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2024 DIGILAW 289 (KER)

Susamma v. Smitha Thomas

2024-03-01

A.BADHARUDEEN

body2024
JUDGMENT : The plaintiff in O.S.No.298/2003 on the files of Munsiff Court, Ranny, is the appellant herein and she assails decree and judgment in the above case dated 30.09.2016, confirmed as per judgment dated 12.04.2019 in A.S.No.105/2016 on the files of Additional District Court-II, Pathanamthitta. The respondents herein are the defendants in the above Suit. 2. Heard the learned counsel for the appellant/plaintiff and the respondents/defendants at length. Perused the records of the trial court as well as the appellate court and the relevant decisions placed by both sides. 3. As on 12.06.2019, my learned predecessor admitted this Second Appeal after raising the following substantial questions of law: (i) Did the courts below go wrong in finding that the signatures in Ext.B3 Will were the signatures of the testator ignoring the opinion of expert (PW4) that there was no semblance of similarity in the disputed signatures and the admitted signatures? (ii) Were the courts below right in relying on Exts.B6 and B7 fingerprint reports of a private expert obtained by the defendants privately, without proof of authenticity of the reports? (iii) Was there misappreciation of evidence on the part of the courts below in holding that the testator was in a sound and disposing state of mind at the time of execution of Ext.B3? 4. Short facts: In this case Susamma is the plaintiff/appellant, who is the daughter of one K.T.Mathai. The respondents/defendants are the wife and children of one Thomas, who is the son of K.T.Mathai. Precisely, they are in loggerheads in respect of the property in the name of K.T.Mathai. According to the plaintiff, before the death of K.T.Mathai, he executed Will deed No.17/1992 and thereby allotted properties to the plaintiff and the defendants together. Accordingly, the plaintiff sought for declaration of title over the plaint schedule property on the strength of Will deed No.17/1992. Whereas defendants raised contention that subsequent to execution of Will deed No.17/1992, K.T.Mathai executed another Will deed No.6/1998 and thereby the property covered by Will deed No.17/1992 was bequeathed in favour of defendants 1 and 2. Accordingly defendants placed thrust upon Will deed No.6/1998 to assert their title over the plaint schedule property. 5. Thus the genuineness of Will deed Nos.17/1992 and 6/1998 is the dispute adjudicated by the trial court as well as the appellate court. Accordingly defendants placed thrust upon Will deed No.6/1998 to assert their title over the plaint schedule property. 5. Thus the genuineness of Will deed Nos.17/1992 and 6/1998 is the dispute adjudicated by the trial court as well as the appellate court. While addressing the genuineness of Will deed No.17/1992 marked as Ext.A1 and Will deed No.6/1998 marked as Ext.B3, the learned Munsiff addressed the evidence consisting of PW1 to PW5, Exts.A1 to A5, DW1 to DW3 and Exts.B1 to B7. That apart, Exts.C1 to C2(a) and Exts.X1 to X8(d) were also considered. Finally, the learned Munsiff found that Ext.B3 is the last Will of K.T.Mathai and, therefore, Ext.A1 would not confer title upon the plaintiff. Accordingly, the Suit was dismissed. 6. A.S.No.105/2016 challenging the said verdict filed before the District Court, Pathanamthitta also was dismissed. 7. In this connection, it is argued by the learned counsel for the plaintiff that the trial court as well as the appellate court went wrong in relying on Exts.B6 expert opinion and A3 finger print expert's opinion at the instance of the defendants to prove the authenticity of Ext.B3 Will without examining the experts, since the said procedure is not permitted under law. 8. Refuting this contention, the learned counsel for the defendant placed a decision of this Court reported in [ 1989 (2) KLT 288 ], Kannan v. Nanu, wherein this Court considered admissibility of report of handwriting expert in tune with Order 26 Rule 10 and 10A of the Code of Civil Procedure, and submitted that in view of Order 26 Rule 10A read along with Rule 10 the report shall be evidence in the suit and shall form part of the records even without examination of the experts. In paragraph 5, this Court held as under: “5. Then the only question is the effect of the two expert opinions on the plea of discharge. Both the courts below were not right in rejecting the opinions for the reason that the experts were not examined. The view of the newly introduced R.10A to O.26 C.P.C read alongwith R.10, the report shall be evidence in the suit and shall form part of the records even without examination of the experts. Both the courts below were not right in rejecting the opinions for the reason that the experts were not examined. The view of the newly introduced R.10A to O.26 C.P.C read alongwith R.10, the report shall be evidence in the suit and shall form part of the records even without examination of the experts. Examination of the experts is not a condition precedent to admissibility of the report eventhough the court or with its permission any of the parties may examine the experts (Deonandan Rai v. Mahant Pai (1983 All. L.J.618). That does not mean that with or without the examination of the expert the court is bound to accept the opinion as substantive evidence and act on it.” 9. No doubt, experts' opinion/report is not a substantive piece of evidence and its footing is mere corroborative in nature. Going by the ratio in Kannan’s case (supra), examination of the expert is not a condition precedent to act upon expert's opinion, but the Court suo motu or on the application of the parties can examine the expert to rely upon the same. In view of the above legal position, this Court could not hold that the trial court as well as the appellate court went wrong in relying on the report of a private expert, obtained by the defendants to prove genuineness of Ext.B3 Will. Hence the second substantial question of law is answered so, as against the plaintiff. 10. Adverting to the first and third substantial questions of law, it is argued by the learned counsel for the plaintiff that Ext.A1 Will is one executed in the year 1992 and the testator intended to give proportionate shares to Susamma (daughter) as well as the legal heirs of Thomas (son). In this connection, it is pointed out that as per Ext.A4 settlement deed executed by K.T.Mathai, 7 acres and 53 cents of property given in favour of Thomas and 2 acres of property given in favour of the plaintiff. So in order to have some parity regarding allotment of properties, in favour of his children, Ext.A1 was executed by K.T.Mathai by allotting shares somewhat in equal proportion in favour of Susamma and legal heirs of Thomas, with intent to take effect on the death of Mathai. So in order to have some parity regarding allotment of properties, in favour of his children, Ext.A1 was executed by K.T.Mathai by allotting shares somewhat in equal proportion in favour of Susamma and legal heirs of Thomas, with intent to take effect on the death of Mathai. According to the learned counsel for the plaintiff, in order to prove the execution of Ext.A1 Will, the plaintiff examined PW3, an attesting witness, who supported the execution. Thus the execution of Ext.A1 stands proved. To the contrary, the very execution of Ext.B3 is in the midst of doubts, though the learned counsel conceded that the evidence of DW3 an attestor to Ext.B3 Will is in support of its execution. 11. Referring to the evidence of DW3, it is argued that the evidence of DW3, who is a close associate of the testator in his political career, belonged to the Kerala Congress Party, could not be believed since execution of the Will is surrounded by suspicious circumstances which the propounders should have to remove as per law. The learned counsel placed decision of the Apex Court reported in [ AIR 2020 SC 3102 : AIR Online 2020 SC 530], Shivakumar & Ors. V. Sharanabasappa & Ors. with reference to paragraph 11 and pointed out the principles governing the adjudicatory process to prove a Will. In the said decision the Apex Court set out 8 principles governing the adjudicatory process regarding proof of a Will as under: “1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon. 2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence. 3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. 3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will. 4. 4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator. 5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion etcetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter. 6. A circumstance is “suspicious” when it is not normal or is `not normally expected to a normal situation or is not expected of a normal person’. As put by this Court, the suspicious features must be `real, germane and valid’ and not merely the `fantasy of the doubting mind.’ 7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature is feeble or uncertain mind of the testator, and unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependents; an active or leading part in making of the Will by the beneficiary thereunder etcetera are some of the circumstances which may give rise to suspicion. A shaky or doubtful signature is feeble or uncertain mind of the testator, and unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependents; an active or leading part in making of the Will by the beneficiary thereunder etcetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation. 8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?” 12. It is pointed out that the Madhya Pradesh High Court in the decision reported in [2001 KHC 3552 : AIR 2001 MP 250 ], Kishan Singh Ahluwalia v. Sheela Saxena & Ors. referring to paragraph 23, contended that when the Will contains incorrect recitals of grave nature, the same is a doubtful circumstance to disbelieve the Will. 13. Another decision of the Apex Court reported in [ (2009) 3 SCC 687 ], Bharpur Singh & Ors. v. Shamsher Singh is also placed by the learned counsel for the plaintiff referring para.23, where the Apex Court dealt with suspicious circumstances which would surround the execution of the Will. The learned counsel for the plaintiff placed another decision reported in [ 2007 (4) KLT 853 ], Joseph v. Ippunny, also on this point. 14. Refuting this contention, the learned counsel for the defendants submitted that Thomas died as on 29.04.1984 and K.T.Mathai died only on 18.09.2000. Since K.T.Mathai felt that 2 daughters of his son Thomas (defendants 1 and 2) would require sufficient support from him, he had executed Ext.B3 Will voluntarily. 14. Refuting this contention, the learned counsel for the defendants submitted that Thomas died as on 29.04.1984 and K.T.Mathai died only on 18.09.2000. Since K.T.Mathai felt that 2 daughters of his son Thomas (defendants 1 and 2) would require sufficient support from him, he had executed Ext.B3 Will voluntarily. It is pointed out that as per the admitted case of the plaintiff as well as the attesting witnesses (DW3), K.T.Mathai, who was aged at the time of execution of Ext.B3, had been suffering from shivering of hands and, therefore, his signatures did not match. In this context, the learned counsel for the plaintiff submitted that on a mere perusal of Ext.B3 Will and the signatures on different pages, it would appear that the same are totally different and have no similarity. On perusal of Ext.B3 Will this submission appears to be convincing. It is also pointed out by the learned counsel for plaintiff that in Ext.X3, the certified copy of book No.3, prepared in connection with execution of Ext.B3, before the Sub Registrar, the signatures of K.T.Mathai are having similarity though there is trivial difference due to old age. Therefore, execution of Ext.B3 is in doubt and those doubtful circumstances would disprove Ext.B3. 15. Referring the evidence of PW1, the plaintiff and other materials, the learned counsel for the defendants submitted that even PW1 admitted that K.T.Mathai had shivering of hands, during the relevant time of execution of Ext.B3. 16. The law is well settled that once the execution of subsequent Will is proved, the former Will would automatically be rendered redundant even without categorical recital regarding cancellation of the former Will. Decision of the Apex Court reported in [ (2012) 4 SCC 387 ], Mahesh Kumar (Dead) by LRs. v. Vinod Kumar & Ors., would support this legal position. 17. As regards the mandate to prove the execution of a Will, the law is well settled. On reading Section 63 of the Indian Succession Act with Section 68 of the Indian Evidence Act, it is the mandate that a person propounding the Will shall prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Indian Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness to be called for proving the due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Indian Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. However, Section 68 provides that those who want to prove and establish a Will in a Court of law, to do so, by examining at least one attesting witness even though the Will has to be attested at least by two witnesses mandatorily under Section 63 of the Indian Succession Act. But what is relevant and noteworthy is that one attesting witness examined should be in a position to prove the execution of a Will. To put it in other words, if one attesting witness can prove execution of the Will in terms of Clause (c) of Section 63, viz. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness, who was examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove that there was due execution of the Will. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness, who was examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove that there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by the other witness also it falls short of attestation of Will at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Indian Succession Act. Where one attesting witness examined to prove the Will under Section 68 of the Indian Evidence Act fails to prove the due execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to depose the attestation of the Will by the other witness, there will be deficiency in meeting the mandatory requirements of Section 68 of the Indian Evidence Act. The said legal position emerges from the decisions reported in [2003 KHC 808 : 2003(2) SCC 91 : AIR 2003 SC 761 , Janki Narayan Bhoir v. Narayan Namdeo Kadam; [2009 KHC 4790 : 2008 (15) SCC 365 : AIR 2009 SC 1389 : 2009(2) CHN 41 : 2009(2) Guj LR 1700 : 2009 (1) APLJ 6 : 2009(1) SCALE 328 ], Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria & Ors., [2009 KHC 4382 : 2009 (11) SCC 1 : 2009 (1) KLT SN 52 : 2009 (3) SCALE 508 ], Rur Singh & Ors. v. Bacahan Kaur, [ (2013) 7 SCC 490 : AIR 2013 SC 2088 ], M.B Ramesh (dead) by LRs v. K.M.Veeraje Urs (dead) by LRs. 18. It is equally well settled that the burden to prove execution of Will and to show that it came out of free will of the testator is only on the propounder. A Will obtained by fraud, coercion or importunity is void under Section 61 of the Indian Succession Act. 18. It is equally well settled that the burden to prove execution of Will and to show that it came out of free will of the testator is only on the propounder. A Will obtained by fraud, coercion or importunity is void under Section 61 of the Indian Succession Act. The testator, therefore, should have had necessary testamentary capacity to execute the Will and propounders claiming rights under the Will would have to establish that the testator was in sound disposing state of mind at the relevant period of time. The testator could be presumed to be of sound disposing state of mind when he was in a position to understand the nature and effect of the disposition he made and also when he acted on his own free will. If there are suspicious circumstances affecting the genuineness of Will, the burden is still on the propounder to remove them and explain the circumstances. Decisions reported in [1959 KHC 498 : AIR 1959 SC 443 : 1959 Supp (1) SCR 426 : 1959 Mys LJ 424], H.Venkatachala Iyengar v. B.N.Thimmajamma & Ors.; [1964 KHC 465 : AIR 1964 SC 529 ], Shashi Kumar Banerjee & Ors. v. Subodh Kumar Banerjee since deceased and after him his legal representatives & Ors.; [2013 KHC 4372 : 2013 (2) KLJ 797 : 2013 (2) KLT SN 136 : AIR 2013 SC 2088 : 2013 (7) SCC 490 : 2013 (3) SCC (Civ) 576 : 2013 (4) KCCR 2945 : 2013 (4) ALD 104 : 2013 (127) AIC 155 : 2013 (3) CTC 650 : 2013 (99) ALR 487], M.B.Ramesh (D) By L.R.S v. K.M.Veeraje Urs (D) by LRS. & Ors. and [1995 KHC 399 : 1995 (2) KLT 862 : 1995 (2) KLJ 577 : ILR 1996 (1) Ker. 566], Natarajan v. Sree Narayana D.S. Trust, illustrated the said legal mandates. 19. When a Will is surrounded by suspicious circumstances, the person propounding the Will has a very heavy burden to discharge. This has been authoritatively explained by the Apex Court in H.Venkatachala Iyengar v. B.N.Thimmajamma's case (supra). 566], Natarajan v. Sree Narayana D.S. Trust, illustrated the said legal mandates. 19. When a Will is surrounded by suspicious circumstances, the person propounding the Will has a very heavy burden to discharge. This has been authoritatively explained by the Apex Court in H.Venkatachala Iyengar v. B.N.Thimmajamma's case (supra). The Apex Court in paragraph 20 of the judgment held that in a case where the testator's mind is feeble and he is debilitated and there is no sufficient evidence as to the mental capacity of the testator or where the deposition in the Will is unnatural, improbable or unfair in the light of the circumstances or it appears that the bequest in the Will is not the result of the testator's free will and mind, the court may consider that the Will in question is encircled by suspicious circumstances. The said ratio has been followed in [ (2010) 5 SCC 770 ], Balathandayutham & anr. v. Ezhilarasan. 20. As regards the suspicious circumstances, in fact, apart from the decision in Bharpur Singh & Ors. v. Shamsher Singh‘s case (supra), the Apex Court considered the same in the decision reported in [(2021) 3 SCC 209 : [ AIR 2022 SC 167 ], Murthy & Ors. v. C.Saradambal & Ors., and held as under: “23. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will: (i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. (ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time. (iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. (iv) The dispositions may not appear to be the result of the testator's free will and mind. (v) The propounder takes a prominent part in the execution of the Will. (vi) The testator used to sign blank papers. (vii) The Will did not see the light of the day for long. (viii) Incorrect recitals of essential facts.” 21. (iv) The dispositions may not appear to be the result of the testator's free will and mind. (v) The propounder takes a prominent part in the execution of the Will. (vi) The testator used to sign blank papers. (vii) The Will did not see the light of the day for long. (viii) Incorrect recitals of essential facts.” 21. Since the law is settled to the effect that when the last Will is proved to be genuine, then the prior Will or Wills has/have no legal significance and the same automatically would stand revoked, this Court has to address whether the defendants established execution of Ext.B3 Will as per the mandate of Section 68 of the Indian Evidence Act read with Section 63(c) of the Indian Succession Act, after removing the doubtful circumstances surrounding thereof. 22. It is pointed out by the learned counsel for the defendants that, earlier the defendants herein had filed O.S.452/1986 before the Munsiff Court, Pathanamthitta against the testator herein and the said Suit was settled and a compromise decree was passed on 08.04.1988. As per the terms of the compromise, the testator permitted the defendants, who were the plaintiffs in the above Suit, to take usufructs from the property for and on behalf of the testator and to give a portion thereof to the testator. Therefore, it is submitted that, the testator would not execute Ext.B3 Will, after 4 years of settlement in O.S.No.452/1986, and the same is a vital aspect, to see the doubtful circumstances surrounded by Ext.B3. 23. In fact, the above said compromise is not part of evidence though it was produced before the first appellate court by the plaintiff. However, it is observed that merely because a compromise entered into on 08.09.1988, in a Suit filed in the year 1986, there is absolutely no impossibility for the testator to execute Ext.B3 in the year 1998, that too, after ten years. Therefore, this aspect could not yield to support the case of the plaintiff. 24. In this case, Exts.C1 and C1(a) report authored by PW4 are relied on by the trial court as well as the appellate court to see the authenticity of the signatures put by the testator in Ext.B3. Therefore, this aspect could not yield to support the case of the plaintiff. 24. In this case, Exts.C1 and C1(a) report authored by PW4 are relied on by the trial court as well as the appellate court to see the authenticity of the signatures put by the testator in Ext.B3. On perusal of Ext.C1 supported by the evidence of PW4, the opinion of PW4 is that “it has not been possible to arrive at any conclusion regarding the authorship of the proved enclosed signatures stamped and marked on Q1 to Q10 in comparison with the proved enclosed standard signatures similarly stamped and marked as A1 to A8.” 25. In this matter, as pointed out by both sides, in Ext.B3, the signatures of the testator are different on different pages. In this connection, Ext.C2 report of DW1 and Ext.C2 would become relevant. Ext.C2 has been obtained on getting comparison of the thumb impression marked as Q1 (in Ext.B3) with the admitted thumb impressions Exts.A1 and A3 and it was opined by the expert that thumb impression at Q1, A1 and A3 are made with the same thumb of the same person, i.e, Mathai, S/o.Thomas. 26. In this connection, the learned counsel for the defendants argued that as per Section 63(c), the way of execution of the Will is either by putting signature or by affixing his mark by the attestator. According to the learned counsel, when a person is incapable of putting his signatures because of his infirmity or shivering on his hands, then the marks affixed in the form of signatures appear in the Will should be read as affixture of his mark to the extent possible and in such cases the thumb impression in the Will would justify affixture of marks by the testator himself and there is no reason to doubt execution of the Will in such cases, when the thumb impression found to be that of the testator. 27. Dispelling this aspect, it is pointed out by the learned counsel for the plaintiff that in Ext.B2 nomination alleged to be given by K.T.Mathai for getting pension in favour of defendants 1 and 2, he did not put any signature and only thumb impression was affixed. Similarly, in Ext.B1, another deed executed in the year 1990, K.T.Mathai put his signature and the said signature is a lengthy one different from signatures put in Ext.B3. Similarly, in Ext.B1, another deed executed in the year 1990, K.T.Mathai put his signature and the said signature is a lengthy one different from signatures put in Ext.B3. Therefore, Mathai did not execute Ext.B3. 28. In response to this argument, Exts.X1 and X2, proved through PW2, Sub Treasury Officer, Ranni, found to be worth reading. As per the evidence of PW2 and Exts.X1 and X2, the mustering as on 1.3.2000 and Ext.X2, the computer print out of PTSP Account No.371, K.T.Mathai reached the Sub Treasury Office and recorded the mustering. Since the evidence of PW2 and Ext.X1 would suggest that as on 1.3.2000, K.T.Mathai was in a good state of mental affairs to deal with his pension disbursement and executed Ext.X1, there is no reason to disbelieve the mental capacity of K.T.Mathai, in any manner, and because of shivering of his hand, there is no reason to disbelieve the execution of the Will where the thumb impression has been proved substantially without any ambiguity. It is true that the signatures in Ext.X3 shows more similarity than in Ext.B3, but the signatures in Ext.B3 also did not match the earlier signatures of the testator. That apart, in Ext.X3 also the signatures appear to be one put by a person who has shivering on his hands. Therefore, this contention also is of no much avail to the plaintiff to create doubt in execution of Ext.B3, when the thumb impressions, found to be that of K.T.Mathai. 29. On re-appreciation of the entire evidence, to meet the arguments, it has to be held that K.T.Mathai is a person admittedly, having shivering of hands during the relevant time of execution of Ext.B3. But DW3 the attesting witness categorically supported the execution of Ext.B3 in tune with Section 63(c) of the Indian Succession Act without any ambiguity. Further as per Ext.C2, the thumb impression in Ext.B3 is also proved as that of K.T.Mathai. It is oblivious that as per Section 63(c), the testator can execute the Will either by putting his signature or by affixing his mark in the Will. Further as per Ext.C2, the thumb impression in Ext.B3 is also proved as that of K.T.Mathai. It is oblivious that as per Section 63(c), the testator can execute the Will either by putting his signature or by affixing his mark in the Will. When a person executing a Will is not in a position to put signatures, unfortunately, due to shivering of hands, but otherwise capable of executing the Will, the signatures with slight difference to be treated as affixing of his marks, instead of putting signatures, where it is proved that the thumb impressions in the Will is that of the executant and he is in a sound state of affairs to execute the Will, apart from the infirmity of shivering alone. 30. To sum up, in this matter, Ext.B3 Will is proved through the unchallenged evidence of DW3 and his evidence established that the testator and the attesting witnesses signed in Ext.B3 Will in terms of Section 63(c) of the Succession Act. The thumb impressions were proved to be that of K.T.Mathai (testator) as per Ext.C2. Thus the execution of Ext.B3 stands proved and no doubtful circumstances surround the Will to hold that the same is not the last Will of K.T.Mathai, as found by the trial court and the appellate court. Therefore, Ext.A1 Will has no legal effect. In such circumstances, it could not be held that the trial court and the appellate court on appreciation and re-appreciation of evidence in any way reached wrong conclusion. 31. In this case, the first substantial question of law raised is ‘Did the courts below go wrong in finding that the signatures in Ext.B3 Will were the signatures of the testator ignoring the opinion of expert (PW4) that there was no semblance of similarity in the disputed signatures and the admitted signatures?’ In view of the discussion, the first substantial question of law answered holding that the trial court as well as the appellate court did not go wrong in finding that the signatures in Ext.B3 Will are the signatures of the testator ignoring the opinion of expert (PW4) that there was no semblance of similarity in the disputed signatures and the admitted signatures. In the same way, answering the third substantial question of law, it is held that the defendants herein proved execution of Ext.B3 as the last Will of K.T.Mathai, removing doubtful circumstances and, therefore, the trial court and the appellate court rightly dismissed the Suit. For the reasons, the verdicts do not require any interference by this Court. 32. In the above circumstances, the Second Appeal fails and is dismissed accordingly. All interlocutory applications pending in this Second Appeal stand dismissed.