Proof of will cannot be held fatal due to the evidence of attestor.

Sengottuvelan, J.

1. This second appeal is filed by defendants 4 to 7 in O.S. No. 1140 of 1968 on the file of the District Munsif of Thirupattur, challenging the legality and correctness of the judgment of the Subordinate Judge of Thiruvannamalai in A.S. No. 84 of 1975.

2. The facts of the case are briefly as follows: One Rajammal, the mother of Annammal the respondent herein filed the suit, O.S. No. 1140 of 1968 on the file of the District Munsif of Thiruppattur for declaration of her title to the suit properties and for a permanent injunction restraining the appellants from interfering with her possession of the suit properties. According to the plaint averments, Rajammal got the properties from her husband Kuppa Gounder by means of two sale deeds marked as Ex.A4 in respect of items 1 to 4 dated 12.8.1933 and Ex.A5 in respect of items 5 and 6 of the plaint schedule dt.30.6.34 such, that she had been in absolute possession and enjoyments that of the same and the defendants have no manner of right to interfere with her possession of the suit properties. Pending suit, Rajammal died leaving a will Ex.A19 dated 21.4.1971 bequeathing the properties in favour of her daughter Annammal who is the sole respondent in this appeal.

3. Kuppu Gounder had two wives Thiruvathal and the plaintiff in O.S. No. 1140 of 1968. Thiruvathal had only one daughter by name Munirathanammal, who is impleaded as 7th defendant in the suit and who is figuring as the 4th appellant in this second appeal. Thiruvathal died long ago. Through Rajammal, Kuppu Gounder had three daughters. The eldest daughter is Annammal the respondent herein. The other daughters are Thangammal, 1st defendant in the suit and Valliammal who died leaving one Velu Gounder, who is impleaded as 8th defendant. Defendants 2 and 3 are the husband and son of Thangammal, 1st defendant in the suit and Valliammal who died leaving one Velu Gounder, who is impleaded as 8th defendant. Defendants 2 and 3 are the husband and son of Thangammal, second daughter of Kuppa Gounder. The 6th defendant, 3rd appellant herein is the husband of Munirathanammal, 7th defendant 4th appellant in this second appeal. The relationship will be illustrated by means of a geneological table.

4. The defence to the claim for declaration of title and injunction by the several defendants is that the sale deeds Exs.A4 and A5 were sham and nominal documents and the same did not convey any right to Rajammal and after the death of Kuppa Gounder, all his heirs by both the wives are entitled to succeed to the properties.

5. The Court which originally tried the suit, on a consideration of the evidence let in, came to the conclusion that Exs.A4 and A5 sale deeds are valid and true, by which Rajammal got valid title and as such, the other heirs of Kuppa Gounder are not entitled to any right in respect of the suit properties. This appellants herein in the course of the trial of the suit produced a settlement deed purported to have been executed by late Kuppa Gounder on 25-10-25 a registration copy of which is marked as Ex.B1 conferring a life estate to Rajammal and after her lifetime, giving the property to the heirs of Kuppa Gounder. By means of Ex.B2 dated 27.5.60 long after the sale deeds Exs.A4 and A5 Kuppa Gounder, executed a deed of cancellation of the settlement deed Ex.B1. The Trial Court while considering these documents Exs.B1 and B2 observed that after a lapse of 40 years after the sale deeds Exs.A4 and A5, the appellants cannot claim any right under Ex.B1.

6. In so far as the will executed by Rajammal, viz., Ex.A19 is concerned, relying on the testimony of the attestor examined as P.W.2, the Trial Court came to the conclusion that the will is true and valid. On the basis of the above said findings, the Trial Court decreed the suit as prayed for. As against the said judgment, the appellants herein filed A.S. No. 84 of 1975 on the file of the Subordinate Judge of Tiruvannamalai, challenging the correctness of the Judgment