Sunil Thomas, J.

The plaintiffs in O.S.No.17/2010 of the Sub Court, Ernakulam, aggrieved by the dismissal of the suit for partition, has preferred this appeal.

2. The plaintiffs and defendants are the children of late Govindan and Bhanumathi. Govindan died on 28/8/1994 and Bhanumathi on 18/5/2004. The plaint schedule properties belonged to Govindan. He had constructed a building therein and was residing there with his family till his death. The plaintiffs got married to persons of their choice and hence, they have been keeping away from the company of the remaining family members. The first defendant is a married person with a child and second defendant is a divorcee and third one a spinster. They are residing in the plaint schedule property. According to plaintiffs, after the death of Govindan, the right on the properties have devolved on the plaintiffs and the defendants equally and they are entitled to inherit. However, the plaintiffs came to know about a registered Will bearing No.15/85 of SRO, Tripunithura, allegedly executed by Govindan, on receipt of a copy of petition in O.P.No.4/2009 of the Principal Munsiff Court, Ernakulam. The plaintiffs are not aware of any such Will. The Will is a fabricated one and Govindan had no occasion to execute such a Will. During the period of execution of Will, Govindan was mentally ill and was undergoing treatment for partial paralysis. He has not executed the Will and was allegedly executed under suspicious circumstances. Hence the suit was filed seeking a declaration that the Will was null and void and for a consequential partition of the properties.

3. The defendants filed a joint written statement traversing the various allegations. It was admitted that deceased Govindan had acquired the properties and had constructed the building therein. Govindan, had executed the Will validly, with due application of mind and with full testamentary capacity. The defendants, their mother and brother of Govindan have been residing in the house. There were stipulations regarding payment of money to the other legal heirs. Since they refused to accept the money, O.P.No.4/2009 was instituted. The allegation that Govindan was mentally ill was incorrect. The signature and the thumb impression seen in the Will are that of the deceased Govindan.

4. On the basis of the above pleadings, the parties adduced evidence. The Court below on an evaluation of the oral testimony of PW1 and Exts.A1 to A5 on the side of the plaintiffs and the oral evidence of DWs1 to 5 and Exhibits B1 to B6 on the side of the defendants held that Ext.B2 Will was validly executed by Govindan. Consequently, the prayer for partition was declined. This is assailed in this appeal.

5. Heard the learned senior counsel for the appellants and the learned counsel for the respondents.

6. The points that arise for consideration are:

i). Whether Ext.B2 Will was validly executed by Govindan during his life time, with full testamentary capacity.

ii). Whether the judgment and decree of the court below is legally sustainable.

7. Points 1 & 2: The relationship between the parties and the title of Govindan over the plaint schedule properties are not in dispute. It is admitted that the defendants are residing in the plaint schedule property and that the plaintiffs, after getting married of their choice were keeping away from Govindan. Though the plaintiffs had sought for a declaration that the Will was not genuine, since the defendants propounded the Will, they were called upon to lead the evidence.

8. One of the ground of attack of the defendants was that Govindan lacked testamentary capacity during the relevant period. It has come out in evidence that prior to the alleged execution of Ext.B2, Govindan had executed another registered Will numbered as 86/1983 dated 5/7/1983, a copy of which was marked as Ext.B1. It was in supersession of the above Will, that Ext.B2 Will was executed. The allegation of the plaintiffs was that during the relevant time, Govi