This Appeal coming on for hearing on Thursday, the twenty third and Monday, the twenty seventh day of March, 1995, and having stood over for consideration till this day, the Court made the following order:-

This is an Appeal by the third defendant in T.O.S. No.5 of 1983, on the file of this Court. It relates to the will alleged to have been executed by late O.T. Joseph who died on 10-5-1967. The will, the genuineness of which is challenged by the appellant, was executed on 28-2-1960. As per the said will, he has appointed his wife Philomina Joseph and one of his sons-in-law by name Thomas P. Peter as executors of the will. The application for getting probate was filed by the widow as O.P. No. 236 of 1982. Since it was contentious, the same was converted into a suit and numbered as T.O.S. No.5 of 1983. The second defendant is the elder daughter of the deceased. Annie Thomas, the second respondent herein and the appellant are other daughters. Apart from them, the deceased had two more daughters, namely, Celine Thomas and Betty Joseph and two more sons John and James.

2. After the Appeal was filed, the original plaintiff (first respondent herein) died. Respondents 4 and 5 are the sons and Respondents 6 to 9 are the children of Respondents 4 and 5. Respondents 4 to 9 were brought on record a legal representatives of the 1st respondent as per order in C.M.P. Nos. 1111 and 1112 of 1991 dated 14-2-1995.

.3. In the application for probate, it was averred that testator died on 10-5-1967 at (Old No. 15), New No. 17, Dr. Muniappa Road Kilpauk, Madras -600 010, where he was permanently residing, and he had executed his last will on 28-2-1960 in the presence of witnesses. It was alleged that one of his sons-in-law Thomas P. Peter is also named as Executor. But, since he has no objection in the widow filing the petition for probate, he felt it unnecessary to join in the petition. It is also averred that the total value of the assets which are likely to come into the hands of the executor will be about Rs. 93,000/-. It is also averred in paragraph 6 that immediately after the demise of the testator, all the heirs of the deceased expressed their consent to abide by the terms of the will and suggested that there would not be any necessity for probating the will. However, there seems to be some misunderstanding at present, and, as a matter of caution, the petitioner was advised to have the will probated to avoid any complication in future so that legatees can enjoy what has been bequeathed to them without any difficulty.

.4. The first defendant filed a return statement. In that, she has averred that her father had a heart attack and also was suffering from paralysis. In February, 1960, he was not in a sound state of mind and body, and hence he could not have executed the alleged will. At any rate, she contends that the father was living with his sons, who might have prevailed upon him to execute the alleged will. The sons have taken prominent part and have influenced. It is also contended that the name and signature subscribed at the foot of the testamentary paper as the party executing the same are not the proper handwriting of the deceased. She also averred that subsequent to the alleged will dated 28-2-1960, another will has been executed by her father. According to her, M.C.Thomas was one of the attesting witnesses to the subsequent will. It is stated that because there is a subsequent will, no probate can be granted for the will dated 28-2-1960. According to this defendant, P.T.Raphael, the first attesting witness to the will dated 28-2-1960, is a cousin of the plaintiff and he is interested in her. For that reason, she contends that his affidavit and testimony cannot be accepted. She also contended that the bequest made in the will is not natural, considering the circumstances. She says that she was helping her father very much financially, and, under normal circumstances, he would not have completely brushed her aside. It is