H. RANGAVITTALACHAR, J.

( 1 ) APPELLANT-PLAINTIFF had filed an application under Section 276 read with Section 283 of the Indian Succession Act for probating the will of her deceased mother, late Mahalakshmi Chintamani. This application on being contested by the respondent, was registered and tried as a suit and dismissed; which judgment is being challenged in this appeal.

( 2 ) BRIEFLY stated the facts of this case are: one Chintamani and his wife Mahalakshmi adopted Maheshwar-respondent as their son and Krishnabai the appellant herein is their natural daughter who is unmarried and remaining as such till now. CKintamani died in the year 1956, and Mahalakshmi, the testatrix hereinafter referred to as such executed, a will on. 23-2-1980 and had it registered under which she has bequeathed her one third share in the family property in favour of only the appellant while disinheriting the respondent. The testatrix died on 7-7-1992. Appellant sought for probating her Will. The respondent entered caveat and denied the Will of having been executed by the testatrix besides contending that it was a "concocted and fabricated" one. Because of the contest it was tried and enquired as a suit.

( 3 ) BEFORE the learned Judge, appellant examined herself as P. W. 1 and examined the attestor of the Will as P. W. 2. She also produced the original Will as Exhibit P. 1 and death certificate as Exhibit P. 2. Respondent examined himself as D. W. 1 besides producing certified copies of the plaint, vakalath, deposition filed by testatrix'and deposition of appellant vide Exhibits D. 1 to D. 4. Learned Judge has dismissed the suit on the following grounds,- 1. That there are suspicious circumstances in the manner of executing the will inasmuch as, in a partition suit filed by the testatrix against the respondent during the year 1986, (six years after the alleged execution of the Will) the testatrix had affixed her L. T. M. to the suit papers Exhibits D. 2 and D. 3 while the plaintiff had not furnished any satisfactory explanation as to how the testatrix affixed her signature to the Will. 2. The Will was attested not by relatives but by the colleagues at work of the propounder. 3. That the Will was not produced by the propounder in the suit O. S. No. 52 of 1986; and no satisfactory explanation is forthcoming for its non-production.

( 4 ) SINCE the testatrix was aged 70 years at the time of executing the will, the plaintiff has not proved that she was in sound disposition of mind. Since the plaintiff failed to remove the suspicious circumstances, the suit must fail. 4. Before this Court Mr. K. I. Bhatta. learned Counsel appearing for the appellant while assailing the impugned order submitted that none of the reasons stated by the Judge are sustainable having regard to the evidence of the case.

( 5 ) SECONDLY, he submitted that having regard to the close relationship of the testatrix to the plaintiff i. e. , being her natural daughter and her status being unmarried who admittedly looked after her mother when the adopted son was staying away and having regard to the difference of opinion between them, there is nothing unnatural about bequeathing her share in favour of her daughter in preference to the son.

( 6 ) LASTLY, he submitted that when the contesting respondent had not challenged the execution of the Will as executed under fraud, coercion except a bare denial of execution, the propounder had only to prove due execution of the Will in the manner known to law, which has been done in this case.

( 7 ) PER contra the learned Counsel Mr. V. P. Mallya appearing for the respondent defended the order of the Court below and cited the following decisions in support of his contention : 1. Gurdial Kaur and Others v Kartar kaur and Others; 2. Baliram Atmaram Kelapure v. Smt. Indirabai and Others. 3. Satya Pal Copal Das v Smt. Panchubala Dasi and Others'.

( 8 ) IT is well-known that the burden is upon the propounder to prove the Will. Since through the Will the tes

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