The presence of the beneficiary at the time of will execution does not necessarily render the will invalid unless undue influence is proven.

( 1 ) THIS appeal is filed against the Judgment and Decree dated 18-8-98 in r. A. No. 23/88 on the file of the II Addl. District Judge, Mangalore, D. K. , arising out of the Judgment and Decree dated 15-6-88 in O. S. No. 259/81 on the file of the II Addl. Civil Judge, Mangalore.

( 2 ) THE apellants are the defendant Nos. 4 and 15 before the trial Court. The first respondent filed a suit for partition and possession in the suit schedule properties consisting of agricultural lands and moveable properties. One Thimmanna Naika and the deceased first defendant are the parents of plaintiff and defendants 2 to 7. Defendants 8 to 10 are the L. Rs. and children of deceased defendant No. 3 and defendants 11 to 14 are the L. Rs. and children of deceased defendant No. 5.

( 3 ) DURING the lifetime of Thimmanna naika, there is a partition amongst thimmanna Naika and his sons, the suit properties were allotted to the share of thimmanna Naika. After his demise, the plaintiff claims a share in the suit properties. The contesting defendants are defendants 4 and 15, who are the father and son. During the lifetime of Thimmanna Naika, he executed a sale deed in favour of the 4th defendant as per Ex. Dl conveying Item No. 2 of Schedule A and the rest of the properties were bequeathed in favour of 15th defendant by Thimmanna Naika under a registered will Ex. D2. On the strength of these documents, the defendants 4 and 15 contended that the suit of the plaintiff is to be dismissed and that the plaintiff and other defendants are not entitled to any share in the property. The trial Court upheld the validity of the sale deed executed by Thimmanna Naika. But, however, held that the Will executed by thimmanna Naika is a suspicious document, as such held that the Will is void and decreed the suit of the plaintiff partly excluding item I of the A schedule property conveyed under Ex. Dl to the 4th defendant. The plaintiff had filed an appeal against the judgment and Decree of the trial Court in R. A. No. 23/88 challenging the exclusion of item I of A schedule property covered under ex. Dl by the trial Court. The appeals of the plaintiff and defendant are dismissed. The 15th defendant challenged the Judgment and decree. The Judgment and Decree of the trial court is confirmed. Hence, this appeal.

( 4 ) THE following question of law is formulated for consideration :"whether the. lower Court is justified in holding that Ex. D2 a registered Will is not executed at the free Will of the testator and the same is not proved?"

( 5 ) THE trial Court and the Appellate Court concurrently hold that the Will Ex. D2 is shrouded with suspicious circumstances, which are as under :" (A) The beneficiary and the propounder of the Will DW-15 was present and actively participated at the time of execution of the will as per the evidence of DW-4. (B) The testator was not having sound health and proper mental disposition at the time of execution of the Will as per evidence of DW-4. (C) The recitals in the Will that the 15th defendant was residing with the testator and assisting him is belied by the Voters List and ration Card of the testator, which does not show that the 15th defendant was the member of the family of the testator, whereas, the name of 15th defendant is found in the Ration Card obtained by 4th defendant (the father of 15th defendant) (D) There are no valid reasons for the testator to exclude and disinherit his other children and to prefer 15th defendant. "

( 6 ) THE learned counsel for the respondent No. 1 (d) supported the findings of the trial Court and contends that the evidence of DW-4 cannot be accepted as an independent witness since there is an admission in his evidence that the 15th defendant (second appellant) had acted as witness to the will executed by the father of DW- 4 bequeathing the properties in favour of DW-4. Therefore, as a reciprocation, the 4th defendant is figured as a witness, as such, he is an interested witness. The learned c