The propounder must prove due execution and testamentary capacity, and in the presence of suspicious circumstances, must explain them to the satisfaction of the court.

1. The appeal is preferred against the judgment and decree dated 25.03.1992 made in O.P.No.82 of 1989 on the file of the District Judge, Kanyakumari District at Nagercoil.

2. Theproposed O.P. was filed by the first respondent herein in respect of Will dated 11.05.1987 executed by one Gunamudayan.

.3. The brief facts of the case is as follows:

.The first respondent is the wife of Gunamudayan. The petitioner and the second respondent are daughter and son of the said Gunamudayan. While the said Gunamudayan was in sound state of mind, he had executed the Will dated 11.05.1987 bequeathing the property mentioned therein in favour of the petitioner and he died on 112. 1988 and therefore, the Will is produced under Section 277 of Indian Succession Act for probate.

.4. The first respondent had no objection in probating the Will. The second respondent contested and stated that the Will was executed under undue influence and it is not genuine one. It is stated that the said Gunamudayan was working in an estate at Nilgris and after his retirement he was under the care and custody of the petitioner. As he was very old and not able to act independently, the petitioner influenced the father and she made him to sell certain properties and the sale amount was deposited in the Bank. The petitioner had also instigated him to execute a settlement deed and the same was challenged by the respondent in O.S.No.58 of 1988 which is pending. The petitioner has obtained the Will under undue influence and therefore, the said Will is not a genuine Will and not executed by the executant with free state of mind.

5. Based on the above rival contentions, the learned District Judge, Nagercoil, analysed various oral and documentary evidence and in support of various decisions of this Court and the Honble Supreme Court found that the Will was duly proved and there is no undue influence over the executant and therefore, has granted probate. Against which, the second respondent has preferred the present appeal on various grounds. The main ground urged in this appeal is that the learned District Judge ought to have held that the first respondent has not discharged her burden of proof that the will was not executed under undue influence and the learned District Judge ought to have considered the substantive circumstances surrounding the alleged execution of the Will. It is also submitted that the executant was physically and mentally weak and he was not in a sound dispossession and also on the ground that there is no Executor appointed under the Will as contemplated under Section 222 of the Indian Succession Act.

6. Thepoint for consideration in this appeal is

i) whether the execution and the attestation of the Will is proved as required under the law?

i) whether the Will is vitiated by undue influence by the first respondent over the executant?

iii)whether the probate can be granted to the propounder in the absence of an

Executor appointed by the Will as contemplated under Section 222 of the Act?

7. The relationship of the parties are admitted. The petitioner/first respondent and the appellant/second respondent are brother and sister and they are the children of the said Gunamudayan, who is the executant of the Will dated 11.05.1987 and he died on 11.02.1988. The death certificate is marked as Exs.P1 and P2. It is admitted that the said Gunamudayan, after his retirement, was living with the petitioner till his death.

.8. Mr.D.Sadhasivan, the learned counsel for the appellant would submit that the Executant namely, Gunamudayan was physically and mentally weak and not capable of understanding and has been under the influence of the first respondent herein and has executed the alleged will and therefore, the alleged Will dated 11.05.1987 is not genuine. The learned counsel pointed out that no provision was made to the wife of the Executant and to the appellant herein and in those circumstances, it is evident that the first respondent has exercised