The main legal point established is the presumption of genuineness attached to a registered will, the burden of proof on the propounder, and the impact of the Kerala Hindu Family System (Abolition) Act, 1975 on the rights of the deceased.

M.R. Hariharan Nair, J.

1. The dispute to be settled in this Appeal by the defeated plaintiff revolves around Ext.B9 will dated 7-4-1981 executed by her father, the deceased Velayudhan. The question is whether Ext.B9 Will standing in the name of Velayudhan is genuine and duly executed in which case his rights over the schedule property will go to the defendants 3 to 6 who are the legatees and sons of the 2nd defendant. There is also a question as to the precise rights which the said testator actually had over the schedule property.

2. Sri. Velayudhan died at the age of 70 years in the year 1983 leaving behind the 1st defendant, who is his widow and 2nd defendant, who is his only son and the plaintiff, who is his only daughter. On 7-4-1981 i.e., 2 years before his death he executed Ext.B9 Will which was duly registered by D.w.5, who is the Sub Registrar but not having jurisdiction over the area where the property is situated.

3. The plaintiff brought partition suit O.s.No.84/84, the judgment in which is impugned herein, as though the Will was not in existence or at least not within the knowledge of the plaintiff.

4. The defendants 1 and 2, in their joint written statement filed on 18-2-1985, pointed out that the plaint 'A' schedule property was not the individual property of Velayudhan; that he was bound by the Hindu Mithakshara Law and also pointed out that the devolution of the rights with regard to the assets left behind by Velayudhan will normally be in favour of defendants 2 to 6 who are the male descendants. Ext.B9 will, genuinely executed, excludes the 2nd defendant and provides that defendants 3 to 6 alone are entitled to the rights of Velayudhan. There were some other minor contentions also including alleged tenancy in respect of some items in favour of the 2nd defendant; but it is not necessary to go into those aspect as they were not urged during arguments raised before us. It was based on the aforesaid contention, that defendants 3 to 6 were impleaded as additional defendants. Thereupon the plaintiff got the plaint amended by incorporating the prayers and denying execution of any Will by Velayudhan and also contending that if at all any such Will had been brought into existence, it must be the result of manipulation at the instance of the 2nd defendant.

5. It was also contended by the plaintiff that at the time when the Will was allegedly executed, Velayudhan was not in possession of sufficient mental and physical capacity in so far as his legs had been amputated; he was weak and was incapable of understanding what he was doing and totally dependent on the 2nd defendant. The plaintiff thus maintained that what is produced is not a genuine Will validly executed by Velayudhan.

6. In the joint written statement, the defendants 3 to 6 contended that the deceased Velayudhan was in a fit state of mind at the time of execution of the Will and that Ext.B9 expresses the free will of Velayudhan with regard to the disposition of his property.

7. The 1st defendant also filed a separate written statement on 7-10-1988 deviating from her earlier stand and raising a contention that the property belonged to Velayudhan in his individual capacity and that in the event of partition, the 1st defendant is entitled to one share as admissible to the plaintiff and 2nd defendant. She also expressed readiness to allot her said share in favour of the plaintiff and the 2nd defendant in the event of partition. The Court below, on a consideration of the issues raised in the case, and in the light of the findings obtained from the Land Tribunal based on the reference of the question of tenancy raised by the 2nd defendant with regard to item Nos.9, 11, 12 and 17 and also considering Exts.B1 to B9, Ext.Cl and the depositions of P.W.1 arid D.Ws.l to 6 found that the Will was genuine and accordingly denied partition. The suit was dismissed.

8. Mr. M.C. Sen, who argued the case of the appellants - plaintiffs, argued that the circumstances of the case w