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. 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 execute the Will. Hence, it is submitted that the Will has not been proved. 9. The learned counsel appearing for the first respondent/plaintiff submitted that admittedly, the plaintiff's mother married Perumal Konar with the consent of the first defendant. They were all residing together. Hence, it is submitted that the Will has not been proved. 9. The learned counsel appearing for the first respondent/plaintiff submitted that admittedly, the plaintiff's mother married Perumal Konar with the consent of the first defendant. They were all residing together. Even, in Ex.A.1-Will, the first defendant was made as Guardian of the plaintiff. Even just prior to the Will, under Ex.B.1, the testator has mortgaged the property for the specific purpose of education of minor child, namely, the plaintiff. The above facts clearly indicate that the Will is true and genuine. D.W.4 though not supported the Will, in his evidence, he has not denied signing the Will executed by Perumal Konar. It is further contended that original Will is with the first defendant. Notice has been given to produce the original Will, but, the same has not been produced. The Trial Court has clearly recorded a finding in this aspect. Therefore, the secondary evidence is permissible under law. That apart, the evidence of P.W.3 and the registers maintained by the Sub-Registrar also clearly prove the fact that the testator, in fact, appeared before the Sub-Registrar to sign the document and the Sub-Registrar also made an endorsement to the effect that since he personally knows the testator, his thumb impression has not been obtained and further, it is his contention that the testator is not a rustic villager, he was a politically influenced person and held Panchayat President post and respected person in the locality. The right of residence is also given to the first defendant in the Will. Provision is also made in her favour. There are no suspicious circumstances whatsoever. Merely because the testator has taken some treatment later stage, that cannot be a ground to hold that he is not having testamentary capacity to execute the Will. Hence, it is submitted that both the Courts below have factually found that the Will has been executed and proved in a manner known to law. 10. I have also heard the learned counsel for the second respondent. 11. Though the second marriage has been denied by the first defendant in the initial stage, during the appeal, the only point that was canvassed, is with regard to the validity of the Will. 10. I have also heard the learned counsel for the second respondent. 11. Though the second marriage has been denied by the first defendant in the initial stage, during the appeal, the only point that was canvassed, is with regard to the validity of the Will. P.W.1 has spoken about the nature of relation between the parties and the marriage conducted in the village, since Perumal Konar did not have any child born through the first defendant. The entire evidence of P.W.1 has not been shaken. Similarly, P.W.2 was also examined to prove the marriage. The evidence of P.W.3-Junior Assistant in the Sub-Registrar Office, indicates that his father was working as Sub-Registrar in the same office. He died in harness and has registered the document executed by the testator Perumal Konar and a copy sheet of the original Will is also brought to the Court and compared with the xerox and marked as Ex.A.3. Ex.A.3-copy of the Will proves the fact that Perumal Konar has signed the copy of the Will in the Registrar's Office. Admittedly, the original Will has not been filed. It is the contention of the plaintiff that the original Will is always in the possession of the first wife, despite the notice given to produce the original Will, the same has not seen the light of the day. Therefore, reliance was placed upon the secondary evidence. It is to be noted that the Trial Court, in its judgment, has clearly recorded the factum of giving notice for production of the original Will. Paragraph No. 8(8) of the judgment, the Trial Court, in fact, recorded the fact that an application has been filed in I.A. No. 521 of 2000 by the plaintiff for production of Will by the first defendant. In fact, the first defendant's counsel requested for filing counter and also for production of document, if available. However, memo alone was filed on 04.09.2000 to the effect that the original Will is not with the first defendant. No affidavit whatsoever filed to say that the original Will is not with her. The Trial Court, in fact, has drawn inference that the original Will is only with the first defendant. 12. It is to be noted that at the time of Will-Ex.A.1, the plaintiff was a minor. This fact is not in dispute. No affidavit whatsoever filed to say that the original Will is not with her. The Trial Court, in fact, has drawn inference that the original Will is only with the first defendant. 12. It is to be noted that at the time of Will-Ex.A.1, the plaintiff was a minor. This fact is not in dispute. In fact, Ex.A.1 makes it very clear that only the first defendant was made as guardian of the minor in the Will. Therefore, the Trial Court inference that the original Will must be with the first defendant and not produced, is well balanced and does not require any interference. Once it is established that the original Will was in the custody of other side and notice to produce the document is not complied, copy of the document would certainly attract the character of secondary evidence, which is admissible under Section 65 of the Indian Evidence Act, 1872. Admittedly, in fact, in this case, notice was also issued, but, except filing the memo, no affidavit whatsoever filed asserting that no such Will was with the first defendant and she has not produced the original. As already discussed, in fact, the first defendant was the guardian for the plaintiff in the Will. Such being the position, the only inference this Court also draws that the original Will is only with the first defendant. Therefore, rightly, the secondary evidence is admitted. 13. A certified copy of the Will has been filed as Ex.A.1. That apart, Ex.A.3-copy sheet is also produced from the custody of the Sub-Registrar and compared with the original and xerox has been filed before the Court. Wherein also, signature of the testator is very much found. A photostat copy of the thump impression of Perumal Konar is also marked as Ex.A.2. Though thump impression is not obtained from the testator, namely Perumal Konar, the signature of Perumal Konar was obtained by the Sub-Registrar and the reasons for not obtaining the thump impression were also recorded by the Sub-Registrar. It is recorded that since the executant is personally known to the Sub-Registrar, his thump impression was not obtained. 14. P.W.3-the son of the Sub-Registrar, who is also working as Junior Assistant, in the same Registrar's Office, has stated in his evidence that the father has made an endorsement in that regard. It is recorded that since the executant is personally known to the Sub-Registrar, his thump impression was not obtained. 14. P.W.3-the son of the Sub-Registrar, who is also working as Junior Assistant, in the same Registrar's Office, has stated in his evidence that the father has made an endorsement in that regard. P.W.4 one of the attesting witnesses was examined to prove the execution as well as attestation. In his evidence, he has clearly stated that he and other attesting witness, namely Subbiah Naidu-D.W.4 have seen the testator signing the Will in sound disposing state of mind. Similarly, testator Perumal Konar has also seen both the attesting witnesses signing as witnesses. It is his evidence that while executing the Will, testator was in sound disposing mind and his evidence also shows that the testator was a politically influenced person and after execution of the Will, after two years, he died and till his death, he was having mental faculties. D.W.4 one of the attesting witnesses was examined on the side of the defendants. D.W.4 at the relevant point of time was working as Village Administrative Officer. Though, in his chief-examination, he has not stated about the execution of the Will, his evidence clearly indicated that the testator was holding the political post in Congress Party and he was known to him very well. In the cross-examination, he has not denied the execution of the Will and in fact, he has gone to the extent of saying that on seeing the document, he can say as to whether he has signed in Ex.A.1 as attesting witness. The signature of Perumal Konar found in Ex.A.1 is also not seriously disputed by him. From the evidence of P.W.4 and D.W.4, when read together, one fact is very clear that the testator is not an ordinary rustic man and he had an experience in politics and he had a political posting also and he had a respect in the village. The chief-examination of P.W.4 has not been tainted in the cross-examination. Even, in the cross-examination, he has asserted that the Will was executed by the testator while sound disposing state of mind. His evidence, in fact, satisfied both execution and attestation, as required under law. D.W.4, though not supported the execution of the Will, he did not deny the execution nor the signature of the testator found in Ex.A.1. Even, in the cross-examination, he has asserted that the Will was executed by the testator while sound disposing state of mind. His evidence, in fact, satisfied both execution and attestation, as required under law. D.W.4, though not supported the execution of the Will, he did not deny the execution nor the signature of the testator found in Ex.A.1. Both the evidence read together, when no other circumstances are pointed out in the cross-examination, this Court has to necessarily conclude that the Will has been properly executed by Perumal Konar. 15. It is the contention of the first defendant that Perumal Konar was not maintaining the good health at the relevant point of time. Therefore, he could not have executed the Will out of free mind. It is to be noted that Ex.B.1 mortgage deed executed by Perumal Konar in October 1988 just prior to Ex.A.1, wherein, he has clearly stated that he has mortgaged the property for the purpose of meeting the expenses of minor daughter, namely the plaintiff herein, for her educational expenses. When Ex.B.1 was executed by himself within one year, the contention of the first defendant is that Perumal Konar was not well for more than three years, cannot be countenanced. D.W.3, a Doctor was examined to show that Perumal Konar was admitted in the hospital on 05.10.1990 and discharged on 07.10.1990. Similarly, he was admitted on 20.03.1991 and died on 23.03.1991 and he was suffering kidney and liver ailments at the relevant point of time. Though this document indicates that he was suffering from kidney ailments in the year 1990, that itself cannot be a ground to hold that Perumal Konar lost all his mental faculties and had no testamentary capacity at the relevant point of time. Therefore, merely because the testator has admitted for some ailments, subsequent to the execution of the Will, the same itself cannot be a ground to presume that he was totally incapacitated to write the Will. The evidence adduced by the parties, particularly, Ex.A.8-voters list clearly indicates that the plaintiff's mother was always treated as the wife of the plaintiff's father. That apart, Ex.B.1 makes it clear that Perumal Konar all along has made a specific reference for his minor daughter, the plaintiff herein and in fact, the mortgage itself was made for the benefit of his only daughter. This fact clearly indicates that the relationship is also clearly established. That apart, Ex.B.1 makes it clear that Perumal Konar all along has made a specific reference for his minor daughter, the plaintiff herein and in fact, the mortgage itself was made for the benefit of his only daughter. This fact clearly indicates that the relationship is also clearly established. From the evidence of attesting witness and D.W.4, this Court has come to the conclusion that the Will has been properly executed and there is no suspicious circumstance surrounded the Will. On perusal of Ex.A.1, Perumal Konar himself has clearly narrated how the plaintiff is born to him and he has clearly narrated in the Will, since he did not have a child through the first wife, the plaintiff is born through the second wife and in fact, the plaintiff was named the first wife's name and he has clearly narrated the relationship between himself and the plaintiff. In fact, the first defendant was appointed as the guardian in the Will. 16. It is also relevant to note that any statement made by the person with regard to the relation in any Will left by the deceased, is relevant and admissible under Section 32(6) of the Indian Evidence Act, 1872. The Will has been clearly established in this case and the testator himself has clearly narrated how the plaintiff is born to him. What are the circumstances under which the plaintiff is born have been clearly narrated. This fact itself clearly proved the factum of second marriage. Though the second marriage is not valid under law, the fact remains that the plaintiff is born to the testator. This fact has been clearly admitted by the testator himself in the Will. It is also relevant to note that in the Will itself, the testator has clearly described the nature of properties for the maintenance of the first wife. In fact, he had made a provision for the first wife till her life time. In the Will, he has clearly described that the property purchased in her name itself is sufficient for her maintenance. Besides, Door Nos. 40, 40A, 41 can be enjoyed by the first defendant till her life time and she could collect all the rents till her life time. In the Will, he has clearly described that the property purchased in her name itself is sufficient for her maintenance. Besides, Door Nos. 40, 40A, 41 can be enjoyed by the first defendant till her life time and she could collect all the rents till her life time. So, this fact clearly indicates that the husband of the first defendant has made a conscious decision and made a sufficient provision for maintenance of his wife till her life time and bequeathed the property in favour of his only daughter. Therefore, this Court is of the view that there are no suspicious circumstances attached to the Will. The Courts below have rightly analysed the facts and come to the correct conclusion, which need not be interfered with. Accordingly, the substantial question of law is answered against the appellant. 17. In the result, the Second Appeal fails and accordingly, the same stands dismissed. No costs.