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5. Learned Senior Counsel appearing for the appellants submitted that the Original Petition though originally was allowed by granting probate,the same was challenged before this Court by filing appeal, and the learned Judge had remanded the matter for fresh disposal after giving opportunities to the parties to examine the necessary witnesses. After remand, one of the attestors was examined as P.W.6, but his evidence is not at all useful to the respondents to discharge their burden contemplated under Sec.68 of the Indian Evidence Act. Since the respondents have failed to discharge their burden as contemplated under the said provision, the lower court should have dismissed the petition as the genuineness of the will has not been proved. He has also submitted that the respondents herein have not produced the original will to establish the execution of the same,especially when the same has been questioned by the appellants. He referred to the evidence in support of his submission that the testatrix was not in a good and sound state of mind and good health so as to execute the said will and codicil on her own accord. Learned Senior Counsel further submitted that to establish that the testatrix had executed the said will and codicil on her own free will,the respondents herein had relied on Exs.A5 and A7, the registration copies of the settlement deeds. Though in the said documents, Exs.A1 and A2 had been referred to, unless the respondents discharge their burden as contemplated under Sec.68 of the said Act, they cannot simply rely on the said recitals for the purpose of granting probate with reference to the said will and codicil. On the other hand, he further submitted that irrespective of the said reference in those documents about the will, the respondents ought to have proved the will independent of the same. He further submitted that there is no reason for not allotting the properties equally to all the heirs, and giving more properties to the petitioners before the lower court. According to him, though she died on 25.3.1967,the O.P. Was filed only in 1985. The learned Senior Counsel, on that basis has submitted that there is no reason for the delay in filing the petition, and such a delay substantiate the case of the appellants herein. With reference to the suspicious circumstances, he also referred to the evidence available on record in support of his submission.

6. Learned Senior Counsel appearing for the respondents submitted that since the other attestor and scribe could not be examined, and, P.W.6, one of the attestors could not recollect the facts,the respondents have established their case regarding the execution of the will and codicil as contemplated under Sec.71 of the Evidence Act. According to the learned Senior Counsel, the submission made on behalf of the appellants that P.W.6 is not useful to substantiate the case of the respondents and so the petition has to be rejected, cannot be sustained as the respondents have discharged their burden in establishing their case by adducing other evidence. Referring to Exs.A5, A6 and A7, learned Senior Counsel further submitted that in those documents, Exa.A1 and A2 have been referred to by the testatrix herself. The genuineness of the said documents, namely, Exs.A5 to A7 has not been disputed by the appellants in their counter. The learned Senior Counsel, referred to the fact that after executing the will and codicil marked as Exs.A1 and A2, the testatrix had lived for about 8 years and made certain changes in the said will and codicil by executing Exs.A5 to A7 during her lifetime. According to him, in view of the above, the genuineness of the will Ex.A1 and the codicil Ex.A2 cannot be doubted. Referring to the earlier will executed in 1941, the learned Senior Counsel submitted that the will in question was executed in supersession of the earlier wills. Referring to the delay which has been very much relied on by the learned Senior Counsel for the appellants, the learned Senior Counsel appearing for the respondents submitted that the petition to grant probate on the basis of the will and the codicil could be done only after the proceedings before the Estate Duty Authorities were over. The said proceedings before them were started in March 1968 and they had ended only in 1995, and immediately thereafter the petition was filed. With reference to the possession of the original will, the learned Senior Counsel relied on Ex.A72 and submitted that the 3rd appellant produced the original will on 23.7.84 before the authorities,and after comparing the same, he got back the same, and so they cannot come forward with the plea that adverse inference should be taken for non-prodcution of the originals. The learned Senior Counsel appearing for the respondents further submitted that to prove such production of the document by the 3rd appellant, the respondents filed a petition to call for the proceedings referred to in Ex.A72. Though the lower court had ordered the same, the concerned authority did not comply with the same, but they have challenged that order by filing Revision. The learned Senior Counsel also referred to Exs.A45 and A61 in support of his submission that Joseph Nadar accepted the will and acted on that.

10. The respondents herein filed an Application for probate of the will and codicil marked as Exs.A1 and A2. The testatrix also died on 25.3.1967. Though those documents were registered, in view of Section 68 of the Indian Evidence Act 1872, the execution of the same has to be proved by examining at least one attesting witness. Though one attesting witness was alive and available for examining him to prove the execution of the same, he was not examined.So, even without complying with the said requirement under Section 68 of the Indian Evidence Act, probate was issued with respect to the said will and codicil. So, the appellants filed Appeal in C.M.A.No.172/89. In the order dated 17.10.89, the learned Judge remanded the matter to the lower court for fresh disposal in accordance with law. Such remand was made for the purpose of examining the available attestor Swaminathan in order to establish the execution of the will and the codicil marked as Exs.A1 and A2. Though the learned Judge has given certain findings on facts, ultimately observed that the court below should not in any manner be influenced by any of the observations contained in the order, and the court below was directed to deal with and dispose of the matter on consideration of the entire oral as well as documentary evidence already on record and also the evidence of the attestors to the will and codicil if evidence is made available to the court by the respondents therein.

26. She had stated in Ex.A1 why she wanted to execute another will altering the will dated 20.10.1949. Again the rights given under the will and codicil had been altered by the testatrix herself under Exs.A5, A6 and A7 settlement deeds dated 18.5.61, 14.10.63 and 10.10.66 respectively. Ex.A65 is the original of Ex.A5. P.W.4,the 1st respondent had spoken to about the execution of Ex.A5 and her mother's health condition at the time of such execution of the said documents. It is clearly stated so under Ex.A5,which is not under challenge. At the request of the 1st respondent, the properties given to her under the will ,had been given under the settlement deed to the 1st respondent,so as to enable her to get the properties immediately to enjoy the same even during the life time of her mother. As stated in the document,the said change was made as requested by the 1st respondent,Joseph Catherine. Even under Ex.A6, referring to the will Exs.A1 and the Codicil Ex.A2,she gave the right of enjoyment with respect to the property mentioned therein under the said settlement. It is also stated that the said property was given to her in modification of Ex.A1. It is also specifically stated that after the lifetime of the settlee,the 1st respondent, the property should go to the person mentioned under the will and the codicil. She had also executed Ex.A7 settlement deed in favour of Victoria. Under the will,Victoria was given life interest with respect to the property in question. She is the daughter of Xavier, the son of Mariakannammal. Even under Ex.A7,the testatrix had referred to the will and codicil. As requested ;by her grand daughter,the testatrix executed the said settlement deed Ex.A7 giving absolute right with respect to the portion of 'D' schedule properties mentioned in the will,giving life interest to the said Victoria. Such a settlement was executed under Ex.A7 to enable the said Victoria to get possession of the land given to her even during the lifetime of the testatrix, for the purpose of construction of house. The said document has been spoken to by the scribe p.W.5. In all these three documents, the testatrix had referred to the will and codicil, Exs.A1 and A2. It is relevant to mention here that pursuant to the settlement deeds,the settlees acted on those documents. Even in the counter filed by the 3rd respondent,they have not disputed the execution of those documents. Moreover, the respondents have examined P.W.4,the settlee under Exs.A5 and A6, and P.W.5,the scribe under Ex.A7, to speak about these documents. As already stated,the settlor had not only mentioned about her will Ex.A1 and the codicil Ex.A2, dated 22.12.58 and 17.7.59 respectively, but also it is specifically stated that the reasons for altering the bequeath given under the said will and the codicil, by executing the said settlement deeds. The above said fact clearly establishes that the testatrix had executed the will and the codicil with her free will and mind.