M. Kuppusamy Naicker vs M. Mani

The Suit has been filed praying for grant of Letters of Administration with the will annexed to the Plaintiff as the beneficiary under the Last Will and Testament of the deceased having effect throughout the State of Tamilnadu.

2. The averments made in the plaint are as follows-

(i) It is submitted that one Annammal, wife of Seetharama Naicker, was died on 25.7.1991. At the time of her death, she left a property within the state of Tamilnadu . She resided at No.9, Othavadai Street, Nesapakkam, Chennai-78. When she executed a Will on 24.5.1990, it was registered as the last will and testament of the deceased. It is duly executed that the deceased has not appointed any executor to execute the will and the Plaintiff being the sole beneficiary since the said deceased had no issues and her husband Seetharama Naicker also predeceased her at the time of executing the said Will. The testatrix of the said will died on 25.7.1991. Since the plaintiff was not aware that he should obtain grant of letters of administration for the will, hence he did not approach the court. So the said delay is neither willful nor wanton.

(ii) The plaintiff is the sole surviving heir according to Indian Succession Act. The plaintiff and respondents are sister's son. The parents of the testatrix have predeceased her. Hence he filed the application for grant of letters of administration.

3. The Gist and essence of the Written Statement filed by the 1st defendant adopted by defendants 2 and 3 are as follows :

(i) The plaintiff is the elder brother and other defendants 2 and 3 are the younger brothers. They are all sons of one Manicka Naicker through his wife Mrs. Govindammal. The deceased Annammal is wife of Seetharama Naicker who is none other than the sister of defendant's mother Govindammal. Annammal's husband Seetharama Naicker had died at his young age and she became widow at her very young age. So the defendant's father Manicka Naicker had brought the said Annammal from her matrimonial home . She led her life with the defendants. Annammal did not have any property or income through her husband Seetharama Naicker.

(ii) The property which is the subject matter of the probate proceedings of her will was purchased by the income generated from the mango business of the family. The plaintiff was not engaged in business. He was employed in Hindusthan Tele Printers as Fitter. The door No.9, Othavadai Street, Nesapakkam, Chennai-78 stands in the name of Annammal was alleged to have been purchased by the plaintiff without any approval from the other family members and plaintiff had transferred the same by virtue of terms and norms of the sale deed. Thus the plaintiff from the inception had deceived and defrauded this defendant and other family members being the other defendants who are the brothers of the plaintiff. Those properties belong to all the and defendants.

(iii) Annammal taking care all children as her own. She was given a right to purchase the property in her name in magnanimity. The property left by the Annammal shall be equally entitled to all the family members comprising other defendants and plaintiffs.

(iv) Annammal was jointly residing with defendants at the next house at Door No.10, Othavadai Street, Nesapakkam being the adjacent property and the said Annammal was cordial with the other defendants being the sister's children. The registration of the Will dated 24.5.1990 was done stealthily without any knowledge of any of the family members and the plaintiff had been holding the said Will all these years knowing fully well that the said Will is a manufactured Will by the plaintiff and in any event, the said Annammal had not executed any will as alleged by the plaintiff with her own free Will and volition and the plaintiff has taking advantage of her old age and feeble state of health as she was already suffering from various diseases and her vision was completely dwindled at the time when the said alleged will was executed and the plaintiff had procured the said Will be undue influence and playing fraud by misrepresenting the said Will and the said Will was never brought to light from the date of death of the said Annammal.

(v) The said Annammal at no point of time had no inclination to bequeath the property in favour of the plaintiff and the same has to give to all the male members of the family equally comprises of this defendant and other defendants and the plaintiff. The attestation of the said Will is in accordance with law and put to strict proof of the same. The attestation of the will is done by the son of the plaintiff who is interested and other witness is a total stranger to the family and the same is also suspicious with regard to the writing and execution of the Will by the deceased Annammal. Annammal is an illiterate lady who does not know to read or write or sign and the contra context in the will is false and doubtful as to the execution of the Will. The will would not have been written in usual course of events and the said will is extracted, devised and manufactured by the plaintiff to suit his purpose to engulf the property covered by the Will.

(vi) Annammal at any point of time have no special reason to bequeath the property absolutely in the name of the plaintiff. The will was not made public immediately after the death of Annammal and even then the plaintiff has not taken any steps to obtain the letter of grant of administration for the said Will clearly establishes the fact that the reason attributed for the delay in obtaining the letters of administration is only farce on the face of it to patch up the latches.

(vii) The said Annammal was aged about 90 years at the time of executing the said will. The reason for executing the said will in favour of the plaintiff is not stated and the unnatural bequeath in favour of the plaintiff who is also one of the sister's son is not specified in the said will. The said Annammal died one year after the time of the execution of the Will and the same itself reveals the hand work of the plaintiff in procuring the alleged will from the said Annammal.

(viii) The plaintiff does not disclose the attestation and one of the attesting witnesses in the Will is his own son and the will was executed under undue influence and fraud being played on the said Annammal. The plaintiff with an ulterior motive to grab the property in its entirety and devised fraudulently by misrepresenting the same that the Will was executed by the said Annammal and further the said Annammal has no inclination whatsoever to bequeath the entire property to the plaintiff and the will is fraudulent. So the will is not genuine and suffers to various infirmities and prayed for dismissal of the suit.

4. The following issues are being framed for trial.

"1. Whether the Will dated 24.5.1990 is true, genuine and valid?

2. Whether the Will dated 24.5.1990 was procured by exercising undue influence and fraud?

3. Whether the dispostion made in the Will is unnatural and the Will is vitiated by suspicious circumstance?

4. Whether the plaintiff is entitled for the relief sought for?"

5. On the side of Plaintiff, the Plaintiff was examined as PW1 and one Ganesan, the attestor of the Will was examined as PW2 and Exs. P1 to P5 were marked. On the side of Defendants, DW1 was examined and no documents have been marked. The Plaintiff/ M.Kuppusamy Naicker and the Defendants/M.Mani, M.Vadivelu, M.Ramakrishnan, are all brothers. They are all sons of Manicka Naicker, through his wife Govindammal. Annamal, who is the sister of the Plaintiff & Defendants mother Govindammal, is alleged to be the Executor of the Will Ex.P5.

6. Issue Nos. 1 & 3 :- The case of the plaintiff is that the deceased Annammal is a widow. She had no issues. After she became a widow, she was residing in her brother-in-law's house along with her sister Govindammal and doing mango and rice business. She purchased the properties in her name and the Sale Deeds are marked as Exs.P1 and P2. During her life time, she executed Ex.P5-Will on 25.04.1990, which was duly executed and validly attested and she died on 11.09.1991. The death certificate was marked as Ex.P4. The properties are the separate properties of Annammal. The properties left by their father Manicka Naicker has been partitioned by the plaintiff and defendants as per Ex.P3. To prove the attestation of Ex.P5-Will, PW2 attestor of the Will has been examined. The plaintiff is only the beneficiary under Ex.P5-Will. Hence, he prays to issue Letters of Administration.

7. The learned counsel for the Defendants would submit that the Will is not duly executed and not validly attested in accordance with law under Section 68 of Evidence Act and Section 63 of Indian Succession Act. The learned counsel for the Defendants would submit that the Suspicious Circumstances of the Will was not explained by the propounder of the Will/Plaintiff herein. The propounder has taken active part in the execution of the Will. All the properties of Annammal has been grabbed by this Plaintiff. The plaintiff is only the beneficiary under Ex.P5-Will. The attestation of the Will was done by the son of the Plaintiff viz., PW2. Another attestor Ravi has not been examined before this Court, who is none other than the tenant of PW1. Annammal died on 11.09.1991. The Suit has been presented only on 13.07.2001. There is a long delay of 10 years, which will create a suspicious circumstances and no reason has been assigned for excluding the other heirs of Govindammal. She has acquired the property out of the family mango business run by the father of plaintiff and defendants, so Ex.P5-Will is not true and genuine. The omission on the part of beneficiary to disclose all the persons interested in a property is one of the suspicious circumstances.

8. All the suspicious circumstances has been dispelled by the propounder of the Will. Attestation has not been proved. Further, the learned counsel for the Defendants urged that PW1 himself has admitted that the house property has been given to propounder/ Plaintiff herein and the mango groves were alienated by Annammal only through this plaintiff. The Plaintiff was not doing family business, whereas he was employed in Modern Bread as Bread Room Operator and then, he joined Hindustan Teleprinters in 1968 as a Fitter. He took voluntary retirement in 1997. The house property alleged to have been purchased by the Plaintiff, belongs to Annammal. It is also one of the suspicious circumstances. The Plaintiff has not dispelled the suspicious circumstances. PW2 also not deposed about the attestation. Hence, the Will is not proved. Hence, he prayed for the dismissal of the Suit.

9. PROPERTY IS SEPARATE AND ABSOLUTE PROPERTY OF ANNAMMAL :-

(i) Even though, the Defendants have raised the plea that Annammal is only a name-lendor. It is not a separate property of Annammal. The property has been purchased by joint extraction, joint business, done by the Defendants and their father Manicka Naicker. In young age Annammal became widow, without issues. So, she was taken care by Manicka Naicker. So, there is no separate income for Annammal. Since, she was a young widow and an elder member of the family, the property has been purchased in her name.

(ii) It is the duty of these Defendants to prove that the property has been purchased out of joint extraction of the Defendants and their father Manicka Naicker. During the argument, the learned counsel for the Defendants would fairly concede, that even though Annammal is a name-lendor, the properties are owned by Annammal and it stands in her name. Hence, the Defendants are not disputing the fact that the property is owned by Annammal. So, I am of the opinion that since the property stands in the name of Annammal, the property is absolute property of Annammal.

(iii) As per Exs.P1 and P2 the properties have been purchased by Annammal on 19.10.1970 and 27.01.1971 respectively. Moreover, it is pertinent to note that the properties of Manicka Naicker have been divided between the plaintiff and defendants as per Ex.P3 on 09.03.1987. If really, the properties purchased under Exs.P1 and P2 are the joint family properties, it will find place in Ex.P3-Partition Deed. But, it does not find a place in Ex.P3. So, the properties are separate and absolute property of Annammal.

(iv) DW1 in his evidence, he has stated that the property has been purchased out of joint family Mango business. Since Annammal was the elder member of the family, the sale deeds were obtained in her name. As already stated, since the property has been purchased in the name Annammal for her benefit, except the ipse dixit of DW1, no other evidence, particularly, documentary evidence are available and hence, I am of the considered view that the properties purchased under Exs.P1 and P2 and the subject matter of the Will is self-acquired and absolute property of Annammal.

10. It is well settled principle of law that the propounder must prove the will and dispel all the suspicious circumstances and must prove due execution and valid attestation.

11. The next limb of argument advanced by the learned counsel for the plaintiff is that the document is duly registered. Since, the plaintiff has taken care of Annammal, the property has been bequeathed by Annammal in favour of the Plaintiff. The attestation has been proved by way of examining PW2. Since, it is registered, so, there is no reason to discard Ex.P5. Hence, he prayed for issue of Letters of Administration.

12. To substantiate his contention, he relied upon the various decisions reported in AIR 1990 Kerala 226, Thayyullathil Kunhikannan v. Thayyullathil Kalliani; 2001(3) CTC 283, Corra Vedachalam Chetty v. G.Janakiraman; 2004(2) CTC 287 Uma Devi Nambiar v. T.C.Sidhan; 2005 (1) CTC 11, Janaki Devi v. R.Vasanthi and 2005 (1) CTC 443, Sridevi v. Jayaraja Shetty.

13. It is well settled principle of law that the propounder must prove the Will. In this case, the propounder is the only legatee and beneficiary of the Will and the property of Annammal has been bequeathed to him under Ex.P5-Will.

(A) DELAY IN FILING THE SUIT:-

14(i) The first point raised by the learned counsel for the Defendants is the delay in filing the Suit. In support of his contention, he relied upon the decision reported in 1996 (II) CTC 466, T.Kanniah Rao v. Inder Rao, wherein this Court, in the case of delay in getting the Will probated and that the beneficiary not taking any steps for obtaining the probate of the Will, held the Will cannot be a genuine document.

14(ii) The learned counsel for the Defendants relied upon the decision reported in 1996 (II) CTC 466, T.Kanniah Rao v. Inder Rao, wherein this Court has held as under:-

"...The Will is said to have been executed in the year 1982. Though an explanation given in the plaint that because the plaintiff was ill he could not immediately take steps to put the Will and initiate proceedings for probate the plaintiff has not chosen to take the witness stand to support this allegation. From the evidence on record it is clear that a suit was filed by Inder Rao as plaintiff in O.S.No. 8379 of 1985 for partition of the properties. Admittedly the suit included the properties which are the subject matter of the Will. The plaintiff herein was the 7th defendant in the suit. Plaintiff Inder Rao has clearly alleged that the will is not true and that, it was obtained by coercion and under influence and that it was not executed by Krishna Bai out of free volition and mind and that she was not in a sound state of mind at the time of execution of the will. The 7th defendant viz., the plaintiff herein did not choose to file the original will there...."

14(iii) But here, the Will has been executed on 24.05.1990, Annammal died on 11.09.1991, the Suit has been filed for Letters of Administration in 2003. No reason has been assigned, why he has not filed the same in time.

14(iv) At this juncture, the learned counsel for the Plaintiff contending that the delay in disclosing the Will would not affect the genuineness of the Will, would rely upon the decision reported in 2005 (1) CTC 443, Sridevi v. Jayaraja Shetty, wherein the Supreme Court has held as follows:-

"...the delay in disclosing Will did not affect Will as existence of Will was made known to every one at present at time of final obeisance ceremony of testator and consequently delay of four years in disclosing Will did not lend any credibility to case suggested by resisting defendant."

14(v) But here, the Will has not been disclosed to other heirs from 1991 till 2003. One more circumstances that the Plaintiff has made arrangement to encumber the property, immediately the defendants filed O.S.No.6528 of 2001 on the file of XIV Assistant Judge, City civil court, for injunction. But in that Suit also, he has not filed the Will. PW1, in his cross-examination, he has stated that, "...Annammal died in the year 1991. I filed OP only during 2003 and I had filed this petition belatedly since I did not have sufficient money. I do not remember as to whether I have stated this reason in my plaint. It is correct to state that with regard to suit property there was a litigation in the file of City Civil Court, Chennai in the year 2001 and the same ended in my favour. I do not remember as to whether the issue of not probating the Will was raised in the said case. It is correct to state that I had disclosed about the Will only after the said case was filed by my brothers. I deny the suggestion that I did not disclose about the Will to my brothers only since the will was fabricated and in order to grab the Will and witness adds that there is no need for me to disclose the existence of the Will...."

14(vi) So while considering the evidence of PW1, he himself had stated that there is no need for him to disclose the existence of the Will to his brothers, which has clearly proved that he has not disclosed the same to his brothers, till he filed the OP in the year 2003 for issue of Letters of Administration. In the above said circumstances, the decision reported in 2005 (1) CTC 443, Sridevi v. Jayaraja Shetty, is not applicable to the facts of the present case.

14(vii) The decision reported in 1996 (II) CTC 466, T.Kanniah Rao v. Inder Rao, is squarely applicable to the facts of the present case. Because here, the defendants are also interested in the property. They are also nephews of deceased Annammal. Even after the filing of the Suit in 2001, immediately he has not filed the Original Petition for issue of Letters of Administration. He filed the Original Petition only in the year 2003. So, the delay is one of the suspicious circumstances. Thus, the suspicious circumstances have to be dispelled by the propounder of the Will viz., the Plaintiff herein.

15. Now, we have to consider what are the evidence let in by the plaintiff to dispel the suspicious circumstances.

(B) PROOF OF ATTESTATION:-

16(i) Before that, this Court has to decide, whether the attestation has been proved by the plaintiff in accordance with law.

16(ii) The learned counsel appearing for the plaintiff would rely upon the decision reported in AIR 1990 Kerala 226, Thayyullathil Kunhikannan v. Thayyullathil Kalliani and urge that Section 68 of Evidence Act relates to those documents which require to be proved at the trial of the Suit. If by any rule of law or of pleadings, such proof is not required. Section 68 cannot operate to insist on formal proof by calling an attesting witness. Section 58 has to be read as overriding Section 68 and as obviating the necessity for calling an attesting witness, unless the execution of the Will or the attestation is in dispute. In the absence of any such plea in the written statement, it is not necessary to prove the attestation. In the said decision cited supra, he relied upon the following portion:

"S. 68 relates to those documents which require to be proved at the trial of a suit. If any any rule of law or of pleadings, such proof is not required, S. 68 cannot operate to insist on formal proof by calling an attesting witness. S. 58 has to be read as overriding S.68 and as obviating the necessity for calling an attesting witness, unless the execution of the Will or the attestation is in dispute. In the absence of any such plea in the written statement, it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a Will could be used as evidence. O.8, R.5 C.P.C. deems the execution of the Will to be admitted in the absence of any denial thereof in the written statement. Examination of an attesting witness is therefore unnecessary when the parties have not joined issue on the validity or genuineness of the will."

16(iii) It is pertinent to note in the written statement filed by the first defendant, it was stated in paragraph 11 as follows:

"...The allegation that the said will were duly executed at Chennai on the 24th day of May 1990 is baseless and it is submitted that the attestation of the said Will is not in accordance with law and put to strict proof of the same. The attestation of the will is done by the son of the plaintiff who is interested and the other witness is a total stranger to the family and the same is also suspicious with regard to the writing and the execution of the will by the deceased testatrix..."

16(iv) Since, the defendants are disputing and denying the attestation is not in accordance with law, it is the bounden duty of the propounder/beneficiary to prove valid attestation.

16(v) On the side of defendants, the learned counsel would rely upon the decision reported in AIR 1959 Supreme Court 443, H.Venkatachala Iyengar v. B.N.Thimmajamma, the Supreme Court observing that the propounder would be called upon for the purpose of proving its execution and the provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law, has held as under:

"The party propounding a will or otherwise making a claim under is Will is no doubt seeking to prove a document and in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will nor not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, the Courts would be justified in making a finding in favour of the propounder. In other words the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.

There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed from the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.

Apart from the suspicious circumstances above referred to in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the will which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with Wills that present such suspicious circumstances that decision of English Courts often mention the test of the satisfaction of judicial conscience. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive."

16(vi) The learned counsel for the Defendants would rely upon another decision reported in 1995 (II) CTC 476, Kashibai v. Parwatibai, wherein the Supreme Court has held as under:

"10. This brings us to the question of the will alleged to have been executed by deceased Lachiram in favour of his grand-son Purshottam, the defendant No.3. Section 68 of Evidence Act related to the proof of execution of document required by law to be attested. Admittedly, a Deed of Will is one of such documents which necessarily require by law to be attested. Section 68 of the Evidence Act contemplates that if a document is required by law to be attested, it shall not be used as evidence until the attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. A reading of Section 68 will show that "attestation" and "execution" are two different acts one following the other. There can be valid execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of no avail. Section 63 of the Indian Succession Act, 1925 also lays down certain rules with (C) of Section 63 provides that the Will shall be attested by two or more witnesses each one of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature of mark of the such other person; and each of the witnesses should sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary."

16(vii) In the decision reported in 2002 (1) CTC 659, this Court has held as under:-

"16. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R.Venkatachala Iyengar v. B.N.Thimmajamma, 1959 Supp (1) SCR 426: AIR 1959 SC 443. The Court, speaking through Gajendragadkar, J., laid down in that case the following propositions:-

(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As the case of proof of other documents, so in the case of proof of wills,m one cannot insist on proof with mathematical certainty.

(2) Since Section 63 of the Succession Act required a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.

(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. His aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.

(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raised suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.

(5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.

(6) If a caveator alleges fraud, undue influence, coercion etc. in regard to execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is apart of the initial onus of the propounder to remove all reasonable doubts in the matter."

16(viii) In the decision reported in 2009(1) CTC 541, Selvi v. Gomathy Ammal, this Court referring to Section 3 of Transfer of Property Act, has held as follows:

" 16. At this juncture, it would be apropos to look into Section 3 of the Transfer of Property Act, 1882 and the same reads as follows:

"...."attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary,"

17. The said provision can be vivisected as follows:

(a) There must be two or more attesting witnesses to an instrument.

(b) Each attesting witnesses should have seen the signature of the executant or his mark to the instrument.

(c)Attesting witness can receive personal acknowledgement of the signature of the executant or his mark, or of the signature of such other person.

(d) It shall not be necessary that more than one of such attesting witness shall have been present at the time of the executant put his signature or mark.

(e) No particular form of attestation shall be necessary.

18. It is an avowed principle of law that proof of execution of document required by lay to be attested should be proved as per the provision of Section 68 of the Evidence Act and the same reads as follows:

" If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to he process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act 1908 (16 of 1908) unless its execution by the person by whom it purports to have executed is specifically denied."

19. From the close reading of the said provision, it is made clear that if a document is required by law to be attested, for the purpose of proving the same, one attesting witness should be examined.

20. In Kishore v. Ganesh, AIR 1954 SC 316, the Honourable Apex Court has held that where an attesting witness stated that the executant put her thumb impression in his presence, it is sufficient proof of valid attestation. It must be shown that the attestator signed the document in the presence of the executant.

21. In Abud Jabbar v. Venkata Sastri, AIR 1969 SCC 1147, the Honourable Apex Court has held that the Act of attestation must be done animo attestandi i.e., with the intention to attest.

22. Therefore, from the close reading of the provision of Section 3 of the Transfer of Property Act, 1882 and Section 68 of the Evidence Act as well as the decisions referred to above, it is made clear that where an attesting witness stated in his evidence that he has seen the signature of executant, itself is a sufficient proof and valid attestation. To put it in a nutshell, the role of attesting witness to a document required by law to be attested is that he should see signature of executant and executant must see his signature and he need not prove the contents of document."

16(ix) In the decision reported in 2007 (2) CTC 172, Niranjan Umeshchandra Joshi v. Mridula Jyoti Rao, the Supreme Court has held that the execution of Will must be proved at least by one attesting witness, if such witness is alive subject to process of Court and capable of giving evidence. While making attestation, there must be animus attestandi on part of attesting witness. Observing that the witness had intended to attest and extrinsic evidence on such issue is receivable, the Supreme Court has held as under:-

"31. Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the Court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable."

16(x) In the Division Bench judgment of this Court reported in 2008 (1) CTC 97, Naval Kishore v. D.Swarna Bhadran, this Court has held as under:

"...

17. Again in the decision in Gurdial Kaur and Ors. v. Kartar Kaur & Ors., AIR 1998 SC 2861: 1998 (2) LW 134, the Apex Court has held as follows:

"The law is well settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will."

18. Regarding the discharge of burden of proof, in Niranjan Umesh Chandra Joshi v. Mridula Jyoti Rao and others, 2007 (2) CTC 172, in para 32, the Supreme Court has held as follows:

"32. The burden of proof that the Will has been validly executed and is a genuine document, is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free Will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in his behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator .[See Madhukar D.Shende v. Tarabai Shedage, 2002 (1) CTC 244: 2002 (2) SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. 2005 (1) CTC 443 : 2005 (8) SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document".

19. The burden of proof of due and valid execution of a Will is on the propounder. Court granting Letters of Administration/Probate must satisfy itself not only about the genuineness of the Will, but also satisfy itself that it is not fraught with any suspicious circumstance. Regarding proof of Will, in Benga Behera and anr. v. Braja Kishore Nanda and ors., 2007 (5) MLJ 159 (SC), the Supreme Court has held as under:

"40. It is now well settled that requirement of the proof of execution of a Will is the same as in case of certain other documents, for example Gift or Mortgage. The law requires that the proof of execution of a Will has to be attested at least by two witnesses. At least one Attesting Witness has to be examined to prove execution and attestation of the Will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two Attesting Witnesses and the Attesting Witnesses had put their signatures in presence of the executant. [See Madhukar D.Shende v. Tarabai Aba Shedage, AIR 2002 SC 637: 2002 (2) SCC 85; Janki Narayan Bhoir v. Narayan Namdeo Kadam (supra) and Bhagatram v. Suresh and ors., AIR 2004 SC 436 : 2003 (12) SCC 35]."

20. Reiterating the principles of proof of Will and removal of suspicious circumstances, in Smt.Guro v. Atma Singh & Ors., 1992 (2) SCR 30, the Supreme Court has stated the Law thus;

"With regard to proof of a Will, the law is well settled that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Where, however there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leader part in the making of the Will under which he receives a substantial benefit the presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last Will of the testator".

16(xi) In the decision reported in 2008(2) CTC 831, P.Mani @ P.Balasubramaniam, the Division Bench of this Court has held as under:

"41. In Tulsibai v. Ramkunwarvai, 1989 92) M.P.W.N 25 at 40, it is observed that 'if a party writes or prepares a 'Will' under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court and it ought not to pronounce unless the suspicion is removed". In reality, the authenticity of a Will depends on the circumstances surrounding its execution and the quality of evidence that is led in respect of its genuineness as per decision H.Venkatachala v. B.N.Thimmajamma, AIR 1959 SC 443, already cited. Moreover, it is the settled principle that if the propounder succeeds in removing the suspicious circumstances, the Court would grant probate, even if the Will might be unnatural.

16(xii) In the decision reported in 2008 (5) CTC 294, Sivasamy v. Poomalai, the Madurai Bench of Madras High Court referred to a Supreme Court decision and has held as follows:-

"19. In Janki Narayan Bhoir v. Narayan Namdeo Kadam, 2003 (2) SCC 91, the Supreme Court has been held as follows:

9. It is thus clear that one of the requirements of due execution of a will is its attestation by two or more witnesses, which is mandatory.

10. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.

....

...

That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at lease one attesting witness has to be called for proving due execution of the will as envisaged in Section 63....

In a way, Section 68 gives a concession to those who want to prove and establish a Will in a Court of law by examining at least one attesting witness even though the Will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a Will.

.....

.....

The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by the other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."

In the present case, the examination of one attesting witness is not sufficient. Since the existence of the second attesting witness Vaithiya Nathan Iyer itself is in doubt and it has not been proved by the propounder to the satisfaction of the Court. "

16(xiii) It is well settled principle of law that the burden of proof is upon the person, who propound the Will. For the proof of attestation any one of the attesting witness has to be examined before the Court. While making attestation, there must be animus attestandi on part of attesting witness, who had intended to attest and extrinsic evidence on such issue is receivable. The attestation has to be proved in accordance with law Sections 3 of Transfer of Property Act, Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act.

16(xiv) Section 63 of Indian Succession Act, 1925, provides that the Will shall be attested by two or more witnesses each one of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature of mark of the such other person; and each of the witnesses should sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary. It is made clear that where the attesting witness stated in his evidence that he has seen the signature of executant and executant saw his signature is the valid attestation.

16(xv) The role of attesting witness to a document required by law to be attested is that he should see signature of executant and executant must see his signature and he need not prove the contents of document. The propounder is also required to prove that the attestor has signed the Will and that he put his signature out of free will having sound disposing state of mind and understood nature and effect of document. It is the bounden duty of the propounder to prove due and valid attestation of the Will and Court must satisfy itself with only about genuineness of the Will, but also ensure that it is not fraught with any suspicious circumstance.

16(xvi)The execution and attestation both are two different acts one following the other. There cannot be no valid execution of the document, which under the law is required to be attested without proof of its due attestation. If attestation is also not proved, the fact of execution is of no avail.

16(xvii)At this juncture, while perusing the evidence, it is seen that PW2 is none other than the son of PW1, who is the propounder/ beneficiary/legatee under the Ex.P5-Will. In the proof affidavit of PW2, he has not stated anything about the proof of attestation as provided under Section 63 of Indian Succession Act. In para 2 of his proof affidavit, he has stated, " ... I am the attesting witness in respect of the above Will dated 24.05.1990 besides witnessed execution of the same".

In his cross-examination, PW2 has stated that, "...At the time of writing the Will, an auto driver who was tenant in our house was also present with me. The document writer wrote the Will. I was not present when the document writer wrote the Will. Annammal came immediately after completing writing of the Will. Around 3.30 PM myself, my mother and executrix met the document writer and executrix told to write a Will in favour of the petitioner and also gave the instruction with regard to property mentioned in the schedule of the Will. The document writer noted down the instruction in a rough sheet. Thereafter the Will was type written inside his office. Around 4.00 PM the typewritten Will was made ready. Annammal was waiting outside the office of the document writer with us while the Will was typewritten...".

But, at the time of preparation of Will PW2, PW2's mother and Annammal were present. Before Sub-registrar's Office PW2, PW2's mother, Annamal and PW2's father were present. PW2 never stated that he witnessed, when Annammal sign the Will. A suggestion was posed to him, he denied the suggestion and stated as follows:

"... I deny the suggestion that myself and Ravi have not attested the Will as required by law and hence, the Will is not valid. I deny the suggestion that since the Will was made to be written in my father's favour, we have not disclosed the fact to my paternal uncle for several years..."

16(xviii) So as per the decision cited supra and as per Section 63 of Indian Succession act, PW2 has not deposed that he has witnessed the executant signing the Will and the executant witnessed while he signed the Will. There is nothing in his chief and cross-examination. Moreover, there is no evidence that the testatrix has acknowledged the signature to him, then only he attested the Will. In the above said circumstances, I am of the opinion that the Plaintiff has failed to prove the valid attestation.

16(xix) The Apex court has held that the execution and attestation both are two different acts one following the other. There cannot be no valid execution of the document, which under the law is required to be attested without proof of its due attestation. The form of execution of Will is not sufficient in law, unless due attestation of the Will is proved. Document required to be attested in law cannot be used as an evidence, unless attestation is proved. As already stated supra, PW2, who is the attestor is none other than the son of the beneficiary and he has not stated that he witnessed the testatrix signing the Will and testatrix witnessed while, he attested the Will. Section 63 of Indian Succession Act and Section 3 of Transfer of Property Act, provides, what is "attestation".

16(xx) Section 63 of Indian Succession Act provides that the Will shall be attested by two or more witnesses each one of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature of mark of the such other person; and each of the witnesses should sign the Will in the presence of the testator.

16(xxi) But here, even though, PW2 has stated that he attested the Will, he has not deposed that he was present when testatrix signed the Will and the testatrix witnessed, when he attested the Will. In the above said circumstances, I am of the considered view that the propounder has failed to prove the attestation. Since the attestation is not proved, as per the decision reported in 1995 (II) CTC 476, Kashibai vs. Parwatibai, the document cannot be used as an evidence, as there is no valid execution of the document, which under law is required to be attested without proof of its due attestation.

(C) SUSPICIOUS CIRCUMSTANCES:-

There are several circumstances which would have been held to be described by this Court as Suspicious Circumstances.

I.When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances ;

II.When a doubt is created in regard to the condition of mind of the testatrix about her own free will having sound disposing state of mind ;

III.Where propounder himself takes prominent part in the execution of the Will and got bequeathed entire property of testatrix ;

(i) It is pertinent to note that Annammal is having sister by name, Govindammal, who is none other than the mother of plaintiff and defendants. Plaintiff's father is Manicka Naicker. Annammal's husband is one Sitaraman. He died in earlier stage, without issues. After the death of her husband, Annammal was residing with her brother-in-law Manicka Naicker along with his wife and children. It is also an admitted fact that at the time when Annammal left the matrimonial home after the death of Sitaraman, she has not possessed any property. It is also an admitted fact that the family of Manicka Naicker is doing mango business and out of the income derived from the mango business, the property has been purchased. Except the plaintiff, other children of Manicka Naicker and Annammal did the mango business. So, it is their family business.

(ii) The case of the Plaintiff is that Annammal is also doing mango business and other fruit business and also did rice business. In his cross-examination, he has fairly conceded that, "..It is correct to state that only mango business is the prime business of our family..."

In his cross-examination also, he has fairly conceded that "...At present Mani is continuing my father's mango business and two brothers will do so whenever they wished..."

But, Plaintiff alone, first, he joined in Modern Bread as Bread Room Operator from 1962  1963, later, he joined Hindustan teleprinters in the permanent capacity. In his cross-examination, he has fairly conceded, "...To my knowledge Annammal was doing mango business along with my brothers. Annammal was doing mango and Guava fruit business..."

In the above said circumstances that the averment that the deceased Annammal was doing rice business is unacceptable one.

(iii) While considering the evidence of PW1/Plaintiff that the testatrix is doing mango business along with nephews and her brother-in-laws, in such circumstances, she has not assigned any reason, why she has excluded other nephews, since, they are eking out their livelihood from out of the amount derived from the mango business. So, it is one of the suspicious circumstances. To dispel the suspicious circumstances, no evidence has been let in by this plaintiff.

(iv) It is also pertinent to note that the other house owned by the testatrix Annammal is also purchased by the plaintiff herein. In his evidence, PW1 has deposed as follows:

".....The land in which my house is situate, originally belongs to Annammal and the house was constructed by me. I do not know directly as to who has purchased the said site. I purchased the said site for consideration of sale deed from Annammal. Around 1981, I purchased the said site from Annammal through the sale deed by paying the consideration. I deny the suggestion that I had grabbed the above site from Annammal. I paid immediately half of sale consideration to Annammal and the balance in installments. The payments of installments were not mentioned in the sale deed...."

(v) While considering the suggestion that was posed on him that he has grabbed the property of Annammal, howeve, PW1 has not filed any document to show that he has purchased the property and paid the installments as orally agreed by him with Annammal. So, it is also one of the suspicious circumstances that the Plaintiff has grabbed all the properties belonging to the testatrix.

(vi) In Ex.P5-Will, Annammal has not stated any reason for excluding other heirs of Govindammal. As already discussed that the Plaintiff was working in Hindustan Teleprinters, a Government Undertaking and thereafter, he got voluntary retirement, but, whereas the Defendants are doing mango business and maintaining their family. From the young age the testatrix Annammal was living along with the Defendants alone. In the above said circumstances, no reason has been assigned in the Will by Annammal for excluding the other heirs of Govindammal. It is one of the suspicious circumstances, which is not dispelled by the plaintiff/propounder of the Will.

(b) A doubt is created in regard to the condition of mind of the testatrix about her own free will having sound disposing state of mind :-

(i) It is pertinent to note that as per Ex. P5-Will itself, it was stated her age is 90 years, but whereas, PW1 in his cross-examination, he has stated that, "...At the time of executing the Will, the age of Annammal would be about 70 years..."

It is also pertinent to note that the Will is alleged to have been executed on 24.05.1990 and Annammal died on 11.09.1991, after a year.

(ii) In the above said circumstances, it is the duty of the propounder of the Will/plaintiff to prove that Annammal was hale and healthy and was in sound disposing state of mind, but except the ipse dixit of PW1, no other evidence is available. He has not examined any independent witness to prove till her life time Annammal was hale and healthy and was in sound disposing state of mind and her mental faculty has been sound.

(iii) Per contra, DW1 in his cross-examination, he has stated that, "...Since the executor Annammal was not in good health and was not in sound state of mind, I am saying that the Will is not valid..."

DW1 in his cross-examination has further stated, "... I have not produced any document to show that Annammal was not in good health and was not in sound state of mind at the time of executing the Will... There is no other reason for me to state that the Will is not valid except that she was not in good health and was not in sound state of mind ...".

Since, there is a specific denial by the first Defendant, the Plaintiff ought to have proved that the testatrix Annammal was in sound disposing state of mind and keeping good health and out of her free will, she had executed the Will.

(iv) As already stated, except the interested witness of plaintiff and his son, no other independent witnesses like the neighbours or anybody well acquainted with the family were examined before the Court to show that the testatrix Annammal was keeping good health and was in sound disposing state of mind, while she executed the Will. So I am of the opinion that the Plaintiff has failed to prove that at the time of execution of Ex.P5-Will, the testatrix Annammal was in sound disposing state of mind and out of her free will, she executed Ex.P5-Will.

(c) The propounder himself takes prominent part in the execution of the Will and got bequeathed entire property of testatrix:-

(i) As per the evidence of PW2, in his evidence, he has fairly conceded, that he himself, his mother and father along with Annammal gone to Sub-Registrar Office and executed the Will. In his cross-examination, he has stated as follows:

".. Around 3.30 mother and executrix met the document writer and executrix told to write a Will in favour of the petitioner and also gave the instruction with regard to property mentioned in the schedule of the Will.... Annammal was waiting outside the office of the document writer with us while the Will was typewritten... At the time of preparation of Will only myself and my mother and executrix Annammal were present. Before Sub-Registrar's Office, myself, my mother, Annammal and my father were present. Since Annammal did not like the fact of execution of Will to be told to my paternal uncles, we have not informed about the Will to them. Even after execution of the Will, the same was not told to them."

While considering the above evidence, it clearly proves that PW1 has taken active part in execution of Will-Ex.P5.

(d & e) After execution of the Will, the same was not intimated to other heirs - Omission on part of beneficiary to disclose all persons interested in property  Propounder had failed to discharge onus:- :-

(i) Another suspicious circumstance is that as per the evidence of PW2, he has fairly conceded that execution of the Will has not been disclosed to his junior Paternal Uncle. The Will has been executed by Annammal on 24.05.1990 and she died on 25.07.1991. The Suit has been filed only in 2003, till then, the Will has not seen the light of the day. It is also one of the suspicious circumstances that is not dispelled by the plaintiff/propounder of the Will.

(ii) The learned counsel for the plaintiff would contend that the document is a registered one and therefore, there is no reason for discarding Ex.P5-Will. Per contra, mere registration would not dispel suspicions regarding execution and attestation of Will. Registration by itself does not ensure genuineness of Will. So, merely because the Ex.P5-Will has been registered, we cannot accept it as a solemnised document. The propounder of Will ought to have dispelled all the suspicious circumstances and also proved the valid attestation as per Section 3 of Transfer of Property Act, Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act. As discussed earlier, even though the Will is registered, but the Plaintiff/propounder of the Will has not proved the valid attestation and dispelled the suspicious circumstances.

(iii) The learned counsel for the Plaintiff would rely upon the decision of the Supreme Court reported in 2004 (2) CTC 287, Uma Devi Nambiar v. T.C.Sidhan, and urged that in matter of construction of Will even if words used in Will are ambiguous intention has to be gathered from language of Will and Court must consider surrounding circumstances while construing Will like testator's position, his family relationship, probability that he would use his words in a particular sense. Court should put itself in Testator's arm chair.

(iv) While considering the same, as stated supra, the burden is heavily upon the Plaintiff to prove Ex.P5, since, he is the sole legatee under the Will excluding other nephews, those, who are closely associated with deceased Annammal from young age and doing joint mango business and property has been acquired and moreover, the evidence of PW2, who is none other than the son of Plaintiff/propounder of Will proves that without knowledge of others only the Ex.P5-Will came into existence and PW1, PW2 and his wife have taken active part in execution of the Will. Besides, attestation has not been proved in accordance with law.

(v) In the above said circumstances, I am of the opinion that Ex.P5-Will is not true and genuine document and it came to existence only under the hand work of PW1/Plaintiff/propounder of the Will. Moreover, the disposition made in the Will is unnatural and same is vitiated by suspicious circumstances as mentioned above. Issue Nos. 1 and 3 are answered accordingly.

18. Issue No.2 : -

(i) The defence raised by the Defendants is that Ex.P5-Will dated 24.05.1990 was procured by exercising undue influence and fraud. It is pertinent to note that till the date of filing of the Suit, the Defendants herein are not aware of the execution of the Will. At this juncture, we may usefully refer to Order VI Rule 4 of CPC, which reads as under:

"R.4. Particulars to be given where necessary.-- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading. "

(ii) It is pertinent to note that as per Order VI Rule 4 of CPC, the person who pleads about fraud, misrepresentation and undue influence should furnish particulars. In paragraph 10 of the Written Statement, the first Defendant has stated as under:-

"...This defendant states that the alleged registration of the Will dated 24.5.1990 was done stealthily without any knowledge of any of the family members and the plaintiff had been holding the said will all these years knowing fully well that the said will is a manufactured Will by the plaintiff and in any event the said Annammal had not executed any Will as alleged by the plaintiff with her own free Will and volition and the plaintiff has taking advantage of her old age and feeble state of health as she was already suffering from various diseased and her vision was completely dwindled at the time when the said alleged will was executed and the plaintiff had procured the said Will by undue influence and playing fraud by misrepresenting the said will and the said Will was never brought to light from the date of death of the said Annammal as early as in the year 1990 and the entire proceedings is nothing but abuse and misuse of the process of the Court."

(iii) Even in his proof affidavit in Paragraph 11, it was stated as follows:

"11. It is humbly submitted that Annammal had not executed the Will of her own free volition. The said Will by any stretch of imagination is only fabricated at the instance of the petitioner/ plaintiff and his family members. It is humbly submitted that at the time of execution of the Will, the said Annammal was more than 90 years old and she was too feeble and she was already suffering acutely from various diseases, her vision has completely hampered. It is submitted that the petitioner/plaintiff had exerted undue influence and had played fraud by misrepresenting the said Will and had obtained thumb impression of the said Annammal in the said Will.

(iv) In the cross-examination, DW1 has deposed that, "..There is no other reason for me to state that the Will is not valid except that she was not in good health and was not in sound state of mind".

(v) Another important aspect to be considered is as per the evidence of PW2, during the alleged execution of Will only the Plaintiff, his wife and son alone are present. Moreover, the Will has not been brought to the knowledge of the Defendants, till they filed the Suit for injunction before the City Civil Court and as the Plaintiff attempted to alienate the property, a presumption can be drawn that Ex.P5 has been obtained by fraud and misrepresentation

(vi) While considering the cross-examination of DW1, he has stated that, "..We were in talking terms with Annammal and our relationship were cordial. Annammal was equally affectionate towards us as she was to plaintiff. I do not know about the execution of the Will at all... "

As stated supra, from the young age itself the Defendants are with the Annammal. In the above said circumstances, as per the evidence of DW1 itself, in the cross-examination, he has stated that they were in talking terms with Annammal. So, if really, a Will has been executed by her, immediately, she would have intimated the fact to the Defendants. In the above said circumstances, I am of the view that the plaintiff had procured the Ex.P5-Will by undue influence and playing fraud by misrepresenting the said Will.

(vii) One more supporting circumstances is that PW2/K.Ganesan, who is one of the attestor of the Will is the son of the beneficiary/ propounder of the Will. Another attestor is one Ravi, who is the tenant under the plaintiff. The said Ravi has not been examined before this Court. Except the evidence of the interested witnesses viz., PW1 and PW2, no other independent witnesses were examined before this Court to show that the deceased Annammal is only affectionate towards the plaintiff alone and not affectionate towards other nephews and she was hale and healthy and was in sound disposing state of mind till the execution of Ex.P5-Will.

(viii) As already discussed, at the time of execution of the Will, she was 90 years old as per her own recital in Ex.P5-Will. In the above said circumstances, this Court is of the view that the Plaintiff has not dispelled the suspicious circumstances to prove the Will.

(ix) Since, the Defendants alleged exercise of undue influence, fraud, coercion and misrepresentation in respect of the execution of the will propounded, it is their duty to prove the same. But here, since, it is the Will, the Defendants culled out certain portions from the evidence of PW2 and urged that Ex.P5 Will is obtained by fraud and misrepresentation taking advantage of the age of Annammal and her health condition. Ex.P5-Will has been filed before this Court during the probate proceedings. One of the attestor of the Will viz., PW2/ Ganesan is the son of the plaintiff/PW1 and another attestor Ravi is a tenant under the Plaintiff. Moreover, the Defendants were not present at the time of execution of the Will. So, they can prove their defence only on the basis of the evidence let in on the side of Plaintiff. Here, PW2's candid admission is that at the time of attestation of Will, he himself, his mother, his father and Annammal were alone present. PW2/Ganesan, who is the son of PW1 and Ravi, an auto driver, who is a tenant under PW1, have attested the Will. In such circumstances, I am inclined to accept the plea/defence raised by the Defendants that Ex.P5 has been procured by the plaintiff by undue influence and playing misrepresentation. Issue No.2 is answered accordingly.

18. Issue No.4:- In view of the answer given to Issue Nos. 1 to 3, the Suit is liable to be dismissed.

19. In view of the answer given to Issue Nos. 1 to 4, it can be concluded that the plaintiff has failed to prove the attestation, genuineness and truthfulness of Ex.P5-Will and therefore, the plaintiff is not entitled to any relief as prayed for and therefore, the Suit is dismissed.

20. In fine, the Suit is dismissed. Considering the relationship of both parties, the parties are directed to bear their respective costs.

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