S.Jagadeesan, J.: The appeal has been filed against the judgment of the learned single Judge dated 21.7.1995 in T.O.S.No.12 of 1989. The appellant herein filed the said testamentary suit T.O.S.No.12 of 1989 for the issue of letters of administration in respect of the Will dated 26.2.1982 executed by Vasudeva Rao, the father of the appellant and the respondent. The appellant is the younger brother of the respondent. Under the Will the father had bequeathed the property in favour of the appellant alone and the said Will was a registered one. After the death of the father, the appellant filed the said testamentary suit to obtain the letters of administration.

2. The respondent herein filed a written statement stating that their father did not execute the Will and the Will produced before the Court is a fraudulent document. The father was not of sound mind during the period in which the Will is alleged to have been executed by him. He was not only in a state of unsound mind, but also physically weak. He filed the suit O.S.No.7848 of 1988 for partition before the City Civil Court, Madras and the same is pending. The findings given in O.S.No.4721 of 1983 filed by the father of the parties to the proceeding has no relevance to decide the dispute in this proceeding. Since the property bequeathed to the appellant was purchased from out of the joint family funds, the Will executed by their father is invalid in law and as such the testamentary suit is liable to be dismissed.

3. The learned single Judge after elaborate discussion on the question of law, had agreed with the contentions of the respondent and dismissed the suit finding that the decision in the suit O.S.No.4721 of 1983 filed by the father of the parties herein as well as the findings of the appellate Court in the same proceeding will not be binding on the parties herein, in view of the fact that the validity of the Will was not in question before the Court. In this testamentary suit the primary question is the genuineness of the Will and as such this has to be treated as an independent proceeding and finding out whether the appellant had proved the execution of the Will beyond all suspicious circumstances and on this ground the learned single Judge found that the appellant has not established the execution of the Will beyond all suspicious circumstances, since the testator has not given any share to his elder son, the respondent herein. Further the evidence of the attesting witness cannot be accepted and as such the execution of the Will by the testator itself is doubtful. Aggrieved by the said judgment and decree of the learned single Judge, the appellant has preferred the appeal.

4. It is the contention of the learned counsel for the appellant that the Will was executed on 26.2.1982 and the same was a registered one. When the respondent herein caused disturbance to the testator’s possession and enjoyment, he filed the suit O.S.No.1721 of 1983 on the file of the City Civil Court, Madras, seeking a decree to direct the respondent herein, the defendant in the said suit to vacate and hand over vacant possession of the portion of the building in the first floor of premises at No.31, Venkatachala Mudali Street, Triplicane and also for damages for use and occupation at Rs.100 per month. The said suit was decreed by the judgment and decree on 1.4.1985 and admittedly the appeal and the second appeal preferred by the respondent herein were dismissed. The respondent was fully aware about the execution of the Will by his father from 1983. After the suit was filed by the father was decreed and the first appeal preferred by the respondent was dismissed, the respondent filed the suit for partition. So far as the question of title of their father was concluded by the findings in the suit O.S.No.4721 of 1983 and hence the same cannot be reopened. When once the property held to be the exclusive property of the father, he has got every right to dispose of the same and in this case he has execute

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