The burden of proof lies on the defendants to establish the execution and attestation of the Will and Settlement Deed, and the court must examine the evidence in light of legal principles to determine their acceptability and proof.

PRABHA SRIDEVAN, J.

The defendants 1 to 3 and 8 are the appellants. They succeeded before the Trial Court but lost in the first appeal. The averments in the plaint in brief are as follows:

.(i) The plaintiffs are the daughters and the defendants 1 and 2 are the sons of one Ponnaiah Mudaliar and Unnamalai Ammal both deceased. Both of them died intestate, the mother on 20-05-1978 and the father on 23-08-1979. The third defendant is the son of the first defendant. The eighth defendant is the sister of the third defendanint and daughter of the first defendant. There was a registered partition deed where the properties held by Ponnaiah Mudaliar was divided amongst him, his wife and the defendants 1 and 2. The properties allotted to Ponnaiah Mudaliar are the A Schedule properties. The properties allotted to his wife Unnamalai Ammal are the B Schedule properties. The properties allotted to defendants 1 and 2 are C and D Schedule properties. E Schedule properties were kept in common between the defendants 1 and 2 who were directed to maintain the first wife of the first defendant out of the income. The parents were living with their sons namely defendants 1 and 2. Ponnaiah Mudaliar was running a rice mill, which was earning a good income. Part of the property in C Schedule was sold by defendants 1 and 2 to the fourth defendant and therefore, he was made a party to the suit by way of amendment pleading that the sale was not binding on the appellant. The fifth defendant was one of the tenant and therefore, is made a party to the suit. Sixth and seventh defendant are made parties likewise. In view of the contention of the first defendant that Unnamalai Ammal has executed a Will in favour of eighth defendant, the daughter of the first defendant of whom the B Schedule items 7 to 10 were bequeathed was also made a party to the suit by way of amendment. Since the defendants did not agree to divide the property, after the death of the parents, the suit had to be filed.

.(ii) The first defendant filed the written statement in which he admitted the relationship but had denied that the appellants had died intestate. It was specifically pleaded that the father had executed a Will on 05-02-1979 bequeathing all the properties including the rice mill to defendants 1 and 2. The Will was duly proclaimed during the funeral ceremonies and the beneficiaries had also taken possession of the properties as per the Will. It was also pleaded that by a settlement deed dated 17-08-1977 his mother had settled the plaint. Item Nos.1 to 6 of B Schedule property to D3 his son, which was accepted by him. He also pleaded that suit item Nos.7 to 10 of B Schedule were bequeathed by Unnamalai Ammal to her daughter Rajakumari under the Will dated 20-02-1978 which was also duly executed and attested. It was pleaded that Unnamalai Ammal executed the two documents voluntarily and she had some reason for bequeathing and setting properties as she did. Therefore, according to the first defendant, the suit had to be dismissed.

(iii) The defendants 2 and 3 filed a separate written statement. They too pleaded that Ponnaiah Mudaliar did not die intestate. He had executed a Will on 05-02-1979 which was attested and had excluded his daughters and therefore, the plaintiffs had no share in the A Schedule property. In his written statement too, there was reference to the settlement dated 17-08-1977 and the Will dated 20-02-1978.

.(iv) Before the Trial Court, the plaintiffs marked 12 documents, the defendants marked 28 documents. The Commissioners report was marked as Ex-C1. The second plaintiff examined herself as P.W.1, the Advocate Commissioner as P.W.2 and the handwriting expert P.W.3. On the side of the defendants, the second defendant was examined as D.W.1; the third defendant as D.W.2; D.W.3 is the attestor to Ex-B5 Will. D.W.4 is the scribe of Ex-B6; D.W.5 is another handwriting expert; D.W.6 is a vakils clerk. The Trial Court dismissed the suit for partition hol