The main legal point established in the judgment is that the plaintiff failed to prove the due execution and attestation of the Will and that it was the last Will of Elizabeth Britto executed by her while in sound disposing state of mind. The court also found that there were no suspicious circumstances surrounding the execution of the Will and that the plaintiff was entitled to the probate as sought for in the application.

( 1 ) THIS appeal under Section 299 of the Indian Succession Act, 1925 is directed against the judgment and decree passed by the Additional District Judge, Dakshina Kannada, Mangalore in O. S. No. 1/1988 dated 12-12-1994.

( 2 ) THE facts of the case in brief leading up to this appeal are as follows : The parties would be referred to with reference to their rank before the Probate Court. Vincent Britto, S/o Denis J. Britto filed an application for grant of probate under Section 276 of the Indian Succession Act before the District Judge, Dakshina Kannada on 7-3-1987 seeking for issue of probate annexed to the Will. It is averred in the application that Ms. Elizabeth Britto died on 17-9-1986 within the jurisdiction of District Court, Mangalore. She had executed Last Will and testament in the presence of witnesses whose names appear on the foot thereof and the plaintiff is the Executor appointed under the Will since Mr. Ben Britto has declined to act as an executor by his letter dated 30-12-1986. It is averred that deceased Ms. Elizabeth Britto was the absolute owner of the immovable property described in the schedule by virtue of inheriting 1/5 right in the said property and obtained release deed from other sharers in respect of the residue of the property. She bequeathed the schedule property in favour of her two nephews namely Ivan J. Britto and Justice C. Britto. The amount of assets which are likely to come to the plaintiff"s hand does not exceed Rs. 3,00,000/- and no other application has been made to any other Court for the grant of Probate and the plaintiff undertakes to duly, administer the property or credit of the said Ms. Elizabeth Britto and to make a full and true inventory thereof and exhibit the same in the Court within six months from the date of grant of probate to him and render to the Court a true account of the said properties and assets within one year from the said date and wherefore the application seeking for issue of probate.

( 3 ) THE application was resisted by Vincent Britto and in view of the contest, the application was converted into suit O. S. No. 1/1988. The applicant filed a plaint reiterating the averments made in the application for grant of probate.

( 4 ) THE defendant filed Written Statement averring that the plaintiff"s suit is unsustainable both at law and on points of facts. The defendant denied that Ms. Elizabeth Britto was the absolute owner of immovable properties described in the schedule attached to the plaint or that the alleged release deeds got executed in her favour in respect of residuary estate is valid, legal or binding on the defendant or other heirs. It was averred that alleged bequest of schedule mentioned properties is not legal nor is it valid and binding on the heirs who otherwise are entitled to inherit the property and the suit is also bad for non-furnishing of the required particulars of all the legal heirs left behind by late Ms. Elizabeth Britto. It was further denied that alleged Will dated 19-6-1983 is the Last Will executed by Ms. Elizabeth Britto and that the plaintiff is the executor appointed under the alleged Will or that Mr. Ben Britto had declined to act as Executor as averred in the plaint. It was further averred that Elizabeth Britto was not at all in a sound disposing state of mind during the fair end of her life so as to validly execute any Will. While the fact that the alleged Will directs that the deceased"s own sister should go out of the house on the day of executant"s death itself suggests that the alleged Will must have been got up under provocation or under external influence. The deceased Elizabeth Britto being an old lady she was suffering from high blood pressure and she was susceptible to sudden anger and rages, sudden likes and dislikes and was mentally not fit to execute any Will. It is further averred that without prejudice to the said contentions, the Will is not the outcome of a free mind of the executrix as the same app