The burden of proving the genuineness of a will lies with the propounder, and in the presence of suspicious circumstances, the propounder must satisfactorily explain them to the court.

R. Rajendra Babu, J.

1. The third defendant in O.S.No.9/88 on the file of the District Court, Ernakulam is the appellant. The petition filed by the 1st respondent for the issue of Letters of Administration was converted into a suit O.S.No.9/88. The court below decreed the suit. Aggrieved by the above judgment and decree, the third defendant preferred this appeal.

2. The allegations in the plaint are the following: -Chacko, father of the plaintiff died on 8-1-1977. He had executed a will on 31-10-75 and got it registered and the plaintiff was one of the legatees under the will. The first defendant was the wife of deceased Chacko and plaintiff and other defendants were the children. Ext. A1 will produced before the court was the last testament of the deceased and no executor was appointed in the will. Hence plaintiff, being one of the legatees, applied for the issue of Letters of Administration.

3. Defendants 1, 4 and 6 to 9 appeared through counsel, but did not file any written statement. The third defendant alone contested the matter by filing a written statement. Third defendant contended that the will had come into existence due to the undue influence of the plaintiff who was residing with the deceased at the time of his death and the testator had no free mind to execute the will. The third defendant was not aware of the existence of any will executed by his father. The terms and conditions of the will were unnatural and it was executed under the undue influence of the plaintiff with a view to get a substantial portion of the property. No property was bequeathed to the wife of the testator and also to the three eldest sons viz. defendants 3, 5 and 6. The legacy of defendants 7 and 8 when compared with that of the plaintiff was very little. Normally a Christian daughter would be married off at the expense of her father and immovable properties would be given to the sons. two acres and 45 cents of properties allotted to the plaintiff was given in possession to the 3rd defendant by the testator in 1965 for making improvements in the property and the above property is now allotted to the plaintiff. It would reveal that the testator was not conscious about the acts. There was only one attesting witness to the will and as such it was not a legally executed will.

4. P.Ws. 1 and 2 were examined and Ext. A1 was marked on the side of the plaintiff. DWs 1 and 2 were examined on the side of the third defendant.

5. The following issues were raised by the trial court:

"1. Whether a will was executed by deceased Varkey Chacko on 31-10-1975?

2. Whether the will is a valid one and if it is not vitiated by any one of the grounds stated in the written statement?

3. Whether the plaintiff is entitled to get Letters of Administration of the entire property scheduled to the petition?

4. Reliefs and costs?"

6. The trial court found that the will was executed by the testator out of his free will and it was not vitiated by any of the grounds raised by the 3rd defendant and the plaintiff was entitled to the Letters of Administration prayed for and accordingly, suit was decreed.

7. Learned counsel for the appellant and the 1st respondent were heard.

8. Chacko, the husband of 1st defendant and father of plaintiff and defendants 2 to 9 executed Ext. A1 will on 31-10-1975 and got it registered and he died on 8-1-77. The plaintiff, who was one of the legatees filed the suit for issue of Letters of Administration. Defendants 2 and 5 are the sisters of the plaintiff and the defendants 3, 4, 6, 7, 8 and 9 are brothers. The suit was resisted by the third defendant (appellant) alone. The mother, and the other brothers and sisters did not contest the matter and in fact, they have conceded in granting Letters of Administration, as prayed for.

9. One of the arguments advanced by the learned counsel for the appellant was that the will was not attested by two witnesses. The last page of, Ext. A1 would reveal that two persons have signed in Ext. A1 as attestors. The first