The main legal point established in the judgment is that the burden to prove testamentary capacity and to remove suspicion surrounding the execution of a codicil lies with the propounder. The court also emphasized the importance of considering suspicious circumstances and the conduct of the parties in reaching a decision.

P.K. Balasubramanyan, J.

1. The first defendant is the appellant. He is the only son of one Dr. Ramakrishna Pillai who died on 4-9-1978. The plaintiff in the suit the first respondent herein and second defendant in the suit respondent No. 2 herein are the daughters of Dr. Ramakrishna Pillai, Defendants 3 and 4 in the suit who are respondents 3 and 4 herein are the sisters of Dr. Ramakrishna Pillai.

2. Dr. Ramakrishna Pillai admittedly executed a will dt. 7-4-1975 and registered on 12-9-1978 marked by me as Ext. X8 in the appeal. Though PW 4 an attestor to this will was examined and this will was not disputed the will as such was not produced before the Trial Court though it is seen that some steps were taken for its production from the Registrar's office. Whatever that be the will had not been produced in the Trial Court or proved in evidence. For a proper disposal of the appeal I thought it necessary to call for the said will on an application by the plaintiff and the said will was produced by the Registrar before this court and in the light of the evidence of PW 4 who had already spoken to its due execution and in the light of the fact that both the parties admitted the will and requested this court to admit it in evidence I have marked it in evidence as Ext X8. Under Ext. X8 Dr. Ramakrishna Pillai broadly bequeathed the ground floor and the second floor of a building wherein he was residing and conducting a pharmacy by name Ramakrishna Pharmacy to the plaintiff and bequeathed to his son the first defendant the first floor. The sisters were also given some properties therein and a small extent of 2 1/2 cents in the property in which the pharmacy building stood was also bequeathed to the second defendant daughter.

3. The plaintiff filed the present suit for what is described as partition of the plaint schedule property which is the pharmacy building and the land appurtenant thereto and separating what is described as schedule to the plaint and allotting it to her. She pleaded a variation of the bequest under Ext. X8 will by a codicil which is marked Ext X3 dt. 2-9-1978 which she claimed had been duly executed by Dr. Ramakrishna Pillai and attested by PW 2 and one Karunakara Menon. According to her the be quest of the pharmacy building and the land appurtenant thereto was modified by Dr. Ramakrishna Pillai by allotting to her a portion of the first floor the whole of which had been allotted to the first defendant son under Ext. X8 will and also an extent out of the 218 cents allotted to second defendant daughter. It is therefore the case of the plaintiff that the property covered by Ext. X8 will as modified by the codicil Ext. X3 which has been bequeathed to her should be separated and delivered to her from the joint possession of herself, the plaintiff and the second defendant. This suit was resisted by the first defendant who belatedly challenged the codicil Ext. X3. The Trial Court has held that it has been proved that Dr. Ramakrishna Pillai had duly executed the codicil Ext. X3 and that therefore the plaintiff is entitled to relief in the suit. The Trial Court thought that a decree for partition as such is not necessary but granted a decree to the plaintiff for separation of the B schedule property claimed by her from the rest of the property and delivery to her. It is this decree that is challenged by the first defendant before this court.

4. Certain facts are not in serious dispute. Dr. Ramakrishna Pillai was suffering from cancer in his mouth for about 8 years prior to his death. He had radiation treatment at the cancer institute, Adayar. He had reached more or less the final stage of his illness. He was 84 year old at the time of his death. Just before his death a ryle tube has been fixed so as to enable him to take food because otherwise he was not in a position to take food. He died on 4-9-1978 two days after the alleged codicil. He had a fall prior to his death though there is dispute as to the nature and the ef