Ganapatia Pillai, J.-

The appellant in this case was the second wife and now widow of one Duraiswami Reddiar, who died on 10th August, 1951, aged about 68 years. By his first wife, Kamalakshi Animal, who died in 1936, Doraiswami Reddiar has a son called Sithapathi Reddiar, who is the respondent in this appeal. The appellant was married to Doraiswami in 1938. By O.S. No. 33 of 1945, which was a suit for partition instituted by Sithapathi, the respondent, there was a division of all the family properties between Doraiswami and his only son Sithapathi, It is admitted that though only a preliminary decree for partition was passed in that case, by agreement of parties all the family properties were divided and since 1945 the father Doraiswami and his son Sithapathi had been in separate enjoyment of the properties which fell to their respective shares in this partition. The suit out of which this appeal arises was instituted by the respondent for partition of the properties mentioned in Schedules A to C to the plaint, which admittedly belong to his father, at the time of his death in 1951.

The case of the respondent in the plaint was that his father Doraiswami died intestate, and he (the respondent) was entitled to a half share in Doraisami’s properties, the other half going to the appellant.

This claim was met by the appellant by propounding the will, Exhibit B-1, alleged to have been executed by Doraiswami on 9th August, 1951. According to the terms of this will Doraiswami left all the properties, which he had obtained by partition, to his second wife the appellant absolutely. Regarding outstandings and moveables comprised in Schedules B and C of the plaint, the appellant raised a contest by denial of existence of some of them. It is not necessary for the purpose of this appeal to take any more notice of this contest.

The respondent attacked the will of Doraiswami as a forgery. His case was that his father was unconscious continuously for 3 days prior to the date of the will, and that the will Exhibit B-1 was really fabricated by the appellant with the assistance of her two brothers, and after Doraiswami had died.

The learned District Judge, who tried the suit, came to the conclusion that though Doraiswami was conscious on 9th August, 1951, when he is said to have executed the will, it was not genuine in the sense that the proof adduced of execution of it by Doraiswami was not sufficient to carry conviction to his mind. However the learned District Judge was satisfied that if execution of the will by Doraiswami was proved by the evidence on the record, it should be held that he executed it in a sound disposing state of mind. The main question for consideration in the appeal therefore, is whether Exhibit B-1 has been proved to be the last will and testament of Doraiswami executed by him when he was in a sound disposing state of mind.

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[After discussing the evidence His Lordship continued]:

We have little difficulty in agreeing with the conclusion of the learned trial Judge that Doraisami was conscious for the last 3 days before his death. The evidence of D.W. 3, the Villupuram doctor, who attended upon Doraiswami both on the 8th day and on the 9th day of August, 1951, has not been impaired in cross-examination. This taken along with the evidence of D.W. 1, the defendant herself, and D.W. 8 her brother amply establishes the falsity of case of the respondent, namely, that his father was unconscious continuously for three days before his death. A number of witnesses were examined on the side of the plaintiff (respondent) to show that some of them were continuously in the company of Doraiswami during the last three days of his illness and to their knowledge no will was executed by Doraiswami. In the very nature of things, such negative evidence is of a little value, when there is positive evidence of the execution of the will by Doraisami in the shape of the testimony of D.Ws. 2, 5, 6 and 7.

The next question for consideration is whethe

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