No identification of the signature appended on the will.

The defendant has preferred this Second Appeal as against the decree for specific performance and possession of suit property, passed by the lower appellate Court, on reversal of the dismissal of the suit in the trial Court.

2.The averments found in the plaint are as follows:

The suit property originally belonged to Chandraraju pillai who on 09.05.1984 had executed a will in a sound disposing state of mind and the said will was duly executed and attested and it was his last will, as per the terms of which the plaintiff was given the suit property and another item with absolute right.

Chandraraju pillai died and the Will took effect. Even prior to the will, he had sold the property to the defendant by a registered sale deed dated 30.12.1983 for Rs.1,500/- and on the same day Chandraraju pillai and the defendant entered into an agreement of reconveyance as per the terms of which the former was entitled to get reconveyance within five years there from on payment of Rs.1,500/-. In the mean time as Chandraraju pillai died, the legatee under the Will, the plaintiff is entitled to get reconveyance. Expressing her ready and willingness, the plaintiff issued a notice on 02.08.1988, calling upon the defendant to execute a sale deed. The same was served on the defendant on 03.08.1988. As defendant failed, the suit was filed for specific performance and possession.

3. The defendant filed the written statement with the following averments:

True it is that suit property orginally belonged to Chandraraju pillai and he had sold the same to the defendant on 30.12.1983 for Rs.1,500/-. It is untrue to say that there was an agreement of reconveyance and the said agreement is a rank forgery. The plaintiff is incompetent to file the suit as she is not the daughter of Chandraraju pillai. The alleged Will dated 09.05.1984 is also a forgery. It was not properly executed and duly attested. The original Will is not in the custody of the defendant. So, the suit is liable to be dismissed.

4. On the above pleadings, the following issues were framed by the trial Court:

(i) Whether the Will dated 09.04.1984 was true and legally sustainable?

(ii) Whether the agreement of reconveyance is legally sustainable?

(iii) Whether the plaintiff is entitled for the relief asked for?

5. The plaintiff and her mother were respectively examined as P.W.1 and P.W.2. The scribe and the attestor to the Will were examined as P.W.3 and P.W.7. The attestor and scribe of the agreement of reconveyance were examined as P.W.4 and P.W.5. P.W.6 is the attestor to another document. The defendant was examined as D.W.1. Exs.A.1 to A.8 were marked on the side of the plaintiff. Exs.B.1 which is the original of Ex.A.8 was marked on the side of the defendant.

6. On consideration of the entire oral and documentary evidence, the leanred trial Judge has come to the conclusion that the agreement of reconveyance executed by the defendant on 30.12.1983 in favour of Chandraraju Pillai was legally proved and that the Will dated 09.05.1984 was not so proved. The learned trial Judge has dismissed the suit contending that the plaintiff had no right of reconveyance. The lower appellate Court has found that both the Will and the agreement of reconveyance were legally proved and that the paintiff was entitled for right of reconveyance and so decreed the suit, against which the second appeal lies.

7. During the time of admission, the following substantial questions of law were framed:

(i) Whether in law the courts below are right in finding that an unregistered alleged re-conveyance agreement could alter the terms of the registered sale deed, thus flouting Section 92(4) of the Evidence Act?

(ii) Whether in law the lower appellate court is right in holding that the will alleged to have been executed by the plaintiff's father is true and valid, when the original will has not been filed and when the will was not proved as required under law?

(iii) Whether in law the lower appellate Court is right in finding