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TMI Blog2004 (11) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... are the legal representatives of the said plaintiffs. Defendant no.1, Chandrasekaran (respondent no.1) is the son of Sadasivam whereas defendant no.2, Vadivelu (respondent no.2) is the son of Gnanambal. They are the children of the step brother and the step sister of Siva. Siva died as bachelor on 6.11.1978. Siva and his step brother Sadasivam had jointly executed a deed of settlement on 10.6.1956. Under the said settlement, the two brothers settled some of their properties in favour of Kaveri and divided the rest of their properties amongst themselves. In the present matter, we are concerned with the separate properties of Siva (since deceased). Meenakshi, Arunachalam Pillai and Palani Velu Pillai, children of Kamakshi, instituted title suit bearing O.S. No.247 of 1981 in the Court of District Munsif of Thiruthuraipundi (hereinafter for the sake of brevity referred to as the trial Court) for a declaration and for recovery of possession of the suit properties of Siva alleging that they were the children of his real sister and, consequently, were entitled to succeed to his properties; that defendant nos.1 and 2 were the children of the step brother and the step sister o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther deposed that the plaintiffs resided in the village, Vettaikaran, about 15 miles away from the suit village where Siva was living. DW1 further deposed that Siva was looked after by Kaveri and Sadasivam and, therefore, the will, Ex.B/8, was duly executed by Siva in favour of the defendants. DW1 denied that the deceased Siva had become senile and that he was incapable of judging things for himself. DW1 denied that Ex.B/8 was executed at the instance of the defendants and without the knowledge of the deceased testator who allegedly had lost all his mental faculties. DW2, Vaithinathan, the scribe deposed that as requested by Siva, he was taken by DW1 to Siva's residence, where in the presence of Siva and under his instructions, the will was written and that too in the presence of the attesting witnesses. That in the presence of DW2, Siva, had read the contents of the will before subscribing his signature thereon. Further, in the present case, the defendants also examined the attesting witnesses, who have deposed in proof of the execution of the said will. They have deposed that the deceased Siva was in a sound disposing state of mind and he had executed the will on his own. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt that in the plaint, there was no challenge to the validity or genuineness of the will despite the fact that full particulars of the will were supplied to the plaintiffs by the reply dated 26.1.1979. That, the will was produced in the suit by the defendants who had proved the same. It has been further held that the plaintiffs had not alleged forgery or undue influence in the plaint and in the absence of such pleas, it was not open to the lower appellate Court to hold that the will was procured or forged. The High Court examined the evidence and came to the conclusion that the execution of the will by Siva was proved; that Siva was at the time of execution of the will having sound disposing mind and in the circumstances, the findings recorded by the lower appellate Court were perverse and not proper. In the result, the appeal was allowed and the judgment and decree of the trial Court, dismissing the suit, was restored. Hence, this civil appeal. Mr. K.B. Sounder Rajan, learned advocate appearing on behalf of the appellants submitted that the plaintiffs had instituted the suit for declaration and for recovery of possession in which the defendants set up Ex.B/8. He submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the will, Siva was 85 years old and had suffered fracture. He was mentally alert. He was looked after by the defendants. The plaintiffs were nowhere in sight during his hospitalization or his treatment. In the circumstances, the defendants have proved the reason for exclusion of the plaintiffs from the benefits under the will. In the matter of execution of the will, the evidence of DW2 shows that DW1 had come to fetch him at the behest of Siva. DW2 wrote the will under the instructions of Siva. Before signing, Siva had read the will. The will was signed in the presence of the attesting witnesses. The said witnesses had attested in presence of Siva. There is no evidence on record to indicate that Siva had become senile. In this connection, it may be pointed out that in October, 1978, Siva had alienated one of his several properties for consideration which circumstance shows that he had a sound disposing mind and that there was no substance in the allegation of the plaintiffs that the testator had become senile. As rightly pointed out by the trial Court, it was the plaintiff's own case, while cross-examining DW1, that Siva was a prudent and wise man. Further, we are in agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... influence, the onus of proving undue influence is upon the person making such allegation and mere presence of motive and opportunity are not enough. In the case of Madhukar D. Shende v. Tarabai Aba Shedage reported in [AIR 2002 SC 637], it has been held as follows: 8. The requirement of proof of a Will is the same as any other document excepting that the evidence tendered in proof of a Will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the Court either believes that the Will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the Will was duly executed by the testator, then the factum of execution of Will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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