PW2 created the Codicil, when we see that as per it the third defendant has lost half of the property allotted to her. Nothing is stated by the first defendant as to how PW2 would create a document to the detriment of his son's mother-in-law, so as to solely help the plaintiff. Nothing is stated by the first defendant as to how PW2 would create a document to the detriment of his son's mother-in-law, so as to solely help the plaintiff. Further, the first defendant does not say that PW2 had any animosity with him or with the third defendant or that he had any particular affinity towards the plaintiff. In the absence of any such evidence, we feel that it will be absolutely uncharitable to even think that PW2, who is otherwise conceded to be an honourable man, can be capable of such conduct, as is alleged by the first defendant and we can only conclude that these statements have been made by the first defendant as an after-thought, to desperately obtain credence to his allegations and nothing more. 82. There is another aspect which is equally compelling to conclude that Exhibit X3 Codicil was executed by Dr. Ramakrishna Pillai and that he wanted an equitable distribution of his assets in a different manner than what was provided in Exhibit X8 Will, consequent to the changed circumstances, especially the death of his wife. This is that, though in Exhibit X8 Will, his shares in 'M/s.Bharat Medicals' were allotted to his nephew Ramachandran Nair, through Exhibit X3 Codicil, Dr. Ramakrishna Pillai modified this and gave all of it to the first defendant. However, the contention of the first defendant in this regard is that this re-allotment of shares was unnecessary and irrelevant because, according to him, 'M/s.Bharat Medicals' had already been wound up. Even though he said this in his chief examination, when he was cross-examined, he conceded that he is still running 'M/s. Bharat Medicals', but claimed that he was running it as a proprietary concern after the earlier partnership between himself, Sri. Ramachandran Nair and his father had been dissolved. Interestingly, he also conceded that the accounts of 'M/s.Bharat Medicals' had never been settled after it was allegedly dissolved and that he did not receive any share as being his. 83. The unambiguous testimony of the first defendant that he was still running M/s.Bharat Medicals much after his father died helps us in concluding that the business was continuing as a partnership business even at the time when Dr. 83. The unambiguous testimony of the first defendant that he was still running M/s.Bharat Medicals much after his father died helps us in concluding that the business was continuing as a partnership business even at the time when Dr. Ramakrishna Pillai had executed Exhibit X3 Codicil and that as per the terms of the Codicil, the first defendant became entitled to the whole of the shares held by his father in the said business. 84. When we say so, we are not oblivious to Exhibits B1 and B2 produced by the first defendant to show that as early as on 28.10.1977 the partners of M/s.Bharat Medicals had applied to the Registrar of Firms indicating their decision to dissolve it. Exhibit B1 is an acknowledgment issued by the Registrar of Firms indicating receipt of such an application. However, the first defendant has not chosen to produce any order from the Registrar of Firms allowing the said application and thus legally dissolving the firm. Since the firm was a registered one, it can be deemed to be dissolved only when the Registrar of Firms has accepted the request for dissolution and on issuance of an appropriate order from his office. In this case, all that we can see from Exhibits B1 and B2 is that the partners of M/s.Bharat Medicals had informed the Sub Registrar of their intention to dissolve the firm and that such application was received by the said office. However, nothing else is shown or even stated by the first defendant, when he was examined as DW1, as to whether the Sub Registrar had accepted the application or whether it was rejected. As long as there is no evidence to show that the Registrar of Firms had permitted any such dissolution and in the absence of any other document to show that the firm had actually been dissolved, we would not be justified in accepting the version of DW1 that M/s.Bharat Medicals had been dissolved before Exhibit X3 Codicil was executed. 85. This gains serious import because the case of the first defendant that the Codicil is unfair is founded on the assertion that he has been seriously prejudiced and that he was not given any benefit under it at all. This contention of the first defendant is, therefore, completely belied by the fact that the entire shares of Dr. 85. This gains serious import because the case of the first defendant that the Codicil is unfair is founded on the assertion that he has been seriously prejudiced and that he was not given any benefit under it at all. This contention of the first defendant is, therefore, completely belied by the fact that the entire shares of Dr. Ramakrishna Pillai in M/s.Bharat Medicals came to be allotted to him and that after his death, the first defendant became the exclusive owner and proprietor of the said business. This is certainly a benefit that he had obtained through the Codicil and therefore, his contention that Exhibit X3 Codicil was unfair to him cannot be accepted at all. In any event of the matter, the measure and size of the bequest by itself would not be a relevant criterion to conclude upon the validity or otherwise of a Will or a Codicil but in the facts that we have seen, it is obvious that Dr. Ramakrishna Pillai was, through the Codicil, attempting to equalise the benefits of all his children and siblings. 86. There is yet another very relevant factor which would compel us to hold that Exhibit X3 Codicil was executed by Dr. Ramakrishna Pillai and that the first defendant was certainly aware of it. As we have said earlier, it was the first defendant himself who had presented the Codicil before the Sub Registrar for registration. Even if we accept his version that he was not aware of the contents of the said document, it is glaring in his own evidence that after a few days of the death of this father, namely after the 'Sanchayanam', he and his family had shifted their residence from the R.K. Pharmacy Complex to a building called 'Rama Bharathi' at Kumarapuram, Thiruvananthapuram, which is his address shown in the plaint, at which he was served. Further, in A.S.No.72/1993, which was filed by the first defendant against the judgment and decree of the trial court, he has again shown himself to be residing at 'Rama Bharathi', clearly demonstrating that he had shifted his residence from R.K. Pharmacy Complex as conceded by him in his evidence. This again is a circumstance to hold that the first defendant was aware of the Codicil, had accepted it and had acted under it by shifting his residence from R.K. Pharmacy Complex. 87. This again is a circumstance to hold that the first defendant was aware of the Codicil, had accepted it and had acted under it by shifting his residence from R.K. Pharmacy Complex. 87. Even though an evaluation, as above, of the relevant facts persuade us to uphold Exhibit X3 Codicil, we are aware that the learned Single Judge had found otherwise in the impugned judgment. 88. The views of the learned Single Judge and the reasons that weighed with him in finding against Exhibit X3 Codicil are recorded in paragraphs 7 and 8 of the impugned judgment. The primary reasons, we notice from the judgment, that led the learned Single Judge to find against the validity of Exhibit X3 Codicil are (a) that the signature of Dr. Ramakrishna Pillai in it is very shaky and not firm, though the signature in Exhibit X8 Will is clear and firm; (b) that Dr. Ramakrishna Pillai's signature in pages 2 and 3 of the Codicil appear to overlap his name typed thereon and that this leads to a suspicion that the signature was obtained first and the matter typed later; (c) that the Typist who typed the Codicil is an unknown person and that the plaintiff has not stated his name or produced him as a witness to prove Exhibit X3; (d) that though PW2 indicates that Dr. Ramakrishna Pillai gave him a draft of the Codicil, it has not been produced by him, leading to an inference that there was no such draft; (e) that there is no evidence to show that Dr. Ramakrishna Pillai gave any instructions to PW2 to prepare the Codicil; (f) that nothing is discernible from Exhibit X3 or the evidence as to why additional benefits have been given to the plaintiff; and finally (g) that PW2 and PW4 and the plaintiff were aware of Exhibit X8 Will, thus enabling them to create the Codicil, modifying the terms of Exhibit X8 Will, with their knowledge of the contents thereof. 89. In addition to the above circumstances relied on by the learned Single Judge, Sri. T. Sethumadhavan, the learned Senior Counsel appearing on behalf of the additional respondents, who are the legal heirs of the first defendant, submits that the fact that the Codicil was not taken for registration on 12.09.1978 along with Exhibit X8 Will renders it suspicious. 89. In addition to the above circumstances relied on by the learned Single Judge, Sri. T. Sethumadhavan, the learned Senior Counsel appearing on behalf of the additional respondents, who are the legal heirs of the first defendant, submits that the fact that the Codicil was not taken for registration on 12.09.1978 along with Exhibit X8 Will renders it suspicious. He further submits that nothing has been stated by the plaintiff or by other witnesses as to where Exhibit X3 Codicil was until it was taken for registration on 20.09.1978 and that it is for the plaintiff to explain the custody of the Codicil until that day. He finally submits that if Dr. Ramakrishna Pillai had intended to create Exhibit X3 Codicil, he would have certainly consulted PW4, his friend and legal counsel, since it is on record, according to him, that Exhibit X8 Will was executed by Dr. Ramakrishna Pillai only after consultation with PW4. 90. We have examined the evidence, materials and pleadings on record with respect to the afore circumstances detailed by the learned Single Judge in concluding that Exhibit X3 Codicil is bad, as also the contentions of the learned Senior Counsel. Even though we are certain, from what we have already seen above, that there is hardly any reason to find suspicious circumstances surrounding the Codicil, especially because the evidence makes it limpid that the first defendant was present when it was executed; that he accepted it by shifting his residence after the death of his father and that he himself presented it for registration before the Sub Registrar, we will still deal with each of the circumstances noticed by the learned Single Judge as well as the specific contentions of the learned Senior Counsel afore, in order to dispel any remaining suspicion that Exhibit X3 is a concocted or fabricated one, made by or at the instance of the plaintiff. 91. The law relating to proof of Wills or Codicils provide that the same be proved by examining the attesting witnesses or one among them. This position of law has been declared by the Hon'ble Supreme Court in several judgments, including Brij Mohan (supra) and Daulat Ram and others v. Sodha and others ( AIR 2005 SC 233 ). 91. The law relating to proof of Wills or Codicils provide that the same be proved by examining the attesting witnesses or one among them. This position of law has been declared by the Hon'ble Supreme Court in several judgments, including Brij Mohan (supra) and Daulat Ram and others v. Sodha and others ( AIR 2005 SC 233 ). In the present case, PW2 was examined thoroughly but nothing was brought out in his testimony that could, in any manner, throw a cloud on the validity of Exhibit X3. Once the testamentary capacity of the testator was proved by the attesting witnesses, the onus of proof on the plaintiff had been substantially, if not fully discharged and it was thereupon on the first defendant to establish and prove the alleged suspicious circumstances. 92. The evidence of PW2 as also that of PW4 is that Dr. Ramakrishna Pillai was fully conscious and enjoying full testamentary capacity when Exhibit X3 Codicil was executed. It is also the evidence of PW2 that several persons, including the first defendant, had witnessed Dr. Ramakrishna Pillai, himself and Sri. Karunakara Menon signing and attesting the document. In such circumstances, the fact that the signature of Dr. Ramakrishna Pillai was not firm and that it was shaky would not be very relevant and on the contrary, would be a circumstance to hold it valid because, he was admittedly 84 years of age, was under prolonged treatment for cancer with a Ryles Tube inserted and thus slightly weak physically. It is only normal that the signatures of a person in such a state may not be very firm and the factual finding of the learned Single Judge that the testator's signature in Exhibit X8 Will was firm would only lend credence to the validity of Exhibit X3 Codicil, because it was executed more than 3 1/2 years after the Will was executed, during which period Dr. Ramakrishna Pillai's health had considerably deteriorated. We cannot, therefore, find that the fact that Dr. Ramakrishna Pillai's signatures in Exhibit X3 Codicil appear to be slightly shaky as being a suspicious circumstance to warrant a conclusion against the validity of Exhibit X3 Codicil. In fact, in a case involving similar circumstances, the Hon'ble Supreme Court in Rabindra Nath Mukherjee and Another v. Panchanan Banerjee (Dead) by Lrs. Ramakrishna Pillai's signatures in Exhibit X3 Codicil appear to be slightly shaky as being a suspicious circumstance to warrant a conclusion against the validity of Exhibit X3 Codicil. In fact, in a case involving similar circumstances, the Hon'ble Supreme Court in Rabindra Nath Mukherjee and Another v. Panchanan Banerjee (Dead) by Lrs. and Others ( (1995) 4 SCC 459 ) has said that merely because a signature is shaky, especially when the testator is in advanced age, it cannot be held that the Will itself is suspicious. It is thus clear that the very factum of the signature of a testator being not firm but shaky has been accepted by the Hon'ble Supreme Court to be not a circumstance that can lead to an automatic cause for suspicion. 93. Similar would be the position as regards the finding of the learned Single Judge that the factum of the signatures of Dr. Ramakrishna Pillai overlapping his name typed on pages 2 and 3 of the Codicil to be a suspicious circumstance. The learned Single Judge appears to conclude that this should lead to an inference that the signature was affixed and the contents written later. We are afraid, for the same reasons as recorded by us above, we are unable to accept this because the evidence of PW2 is certain with respect to execution of the Codicil and the signature of the testator in the first page has not been found to be suspicious. In such event, merely because the signatures of the testator overlaps his name, typed on pages 2 and 3 of the Codicil, cannot be held to be a circumstance casting suspicion on Exhibit X3 Codicil. 94. As far as the view of the learned Single Judge that in the absence of the typist being produced and examined as a witness, the Codicil must be viewed with suspicion, we are of the opinion that it does not conform to the views of the Hon'ble Supreme Court. In Ramabai Padmakar Patil (Dead) through LRs. and Others v. Rukminibai Vishnu Vekhande and Others ((2003) 8 SCC 539), cited before us by Sri. In Ramabai Padmakar Patil (Dead) through LRs. and Others v. Rukminibai Vishnu Vekhande and Others ((2003) 8 SCC 539), cited before us by Sri. Parameswara Panicker, the learned Senior Counsel for the appellant, the Hon'ble Court has declared as under : “As discussed earlier, in view of Section 63 of the Indian succession Act and the proviso to Section 68 of the Evidence Act, the requirement of law would be fully satisfied if only one of the attesting witnesses is examined to prove the Will. That this had been done in the present case by examining PW2 Raghunath Govinda Sogale cannot be disputed. No infirmity of any kind had been found in the testimony of this witness. Chhaya Dighe merely typed the Will and she is not an attesting witness nor is it anybody's case that Smt Yamunabai had put her thumb impression on the Will in her presence, therefore, her examination as a witness was wholly redundant. The mere non-examination of the advocate who was present at the time of preparation or registration of the Will cannot, by itself, be a ground to discard the same.” It is thus beyond need for further expatiation that when the document is otherwise proved and shown to be credible, the mere non-examination of the typist who typed it, would be of no consequence. In the case at hand, this is additionally because the challenge to the Codicil was made by the first defendant many months after it was executed and the trial of the suit commenced a few years later. It is, therefore, impossible to contend that PW2 should remember the typist or that the plaintiff should have found him and cited him as a witness to prove Exhibit X3 Codicil. We cannot, therefore, approve this line of reasoning of the learned Single Judge. 95. As regards the learned Single Judge's view that the draft of the Codicil not having been produced by the plaintiff or PW2 is also a circumstance against its genuineness, is concerned, we must again point out that the Hon'ble Supreme Court has spoken on this issue also in Smt. Indu Bala Bose and others v. Manindra Chandra Bose and another ( AIR 1982 SC 133 ). The Hon'ble Court, after assessing the facts therein, held that in the absence of evidence to show that there is an invariable practice that the draft of a Will had to be preserved, its non-production during trial would not be a circumstance deserving of being found suspicious. The definite view of the Hon'ble Court is that if it has been proved that the draft of a Will had to be preserved as an invariable practice, then alone its production becomes relevant and important. In the facts here, the draft of the Codicil was given to PW2, as per his evidence, by Dr. Ramakrishna Pillai, to have the same prepared on his letter heads. In his testimony, PW2 said that he does not have the draft of the Codicil with him but no attempt was made by the first defendant to prove that such a draft had to be preserved as an invariable practice. Again, as we have said above, PW2 may not have even thought of preserving it because there was no dispute with regard to the Codicil for a substantially long period of time and the sequence of events would show that the first defendant himself had accepted the same until 28.03.1979, when Exhibit X6 objection was made by him before the Sub Registrar. The absence of the draft, therefore, would also be of no consequence and even though it may be a suspicious circumstance in other cases, in the particular facts of this case, the non-production of the draft per se cannot be found to be such. 96. Next, the learned Single Judge, as we can see from the judgment impugned, has found that there is no evidence to show that Dr. Ramakrishna Pillai gave oral instructions to PW2 to prepare the Codicil. The learned Single Judge also found that evidence of PW6-Dr. Kesavan Nair, who inserted the Ryles Tube and that of PW4 would show that Dr. Ramakrishna Pillai had difficulty in speaking, thus incapacitating him from giving oral instructions for the preparation of the Codicil. We are afraid that the learned Single Judge has misdirected himself in concluding so because the evidence of PW2 is ineluctable that Dr. Ramakrishna Pillai did not give him such instructions but that he was given a draft, which he was requested to write onto his letter heads. The fact that Dr. We are afraid that the learned Single Judge has misdirected himself in concluding so because the evidence of PW2 is ineluctable that Dr. Ramakrishna Pillai did not give him such instructions but that he was given a draft, which he was requested to write onto his letter heads. The fact that Dr. Ramakrishna Pillai had difficulty in speaking would thus be of no relevance at all and in any event of the matter, since the non-production of a draft itself is found to be a suspicious circumstance by the learned Single Judge, we fail to understand how the alleged incapacity of Dr. Ramakrishna Pillai to give oral instructions could have been found by him to be an independent vitiating circumstance against the Codicil, since these two cannot go together; it is either that Dr. Ramakrishna Pillai gave oral instructions to prepare the Codicil or that a draft had been pre-prepared by him and given to PW2. It is, therefore, obvious that the finding of the learned Single Judge on this issue cannot be sustained. 97. Apropos the finding of the alleged additional benefit to the plaintiff in Exhibit X3 Codicil is concerned, the finding of the learned Single Judge that the plaintiff has been disproportionately favoured therein does not appear to be quite correct. As we have already said above, the plaintiff and the other children and siblings of Dr. Ramakrishna Pillai have also had their shares modified, compared to what was provided in Exhibit X8 Will. When the first defendant says that the share of the plaintiff in the R.K. Pharmacy Complex had been enhanced, it is also certain that he had also been benefited by being allotted the entire shares of M/s.Bharat Medicals. He does not have a case that the allotment of all the shares in M/s.Bharat Medicals to him is in any manner suspect and he admits that he is in full control and ownership of the business as its Proprietor after the death of his father. The observations of the learned Single Judge that the unexplained reason for the additional benefits to the plaintiff in Exhibit X3 would erode its credibility is, in our mind, thus completely uncalled for. The observations of the learned Single Judge that the unexplained reason for the additional benefits to the plaintiff in Exhibit X3 would erode its credibility is, in our mind, thus completely uncalled for. This is because, in the absence of improbability being clearly and cogently shown by the first defendant, a Will or a Codicil cannot be struck down solely for the reason that distribution of the properties under it is alleged to be unfair or unequal. This is not to say that the allotment in this case is unequal because, as we have said above, the first defendant obtained a clear benefit of being allotted all the shares of M/s.Bharat Medicals through Exhibit X3 Codicil. 98. The learned Single Judge has finally found that the allegation of the first defendant that Exhibit X3 Codicil could have been fabricated by the plaintiff with the help of PW2 to be probable because PW2, PW4 and the plaintiff were aware of the contents of Exhibit X8 Will, thus enabling them to create the Codicil. The learned Single Judge has concluded that the evidence shows that Dr. Ramakrishna Pillai was not the only person who was aware of the disposition in Exhibit X8 Will and that since PWs 2 and 4 and the plaintiff could have been aware of the dispositions in the Will, the contents of Exhibit X3 Codicil become suspect. However, in the same breath, the learned Single Judge records that though there is no evidence to show that PW2 and the plaintiff had access to the contents of Exhibit X8 Will, PW4 certainly knew it because he was the attestor to the said Will. We feel that these conclusions of the learned Single Judge cannot obtain sustenance on account of the nature of evidence on record and particularly since no motive or reason is pleaded, demonstrated or proved by the first defendant as to why either PW2 or PW4 should have acted with such malice in creating Exhibit X3 Codicil for the benefit of the plaintiff and to the detriment of all the other legatees under Exhibit X8 Will, especially when one of the legatees under the Will is his son's mother-in-law. The findings of the learned Single Judge are, we respectfully say, based on surmises and conjunctures and therefore, cannot be sustained. 99. The findings of the learned Single Judge are, we respectfully say, based on surmises and conjunctures and therefore, cannot be sustained. 99. Once we have thus dealt with the conclusions and views of the learned Single Judge in the impugned judgment as afore, we now turn our attention to the contentions of the learned Senior Counsel Sri. T. Sethumadhavan. 100. The learned Senior Counsel says that the fact that the Codicil was not taken for registration on 12.09.1978 when the Will was registered, would show that the Codicil was created later than that date. This submission, we must say, is terribly far-fetched since it was never the case of the first defendant that at the time when Exhibit X8 Will was taken for registration by him, he was not aware of Exhibit X3 Codicil. In fact, his oral testimony would establish that Exhibit X8 Will was deposited by his father at the District Registrar's Office in the year 1975 and that, he along with PW2 and the husband of the plaintiff, had taken the receipt to the said office to obtain registration of the Will. It is also his specific admission that he had taken Exhibit X3 Codicil on 20.09.1978 to the Sub Registrar's Office, with intention of having it registered, again along with PW2 and the husband of the plaintiff. He does not even whisper in his evidence that he had any doubt at that time about the Codicil as being a fabricated one. We find nothing suspicious in the Codicil being taken for registration later than Exhibit X8 Will and the submissions of the learned Senior Counsel do not appeal to us. 101. The learned Senior Counsel then submits that the evidence is silent as to in whose custody the Codicil was until 20.09.1978, when it was taken for registration. Here, the learned Senior Counsel is absolutely right. However, the first defendant did not choose to challenge the Codicil on these lines and he did not say that the Will was in someone else's custody before it was taken by him for registration on 20.09.1978. Here, the learned Senior Counsel is absolutely right. However, the first defendant did not choose to challenge the Codicil on these lines and he did not say that the Will was in someone else's custody before it was taken by him for registration on 20.09.1978. When the first defendant had no case at all either in his pleadings or his evidence that the Codicil was in the custody of some one else until 20.09.1978 and when the evidence shows that the first defendant took the Will from the residence of his father, it can at best only lead to the inference that after its execution, the Codicil was left safe somewhere in the residential quarters of Dr. Ramakrishna Pillai and that the first defendant had knowledge about it, thus leading him to present it for registration on 20.09.1978. The attempt of the learned Senior Counsel to throw suspicion on the Codicil through this line of arguments is, according to us, bordering on brinkmanship. 102. The learned Senior Counsel further attempts to inject suspicion into the execution of the Codicil by saying that the immediate death of Dr. Ramakrishna Pillai after the execution of Exhibit X3 Codicil would establish the case of his client that, at the time when the Codicil was executed, Dr. Ramakrishna Pillai had no testamentary capacity. We are afraid that this submission is too general in nature. The mere fact that the testator died soon after the execution of the Codicil by itself cannot be construed to be a circumstance warranting axiomatic suspicion. The Hon'ble Supreme Court has spoken on this on many occasions and we draw support for our view from Brij Mohan (supra) and Daulat Ram (supra) which have been already noticed by us in the earlier paragraphs of this judgment, while dealing with the issue relating to the testamentary capacity of the testator. In Brij Mohan (supra), a Will was executed a few hours before the death of the testator, while in Daulat Ram (supra), the testator died two days after the Will was executed. In Brij Mohan (supra), a Will was executed a few hours before the death of the testator, while in Daulat Ram (supra), the testator died two days after the Will was executed. The Hon'ble Supreme Court has, in both these cases, declared that the immediate death of the testator by itself is not a circumstance to suspect the Will and that in the absence of any other circumstance against it and when cogent evidence is available as to the testamentary capacity of the testator, the immediate death of the testator is per se irrelevant. 103. Finally, the learned Senior Counsel submits that the conceded non involvement of PW4 - Sri. Gopala Pillai in the creation and execution of the Codicil is a compelling circumstance which should be viewed suspiciously. He builds this argument by saying that PW4 was Dr. Ramakrishna Pillai's close friend and legal advisor and that nothing had been done by Dr. Ramakrishna Pillai without consulting him in the past. The learned Senior Counsel further submits that it is evident from the evidence of PW4 himself that Exhibit X8 Will was prepared and executed by Dr. Ramakrishna Pillai only after consulting him and, therefore, that the execution of Exhibit X3 Codicil without the knowledge of PW4 can only inferentially lead to the conclusion that the Codicil was fraudulently created. We have examined the evidence available on record very intently to find if any credence can be attached to this argument of the learned Senior Counsel. The testimony of PW4 with respect to Exhibit X8 Will is not that Dr. Ramakrishna Pillai had consulted him with respect to its contents but only that Dr. Ramakrishna Pillai showed Exhibit X8 Will to him after it was written and asked him whether it was in the proper form, to which he replied that it was so. The evidence of other witnesses also would make it clear that the Will was thereafter deposited by Dr. Ramakrishna Pillai with the District Registrar. This uncontroverted evidence would render it without doubt that even though PW4 was his close friend and a legal consultant, Dr. Ramakrishna Pillai was not in the habit of consulting him with respect to the contents of the documents executed by him, including Exhibit X8 Will. Obviously, therefore, it would brooke no generalisation that Dr. Ramakrishna Pillai would execute documents, including Exhibit X3 Codicil, only after prior consultation with PW4. Ramakrishna Pillai was not in the habit of consulting him with respect to the contents of the documents executed by him, including Exhibit X8 Will. Obviously, therefore, it would brooke no generalisation that Dr. Ramakrishna Pillai would execute documents, including Exhibit X3 Codicil, only after prior consultation with PW4. This is more so because, the evidence on record tells us that Dr. Ramakrishna Pillai was a strong willed person, not in the habit of speaking unnecessarily even to his children and that he took decisions on his own. In such perspective, the contention of the learned Senior Counsel that Exhibit X3 Codicil should be seen to be vitiated, on account of PW4 not being consulted before its execution, cannot stand scrutiny. 104. From the evidence and materials as above, we are unable to find that Exhibit X3 Codicil is in any manner vitiated by any suspicious circumstance which would warrant us entering a finding against its validity. We are certain that none of the circumstances noticed by the learned Single Judge or submitted before us by the learned Senior Counsel for the first defendant would cast any doubt on the validity and genuineness of the Codicil and in the absence of improbability, which is clearly and cogently proved, we are enjoined to accept it as a true reflection of the intent and desire of the testator. 105. The words of the Hon'ble Supreme Court in Vrindavanibai Sambhaji Mane v. Ramachandra Vithal Ganeshkar and others ( AIR 1995 SC 2086 ) as under, guide our path and calibrates our thoughts : “As far back as in 1894 the Privy council in the case of Choteynarain Singh v. Mussamat Ratan Koer, (1895) 22 Ind App 12 observed that in the case of execution of a Will, an improbability must be clear and cogent. It must approach very nearly to, if it does not altogether constitute, an impossibility. This was reiterated by the Calcutta High Court in the case of Kristo Gopal Nath v. Baidya Nath, AIR 1939 Cal 87. It must approach very nearly to, if it does not altogether constitute, an impossibility. This was reiterated by the Calcutta High Court in the case of Kristo Gopal Nath v. Baidya Nath, AIR 1939 Cal 87. It said that when a court is dealing with a testamentary case where there is a large and consistent body of testimony evidencing the signing and attestation of the Will, but where it is suggested that there are circumstances which raise a suspicion and make it impossible that the Will could have been executed, the correct line of approach is to see that the improbability in order to prevail against such evidence must be clear and cogent and must approach very nearly to, if it does not altogether constitute an improbability. There is no such improbability about the Will in the present case.” 106. In the over all perspective of our observations above, we find that the judgment of the learned Single Judge cannot be sustained in law and consequently, we set aside the same and restore the judgment and decree of the Additional Sub Court, Thiruvananthapuram dated 18.12.1978 in O.S. No. 389/1980. This appeal is thus allowed but taking note of the rather singular circumstances and facts in this case we refrain from making any order as to costs and leave the parties to suffer their respective costs in this appeal.