Koshy. J.

This appeal is filed against the judgment refusing grant of Letters of Administration under the Indian Succession Act. 1925. The petitioners/Plaintiffs are the appellants. Verkey, Verkey father of fifth plaintiff, defendants 1 to 4 and late Mariakutty, mother of defendants 5 to 1 died on 19.3.1990. He had executed and registered Ext.A2 Will on 20.6.1987 bequeathing certain properties to plaintiffs 1 to 3 who are the sons of fifth plaintiff after canceling Ext.A10 will. Plaintiffs applied before the court below for granting Letters of Administration with a copy of the said will annexed. In the alternative they pleaded for granting Letters of Administration on the basis of Ext.A10 will also. Defendants 1 and 10 contested the application.

2. In this appeal the first defendant (first respondent herein) alone is contesting the matter. The other defendants, despite receiving notice did not appear before this court to oppose the appeal. According to the written statement filed by the contesting first respondent Ext.A2 will dated 20.6.1987 has not been duly executed and contended that deceased had earlier executed Ext.A10 will. The court below found that finger prints in Exts.A2 and A10 were that of the testator. But Ext.A2 is not a valid will as due attestation was not proved. The Court below found that Ext.A10 though property executed was revoked as it was scored off and the suit was dismissed. A cross appeal was field by the first defendant questioning the findings in the impugned judgment in so far as it is against him.

3. Four issues were framed by the court below which are:

"1. Whether the will bearing No.42 of 75 is Genuine?

2. Whether the testator had executed both the wills Nos.42 of 75 and 57/87 while the testator was in a sound disposing state of mind, of his own accord after fully understanding the nature of the dispositions made in the said wills Nos.42 of 75 and 57/87 and the said wills were duly attested?

3. Incase the execution of will No.57 of 1987 is proved would it amount to revocation of will No.42 of 75?

4. What is the proper order as to costs and reliefs?

4. The main questions to be decided in the appeal are whether Ext.A2 will is genuine and whether it is a properly executed will with testamentary capacity and proper attestation. Ext.A2 is perfectly regular on its face as it appears that testator has signed the will in the presence of two witnesses who also signed in the presence of each other. It is also to be considered whether presumption omnia rite esse acta as observed by the Court of Appeal in Wright v. Saderson (1984 IX PD 149) and as held by the Privy Council in Lioyd v, Roberts (12 Moo P.C. 158) applies. As regards the facts of the case are concerned the testator Vakey Varkey married thrice. Ext.A2 will was executed on 20.6.1987 and he died on 19.3.1990 at the age of 92, after about three years of the alleged execution of Ext.A2 will. During his life time all his children (daughters and sons) were married. It has also come out in evidence that apart from the properties in the will he has gifted large part of his immovable properties to all his sons including the fifth plaintiff and defendants 1 and 2. It has also come out in evidence that defendants 1,3 and 4 and predecessor of defendants 5 to 11 were children of the first wife of the testator. His second wife died immediately after the marriage. Thereafter, he again married. The second defendant as well as the fifth plaintiff (PW3) are the sons of the testator through his last wife (referred to as second wife also occasionally). PW3 with his family were living with the testator till his death and in all days he and his family were looking after him. Fifth plaintiff's mother died in 1972. The contesting defendant was residing separately from 1954 in another place gifted by the testator. The second defendant another son was also living separately. The contesting defendant as well as the second defendant were given more than 14 acres of land