Judgment Manjunath, J. 1. The legality and correctness of the Judgment and decree passed by the Principal Civil Judge, (Sr.Dn.), Mangalore dt.20th September 2006 passed in O.S.No.125/95 is called in question in this appeal. 2. The appellant was plaintiff in the suit. The Respondent was the defendant before the court below. 3. The plaintiff filed the suit for partition and separate possession of her half share in the plaint schedule property and also for accounts. The plaint schedule property is a house property situated in an area of 28 cents in Sy.No.5/3 of Kodialbail village, Mangalore city enclosed with a compound along with the existing house, well, coconut trees, Mango and jack fruits trees. According to the plaint averments, the plaintiff is the daughter of one Smt. Lizza Pais. The plaint schedule property originally purchased jointly by the defendant and one Smt. Radhabai Krishna Bhat. Radhabai Krishna Bhat was a close friend of the plaintiff’s mother. Radhabai Krishna Bhat and the defendant Patric Augustine D’Souza had equal share in the plaint schedule property. The plaintiff’s mother being a Christian was married to a Hindu by name Sukumar Poojary. Out of the said wedlock, the plaintiff was born. Smt. Radhabai Krishna Bhat who had ½ share in the property, bequeathed the same in favour of the mother of the plaintiff under a will dt.11.5.1970. After the death of Radhabai Krishna Bhat, her mother was the absolute owner of the ½ of the share in the plaint schedule property. According to the plaint averments, the mother of the plaintiff died on 8.11.1992 intestate. Therefore she is entitled for ½ share in the property. In the circumstances, suit was filed for partition and separate possession of her ½ share along with the accounts. 4. The defendant contested the suit. He admits that the plaint schedule property was purchased by him along with Radhabai Krishna Bhat and he further admits Radhabai Krishna Bhat had ½ share in the property. He also admitted that the mother of the plaintiff was married to a Hindu and he further stated that the defendant is the son of the sister of Smt. Lizza Pais, the mother of the plaintiff. He denied that after the death of plaintiff’s mother, she has inherited to the ½ share. He also admitted that the mother of the plaintiff was married to a Hindu and he further stated that the defendant is the son of the sister of Smt. Lizza Pais, the mother of the plaintiff. He denied that after the death of plaintiff’s mother, she has inherited to the ½ share. According to him, Lizza pais, the mother of the plaintiff had bequeathed her half share in his favour in the plaint schedule property under a registered will dt.7.5.1980 and after the death of the plaintiff’s mother he obtained a probate in P&SC No.46/95 on 18.9.1996 from the III Addl. District Judge, Mangalore and he has been in possession of the property as an absolute owner. Therefore, he requested the court to dismiss the suit. 5. Based on the above pleadings, the following issues were framed by the court below: 1) Whether the plaintiff proves that ½ share of the immovable property more fully shown in the schedule has been bequeathed by Smt. Radha Bai Krishna Bhat in favour of mother of the plaintiff as per the Will dated 11.5.1970? 2) Whether she further proves that in view of the said will the mother of the plaintiff and after her death the plaintiff, inherited ½ share in the suit schedule property? 3) Whether the plaintiff further proves that the defendant is in possession of the schedule property including the house, coconut trees, mango trees, jack fruit trees and accordingly he derived the income as contended in para 2 of the plaint? 4) Whether the defendant proves that Smt. Radha Bai Krishna Bhat and defendant jointly purchased the property from Louis Sequlera as per the Regd. Sale Deed dated 21.5.65 and subsequently Radha Bai Krishna Bhat has executed a registered will dated 11.5.1970 in favour of Lezza Pais? 5) Whether the defendant further proves that in turn Lezza Pais bequeathed undivided ½ right in favour of the present defendant under the will dt.7.5.80 and therefore, the defendant is the owner of the other ½ undivided right in the suit “A” schedule property? 6) Whether the defendant further proves that the suit of the plaintiff is clearly time barred? 7) Whether the plaintiff is entitled to ½ share and separate possession in the suit schedule property? 8) Whether the plaintiff further proves that the 1st defendant is liable to render accounts? 9) What order? 6. 6) Whether the defendant further proves that the suit of the plaintiff is clearly time barred? 7) Whether the plaintiff is entitled to ½ share and separate possession in the suit schedule property? 8) Whether the plaintiff further proves that the 1st defendant is liable to render accounts? 9) What order? 6. In order to prove their respective contentions, the plaintiff was examined herself as PW1. She relied upon Ext.P1. On behalf of the defendant, defendant was examined as DW1. An employee of the Sub-Registrar office, by name, P.K. Nagaraja Rao was examined as DW2. One Celine Aranha was examined as DW3. The defendant relied upon Ex.D1 to D18. The Trial Court after considering the entire evidence let in by the parties held issues-1, 3, 4 in affirmative, issues-2, 6 to 8 in negative and ultimately the suit of the plaintiff came to be dismissed holding that the defendant has proved the Will said to have been executed by the mother of the plaintiff on 7.5.1980. Therefore, the suit filed by the plaintiff was not maintainable. Being aggrieved by the judgment and decree of the court below, the present appeal is filed. 7. We have heard the learned counsel for the parties. 8. The learned counsel for the appellant contends the Trial Court has committed a serious error in holding that the defendant has proved the will dt.7.5.1980 said to have been executed by the plaintiff’s mother in favour of the defendant bequeathing her share in the plaint schedule property. According to him, the Trial Court did not consider that either the defendant who has been examined as DW1 or other two witnesses DW2 and DW3 have not seen the original will dt.7.5.1980 and even to lead secondary evidence no foundation was laid by the defendant and in such circumstances, the Trial Court ought not to have considered the evidence of DW1 and based on the evidence of DW1 to DW3 no court can hold that the defendant has proved the execution of the Will by the mother of the plaintiff on 7.5.1980. 9. He further contends that probate was obtained by the defendant behind the back of the plaintiff. After coming to know of the same, the plaintiff had filed an application for recalling the order of probate and the order of probate was recalled and subsequently the said proceedings was not pursued by the defendant. 9. He further contends that probate was obtained by the defendant behind the back of the plaintiff. After coming to know of the same, the plaintiff had filed an application for recalling the order of probate and the order of probate was recalled and subsequently the said proceedings was not pursued by the defendant. He further contends when the defendant is intending to lead secondary evidence on the ground that the original will is lost, has not stated in the written statement filed by him about the loss of the original will and no attempt is made to find out the existence of such will and he further contends when the plaintiff is denying the execution of the will by her mother, it was for the defendant to show that the plaintiff’s mother in fact had executed a will on 7.5.1980 by leading secondary evidence. But the defendant in one sentence has stated that he has misplaced the original will. If the said statement is taken into account, the defendant who had seen the original will, it is for him to say and explain how and when the original will is lost. He further contends in the evidence, DW1 has admitted that the mother of the plaintiff had given only a zerox copy of the Will, six months prior to her death. Therefore, the defendant could not have seen the original will dt.7.5.1980. He further contends that when he has not seen the original will, only a zerox copy of the will was given to the defendant by the mother of the plaintiff, in all fairness in the pleading, it was for the defendant to plead in detail about the handing over of the Zerox copy of the will and attempt made by him to search the original will. Without doing so, the defendant DW1 has stated that he has lost the will, which would be contrary to the pleadings and the evidence and based on such evidence, the Trial Court could not have held that the defendant has proved the execution of the will by the plaintiff’s mother on 7.5.1980. 10. Without doing so, the defendant DW1 has stated that he has lost the will, which would be contrary to the pleadings and the evidence and based on such evidence, the Trial Court could not have held that the defendant has proved the execution of the will by the plaintiff’s mother on 7.5.1980. 10. He further contends in regard to the mental and physical status of the mother of the plaintiff on the date of the will, no evidence is forthcoming; because the defendant was not present at the time of the execution of the alleged will, either the attestor or scribe are not alive. When the zerox copy of the will was confronted to the plaintiff in the cross-examination she has denied signature of her mother on Ex.D1 and DW2 is none other than an employee of the Sub-Registrar’s office who has been summoned to produce the register maintained in the Sub-Registrar’s office in regard to the thumb mark and he was not the person who was working on the date of the execution of the will in the office of the Sub-Registrar. Similarly, DW3 who is the daughter of the Attestor has only identified the signature of her father. But by identifying the signature of her father she cannot depose in regard to the execution of the will by the mother of the plaintiff. In the circumstances he requests the court to set aside the Judgment and decree passed by the court below. He further contends that when the defendant is the sister’s son, when the plaintiff is the only daughter there was no reason for the mother to exclude the only daughter while bequeathing the property, which shows the suspicious circumstances. In order to support his argument, he relied upon the following Judgment: AIR 1989 NOC PAGE 47 (DELHI) (RAMESH DUTT SALWAN VS. THE STATE AND OTHERS) AIR 1958 AP PAGE 418 (JALDU ANANTA RAGHURAM ARYA & OTHERS VS. RAJAH BOMMADEVARA NAGA CHAYADEVAMMA AND OTHERS) AIR 1973 BOMBAY 66 (FILMISTAN PRIVATE LTD. VS. BOMBAY MUNICIPALITY) AIR 66 CALCUTTA PAGE 13 (BISWANATH AGARWALLA VS. DHAPU DEHI & OTHERS) 11. Per contra, Learned counsel for the respondent submits that the Trial Court is justified in dismissing the suit holding that the defendant has proved the execution of the Will of the plaintiff’s mother dt.7.5.1980. VS. BOMBAY MUNICIPALITY) AIR 66 CALCUTTA PAGE 13 (BISWANATH AGARWALLA VS. DHAPU DEHI & OTHERS) 11. Per contra, Learned counsel for the respondent submits that the Trial Court is justified in dismissing the suit holding that the defendant has proved the execution of the Will of the plaintiff’s mother dt.7.5.1980. According to him, since the original will was not produced by the defendant, as the plaintiff’s mother had handed over only zerox copy of the Will six months prior to her death, the defendant has proved the execution of the will by producing the zerox copy of the will and also by examining DW2 and DW3 to show that the will in question was registered before the Sub-Registrar’s office, Mangalore and it was attested by the father of DW3. He further contends that the defendant has laid the foundation to lead secondary evidence and that the Trial Court was justified in accepting the secondary evidence let in by the defendant in regard to the execution of the will. 12. He further contends just because plaintiff has been excluded by her mother while bequeathing the property cannot be ground to doubt the genuiness of the will dt.7.5.1980. According to him, the plaintiff’s mother was permanently residing at Bombay and she was working as a Nurse and that the plaintiff was living with her father in Mangalore, the father of the plaintiff was not on cordial terms with the deceased Pais. Therefore, the exclusion of the plaintiff while bequeathing the property cannot be considered as a ground of suspicious circumstance and to further hold that the sill was not executed by her. According to him, the findings of the Trial Court is just and proper. To support his argument, he relied upon the Judgment of the Hon. Supreme Court in Durga Parshad vs. Debi Charan & Others ( AIR 1979 SC 145 ) and Rabindra Nath Mukherjee and Another vs. Panchanan Banerjee & Others (AIR 95 SC Page 1684). Therefore, he requests the court to dismiss the appeal. 13. Having heard the counsel for the parties, the following points are to be considered by us in this appeal: 1) Whether the will profounded by the defendant-respondent has been proved by him? 2) Whether the defendant had laid the foundation in order to lead secondary evidence in the absence of the original will? 13. Having heard the counsel for the parties, the following points are to be considered by us in this appeal: 1) Whether the will profounded by the defendant-respondent has been proved by him? 2) Whether the defendant had laid the foundation in order to lead secondary evidence in the absence of the original will? 3) Whether the findings of the Trial Court on the will dt.7.5.1980 is based on proper appreciation of the evidence? 4) Whether the Judgment and decree of the Trial Court requires to be interfered with? 14. Since all the points are inter-linked with each other, we would like to deal with them together as hereunder? The following facts are not disputed in this appeal, that the plaint schedule property originally purchased jointly by the defendant along with Smt. Radhabai Krishna Bhat who was a close friend of the plaintiff’s mother. It is also not in dispute that Radhabai Krishna Bhat had executed a Will on 11.5.1970 bequeathing her ½ share in favour of the plaintiff’s mother. In other words, the plaintiff’s mother had ½ share in the plaint schedule property and is the owner of the remaining ½ share. It is also not in dispute that the defendant is none other than the sister’s son of the plaintiff’s mother. The parties also admit that mother of the plaintiff was permanently residing at Bombay and that the plaintiff was residing the Mangalore. But the actual dispute in this case is whether the Will profounded by the defendant, namely, will stated to have been executed by the plaintiff’s mother bequeathing her share under the will dt.7.5.1980 has not been proved by the defendant or not, if the Will profounded by the defendant is not proved, then automatically plaintiff’s suit claiming ½ share in the property has to be decreed. Therefore, the crucial point in this appeal is whether the plaintiff’s mother had executed the will on 7.5.1980 and if the defendant has proved the execution of such will, whether the will has come into existence under suspicious circumstances or not. 15. As stated supra except the evidence of DW1, the evidence of DW2 and DW3 are of no assistance to prove the will because DW2 has produced only the register maintained at the Sub-Registrar Office, Mangalore. 15. As stated supra except the evidence of DW1, the evidence of DW2 and DW3 are of no assistance to prove the will because DW2 has produced only the register maintained at the Sub-Registrar Office, Mangalore. In regard to the Register maintained for obtaining thumb impression of the persons who executed the document, DW2 has not identified LTM Mark of the plaintiff’s mother since he was not an employee in the office of the Sub-Registrar, Mangalore on 7.5.1980 on which date the alleged will came into existence. Therefore, by mere production of the Register maintained for obtaining the thumb impression, the court cannot hold that the will was presented by the plaintiff’s mother and she has executed the same because the defendant has not seen the said thumb impression with the admitted thumb impression mark of plaintiff’s mother for verification and comparison. So far as DW3 is concerned she is the daughter of one of the attestor’s to the will. She has only identified her father signature. May be that her father had put his signature on the said document. But the question is whether the said will was executed by the plaintiff’s mother. Even if it is so, what was her mental and physical condition on the date of the execution of the will. There is no evidence in regard to the said aspect. Even DW1 was not present when the will dt.7.5.1980 was executed by the plaintiff’s mother. In the circumstances, we are of the opinion that when the defendant who has profounded the will has not lead any evidence to show that the plaintiff’s mother on 7.5.1980 has executed the will and that she had sound mind and body and that on her free will and wish executed the will. 16. Be that as it may, even if the evidence of DW1 to DW3 is not accepted by this court, this court has to examine whether the defendant has laid any foundation to lead secondary evidence in the absence of the original will. 17. We have seen the cross-examination of DW1. He has admitted in one of the paragraphs as hereunder: “Ex.D1 has been with me since six months earlier to the death of Lizza Pais. I have not produced Ex.D1 so far before any authorities or court. I have made the Xerox copy of Ex.D1. 17. We have seen the cross-examination of DW1. He has admitted in one of the paragraphs as hereunder: “Ex.D1 has been with me since six months earlier to the death of Lizza Pais. I have not produced Ex.D1 so far before any authorities or court. I have made the Xerox copy of Ex.D1. I do not know as to who got Xerox copy as per Ex.D1. I do not know as to why Lizza Pais gave Ex.D1 to me. I did not ask about the original of Ex.D1 at that time. I have searched for the original of Ex.D1 in the house of Lizza Pais which is situated Mumbai. But I have not tried to search it in the office of the Sub-Registrar. It is false to suggest that no such original of Ex.D1 has come into existence. It is false to suggest that I have concocted Ex.D1 for the purpose of this case. Lizza Pais had not executed any other will or document earlier to Ex.D1. I do not know the scribe of Ex.D1.” 18. In this background we have to see what has been stated by him in the written statement filed in regard to the will in question. In the middle portion of para-4 of the written statement he has referred to the Will in question as hereunder: “The defendant further submits that Smt. Lizza Pias has bequeathed her half right by a registered will dt 7.5.1980 registered as Document No.17/80-81 of S.R.O., Mangalore city in favour of this defendant……” 19. In the written statement he has not stated anything about the non-existence of the original will or loss of will or Lizza Pias handing over only Xerox copy of the will six months prior to her death. We are also of the opinion that it will be useful for us to refer to examination-in-chief of the defendant-1 to show what is the foundation laid by him in regard to the non-production of the original will or to lead secondary evidence. The last sentence of examination-in-chief reads as hereunder: “I say that original will of Lizza Pias is his placed. I say that Lizza M. Pais was in a sound deposing state of mind during her life time.” 20. The last sentence of examination-in-chief reads as hereunder: “I say that original will of Lizza Pias is his placed. I say that Lizza M. Pais was in a sound deposing state of mind during her life time.” 20. Now in the background of para-4 of the written statement and the last sentence in para-5 of the examination-in-chief, this court has to infer that the original will was with the defendant and that he has misplaced the same. When he says that he has mis placed the same, he has not made any attempt to trace the said original will. On the contrary by forgetting what has been stated in para-4 of the written statement and para5 of the examination-in-chief, in order to overcome such admission in the additional affidavit of evidence filed by him in para-4 has stated as hereunder: “I say that Lizza Pias who had delivered some of her document to me about six months prior to death had given to me a Xerox copy of her will which is already produced in court and a copy of the letter written by her to the Bank.” 21. According to us, the additional affidavit is only an after thought to overcome the mistake committed by him in the written statement and the examination-in-chief. If really, Lizza Pais has handed over only Xerox copy as per Ex.D1, he would have laid the foundation in the written statement and also in the examination-in-chief. Even if we consider the additional affidavit, he has not made an attempt to find out the existence of the original will. Though such an attempt is not made by him, it was not warranted for the plaintiff’s counsel to cross-examine him on that aspect, still it has been elicited in the cross-examination in regard to the attempt made by him for search of the original will. 22. Now in this background we have to consider the various citations relied upon by the learned counsel for both the parties. 23. The learned counsel for the appellant has relied upon the Judgment of Delhi High Court reported in AIR 89 NOC 47 where it is held that a profounder of the will has to prove the execution of the will and its genuiness. So far as this is concerned there cannot be any dispute over the legal proposition. 23. The learned counsel for the appellant has relied upon the Judgment of Delhi High Court reported in AIR 89 NOC 47 where it is held that a profounder of the will has to prove the execution of the will and its genuiness. So far as this is concerned there cannot be any dispute over the legal proposition. Therefore, we need not refer to such a Judgment as the burden of proof is always on the profounder of the will. The other Judgment relied upon by the learned counsel for the appellant is in regard to, if a document is lost and if a party is intending to lead secondary evidence what is the foundation to be laid, has been discussed by the Andhra Pradesh High Court in Jaldu Ananta Raghuram Arya & Others vs. Rajah Bommadevara Naga Chayadevamma & Others at Para-7 as under: “Every deed being the best evidence of its contents, its non-production will necessarily raise a suspicion in the mind of the Court and great care and circumspection would be needed in order to decide whether there has been really a bona fide loss. Section 63 of the Evidence Act permits the leading of a secondary evidence only where the original has been destroyed or lost.” 24. But in the instant case, the defendant who is the profounder of the will and who has not produced the will, has not made any such attempt to search or trace the will or to lead secondary evidence. The learned counsel for the appellant has also relied upon the Judgment of the Bombay High Court in Filmistan Private Limited vs. Bombay Municipal Corporation for Greater Bombay, wherein their Lordships have held that a secondary evidence can be permitted to be let in only if the original document was in existence which was lost or misplaced. So far as this Judgment is concerned, in our discussion we have already held that the defendant has failed to prove the existence of the original will dt.7.5.1980 and when the existence of original document is not proved, the question of leading the secondary evidence does not arise at all. Even otherwise, in the instant case what is the secondary evidence let in by the Respondent is to be looked into. Except producing Ex.D1, no other secondary evidence is let in to show that the will was executed by deceased Lizza Pias. 25. Even otherwise, in the instant case what is the secondary evidence let in by the Respondent is to be looked into. Except producing Ex.D1, no other secondary evidence is let in to show that the will was executed by deceased Lizza Pias. 25. Considering the aforesaid Judgment, we are of the opinion that the defendant has failed to lay proper foundation to lead secondary evidence and we are also of the opinion that the existence of the will itself has not been proved. 26. Now, we have to consider the Judgment relied upon by the Learned counsel for the respondent. 27. In Durga Parshad vs. Delhi Charan & Others, ( AIR 1979 SC 145 ) the Hon. Supreme Court has considered how a presumption has to be drawn in the case of revocation of will. But the said Judgment has no application to the facts of this case since existence of the original Will itself has not been proved by the defendant. The other Judgments of the Hon. Supreme Court relied upon by the Respondent is AIR 95 SC 1684, wherein their Lordships have held merely because natural heirs are excluded there cannot be a suspicious circumstance. 28. In this case, the exclusion of the natural heir could have been considered by this Court if the defendant had proved the will dt.7.5.1980. When the existence of the Will itself is not proved, there is no necessity for us to consider the exclusion of the natural daughter, namely, the plaintiff while executing the will by Lizza Pais, would give raise to a suspicious circumstance or not need not be considered by us. 29. In view of our discussions on all the points we are of the opinion that the Trial Court has committed a serious error in holding that the defendant has proved the will of the plaintiff’s mother dt.7.5.1980 and further we are also of the opinion that the findings of the Trial Court is not based on proper appreciation of the evidence and such appreciation of the evidence by the court below is perverse and liable to be set aside. When we are holding that the defendant has failed to prove the will dt.7.5.1980, the appellant-plaintiff being the only daughter of deceased late Lizza Pais is entitled to succeed to the estate of her mother as there were no other legal heirs. When we are holding that the defendant has failed to prove the will dt.7.5.1980, the appellant-plaintiff being the only daughter of deceased late Lizza Pais is entitled to succeed to the estate of her mother as there were no other legal heirs. In the circumstances, we have to decree the suit filed by the plaintiff by reversing the findings of the Trial Court. 30. In the result, the Judgment and decree dt.20th September 2006 passed by the Principal Civil Judge, (Sr.Dn.), Mangalore in O.S.No.125/1995 is hereby set aside. The appeal is allowed. The suit filed by the appellant-plaintiff is hereby decreed holding that the plaintiff is entitled for ½ share in the plaint schedule property. 31. Accordingly, we draw a preliminary decree holding that the appellant is entitled for ½ share in the plaint schedule property and the plaintiff is also entitled for accounts. Parties to bear their costs.