Gopal Rao Ekbote, J.:— This is an appeal against the judgment of the Subordinate Judge. Rajahmundry given in A.S No. 59 of 1961 on 23rd March, 64 whereby the learned Judge allowed the appeal and decreed the plaintiff's suit and passed a decree in favour of the plaintiffs and the 1st defendant directing ejectment of defendants 3 and 4 and also partition between the plaintiffs and the 1st defendant. A decree for future mesne profits was directed to be passed after determining the question on a separate application, Defendants 3 and 4 are the appellants, who were really the contesting defendants in the Courts below.

2. The essential facts are that one Masalayya had five sons and one daughter, Ammanna was one of the sons. He executed a will on 24-12-1889 (Exhibit A.1) He died thereafter leaving his widow Kamamma. His sister Ammayi was married to Venkatarayudu. This Ammai and Venkatarayudu had in all four sons and one daughter. Bapiraju, the second son died. Suramma, the daughter is not a party, Chella Rao the first son died in 1919 leaving behind him his widow Mangamma, the 2nd defendant, and two sons Veeranna, the Ist plaintiff, and Kamanna, the 1st defendant, Veeranna also died during the pendency of the suit. Venkayamma, his widow, is the 2nd plaintiff, Veeranna's sons are plaintiffs 3 to 6. Under the will (Exhibit A.1) Ammanna bequeathed about 6 acres of land in two plots to his wife Kamamma. He also provided maintenance to his mother Mahalakshmi at the rate of two putties of paddy per year. He authorised his wife to adopt his nephew, sister's son, Chella Rao. He bequeathed the vested remainder in his properties to the said Chella Rao his nephew. He also directed that if no adoption was made, the wife would have life estate. He directed his wife to discbarge his debts amounting to 400/-. After her death the vested remainder as above was to go to Challa Rao.

3. After the death of Ammanna, Kamamma was in possession and enjoyment of the suit schedule properties. She died on 23-1-1948. As Chella Rao died in 1919, the vested remainder devolved on his sons, the 1st plaintiff and his younger brother the Ist defendant.

4. Defendants 3 and 4 had filed O.S No. 149 of 1948 on the file of the District Munsif's court, Kakinada for the recovery of the self-same properties of Ammanna. Their contention was that they were the nearest heirs of Ammanna. They obtained a decree in the said suit. The Ist plaintiff and the Ist defendant were not parties to that suit. With a view to get the disputes relating to the suit properties settled even as between the Ist plaintiff and the Ist defendant on the one hand and the defendants 3 and 4 on the other, they were impleaded as parties.

5. The Ist defendant is sailing with the plaintiffs.

6. Defendants 3 and 4 opposed the suit. They, however, admitted the relationship set up in the plaint. They denied the fact that Ammanna had brought up Chella Rao and that be executed a will on 24-12-1889 or on any other date. Their contention was that Ammanna in fact died in October, 1889 even before the date of the alleged will. They contended that the will is a forged one and that Ammanna died intestate without making any arrangements regarding his properties. After his death, Ammanna's widow inherited the properties according to Hindu law. On her death, defendants 3 and 4 being the nearest reversioners became entitled to the whole property. They further contended that they had filed the suit for possession during the lifetime of Kamamma. As she died during the pendency of the suit, the relief of possession also was thereafter claimed. The suit was consequently decreed, and defendants 3 and 4 were put in possession of the property. They further contended that there was civil and criminal litigation between Kamamma and the sons of Parvatbamma wherein the sons of Parvathamma claimed half right in the properties of Ammanna on the ground that her husband was illatom son-in-law of Ammanna. That was O.S 135 of 1892 in the District Munsif's Court Peddapuram and C.C 72 of 1891. They also contended that Kamamma never claimed rights under the will and never set it up in any of the proceedings referred to above. Kamamma never adopted or even claimed the authority for adoption.

7. We are not concerned with the defences set up by defendants 5, 7, and 8 as nothing turns upon their defence.

8. The Trial court framed in all eight issues and after a proper trial dismissed the suit holding that Exhibit A-1, the will, was a forged one, that it was not executed by Ammanua and that no presumption under Section 90 of the Evidence Act can arise in the case, and consequently dismissed the plaintiffs's suit.

9. On appeal by the plaintiffs the learned Subordinate Judg-Rajahmundry disagreed with the view taken by the trial court. He found that the will was executed by Ammanna, that it was genuine and was executed in a sound and disposing state of mind by Ammanna. He also found that there were no suspicious circumstances surrounding the will (Exhibit A.1). He also held that section 90 is applicable to the facts of the present case, and as the document is over 30 years old, presumption about its execution and genuineness can be arised. As a result of the said findings, the appeal of the plaintiffs was allowed and their suit decreed as stated above. It is this view that is now challenged in this second appeal.

10. It was firstly contended by the learned Advocate General who appeared for the defendants 3 and 4 that as the will does not contain any mark indicating that the document was executed by Ammanna presumption under Section 90 of the Evidence Act cannot arise. It was also conteuded that the document was not produced from the proper custody within the meaning of Sec. 90 and as the evidence of the only witness (P.W 4) raises several doubts and suspicions in regard to the will, the lower appellate Court was not right in presuming the execution and genuineness of the will.

11. The law on the subject of presumption under Section 90 of the Evidence Act is now well settled. In order to attract Section 90, the document must firstly be 30 years old. This period is to be counted from the date of the document And secondly the document must come from proper custody. If these two things exist, then the court has a discretion to presume that the signature is of the person who has purported to sign it and that the document is duly executed and attested. This discretion, like any other discretion, has to be exercised in accordance with the well recognised principles of the exercise of judicial discretion. If the document is suspicious, then the Court may refuse to draw any presumption and direct the party on whom the burden to prove the document lies to prove it like any other document. In the case of wills also, the presumption not only applies to signature but also applies to the due execution and attestation of the will. The presumption also extends to the fact that on the date when the will was executed, the testator was in a sound and disposing state of mind, that is to say, the presumption will not only apply to the signature and execution of the document but will also apply to the will being genuine. It is obvious that the presumption will apply only to a document which bears the signature of, the writer or of witnesses and not to an unsigned or anonymous document. It is, however, clear that the presumption of execution shall extend to the case of a mark put on the document indicating that the document was signed by the executant by a symbolic writing which is taken to be the signature of the executant in the absence of proof to the contrary.

12. The contention of the learned Advocate General was that document does not bear any mark which the executant would appear to have put on the document. It is, however pertinent in this connection to note that the plaint asserts that Ammanna before he died executed the will of his own free will and in a sound and disposing state of mind on 24-12-1889. In reply to this assertion, in the written statement the 3rd and 4th defendants were content to deny the execution of the will by Ammanna. They never contended that the document does not bear any mark alleged to have been put by Ammanna. As a result, the attention of the parties was not specifically directed towards this question. On the other hand, the parties addressed themselves to the main question of the execution of the will.

13. P.W 4, who was cited as an eye witness to the execution of the will by the plaintiffs, stated in the examination in chief that:

“Ammanna was an illiterate. This ‘Kalam Uttina Nisani’ was written by the Karnam Bapaiah. All the attestors and the scribe are dead. Ammanna gave the facts of the will to Bapanna. After writing the will Bapanna read the will to Ammanna. He gave the will to Amanna and Ammanna signed the will. He gave the will to his brother-in-law Venkatarayudu. Ammanna did not sign the will”.

14. In the cross examination, nothing was asked about the allegations made by P.W 4. The statement of P.W 4 therefore practically went unchallenged.

15. The trial Court did not consider the question as it was not argued before it as to whether there is any mark made by the executant either by himself or at his instance by the scribe. Its attention was directed only to the question in general of the execution and genuineness of the will. The appellate Court, however, gave a specific finding as follows.

“The scribe signing the name of the testator under the direction of the testator is enough compliance with Section 63(a) of the Succession Act”.

16. The result therefore is that the words said to have green written by the scribe ‘Kalam Uttina Nisani’ have been written by the scribe at the instance of the executant. That finding is a finding of fact and is not open to challenge in second appeal. We therefore have no jurisdiction to go into that question of fact.

17. Even otherwise, we are satisfied that there is not much force in the contention of the learned Advocate General that the document was not executed by Ammanna. The evidence of P.W 4 has been accepted and in our view, rightly by the lower Appellate Court. The effect of accepting that evidence is that although Ammanna, who as an illiterate person, could not and did not sign himself, the words appearing on the document are written by the scribe, but still they were written by him not only in the presence of the testator but also with his consent. That would make the execution of the document full and complete. It is true that now it is realised that ‘Kalam Uttina Nisani’ are not the words written in the document. What is written in the document is ‘Nunna Ammanna Nisani’ without having any mark opposite to such writing. Unfortunately the witness was not confronted with this position. It is possible that what the witness wanted to say was that the document was signed by the executant by holding the pen and permitting the scribe to write his name on the document. The extract of his evidence does not in any manner indicate that P.W 4, said that those very words were written by Karnam Bapaiah. If the whole of the extract is read and understood in the proper context, it would not leave anyone in doubt that what all P.W 4, wanted to convey was that the document was written by Bapaiah which was read out to Ammanna, that he agreed and with his consent the nisani was put on the document by writing his name by the scribe with the consent of the executant. The learned Subordinate Judge therefore was in our view justified in relying upon the evidence of P.W 4 and holding as he did that the document in those circumstances would be deemed to have been properly executed by Ammanna. We do not therefore experience any difficulty in rejecting the contention that the document does not bear any mark showing the execution of it by Ammanna.

18. It was then contended that P.W 4 has not specifically stated that he was authorised to write whatever words he wrote on the document, which is taken as a mark put on the document with the consent of the executant. Relying upon the two following decisions Harihar Prasad v. Deonarain Prasad(1) and in Rei Airay v. Stapleton(2) he contended that specific authority to put the mirk on the document has not been proved by the evidence of P.W 4. We have already pointed out that this aspect of the execution of the document was not specifically disputed in the written statement and was not consequently argued before the trial court; not in that form even before the appellate Court. It would therefore be not proper to raise that question which involves examination of facts for the first time in this Court, Even otherwise, it must be borne in mind that the two decisions relied upon by the learned Advocate General relate to documents executed by agents or power of attorney holders. A distinction between executing a document on the basis of an authority by another document such as a power of attorney and the physical act of execution carried out under the express authority and supervision of the executant must be clearly made. In the latter case, where the signature of the executant purports to have been made by a scribe, the authority of the latter is presumed. See Haji Shkikh Bodha v. Sukhram Singh(3) Walsh, Acting Chief Justice said:

“In our view, the expression ‘duly executed’ must include all the facts which would be necessary in order to establish due execution before a court by positive evidence, if the obligation of producing positive evidence were not dispensed with by the presumption”.

19. The distinction drawn above seems to us quite reasonable as documents by illiterate persons are signed for them in their presence by the scribe at their request and the purpose of Section 90 will be defeated if presumption is excluded in such cases. The phrase ‘duly executed’ appearing in sec. 90 must necessarily include all ingredients of a valid execution of a document. To the same effect is another Full Bench decision of the Allahabad High Court in Deo Narian Rai v. Kukur Bind(4) and a decision of the Orissa High Court in Subudhi v. Murthy Raju(5). It will thus be clear that any recognised form in which a person affixes or impresses his name or make either by himself or by another person with the intention that it shall be treated as his signature is sufficient in law to draw the presumption under Section 90 of the Evidence Act. The decisions relied upon by the Advocate General in the light of what is stated above can easily be distinguished. We are therefore satisfied that the learned Subordinate Judge was right in drawing the presumption under Section 90 of the Evidence Act as the document was executed by the testator in the manner in which we have indicated above.

20. It was also contended that the document was not produced from proper custody and therefore the presumtion under Sec. 90 was not available. Reliance in that behalf was placed exclusively on the evidence of P.W 4, P.W 4 in his evidence no doubt has stated that after the will was executed by Ammanna, it was given to Ven-katarayudu. But in the plaint, the plaintiffs have alleged that:

“The Ist plaintiff has come to know of the existence of the aforesaid will executed by Nunna Ammanna recently and traced the said will from the records of Kammamma”.

21. It was therefore argued that no details are shown as to how the will went to Kamamma from the custody of Venkatrayudu. It was also pointed out that Kamamma was residing separately from Chella Rao and therefore it was not possible for the 1st plaintiff to get at the records of Kamamma.

22. Before we consider this contention, it must be said that this contention also was not specifically raised in the written statement; nor was it argued before both the Courts below. It cannot be said to be a pure question of law which could be permitted at the second appellate stage.

23. Even otherwise, we are satisfied that there is no force in this contention. It is not denied that under the will Venkatarayudu was also one of the beneficiaries. Thus apart from Venkatarayudu, Kamamma and Chella Rao were the beneficiaries. It is immaterial whether the will was throughout in the possession of the 1st plaintiff who produced it before the court.

24. It is not necessary to show the strict legal custody of the document produced. It is enough if the person is so connected with it that he may reasonably be supposed to be in possession of it without any fraud, no such fraud either alleged or proved. It is true that the origin of the custody has to be explained by the person producing it if he happens to be a person who is not supposed to be in the custody of the document. In judging that question, the Court would examine the surrounding circumstances of the case. But when the party producing the document is also the person connected with the custody of the document, such an examination becomes unnecessary. If the custody is such that judging from the document itself and that other circumstances it would naturally be expected to reside, then the custody ought to be treated as authentic. Section 90 read with the explanation seems to insist only of a satisfactory account of the origin of the custody and not of the history of its circumstances. This question, however, has to be decided taking a liberal view. Most of the reported cases are decisions in favour of receiving the documents on the ground that they have come from proper custody. In this connection the principle underlying section 90 must always be borne in mind. It is founded on necessity and convenience. It is extremely difficult and sometimes impossible to prove the execution of ancient documents after a lapse of many years. That is why proof of execution etc., of the document is dispensed with under Section 90. It will thus be evident that even if it is assumed that immediately after the execution of the will it was handed over to Venkatarayudu, who was no other than the sister's husband. It will not be surprising if the document again went to Kamamma who had absolute interest in some property and limited interest in the other. The assertion made in the plaint therefore that be found the document in question in the papers of Kamamma does not seem to us in any manner to be inconsistent with what P.W 4 stated. In any case, the Ist plaintiff, who produced the document before the Court is a person who is intimately connected with the will and his custody cannot be said to be improper. We do not find anything inconsistent in the decisions cited to us by the learned Advocate General i.e Rudragouda v. Basangouda(6) and Ravajappa v. Nilakantha Rao(7). In fact, the Mysore decision goes to some extent against the appellants. In that case, it was held that it is the duty of the first appellate court to consider whether the presumption under Section 90 can be drawn in a given case. That is what is done in this case by the appellate court. In the view which we have taken about the mark put on the document by the scribe with the consent of the executant, it cannot be said that the document was not properly executed, and therefore no presumption under Section 90 can be drawn. For all these reasons, we are clearly of the view that the Subordinate Judge was right in drawing the presumption under Section 90, as all the requirements of that Section are clearly satisfied in the present case.

25. Furthermore, the Subordinate Judge in fact has not merely based his conclusion upon the presumption under Section 90 but has in fact found that the document was executed by Ammanna on the evidence on record. We have already referred to the evidence of P.W 4 who was present at the time when the will is said to have been executed by Ammanna. In order to discredit P.W 4, two contentions were raised by the appellants. It was firstly contended that P.W 4 was a child of 2 or 3 years at the time when the will was executed and therefore could not afford to remember what all had happened then, even if it is assumed that he was present. Reference in that behalf was made to certain documents, Exhibits X-1, X. 2 and B.29

26. The Admission Register of Medapadu Co-operative Society from 1915 to 1921 is marked as Exhibit X. 1. Exhibit X. 2, is the particular entry regarding the membership of P.W 4. According to Exhibit X. 2, when he became a member of the society on 6-2-1917 he was aged 26 years. D.W 2, a clerk of the said Co-operative Society, was produced. In his cross-examination be stated that except the signature of Masina Veeranna, the entries are not in the handwriting of P.W 4. If this entry is taken to be correct in regard to his age, then the age P.W 4 gave before the Court as 80 years would not be correct. The question however is whether this entry is proved.

27. In other words, whether the signature of P.W 4 is satisfactorily established, Curiously, this document was not put to P.W 4. He had therefore no occasion either to admit or deny it and if admitted to explain it. No explanation is offered as to why this document was not put to P.W 4. Admittedly, it is not a public document. It is a private document which has to be proved like any other document. D.W 2 does not given any evidence in regard to the signature of P.W 4. These two documents therefore are worthless and could not be relied upon.

28. Exhibit B.29 is a certified copy of the deposition of the mother of P.W 4. At the top of the deposition, her age is shown as 60. The deposition was recorded some where in 1935. It is now fairly settled that the description of the witness given at the top of the deposition is not a part of the evidence as it is not recorded on oath. No reliance therefore can be placed on any such entry. Except a certified copy no other evidence in that behalf was adduced. The learned Subordinate Judge therefore was in our view, perfectly justified in putting aside from consideration these documents on the ground that they are not very helpful.

29. The next contention in that behalf was that P.W 4 has stated that his son was aged 25 at the time when he gave the deposition. He stated that son was born to him when he was 45 years old. Calculating the period it was argued that P.W 4 would have been at the time of the will a more child. We do not think any importance can be attached to such a stray sentence appearing in the evidence. That was not the matter in issue and no particular importance can be attached to such a piece of evidence on the basis of which the real issue can be disposed of so casually. The Subordinate Judge was therefore right in rejecting that contention. No other contention was raised pointing out that the evidence of P.W 4 in fact was not reliable. The trial Court obviously went wrong in not relying upon the evidence of P.W 4. He is an aged man and does not seem to have any axe to grind. The more fact that he did not refer to this will for a long period by itself would not be enough to discredit that witness. His evidence sounded very natural to the Subordinate judge who was the authority of fact to judge and we have no reason to characterise his finding as perverse. The learned Subordinate Judge therefore was right in accepting the evidence of P.W 4.

30. If the evidence of P.W 4 is accepted, then it becomes clear that the will was executed by Ammanna from his evidence. Apart from this direct evidence, there is enough other evidence to clinchingly prove that the document is not a forgery. Suspicion was sought to be created by pointing out that the present suit was filed almost immediately after the arguments in the suit filed by defendants 3 and 4 were almost concluded. The effort obviously was to say that the will was then brought into existence. The suspicion, however, seems to us to be absolutely unwarranted. The will (exhibit A.1) apart from containing the signature of the scribe contains the signatures of five attesting witnesses. Two of them have merely put some sort, of nisani or mark. Even if we exclude from our consideration the attestation made by these two persons, there are three other attesting: witnesses, who have signed. All of them are admittedly dead. The signature of Nalakanti Venkayya is sought to be proved by P.W 2. No attack on his evidence was made. The signature of Janaw Saheb was sought to be proved by P.W 1. No attack on his evidence also was made. Apart fro in the evidence of these two witnesses in regard to the signatures as attestors, the plaintiffs sent the signatures of the attestors for the purpose of their comparision with the admitted signatures of theirs on other similar ancient documents. Exhibit A.4 is a mortgage deed of 11-5-1804 which was attested by Venkayya, one of the attestors and Exhibit A.2 is a sale deed dated 20-1-1900 attested by Jannu Saheb. Exhibit A.5 is a mortgage deed on which the signature of the scribe in exhibit A.1 appears. That document is dated 3-4-1860. Exhibit A.17 is another document dated 2-2-1891, sale deed attested by Narayya, one of the attestors of the will. Exhibit A.18 also is a sale deed attested by Narayya. These documents were examined by a Handwriting Expert (P.W 6). He submitted a report of his opinion (Exhibit A.15). Exhibit A.16 gives the reasons for his opinion. His opinion was that the signatures given to him for examination are the fame and of the same persons. He withstood the cross examination. The Subordinate Judge placed reliance upon the evidence of this witness. In order to contradict his evidence, the defendants produced D.W 1 another expert. He was not however believed by the Subordinate Judge on the ground that he had not enlarged the photographs. The learned Subordinate Judge very carefully considered this aspect of the case and reached the conclusion that the evidence of P.W 6 should be accepted as against D.W 1. This evidence therefore clinchingly proves that the persons were dead long before the date when defendants 3 and 4 had filed the suit or when it was argued and their signatures could not have been obtained any time afterwards. Their period of death has not been disputed before us. If their signatures appear on Exhibit A.1 then along with the Expert's opinion, if the other evidence produced is taken into account, it can leave no one in doubt that the document was not subsequently brought into existence. It is a document which was executed in 1889.

31. An objection was raised before the Trial Court that Ammanna had died in October, 1889 and was not alive when the alleged will was executed. To prove that exhibits B 17 to B.20 were produced which are the depositions of some third persons in other litigations to which the plaintiffs or the 1st defendant were not parties. The trial Court disbelieved this evidence and held that Ammanna had not died by October, 1889 and that he was alive at the time when the will was executed. No attempt was made to get this opinion refuted in the lower appellate Court. The lower appellate Court characterised these documents as irrelevant and did not attach any importance to them. We do not think there is any force in the contention that these documents are relevant or admissible under Section 33 or even under Section 32. It was not disputed before us that Section 33 would not apply to such depositions. It was, however, contended that these depositions might be admissible under Section 32. Under which provision they are admissible was not pointed out to us. On going through the section, we do not find it possible to hold that such depositions are admissible even under Section 32. It was then contended that they may be relevant under Section 13. In order to attract section 13(a), there must be a transaction by which any right was asserted. These depositions, do not in any manner assert any right. They by circuitous method refer only to age of Ammanna not in any manner directly. No other evidence in shat behalf was also adduced. We are therefore satisfied that the learned Subordinate Judge was right in not placing any reliance upon this evidence.

32. It will thus be plain that not only the testator was alive at the time when the will was executed but P.W 4 also was of sufficient age to understand the nature of the transaction. His evidence therefore cannot be attacked on any valid ground. His evidence taken together with the other evidence referred to above in regard to the attestor's and scribe's signatures would clinchingly prove that Ammanna executed the will before he died. The contention that no reason is shown as to why his thumb impression at least was not obtained cannot be said to have any force. He might have lived for 10 days after the execution of the will. But it must be remembered that the document was executed at a time when one of the modes of execution of the document was to authorise the scribe to write the name of the executant as a token of his execution of the document. The absence of any thumb impression upon the document therefore does not militate against the execution of the document, particularly when there is evidence of the execution.

33. The next contention was that Exhibits B.11 to B.13 although relevant were not considered by the Subordinate Judge. These documents are the printed copies of judgment in the suit instituted by as third person. Admittedly, the Ist plaintiff was not a party to that litigation. The learned Subordinate Judge stated that these documents are not relevant. When he said that, what he meant was that they are not binding on the parties as they are not inter parties documents. He relied on certain decisions in that behalf. We fail to see how these documents can ever be put under Section 13 of the Evidence Act as relevant. We have already stated that in order to attract the provisions of Section 13, there must be a transaction by which the right must have been asserted. The third person based his suit on the ground that he is entitled to the property. There was no occasion for them therefore to assert anything against the will. In fact it has been very rightly pointed out by the Subordinate Judge that the production of the will was immaterial in that case. Moreover, the 1st plaintiff and the 1st defendant were not parties to that litigation. Even if those documents are considered to be relevant we do not think that the conclusion of the Subordinate Judge would have been in any manner altered.

34. Similar is the case with regard to the documents exhibits B.14 to B.16 They are documents regarding the litigation between Kamamma and Bezawada people based on illatom award. The question of setting up the will in that case did not arise. The only question involved in that litigation was whether a particular person was illatom son-in-law or not. It is also pertinent in this connection to note that litigation ended in execution of the document. By that document Kamamma sold the properties to Bezawada people which she had got exclusively for herself under the will. These Bezawada people sold that very property to defendants 3 and 4 under Exhibits B.6 to B.8 This is an aspect which would go against defendants 3 and 4. It is true that in the sale deed executed by Kamamma in favour of Bezawada people it is not mentioned as to under what authority she was selling the property. The fact remains that she sold the properly absolutely in favour of the Bezawada people and that is why defendants 3 and 4 purchased the same from Bezawada people. They have therefore thus impliedly admitted the absolute title of Kamamma. Kamamma can have absolute title only on the basis of the will and not on the ground that she was the widow of Ammanna having limited interest in the property. Not much significance can be attached to Exhibit B.22 also which was a mortgage deed by Kamamma in favour of Goli Subbarayudu. This mortgage was for the purpose of discharging the debt of her husband. We have already noticed that the husband directed his wife to discharge his debts. Exhibit B.23 is a release deed. The attestation of Venkayya on this document does not in any manner militate against the case set up by the plaintiffs. Thus the contention of the learned Advocate general that some of the documents on which reliance was placed were not considered by the Subordinate Judge does not seem be quite correct. The learned Subordinate Judge considered those documents but did not attach much importance to them. We also feel that on the basis of the above said documents it cannot be found that the will set up by the plaintiff was not a genuine will.

35. It was also contended that for nearly 65 years, the will was not disclosed, but was disclosed only for the first time by P.W 4. We do not, think there is much substance in this contention. If it is remembered that after the death of Ammanna, Kamamma lived till 1948, it is only after her death that the Ist plaintiff would get the vested remainders. Within few years, he came to know about the will. He searched and found out. We have found the will to be genuine. We do not think, that much significance can be attached, to the fact that Kamamma did not disclose the existence of the will. We have already pointed out that there was no occasion for its disclosure. Except the two litigations, which were totally unconnected with the factum of the will, there was no other occasion on which it can be said that Ammanna was obliged to disclose the will. In any case, no fault can be found against the plaintiffs who when they got the right to the property based their claim on the basis of the will. It will be clear from what is discussed above that the Subordinate Judge was quite right in holding that not only the execution of the will is proved but the presumption under the Section 90 of the Evidence Act also can be drawn in regard to its genuineness.

36. For all the reasons stated above, and as no other contention was raised before us, the appeal must fail and is dismissed with costs.