RSA No.890 of 2014

RSA.NO.890/2014 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` MONDAY, THE 20[TH] DAY OF MAY 2024 / 30TH VAISAKHA, 1946 ``` ``` RSA NO. 890 OF 2014 ``` ``` AGAINST THE DECREE & JUDGMENT DATED 09.04.2010 IN OS NO.243 OF 2001 OF PRINCIPAL SUB COURT, KOLLAM ARISING OUT OF THE DECREE & JUDGMENT DATED 11.07.2014 IN AS NO.197 OF 2010 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, KOLLAM ``` ## **`APPELLANT/RESPONDENT/PLAINTIFF:`** ``` RAJAGOPAL AGED 69 YEARS, S/O. PARAMESWARAN PILLAI, MARIYATHU VEEDU, MYNAGAPPALLY NORTH, MYNAGAPPALLY VILLAGE, KUNNATHOOR TALUK, RESIDING AT REVATHY, PADA SOUTH, KARUNAGAPPALLY-690 518. ``` ``` BY ADV SRI.B.MOHANLAL ``` ## **`RESPONDENTS/APPELLANTS 3 TO 6 & 8/DEFENDANTS 3 TO 6 & ADDITIONAL`** ## **`DEFENDANT 8:`** - **`1 VENUGOPAL, AGED 52 YEARS S/O. PARAMESWARAN PILLAI, MARIYATHU VEEDU, MYNAGAPPALLY NORTH, MYNAGAPPALLY VILLAGE, KUNNATHOOR TALUK, NOW RESIDING AT MARIYATHU VEEDU, AYANI NORTH, S.V.MARKET P.O., KARUNAGAPPALLY, PIN-690 573.`** - **`2 PRASANNA AMMA, AGED 63 YEARS D/O. SARASWATHY PILLAI, OTTATHENGIL HOUSE, PAIYANALLOOR, NOORANADU, PIN-690 504.`** - **`3 GIRIJA AMMA, AGED 48 YEARS D/O. SARASWATHY PILLAI, MARIYATHUVEEDU, MYNAGAPPALLY NORTH, MYNAGAPPALLY VILLAGE, KUNNATHOOR TALUK, RESIDING AT THENGUVILAYIL, THAMARAKULAM, PIN-690 530.`** - **`4 ANANTHANARAYANAN, AGED 44 YEARS S/O. GOPALAKRISHNA PILLAI, OTTATHENGIL HOUSE, PAIYANALLOOR, NOORANADU, PIN-690 504.`** RSA.NO.890/2014 2 ``` 5SETHULEKSHMI A., AGED 54 YEARS W/O. P.VIJAYAGOPAL, GANGA, KALLELI BHAGAM MURI, KALLELI BHAGAM VILLAGE, KARUNAGAPPALLY TALUK-690 519. ``` ``` BY ADVS. SRI.SANTHAN V.NAIR SRI.G.SREEKUMAR (CHELUR) SRI.MOHAN C.MENON SRI.N.NANDAKUMARA MENON (SR.) ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21.03.2024, THE COURT ON 20.05.2024 DELIVERED THE FOLLOWING: ``` RSA.NO.890/2014 3 _**A. BADHARUDEEN, J. ================================**_ _R.S.A No.890 of 2014 ================================ Dated this the 20th day of May, 2024_ ## _**J U D G M E N T**_ This appeal arises out of decree and judgment in A.S.No.197/2010 on the files of Additional District Court-IV, Kollam, whereby the learned Additional District Judge set aside the verdict of the trial court in O.S.No.243/2001 on the files of the Principal Sub Court, Kollam. The appellant is the plaintiff in the suit and respondents are the defendants and their legal heirs. 2. Heard the learned Senior Advocate Sri P.B.Krishnan appeared for the plaintiff/appellant; learned Senior Counsel Sri Nandakumara Menon appeared for the original 3[rd] defendant and Advocate Chelur Sreekumar, who appeared for defendants 5 and others. 3. I shall refer the parties in this appeal as `plaintiff’ and `defendants’ referring their status before the trial court, hereafter for easy reference. 4. Perused the verdicts under challenge and the records thereof. RSA.NO.890/2014 4 5. As on 26.08.2014, my learned predecessor admitted this appeal on questions of law Nos.2, 3 and 6 raised in the Memorandum of Appeal. The same are as under: _“2. Is not the Lower Appellate Court wrong in shifting the burden to the plaintiff to prove the validity of Ext.A4?_ _3. Is not Lower Appellate Court correct in interfering with the well reasoned judgment of the trial court without reference to the suspicious circumstances behind the execution of Ext.A4?_ _6) Whether the Lower Appellate Court is correct in holding that Ext.A4 is genuine especially in view of the provision therein for the 6[th] defendant/4th respondent herein since on 7.6.1997 the date of Ext.A4 the marital relationship between the 6[th] defendant and the daughter of the plaintiff/respondent became strained as can be seen from Ext.A5 and A6?”_ 6. The plaintiff filed the suit to declare that Will Deed No.24/1997 of Sasthamcotta S.R.O as void and Will deed No.3/1988 of Karunagappally S.R.O as the last Will of one Mr.Parameswara Pillai and to hold that title and possession over plaint B schedule property shall be subject to the stipulation in Will deed No.3/1988. Prohibitory injunction against enjoyment of B schedule property also sought for. 7. The contention raised by the plaintiff is that Ext.A4 (Ext.B1) Will deed No.24/97, alleged to be executed by Parameswaran Pillai, is not valid since at the time of execution of the above Will, Parameswaran Pillai RSA.NO.890/2014 5 was suffering from neuro diseases and other mental and physical infirmities. That apart, Ext.A4 Will is in the midst of doubtful circumstances. 8. Defendants 1 to 7 jointly filed written statement and supported the legality of Will deed No.24/97 and bank upon the same. 9. The trial court ventured the matter. PWs 1 to 6 were examined and Exts.A1 to A6 were marked on the side of the plaintiffs. DW1 to DW3 were examined and Exts.B1 to B4 series were marked on the side of the defendants. Apart from that, Exts.X1 to X4(a) were also marked. Finally the trial court declared Ext.A4 Will deed 24/97 of Sasthamcotta S.R.O as void and also declared that Ext.A3 Will Deed No.3/1988 of Karunagappally S.R.O as the last Will deed of Parameswaran Pillai. When the above verdict was challenged before the District Court, the learned District Judge reversed the said finding and dismissed the Suit. 10. While supporting the verdict of the trial court and impeaching the judgment of the appellate court, the learned Senior Counsel for the plaintiff Sri P.B.Krishnan taken this Court to the findings of the trial court to justify declaration of the Will deed No.3/1988 of Karunagappally S.R.O marked as Ext.A3 as void and to hold that the judgment of the appellate court is absolutely erroneous. It is pointed out by the learned Senior Counsel Sri P.B.Krishnan relying on the decision reported in [2001 (1) KLT(SN) 74 : 2001 RSA.NO.890/2014 6 2 MhLJ(SC) 786 : 2001 2 MLJ 69 : 2001 3 MPHT 71 : 2001 3 RCR(Civ) 243 : 2001 (1) Scale 712 : (2001) 3 SCC 179 : 2001 (1) SCR 948 : 2001(1) Supreme 642], _**Santosh Hazari v. Purushottam Tiwari (Dead) by Lrs.**_ that the first appellate court has no power to set aside a well considered judgment of the trial court in a cryptic manner. Paragraph 15 of the above judgment has been placed in support of this contention. 11. Similarly another decision of the Apex Court reported in [2023 AIR(SC) 3110 : 2023 4 ALT(SC) 69 : 2023 4 KHC(SN) 26 : 2023 KLT (OnLine) 1595 : 2023 (4) KLT(SN) 68 : 2023 (10) SCR 126 : 2023 (4) Supreme 515 : 2023 Supreme (SC) 599], ], _**Dheeraj Singh v. Greater Noida Industrial Development Authority & Ors**_ , also placed with reference to paragraph 19 referring the decision in _**Santosh Hazari**_ ’s case ( _supra_ ). The same is as under; _“19. In the case of_ _**Santosh Hazari v. Purushottam Tiwari (Dead) by Lrs.** (2001) 2 SC 407], this Court held that the court of appeal has a duty to apply its mind to all issues raised before it, and to discharge such duty, it must also record its findings against all such issues raised. For the sake of convenience, the relevant paragraph of the said judgment is being extracted herein:_ _“The Appellate Court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind, and record findings_ RSA.NO.890/2014 7 _supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Appellate Court._ _While reversing a finding of fact the Appellate Court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the First Appellate Court had discharged the duty expected of it.”_ 12. Advocate P.B.Krishnan also placed a decision of this Court reported in [[2024 (2) KHC 380], _**Susamma v. Smitha Thomas**_ , where this Court considered the essentials required to prove a Will within the mandate of Section 63 of the Indian Succession Act r/w Section 68 of the Indian Evidence Act and in paragraph 20 of the judgment this Court referred the suspicious circumstances as under: _“20. As regards the suspicious circumstances, in fact, apart from the decision in_ _**Bharpur Singh and Others 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 and Ors. v. C.Saradambal and 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_ RSA.NO.890/2014 8 _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.”_ 13. Relying on the decision _**Santosh Hazari**_ ’s case ( _supra_ ), the learned Senior Counsel Nandakumara Menon submitted that on reading paragraph 15, no ratio could be culled out to hold that the appellate court has no power to re-appreciate the evidence and to reach a different conclusion. Accordingly, it is submitted by the learned Senior Counsel that the appellate court has jurisdiction to reverse the findings of the trial court and first appeal is a valuable right of the parties and the whole case is open for rehearing both on questions of fact and law, unless restricted by law. But the judgment of the appellate court should reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of the appellate court. 14. According to Advocate Nandakumara Menon in the case at hand no substantial question of law arises and substantial questions of law on which this appeal got admitted could not be read on any stretch of imagination as substantial questions of law. The learned Senior Counsel placed decision of RSA.NO.890/2014 9 the Apex Court reported in [2001 KHC 310 : 2001(1) KLT SN 90 : AIR 2001 SC 965 : 2001 (3) SCC 179], _**Santosh Hazari v. Purushottam Tiwari**_ , where the Apex Court dealt with the essentials which would require admission of Second Appeal by raising substantial questions of law. He also placed decision of this Court reported in [2024 (1) KHC 325], _**Pavizhamma v. Mangalamma**_ , where this Court in paragraph 23 summarised the mandates necessary to admit a Second Appeal as under: _“23. The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. “_ 15. In so far as the contention raised by the learned counsel for the 3[rd] defendant as regards to no substantial question/s of law involved in this Appeal is concerned, the same could not be considered at this juncture since RSA.NO.890/2014 10 this Court already admitted this appeal raising 3 questions referred in paragraph 5 of the judgment as substantial questions of law. 16. In the present case, the questions to be addressed are; - 1) whether the finding of the trial court holding the view that propounders of Ext.B1 Will failed to remove the suspicious circumstances surrounding the Will is correct? and - 2) Whether the first appellate court is right in negativing the finding of the trial court? 17. As pointed out by the respective counsel, DW2 and DW3 are the witnesses, who supported execution of Ext.B1 Will and their evidence was not shaken during examination, to disbelieve their version. Therefore, this is sess the case wherein the attesting witnes had given evidence supporting execution of Ext.B1 Will in tune with the mandate of Section 67 of the Evidence Act r/w Section 63 of the Indian Succession Act. However, the trial court found certain suspicious circumstances surmounting Ext.B1 Will, to hold that the propounders failed to remove the suspicious circumstances. It was found by the trial court that though as per the evidence available at the time of execution of Ext.B1 Will by Parameswara Pillai, one Maniyan, the driver also accompanied him and he was present at the time of execution of the Will, he was not cited as a witness to the Will and the same is a doubtful circumstance. RSA.NO.890/2014 11 It was found by the trial court further that the plaint schedule properties are situated within the limits of Karunagappally S.R.O and the place of residence of Parameswaran Pillai was near to Karunagappally S.R.O. But the Will was executed in Sasthamcotta S.R.O and the necessity of such execution was not explained by the propounders. It was found by the trial court further that Ext.B1 was executed by Parameswaran Pillai giving a go-bye to Ext.A1 Will since the expense in connection with the marriage of the daughter of the plaintiff was borne by Parameswaran Pillai. But the trial court found that no evidence was adduced to prove the said aspect. It was found by the trial court further that even though the marriage was on 12.11.1996, the Will was not executed immediately after the marriage, but it was executed on 07.06.1997, after six months of the marriage. It was found by the trial court further that initially Ext.A2 Will was executed by Parameswaran Pillai on 11.04.1980 and the same was modified by Ext.A3 Will No.3/1988 dated 07.01.1988. Ext.A2 was drafted by Advocate K.P.Prabhakaran and he was an attesting witness to the same. Ext.A3 also was executed with the legal advice of Advocate K.P.Prabhakaran, but for the execution of Ext.B1, no legal advice was taken by the testator. The trial court found that though DW1 was falsely deposed that Ext.B1 was made after consultation with Advocate K.P.Prabhakaran, the draft was seen prepared by a document writer and not by Advocate RSA.NO.890/2014 12 K.P.Prabhakaran. It was found by the trial court further that patent differences to be noted in the signatures in Ext.B1 alleged to be put by Parameswaran Pillai and the same also was a doubtful circumstance. Ill health condition of Parameswaran Pillai also referred in this regard. 18. The first appellate court negatived the said finding of the trial court observing that Ext.B1 was proved by the evidence of DW2 and DW3 and there were no doubtful circumstances, to disbelieve Ext.B1. 19. Coming to the evidence, the trial court as well as the appellate court did not find any anomaly in the evidence of DW2 and DW3, the attestors to Ext.B1 Will. The doubtful circumstances found by the trial court include the ailment and ill health of Parameswaran Pillai. In this connection the evidence of PW2 supported by Exts.X1 to X3(a) and A3 are relevant. PW2 was the employee of TNB Theatre run by Parameswaran Pillai. According to PW2, since 1991 the testator was bed ridden due to old age and he had some ailments to his eyes. Further he had memory loss also. PW3, who produced Exts.X1 to X4(a), given evidence that on 07.06.1997 itself Memorandum of Will No.24/1997 was sent from Sasthamcotta S.R.O and the same contained the seal and signatures of Sasthamcotta Sub Registrar, wherein it was noted that Ext.A4 Will No.24/1997 (Ext.B1) of Karunagappally S.R.O was cancelled. In so far as the physical and mental condition of the testator are concerned, the RSA.NO.890/2014 13 available evidence would suggest that the testator was suffering from arthritis problem and apart from arthritis, he did not have any incapacity to execute a Will at the time of execution of Ext.B1. DW1 examined in this case is defendant No.3. His evidence is that since the marriage expense of the daughter of the plaintiff was met by Parameswaran Pillai, the plaintiff was excluded in Ext.B1. According to him, the plaintiff was given 80 cents of landed property and 50 plus 30 cents of Nilam by the testator and by the mother by way of settlement. 20. The first appellate court found that non examination of Manikandan is of no serious consequence since DW2 and DW3, the attestors of the Will, well spoken in support of the Will. The said finding of the first appellate court is only to be justified and there is no legal mandate that when the executant of a Will travelled in a car driven by his driver to reach the SRO for executing the Will, the driver should be an attesting witness to the Will and in such cases, other witness/es is/are incompetent. The law only mandates that the attesting witnesses are competent to do the said exercise. Even though the plaintiff herein sought the relief of declaration of Ext.B1 as void, when the propounders of Ext.B1 wanted to rely upon Ext.B1 Will, it is their duty to prove the Will and to remove the doubtful circumstances, thereof. In this case, as I have already pointed out, apart from the complaint of arthritis nothing substantial to RSA.NO.890/2014 14 hold that Parameswaran Pillai was in a bad state of mental and physical affairs to execute the Will. 21. Regarding the difference in signatures in Ext.B1, it could be gathered that due to old age and shivering of hands the signatures in Ext.B1, slightly differs in different pages. 22. In _**Susamma**_ 's case _(supra),_ when dealing with a case where slight difference in the signatures of the testator, this Court held 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._ 23. As regards to execution of the Will in Sasthamcotta S.R.O instead of Karunagappally S.R.O, the physical inability of Parameswaran Pillai to climb steps was brought in evidence, need not be disbelieved since it has come in evidence that the distance to Karunagappally S.R.O and Sasthamcotta S.R.O is equal, as deposed by PW1, and found by the first appellate court. RSA.NO.890/2014 15 24. In this matter, case put up by the defendants is that the marriage expense of the plaintiff’s daughter was borne by Parameswaran Pillai and in consideration of the same while executing Ext.B1, the plaintiff was excluded. Thereafter, the relationship got strained, as could be seen from Exts.A5 and A6. Simply because the marital relationship between the plaintiff’s daughter and the 6[th] defendant became strained, the expenses incurred for the same could not be recouped. If so, the first appellate court is right in reversing the verdict of the trial court. 25. As far as the law regarding proof of a Will is concerned, the same is well settled. On reading Section 63 of the 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. 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 RSA.NO.890/2014 16 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 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 examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove 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 RSA.NO.890/2014 17 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**_ 26. 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 Act. The testator, therefore, should have had necessary testamentary capacity to execute the Will and propounders claiming rights RSA.NO.890/2014 18 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. 27. On evaluation of the evidence available it is held that the first appellate court did not shift the onus to prove Ext.A4 to the shoulders of plaintiff in a case where the propounders, who are defendants, proved RSA.NO.890/2014 19 execution of Ext.A4/B1 Will, as mandated by law. Since the first appellate court is having power to re-appreciate the evidence to enter its own finding based on the evidence and to negative the finding as to doubtful circumstances surmounting Ext.A4/B1 Will, it is not safe to hold that the first appellate court is not correct in interfering with the well reasoned judgment of the trial court. It is also held that the first appellate court correctly appreciated the evidence, while holding that Ext.A4/B1 is a genuinely executed Will and the same has been proved by the evidence of DW2 and DW3, where there is no doubtful circumstances to disbelieve the due execution of the Will. It is held further that merely because the marital relationship between DW6 and the daughter of the plaintiff/respondent strained as on the date of execution of Ext.A4/B1, as could be seen from Exts.A5 and A6, the first appellate court in no way committed error in re-appreciating the evidence, to record a contra-finding. 28. In view of the finding herein above, it is held that the circumstances found by the trial court as doubtful are not circumstances which would doubt the due execution of Ext.A4/B1 and the first appellate court is right in upsetting the verdict of the trial court and the said verdict does not require any interference. In the result, this Second Appeal fails and is dismissed. Considering the nature of this particular case, all parties shall suffer their respective costs. RSA.NO.890/2014 20 All the interim orders in this Second Appeal stand vacated and all pending Interlocutory Applications stand dismissed. _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_