The obligation of the plaintiff to prove the execution of the will and the significance of calling the attesting witness for proving its execution.

Madhavan Nair, J.

1. One Jakkarayya, an Indian Christian, died leaving some properties by a "will". In O.S. No. 457 of 1924 the plaintiff, one of his sons, instituted a suit for a part of the properties covered by the "will"alleging amongst other things that the properties were owned by himself and by defendant 1, his brother, that their father had no right to the properties and that he cannot dispose of them by a will. Ha contended that defendants 2 to 7 trespassed upon the properties. Defendant 1 supported the case of the plaintiff. Defendant 7 in the suit is the son of a deceased daughter of Jakkarayya. Ha contended that the properties were the self-acquisition of Jakkarayya, that they were bequeathed by Jakkarayya under a "will"to the plaintiff, defendant 1 and himself in equal shares and that the suit properties fell to his share under a partition. The plaintiffs contentions were rejected by the lower Courts and his suit was dismissed. No second appeal has been preferred against the appellate decree and we are not now concerned with the contentions raised by the parties in this litigation.

2. The present second appeal arises out of O.S. No. 513 of 1924 which was tried and disposed of along with O.S. No. 457 of 1924 referred to above. This suit was instituted by defendant 7 in O.S. No. 457 of 1924 for a partition of the rest of the properties of Jakkarayya which ha says ho got under the will but which were not divided at the previous partition referred to in O. S. No. 457 of 1924. His case is that he got a third share of the properties under the will, that most of the other properties were divided and that these properties were left undivided at the partition. Defendants 1 and 2 in the suit are the sons of Jakkarayya, defendant 1 being the plaintiff in O.S. No. 457 of 1924 and defendant 2, defendant 1 in the same suit. They and the other defendants amongst other things contended that the will left by Jakkarayya is "not valid in law": (see para. 3 of the written statement of defendants 1 to 3). Issue 6 in the case which relates to the contentions regarding the will is:

Is the will alleged by plaintiff true valid and binding on the defendants?

3. The District Munsif holding that the will is genuine and that it was executed by Jakkarayya when he was in a sound disposing state of mind decreed the suit in favour of the plaintiff. His discussion of the question is found in para. 15 of his judgment which deals with issue 1 in the connected suit. In the appeal preferred against this decree, A.S. No. 48 of 1927, the learned District Judge held that the plaintiff had not proved that the will in question was executed by Jakkarayya and on this finding he set aside the decree of the lower Court and dismissed the plaintiffs suit. This second appeal has been filed by the plaintiff against the District Judges decree.

4. Mr. Lakshmanna on behalf of the appellant contends that the learned District Judge was wrong in disposing of the case on the ground that there is no proof that the "will"was duly executed, inasmuch as that plea was not raised in the pleadings or in the issues. The defendants contention being only that the "will"was invalid as the executant was not in a sound disposing state of mind when he executed it. He also contends that, if the District Judge thought that proof of the execution of the "will"was necessary, then he should have framed an issue on that point and remitted the case to the lower Court for fresh evidence.

5. The will is Ex. land is dated 10th April 1907. It bears the mark of Jakkarayya, he being a marksman. There are three attestors to the will. The first attestor is Samuel, defendant 1 in the connected suit and, as already pointed out, one of the sons of the deceased Jakkarayya. The "will"was written by one Ammiraju now dead and it was registered on the very day it was executed. Evidence regarding the execution of the will is given by the plaintiff who was examined as D.W. 1 in the connected case. He states