1. 1st defendant in O. S. No. 1 of 1979 on the file of Additional District Judge, Kottayam is the appellant in A. S. No: 113 of 1981. He is the plaintiff in O. S. No: 1 of 1972, which was tried along with O. S. No: 1 of 1979. A. S. No: 420 of 1981 is filed by him against the judgment and decree in O. S. No: 1 of 1979.

2. The facts of the case may be summarised as follows:- Plaintiff in O. S. No: 1 of 1972 is the son of one Skaria. After the death of the mother of plaintiff, who was the first wife of Skaria, Skaria married the 10th defendant. Defendants 2 to 9 are her children born in that wedlock. The suit was originally filed by plaintiff seeking issue of letters of administration in regard to a will alleged to have been executed by Skaria on 3-1-1964 and registered on 11-2-1966 after the death of testator on 30-4-1964. In pursuance of the notice issued on the petition to the next of kins of deceased listed in the O.P., the next kins, defendants 2 to 10, appeared in court and filed a caveat and affidavit disputing the genuineness and validity of the will and its registration. Thereupon, O. P. was registered as O. S. No: 1 of 1972. As per the will, the testator purports to have bequeathed items 1 to 3 of Schedule.1 in the plaint and half right of item 5 in that schedule to the plaintiff. Plaintiff alleged that he is the sole and exclusive legatee of the deceased in regard to the above items. He further alleged that the will dated 8-1-1964 is the last will executed by the testator.

3. 1st defendant is the full sister of plaintiff and she did not file any written statement. Defendants 2 to 10 contended that the will was not a genuine and it was created by plaintiff and others fraudulently. On the other hand, it is the plaintiffs case that the will was handed over to him by P. W. 4 and he was not aware of the will. According to him, he and his brothers were nursing his father. His father told him that he had executed some documents and entrusted the same to Achan He enquired with the priest, whether any document was entrustea to him by his father and came to know that his father had not entrusted any document with the priest. Later. PW 4 wrote a letter requesting him to go over to his residence and meet him. Accordingly, he went to P. W. 4s residence, but he was not there. Subsequently, PW 4 came to the plaintiffs house and handed over the will. According to plaintiff, he applied for registration and after due enquiry, the Sub Registrar registered the document and it was in those circumstances, he filed O. P. No: 149 "of 1971, which was converted into suit, for probating the will.

4. Defendants 2 to 10 filed O. S. No: 44 of 1966 for cancellation of registration of the will. O. S. No: 44 of 1966 was decreed holding that the impugned will is a forged document. However, in A. S. No. 470 of 1973, this court set aside the judgment and decree of the court below and remanded the matter with direction to try the said suit simultaneously with O. S. No: 1 of 1972. Accordingly, O. S. No: 44 of 1966 was renumbered as O. S. No 1: of 1979 and tried along with O. S. No: 1 1972.

5. On a consideration of oral and documentary evidence in the case, the court below dismissed O. S. No: 1 of 1972 decreed O. S. No: 1 of 1979. The court below held that Ext. AI is a forged document and that it would not confer any right on plaintiff in O. S. No: 1 of 1972 over the plaint schedule property. It was accordingly held that plaintiff therein was not entitled to letter of administration on the basis of Ext. A1. The lower court also held that plaintiffs in O. S. No: 1 of 1972 are entitled to a decree cancelling the registration.

6. Both the appeals are heard together and a common judgment is . rendered. For convenient sake, parties are referred to in this judgment on the basis of their array in O. S. No: 1 of 1972.

7. In these appeals, learned counsel for appellant has challenged the findings of the trial court on various grounds. Learned counsel brought to my notice that in 1954, a will evidenced by Ext. B2 dated 22-11-1954 was executed by Skaria bequeathing substantial properties to defendants 2 to 9 and that under the same will, Skaria bequeathed 3 and odd acres in favour of plaintiff also, but subsequently, Skaria executed Ext. A3 dated 24-11-1955 gifting the property bequeathed to the plaintiff, to plaintiffs wife and children. Learned counsel submitted that Skaria was a man possessed of large number of properties. He also contended that Ext. A3 would show that Ext. A3 gift deed was executed not on account of love and affection towards plaintiff, but on account of the fact that the dowry of the wife of plaintiff was received by Skaria and he wanted to compensate for the same. It is recited in Ext. A3 that the property was gifted on account of love and affection towards his grandchildren and daughter-in-law, and having regard to Rs. 1,001/- entrusted with him by the father-in-law of plaintiff as dowry of plaintiffs wife. It is clear from the recital that Skaria had in his mind the dowry entrusted to him at the time of execution also. In this connection, it may be noticed that in Ext. B2 also, there is recital that out of love and affection and taking into account the dowry received by Skaria on behalf of wife of plaintiff a schedule property was bequeathed to plaintiff. In Ext. B2, restrictions were placed on the disposing power of plaintiff in respect of the properties bequeathed to him. Ext. B2 recites that after the testators death, plaintiff should not create any encumbrance in the property till plaintiffs children attain majority and even after their attainment of majority, plaintiff alone should not create any transaction relating to the property without junction of plaintiffs sons Skaria and Thommen. It is difficult on the basis of the above recitals to hold that in bequeathing. A schedule property to plaintiff or in gifting the same property to the wife and children of plaintiff, primary consideration was the dowry entrusted by the father-in-law of plaintiff to Skaria. It appears to me that paramount consideration was love and affection towards donees. The argument that plaintiff was not given any property in view of the subsequent gift created by Skaria in favour of plaintiffs wife and children is correct, but it cannot be forgotten that it was plaintiffs wife and children who were benefited by the gift. The evidence in the cases shows that plaintiff and his father Skaria were not on good terms and there were even litigations between Skaria and plaintiff to which I will make reference later.

8. In view of this strained relationship, there is nothing strange in the conduct of Skaria in not bequeathing larger properties in favour of plaintiff in Ext. B2 or in restricting his right of alienation even in regard to the properties bequeathed to him or in cancelling the bequest and executing Ext. A3 gift deed, gifting the said properties to wife and children of plaintiff. It is quite possible that the said strained relationship continued and that Skaria had no confidence in plaintiff when Ext. A3 was executed. Learned counsel for respondent submitted that there is reference in unambiguous terms about the strained relationship between plaintiff and Skaria in Ext. B2, which states that plaintiff was not obeying Skaria from Kanni 1115 onwards, that plaintiff had no love or respect towards him, that plaintiff was conducting his business according to his liking without any consultation with him and that plaintiff was declaring that he did not require any property from Skaria. Ext. B2 also states that plaintiff had incurred unnecessary debts and that to shift the burden of discharging those debts on the shoulder of Skaria, the plaintiff in collusion with one of his creditors, approached a priest and forced Skaria to mediate in the matter and that as per the terms of mediation, Skaria executed a document undertaking to discharge the debts due to the creditors and to gift some properties to plaintiff and the document was entrusted with mediators and a sum of Rs. 500/- demanded by creditors was paid by him and a cheque for Rs. 2,500/- was entrusted with the mediators on the understanding that the cheque would be presented only one month after the registration of the document, but plaintiff and the creditor attempted to cheat Skaria and encash the cheque and that on knowing this, Skaria instructed the Bank not to encash the cheque. Ext B2 also states that plaintiff persuaded Cherian Johny to file O. S. No: 279 of 1953 and that the said suit was pending and despite all these, Skaria thought that he could bequeath some properties to him. There is also recital in Ext. B2 that income from A schedule property was sufficient to maintain the family of plaintiff and that plaintiff would have no right in any of his properties other than A schedule properties. Learned counsel for appellant, however, submitted that there is overwhelming evidence in the case to show that of late the relationship between plaintiff and Skaria improved and that plaintiff was attending on Skaria while he was in the hospital. He also brought to my notice that under Ext. B2, 9.8 acres of garden land and 6.63 acres of we land were bequeathed to 2nd defendant, 17.87 acres of land was bequeathed to 3rd defendant, 11 acres of wet land and 3 acres of garden land were bequeathed to 4th defendant, 7 acres of wet land and 3 and odd acres of garden land with buildings were bequeathed to 5th defendant, 10 acres of paddy land and 6 acres odd acres of garden land and buildings were bequeathed to the 7th defendant, 12.44 acres of paddy land was bequeathed to 8th defendant and 121/2 acres of paddy land was bequeathed to Thressia and this circumstance coupled with the fact that the property bequeathed to the plaintiff was taken away from plaintiff and gifted to plaintiffs wife and children would probabilise the case of plaintiff that Skaria thought of creating Ext. A1 will after the relationship of plaintiff and Skaria was improved. Learned counsel relied on the proceedings relating to the registration of the will and the evidence of P. Ws. 1 to 4 and Ext. A7, the deposition of Devassia Joseph as D. W. 5 in O. S. No. 1 of 1972 in support of the case that Ext. A1 is genuine.

9. PW 1 is the plaintiff himself. According to him, he had no direct knowledge of execution of Ext. A1 and he came to know of Ext. A1 from Devassia Joseph, when the latter handed over Ex. A1 after the death of Skaria. In his evidence in chief, PW1 stated that he was nursing his father who was admitted to the hospital for treatment for bone-cancer, that 20/25 days prior to his death, plaintiff expressed his grievance that no property was given to him by his father, that his father then told him that a will had been executed by him, bequeathing some properties to him and that it was entrusted to Achan. He further deposed that he was under the impression that the expression achan referred to a priest, that therefore he enquired with several priests, that after some days, fathers mothers brother Devassia Joseph sent for him, but he could not go over there, that he sent Ext. A2 letter to him and that five or six days thereafter, he went to the house of Devassia Joseph, but he was not there. Devassia Josephs wife told him that Devassia Joseph wanted to meet plaintiff in connection with some property transactions. PW 1 also deposed that his father used to call Devassia Joseph as achan. Plaintiff requested Devassia Josephs wife to send Devassia Joseph to plaintiffs house and he returned. The next day, Devassia Joseph went to his house along with the will and entrusted the will to him and on the same day, he went to the Registrars office and took steps for registration. Defendants 2 to 10 raised objections to the registration and therefore detailed enquiry was conducted and ultimately registration was ordered. He also stated that in accordance with the recital contained in Ext. A1 Will, he got release from Puramkandathil Thomman Skaria, of a property, which stood in the name of Thommen Skaria under an assignment deed No. 4174/62, which was really a purchase made by Skaria benami for himself in the name of Puramkandathil Thommen Skaria. Ext. A6 dated 22-2-1966 is the document of release. Learned counsel for Appellant placed strong reliance on the statement in Ext. A6 that " kvIdnbmbpsS Ana D]tZis ASnmsSpnbpw " It is contended on the basis of this recital that it is not merely on the strength of Ext. A1 that the release deed was executed, but also on the basis of the last instruction given by Skaria.

10. PW 2 deposed that he knew Skaria and he signed Ext. A1 as 2nd attestor. He also stated that he saw Devassia Joseph, Skaria and Narayana Marar signing the document. Skaria told him that Ext. A1 is a Will. In the course of cross examination, he deposed that he does not know whether Skaria was under treatment in the hospital before his death. He stated that his house is about 18 miles away from Paranthara Veedu, where Skaria was residing. He further stated that he did not know Devassia Joseph before he singed Ext. A1 Will. According to him, the document was signed at a small building situated in front of the house of Skaria and Kottayam-Erattupetta road was lying in between Skarias residential house and the small building. To a question whether the small building was situated on the northern side of the road, he answered, he could not say the directions. He also stated that nobody was staying in the small building and that he knew the plaintiff only from the date of Ext.A1. According to him, when Ext. A1 was registered, he was not present and he did not see the plaintiff on that day. He testified that what is stated in Ext. B12 is not correct and that he does not say whether he gave evidence as in Ext. B 12. He also deposed that he did not go to the house of Skaria and they were in the small building, where document was signed. He admitted that before the Registrar, he gave evidence that he went to the house of Skaria and he saw two children there and they told him that Skaria was in the downstairs. According to him, what he meant by downstairs was the building from where the Will was signed. He further stated that after the document was signed, he went to the house of Skaria and he was offered a glass of

tea and he did not remember who offered the tea.

11. PW 3 stated that he was a document writer, that he knew Skaria 10/20 prior to his death and that Ext. A1 was written in his handwriting at the instruction of Skaria. He was directed by Skaria to take the document to the small building near his residential house and accordingly, he went to the small building. Skaria and few others were there. He read out the document to Skaria. When another person came there, Skaria again asked him to read out Ext. A1 and he read out Ext. A1 again. Thereafter, Skaria signed Ext. A1 and other persons who were present there also signed the document and he saw Skaria and others signing the document. In the course of cross examination, he stated that the permanent document writer of Skaria was one Kurichi Mathai and Kurichi Mathai was alive on the date of execution Ext. A1 and that he did not know the persons, who signed the document. He also stated that Ext. B2 was prepared the by him, that he did not know who prepared the draft of Ext. A1, that before the Registrar, he deposed that the draft was written by a person who was acquainted with him, that statement before Registrar was correct and that his evidence to the contrary before the court was due to lack of memory. He stated that there are minor differences between the signatures of Skaria contained in Ext. A1 and Ext. B1 and that in O. S. No: 44 of 1966, he gave evidence that when he went to the house of Skaria, Devassia Joseph and Skaria were there and that those statements are correct. He denied the suggestion that Ext. A1 was forged by the witness, Devassia and PW 2.

12. PW 4 is an advocate. He stated that he knew Skaria and plaintiff and they had come to his office several times. He further stated that sometime before Skarias death, plaintiff came to his office twice or thrice and told him that his father had not given any property to him, that he casually asked Skaria about this, that then Skaria told him that he had no ill will towards plaintiff and that he had set apart certain properties for transferring to plaintiff. He further stated that Skaria complained to him that plaintiff was proud of his wifes family and was discarding him, and that Skaria told him that either he executed a Will or he was about to execute a Will. To a question whether Skaria asked him whether it was necessary to register a Will, he replied that there could be unregistered Will also. In the cross examination, he stated that after executing a Will, it could be kept secret by depositing the same in the Registrars office.

13. DW 1 is the Director of Forensic Science Laboratory, Government of Kerala, Trivandrum. He deposed that he had 21/2 years of learning in documents examination and forensic science under the Examiner of Questioned Documents, Government of India, at the Central Forensic Science Laboratory, Calcutta and at the Glasgow Police Laboratory, United Kingdom, that he was working as a handwriting expert of the Kerala State from 1957 onwards and that in that capacity, he had examined several documents and given evidence in various courts in the State. He further stated that he received 3 documents; (1) a Will dated 8-1-1964; (2) the registered document dated 25-10-1961; and (3) registered Will dated 22-11-1954, from the Sub Court, Kottayam for examination and he examined the same and they are Exts. A1, B1 and B2 respectively. He also stated that Ext. A1 contained the questioned signatures encircled with red pencil and marked as Q1 to Q6. Ext. B1 contained the standard signatures encircled with blue pencil marked S1 to S4. Ext. B2 contained the standard signatures encircled with blue pencil marked as S5 to S18. He deposed that he carefully examined the questioned signature in Ext. A1 marked as Q1 to Q6 and compared them with the standard signatures marked as S1 to S4 in Ext. B1 and S5 to S18 in Ext. B2. Ext. B3 series are his opinions and reasons He stated that the person who wrote S1 to S18 in Exts. B1 and B2 did not write the signatures marked Q1 to Q6 in Ext. A1 He further stated that the questioned signatures marked as Q1 to Q6 show inherent signs of forgery such as careful joining of parts, unnatural hesitation and pen stops, suspicious retouching, etc. According to him, evidence of these can be seen in almost all questioned signatures. He further stated that the strokes of the questioned signatures show deep indulations and at places included lines and seen near or parallel to the ink strokes of the questioned signatures which is a sign of traced forgery. He pointed out the following differences between the standard signatures and questioned signature in individual writing characteristics: (1) The nature of the initial curved stroke; (2) the movement of writing, the upper combination of strokes following the initial curved strokes; (3) the nature of start of the lower combination of strokes following the initial curved strokes; (4) the nature of start and movement of writing, the combination of strokes following the intermediate long diagonal strokes; (5) the nature of the finish of the under scoring; (6) the nature of start and curvature of the curved stroke below the body of the signature projecting downwards diagonally; and (7) the curvature and extent towards left of the partial elliptical curve of the signature. According to DW 1, the questioned signatures written with a predominantly finger movement at an average slant of about 50 and show a pen position of nearly 90 inconsistent pen pressure impulsive shading slightly upward alignment show speed, etc. The standard signature are written with a predominantly wrist movement at an average slant of about 5% and show a pen position of about 90 persistent shading, consistent pen pressure, slightly upward alignment average speed, etc. He further deposed that the differences found between the questioned and standard signatures are innumerous and significant and that the apparent similarity in general appearance found between the questioned and standard signatures are consistent with signatures forged by tracing method and various differences when considered in conjunction with the inherent signs of forgery led him to the opinion that the writer of S1 to S18 did not write Q1 to Q6. DW 1 was cross examined at length, but nothing could be elicited to discredit the veracity of testimony of the witness.

14. DW 2 gave evidence that he was studying for B. Sc. at St. Thomas College, Palai from 1961 to 1964 and during the period 1963-64, he was staying in front of the house of Skaria. According to him, the house in which he was staying belong to Skaria and it was let out to him for a monthly rent of Rs. 10/- He also stated that there was another building situated in the same compound and there also, students were staying. In the cross examination, he stated that there were two rooms in the building let out and he was only in possession of one room and the other room was occupied by one George and it was George who took the building on lease. He was paying rent to George. This witness was examined to show that the building were allegedly the document was signed was occupied by students and it is not probable that the document was signed in that building.

15. DW 3 is the 2nd defendant. He is the son of Skaria by his 2nd wife. He deposed that his father Skaria died on 30-4-1964 at Marygiri Hospital and he was nursed by him, his mother and 10th defendant. He also stated that plaintiff used to visit the father, that 3 days after admission to the hospital, Skaria became unconscious and that he spent 37 days in the hospital. He stated that Ext. B2 is a Will executed and got registered by his father in 1954 and no other Will was executed by his father thereafter. He deposed that he was staying alone with his mother, father and others at Paramthara House and opposite to that house, his father had two buildings which were occupited by students. He stated that the signatures contained in Ext. A1 are not the signatures of his father. He testified that his father used to write diary and Ext. B 10 is the diary written by his father on 8-1-1964. His father was possessed of a car and the witness used to drive the car. On 8-1-1964 at 8 AM, he and his father went to the house of Advocate Thomas Mathai, but Thomas Mathai had gone to Kottayam at that time. It was to demand the amounts due to his father on a promissory note that they went to the house of Thomas Mathai. Thereafter, they came to the shop, where himself and his father were dealing in kerosine and tyre and they remained there till noon and returned home. In the evening, the witness and his father went in car to Cherpunkal to meet Kandathil Skaria and they returned by evening. He further stated that the S. A. referred to in Ext. B 10(a) is Ext. B7 appeal. After 25-2.1964, his father had not written the diary notes as he was laid up. In the diary maintained by his father, he had mentioned about Ext. B2 Will and the gift deed. After 1954, it was Kurichi Mathai who used to write the documents of his father and PW 2 was not a person used to come to his house. He stated that he knew Devasia Joseph, but his father had neither confidence nor affection towards him and that it was to Sri. R. Subramonia Iyer his father used to consult in respect of the documents. He stated that Ext. B 13 (Ext. P31 in O. S. No. 1 of 1979) is a letter sent by Devassia Joseph to him. According to him, the will referred to in Ext. B 13 is Ext. A1 and Ext. B 13 contained signature of Devassia Joseph and that it was sent in Ext. B 14 cover. He stated that he could not say whether his father had gone to Marygiri Hospital on 8-1-1964. His evidence in O. S. No. 44 of 1966 (O. S. No. 1 of 1979) that on 8-1-1964, he and his father went to Marygiri Hospital was brought to his notice and he admitted what he stated in the evidence was correct. According to him, they went after lunch, and it was himself and his father alone who went to the hospital. His attention was also drawn to the fact that there in no reference to their trip to meet the doctor on 8-1-1964 in Ext. B 10 diary. .

16. Learned counsel for respondents heavily relied on Ext. B 10 diary and contended that though there is reference to execution and registration of Ext. B2 and gift deed Ext. A3 and other documents in Ext. B10, significantly there is no reference to Ext. A1 will in Ext. B10. Ext. B10 is the entry on 8-1-1964. It is on that day that will is alleged to have been executed. However, there is no entry regarding the will in Ext. B10. Learned counsel for respondents also invited my attention to Ext. B10 (a) entry in the diary on 25-2-1964. In Ext. B10 (a), it is noted that Skaria had a telephone call from Advocate Joseph Vithayathil from Ernakulam intimating that S. A. No. 258 of 1960 was allowed. S. A. No. 258 of 1960 is the appeal filed by Skaria against plaintiff in O. S. No. 293 of 1953 and the plaintiff herein regarding the cheque issued by Skaria in respect of the debts incurred by plaintiff. Counsel for respondents submitted that it is most unlikely that Skaria would have executed a will in favour of plaintiff at a time when the appeal was still pending before this court. Similarly, my attention was drawn by learned counsel to Ext. P8 in O. S. No: 1 of 1979, another diary maintained by Skaria and Ext. P8 (a) entry therein. Ext. P8 (a) entry is on 29-9-1952 and it is noted that he sent for Narayana Marar and that will was read out and that the will was registered in the Kottayam Additional Sub Registry as will No. 34. In Ext. P9 diary, also, there is an entry on 22-11-1954 that he went to the Registrars office and got the will registered as document No. 17. Similarly in Ext. P10 another diary, 1 find an entry on 12-9-1955 that Skaria went to Registrars office and presented the gift deeds and got them registered. On the basis of these learned counsel for respondents vehemently contended that if really Skaria executed a will, that would have found place among the entries in the diary evidenced by Ext. B10 on 8-1-1964. Learned counsel for appellants, on the other hand, argued that Skaria wanted to keep the matters in secret and would have thought that any mention regarding the execution of the will in the diary would have brought the matter to the notice of the second wife and her children, who were living with Skaria and that therefore he wanted to avoid any mention in the will. Learned counsel for appellants also contended that 2nd defendant had admitted that he took his father to hospital to meet doctor, but that fact has not been entered in the diary and therefore the non-mention of the execution of the will cannot be considered as a circumstance leading to an inference against genuineness of the will, especially in the light of the oral evidence adduced by P. Ws. 2, 3, 4 and Devassia Joseph as DW 5 in O. S. No: 1 of 1979.

17. As mentioned above, Skaria executed Ext. B2 bequeathing certain properties to plaintiff, though subsequently those properties were gifted to plaintiffs wife and children as per Ext. A3 and Skaria never wanted to keep these secret and chose to note these transactions in the diary and in the circumstances, I do not think that Skaria would have hesitated to note the execution of the will also if he really executed such a document on the alleged ground of keeping the transaction out of the notice of 2nd wife and her children. There is no evidence indicating that 2nd wife of Skaria was standing in the way of Skaria bequeathing or gifting any property to plaintiff. If we believe the evidence of 2nd wife as PW 2 in O. S. No: 1 of 1979, it would only show that she was also persuading Skaria to give some properties to plaintiff. It is true that 2nd defendant in O. S. No: 1 of 1972 as DW 2 admitted that he had taken his father to hospital on 8-1-1964 ; and that fact has not been noted in the diary. He stated that he took his father to hospital only after their lunch. Therefore, it cannot be said that the visit of doctor by Skaria would in any way indicate that the facts recorded in the diary are not accurate. Probably Skaria would have thought that his consultation with doctor was not an important matter to be noted in the diary. In view of recording of all known transactions in regard to his properties by Skaria in the diaries, the omission to mention consultation cannot be equated with failure to mention about the execution of the will in Ext. B10. According to PW 3, the Will was executed some time after 10 AM on 8-1-64 and Ext. A1 was read by PW 3 twice before its execution. According to DW 5 in O. S. No. 1 of 1979 (Ext. A7), the will was executed during the period between 10 AM and 12. 30 PM. As per the entry in Ext. B 10, Skaria was at the shop between 9.40 AM till 1.30 PM and if the entry is to be believed, Skaria could not have been physically present at the building during the above period. This is not a case of mere an omission to mention about the will only, but also presence of a positive circumstance that Skaria could not have executed the Will as he was in the shop at the relevant time. 1 am also unable to appreciate the argument that it was because Skaria wanted to prevent the execution of the Will being noticed by his wife and children that he did not get the Will registered. Skaria got registered all other wills. If he could find out some time to execute Ext. A1 will without being noticed by his 2nd wife and children, there was no difficulty for him even to get Ext. A1 document registered without their notice.

18. As regards the opinion of handwriting expert, learned counsel for appellants submitted that though it is admissible in evidence, it is a weak form of evidence and cannot be accepted without corroboration. He invited my attention to the decisions of the Supreme Court in Magan Bihari Lal v. The State of Punjab (AIR 1977 SC 1091 [LQ/SC/1977/85] ), Ishwari Prasad Misra v. Mohammad Isa (AIR 1963 SC 1728 [LQ/SC/1962/279] ), Ram Narain v. State of Uttar Pradesh (AIR 3973 SC 2200) and Chatt Ram v. State of Haryana (AIR 1979 SC 1890) in support of his contention. In Magan Bihari Lals case, the Supreme Court held that it would be extremely hazardous to contempt the accused in a criminal case merely on the strength of opinion of a handwriting expert. In the course of judgment, the Supreme Court observed:-

"It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of presidential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law."

Similarly in Ram Narains case (supra), the Supreme Court said:-

"Now it is no doubt true that the opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert. If after comparison of the disputed and the admitted writings by the court itself, when the Presiding Officer is familiar with that language, it is considered safe to accept the opinion of the expert then the conclusion so arrived at cannot be assailed on special leave on the mere ground , that comparison of handwriting is generally considered as hazardous and inclusive and that the opinion of the handwriting expert has to be received with considerable caution."

In Ishwari Prasad Misras case (supra) the Supreme Court observed:-

"Evidence given by experts of handwriting can never be conclusive, because it is, after all, opinion evidence."

In all these decisions, the court has only observed that the evidence of handwriting expert is not conclusive and that it is not safe to rest a conviction merely on the opinion of the handwriting expert. In this context, reference also may be made to the following observations of the Supreme Court in State of Gujarat v. Vinaya Chandra Chhota Lal Pathi [(AIR 1967 SC 778 [LQ/SC/1966/171] ):-

"A court is competent to compare the disputed writing of a person with others which are admitted or proved to be his writings. It may not be safe for a court to record a finding about a persons writing in a certain document merely on the basis of comparison, but a court can itself compare the writings in order to appreciate properly the other evidence produced before in that regard. The opinion of a handwriting expert is also relevant in view of S.45 of the Evidence Act, but that too is not conclusive. It has also been held .that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not."

Dealing with comparison of handwriting and signatures and the evidence of handwriting expert, Supreme Court made the following observations in The State (Delhi Administration) v. Pali Ram (AIR 1979 SC 14 [LQ/SC/1978/275] ):-

"Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert."

19. The above discussion would show that the opinion of handwriting expert is admissible under S.45 of the Evidence Act and what is required is only a corroboration of the opinion by other evidence in case. The decisions cited above held the view that in the absence of any other corroborating evidence, it will not be safe to rest a conviction merely on the opinion of a handwriting expert. It may also be true that even in civil litigations, it may not quite safe to rest the "conclusion merely on the opinion of the handwriting expert and the court may require some corroboration from other source. The court may itself compare the signatures contained in the disputed documents with the admitted signatures and form its own opinion and if that opinion is in conformity with the expert opinion, that can be considered to be a corroborating factor so as to reach conclusion. In the instant case, 1 have compared the signatures with the help of" magnifying glass in regard to the points of difference pointed out by the expert and I find that the handwriting expert was justified in his conclusion. There are also other circumstances such as omission to mention the execution of the will in Ext. B10 diary and the failure to register the document contrary to his practice of registering all the previous wills and the contradictions and variations in the evidence of the scribe and the attestors of the will and witnesses examined to prove the genuineness of Ext. A1 Will. I have referred to Ext. P31 letter sent by Devassia Joseph to DW2. This letter was put to Devassia Joseph, alleged author of the letter, but his evidence appeared to be very evasive in nature, and he had to admit that the signature contained therein is similar to his signature.

20. Learned counsel for appellants invited my attention to the evidence of DW 4 in O. S. No. 279 of 1953 which was marked as Ext. P7, where he deposed that after the death of Skaria, plaintiff made enquiry to him whether Skaria had entrusted any Will to him and argued on its basis that this evidence would probabilise the version of PW 1 that his father told him that the will was entrusted with achan and that he took the priest for achan. I am unable to find from this circumstance that really Skaria told plaintiff that he executed a Will, It may be that plaintiff wanted to ascertain whether any such will was executed by his father or that he made such query to create supporting material for putting forward Ext. A1 as a genuine Will. The court below considered the evidence of PW 2 and PW 3 and Ext. A7 deposition of Devassia Joseph and came to the conclusion that their evidence does not inspire confidence and is highly suspicious. PW 2 in the chief examination took up the stand that he did not see the plaintiff on the date of execution of Ext. A1 Will. But in cross examination, he stated that he had acquaintance with plaintiff from the date of Ext. A1. He denied that he was present along with plaintiff and Devassia Joseph at the time when Ext. A1 was presented for registration. When he was confronted with Ext. B 12 statement. he denied the truthfulness of Ext. B 12 statement. PW 2 deposed that he did not go the house of Skaria but when he was confronted with his earlier statement before Registrar, he had to admit that he stated that he went to the house of Skaria and found two children there and they told him that Skaria was in the building just opposite to Skarias house.

21. PW 3 is the scribe of Ext. A 1 will and according to him, he prepared Ext. A1 as per a draft entrusted to him by Skaria. He admitted that after Ext. A1, he did not prepare any documents for Skaria. His evidence shows that it was one Mathai who was the regular scribe of Skaria. According to PW 3, he did not go to the house of Skaria after execution of Ext. A 7. PW 2 deposed that PW 3 went to the house of Skaria after execution of Ext. A 1. P. Ws.2, and 3 and Devassia were arrayed as defendants in O. S. No: 1 of 1979 but they did not file any written statement in that suit.

22. In the deposition evidenced by Ext. A7, DW 5 in O. S. No: 1 of 1979 admitted that it was after the death of Skaria that he produced the Will before the Sub Registrar. According to him, he came with the document 10/16 days after the death of Skaria to the house of plaintiff and entrusted it to plaintiff. Thereafter, he took it back from him and presented it before the Registrar. He further said that he and plaintiff were in good terms and he would be glad if plaintiff got some property somehow:-

"MALAYALAM."

He stated that prior to Ext. A1 will, he had not signed any document executed by Skaria or figured as attending witness in any of the documents executed by him. He was residing far away from the residence of Skaria. Skarias mother is the daughter of his fathers sister, according to him. He admitted that Skaria had not consulted him when he executed the Will and other documents prior to Ext. A1.

23. The court below has pointed out various discrepancies in the evidence of P. Ws. 2 and 3 and Devassia Joseph in coming to "the con-elusion that they are not reliable witnesses and it is not necessary to elaborate all those details again. Suffice it to say, that the evidence of these witnesses does not appear to be truthful.

24. The above discussion would show that the court below was justified in holding that Ext. A1 Will is not genuine.

Both the appeals are devoid of merit and they are accordingly dismissed. However, there will be no order as to costs.