JUDGMENT :

N. Sathish Kumar, J.

1. Aggrieved over the concurrent finding of the Courts below, decreeing the suit for declaration and recovery of possession, the present Second Appeal has been filed.

2. For the sake of convenience, the parties are referred to herein, as per their ranking before the Trial Court.

3. The brief facts leading to the filing of the suit are as follows:

The plaintiff is the daughter of one Perumal Konar. The first defendant is the first wife of the said Perumal Konar. As there was no children born to the said Perumal Konar and the first defendant, with the consent of the first defendant, Perumal Konar married the plaintiff's mother. After marriage, the plaintiff's mother, Perumal Konar and the first defendant were residing together at the same house as one family. The suit properties are the absolute properties of Perumal Konar. He died testate leaving behind the Will dated 15.03.1989. The said Perumal Konar died on 23.03.1991. The first defendant was appointed as the Guardian in the Will. Since she has not taken care of the plaintiff, there was a misunderstanding. Hence, the plaintiff issued a notice on 23.08.1993, which was replied by the first defendant. Hence, the suit.

4. Denying the marriage between Perumal Konar and the plaintiff's mother, it is the contention of the first defendant that the alleged Will dated 15.03.1989 is false. Perumal Konar was not well and died in the hospital on 23.03.1991 and he was not in sound mind at the time of writing the Will. Denying the allegation in the plaint, it is the contention of the first defendant that the Will was not written with the testamentary capacity of the testator. The first defendant is in possession of item Nos. 1 to 5 of the suit properties and item Nos. 6 and 7 were given to the first defendant on lease and item No. 11 was purchased by the first defendant out of her own income. Hence, she prayed for dismissal of the suit.

5. Based on the above pleadings, the Trial Court has framed as many as 12 issues. On the side of the plaintiff, P.Ws.1 to 6 were examined and Exs.A.1 to A.11 were marked. On the side of the defendants, D.W.1 to D.W.4 were examined and Exs.B.1 to B.25 were marked. Commissioner Report is marked as Ex.C.1.

6. The Trial Court has decreed the suit in favour of the plaintiff and held that the Will-Ex.A.1 is proved in a manner known to law. There are no suspicious circumstances attached to the Will. The first Appellate Court has also confirmed the same, as against which, the present Second Appeal is filed.

7. While admitting the Second Appeal, the following substantial question of law was framed:

"Whether the Courts below erred in law in not appreciating in proper perspective the suspicious circumstances surrounding the execution of the alleged Will?"

8. The learned counsel appearing for the appellant/first defendant has confined his argument only with regard to Ex.A.1. The other factual aspects though raised in appeal, the main focus of argument is only in respect of the Will dated 15.03.1989. The factual aspects concluded by the Trial Court have not been challenged. The main contention of the learned counsel appearing for the appellant/first defendant is that the plaintiff, being the daughter born through the second wife, was alone given the entire property disinheriting the first wife. That itself is one of the circumstances to doubt the Will and the Will was prepared on 15.03.1989, whereas, registered only on 20.03.1989. This is also one of the circumstances to doubt the Will. Thump impression of the executant has not been obtained in the Registrar's office. It is his further contention that one of the attesting witnesses has also not supported the execution and attestation of the Will and the original Will has not been produced. Therefore, this was one of the circumstances to doubt the Will and the Trial Court has not considered this aspect and the evidence of D.W.1 to D.W.4 clearly show that the testator was not in sound state of mind to