Kemal Pasha, J.

1. This appeal unfurls certain interesting questions regarding the proof of genuineness of a Will, when none of the attesting witnesses are alive, and even if it is proved, whether the legacy in favour of one of the legatees to the Will lapses and the same reverts back to the estate of the testator, when such legatee predeceases the testator?

2. Aggrieved by the dismissal of a suit for partition filed as O.S. No.453/2006 of the Principal Subordinate Judge's Court, Ernakulam through judgment and decree dated 31.03.2008, the plaintiff has come up in appeal.

3. The case of the appellant/plaintiff is that plaint 'A' schedule property was the property acquired by late Vareed and plaint 'B' schedule properties were the properties acquired by late Chummar. Vareed executed Ext.B1 Will registered as document No.7 of 1095 ME of the Ernakulam Sub Registry, thereby bequeathing his properties in favour of his only two sons namely, Thummi and Chummar. Thummi died in the year 1933 and Chummar died in the year 1967. Chummar died issueless. Thummi had 8 children, namely, Augustine, Joseph, Mariyam alias Kochu Mariyam, Monica, Plamena, Elo, Kochanno and Thressia, in his first marriage. After the death of his first wife, Thummi married one Rosa in whom he had a son namely, Varuthu alias George and three daughters, namely, Prestina, Rosakutty and Mary. According to the appellant, respondents 1 to 62 and the appellant are the legal heirs of the children of Thummi.

4. It is the case of the appellant that Thummi, in his capacity as one of the two sons of Vareed, was entitled to one half share in 'A' schedule property. As Thummi had 12 children, the appellant and respondents 53 to 60, who are the children of Rosakutty, are entitled to get 1/12 share in the said one half share of Thummi in plaint 'A' schedule property.

5. Plaint 'B' schedule properties were acquired by Chummar. He had also one half share in plaint 'A' schedule property in his capacity as the legal heir and legatee of Vareed. According to the appellant, Chummar died intestate without any wife or children and, therefore, his legal heirs are the 12 children of Thummi and their legal heirs. Therefore, the appellant and respondents 53 to 60 are entitled to get 1/12 shares over plaint 'B' schedule properties as well as in the one half share of plaint 'A' schedule property belonged to Chummar. Respondents 1 to 6 are managing the plaint schedule properties. Respondents 41 to 47 had instituted O.S. No.610/2005 seeking partition of the properties belonged to late Thummi and Chummar. However, in that suit, only the legal heirs of the 8 children in Thummi's first marriage and the legal heirs of the son in Thummi's second marriage alone were arrayed as parties. On coming to know about the said suit, the appellant's mother Rosakutty filed an application for getting herself impleaded in that suit. But, before the consideration of the said application, Rosakutty died. A portion of the plaint schedule properties having an extent of 4 acres was conveyed by respondents 2, 5 and 6 to the 63rd respondent, through Ext.A2 sale deed dated 29.03.2005. Respondents 2, 5 and 6 being only some of the co-owners of the plaint schedule properties, the said sale deed is not binding on the other co-owners, including the appellant. It has been claimed in Ext.A2 sale deed that Chummar had executed and registered a Will. The said claim is false. According to the appellant, the plaint schedule properties including the property conveyed through Ext.A2 are partible.

6. Respondents 1 and 2 had filed a joint written statement contending that Thummi had only one wife named Mariyam and the claim of the appellant that he had married after her death is incorrect. It is contended that George, Prestina, Rosakutty and Mary are not the children of Thummi. The averment that plaint 'A' schedule property was acquired by Vareed, is denied. Vareed had only 2.68 acres of property. He executed Ext.B1 Will thereby