K.T. Sankaran, J.

1. Defendants 1, 4 and 5 in a suit for partition, filed by the first respondent herein, are the appellants. The Trial Court decreed the suit granting 1/39 share to the plaintiff, which was confirmed by the Appellate Court. The parties are Muslims.

2. The plaint schedule property along with other properties belonged to the father of the plaintiff and defendants. After the death of the father, as per Ext. A1 partition deed dated 02/12/1985, the properties which belonged to him were partitioned among the plaintiff, the defendants and their mother. The plaint schedule property was allotted to the shares of the mother and defendants 4 and 5. Thereafter, the mother died. The plaintiff claims her share in the fractional interest of the mother in the plaint schedule property.

3. The first defendant contended that the mother had executed Ext. B1 Will on 25/09/1989 bequeathing her fractional right in favour of defendants 4 and 5 and after the death of the mother, the plaintiff and the first defendant consented to the disposition under the Will. Defendants 4 and 5 raised similar contentions as raised by the first defendant. However, they also contended that after the death of the mother, there was a talk and all the parties including the plaintiff consented to the disposition under the Will.

4. The plaintiff filed a rejoinder and contended that the Will is not true and genuine and that it was brought about by the defendants 'in fraudulent collusion with each other and with the help of the scribe and witness with a view to defeat the right of the plaintiff in the suit properties'. It was contended that the Will is not valid and binding on the plaintiff or her fractional right in the properties.

5. Before the Trial Court, plaintiff was examined as PW 1. In her evidence, she stated that there was no consent after the death of the mother as alleged by defendants 4 and 5. On behalf of the contesting defendants, the first defendant was examined as DW 1, who is not a legatee under the Will and who claimed that he was a witness to the Will executed by the mother. The scribe was examined as DW 2. DW 3 is an advocate, who allegedly accompanied DW 1 and others to the office of the scribe.

6. The Trial Court considered and analysed the oral evidence in the case and held that the evidence of DW 1 to DW 3 cannot be accepted to prove the genuineness of the Will. It was held that their versions in evidence are irreconcilable with each other and there are material contradictions in their evidence. It was noted by the Trial Court that while executing Ext. A1 partition deed in the year 1985, the mother did not appear before the Sub Registrar's Office. Registration of the partition deed was effected at her residence. The plaintiff stated in her evidence that her mother was not having a sound disposing state of mind since a few years before her death, to fortify the contention that the Will is not genuine. The Will was allegedly executed on 25/09/1989 and the mother died in 1990. The evidence of PW 1 would disclose that the mother was not even able to recognize her children. There is nothing to disbelieve the evidence of PW 1. Her evidence also would indicate that she was on good terms with the mother through out and that she was with her mother at the time of her death.

7. It is contended in the written statement filed by the first defendant that there was consent of some of the legal heirs after the death of the testatrix while in the written statement of defendants 4 and 5 the contention is that all the legal representatives consented to the Will after the death of the testatrix. However, no evidence was adduced at all to substantiate this contention. It is to be noted that PW 1 denied this contention in her evidence. Still there is nothing in the evidence of DW 1 that there was any such consent. He did not even state in his chief examination that there was any such consent. Defendants 2 and 3 are ex parte and there is nothing to indic