Court is expected to be guardian of interests of minors and persons of unsound mind.

N. Kannadasan, J.

The appellant is the 7th respondent in O.P.No.565 of 1994 and caveator/defendant in T.O.S.No.11 of 1995 and the respondent is the petitioner in Original Petition and plaintiff in the suit.

2. The respondent has filed a petition for the grant of probate in respect of a Will executed by his father by name Arasakumar on 1.7.1987. The said petition is filed contending that his father Arasakumar has executed the Will on 1.7.1987 bequeathing the land and the Tin shed in Door No.159, Chellappa Street, Otteri, Madras-12 in favour of the wife and children of the executor's pre-deceased son Velmyil and appointing the respondent herein as executor, who shall administer the property till the minor children of the abovesaid Velmyil attained majority. It is further contended that Arasakumar has executed the Will in a sound state of mind and in the presence of witnesses.

3. The said petition was resisted by the appellant/7th respondent by filing a caveat. A written statement was filed contending that the Will was not executed by the testator, since he was 80 years old at the time of execution of the Will and not having sound mental and physical capacity to make such deposition and the Will was a forged and fabricated one and the signatures were obtained in blank papers and the Will was obtained by the plaintiff by using undue influence and coercion. It is further contended that one of the respondents viz., one Kamala was of unsound mind and cannot act independently and as such, the consent affidavit obtained from her in the probate proceedings cannot be acted upon.

4. The learned Judge, by judgment and decree dated 3.12.1998, has granted the probate in favour of the plaintiff/respondent herein. Aggrieved against the said judgment and decree, the above appeal is filed.

5. The learned counsel for the appellant has raised several contentions as set out in the memorandum of grounds of appeal. Even though she has raised various contentions, she has specifically pleaded that the learned Judge has overlooked the specific pleading in the written statement that the appellant's sister V.Kamala was mentally ill for several years and she cannot act independently, a consent affidavit had been obtained from her which should not be acted upon and accordingly the judgment and decree is liable to be set aside. The learned counsel further contended that when a specific plea is raised in the written statement about the unsound mind of one Kamala, the learned Judge ought to have followed the procedure envisaged in this regard while disposing of the matter.

6. Per contra, the learned counsel for the respondent contended that it was not seriously urged before the learned Judge about the mental state of the above said Kamala and in fact according to him, the said Kamala cannot understand things occasionally viz., with lucid intervals and otherwise, she can understand things and can act independently. The learned counsel also placed reliance upon the following decisions viz.:-

(i) Janki Narayan Bhoir vs. Narayan Namdeo Kadam (2003 (1) CTC 308),

(ii) Uma Devi Nambiar and Others vs. T.C.Sidhan (Dead) (2004 (2) L.W.852),

(iii) Ramabai Padmakar Patil (dead) through L.Rs. And Others vs. Rukminibai Vishnu Vekhande and Others (2004 (1) L.W.584), and

(iv) Dr.Shantha vs. Sharada (2003 (4) CTC 470), and contended that the Will has been proved in accordance with law, particularly in terms of the principles laid down in the decisions referred supra.

7. We have considered the rival contentions of the parties.

8. The point for determination is:

"Whether the judgment and decree of the learned Judge is sustainable in law?

9. On a perusal of the material evidence available on record, it is seen that a specific pleading is raised by the appellant in the written statement filed in the suit to the effect that the third defendant viz., Kamala, who is the sister of the appellant, is mentally ill for a long time and cannot act independently. In the cross-examination of th