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TMI Blog2024 (1) TMI 1432X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The plaint averments, in brief is as follows : - The suit schedule properties originally belonged to one Balasubramaniya Thanthiriyar. He married twice. Through his first wife, Rajammal (plaintiff No.4/respondent No.4), he got three sons, namely, Muruganandam (plaintiff No.1/respondent No.1), Ganesh Murthy (plaintiff No.2/respondent No.2) and Kannan (plaintiff No.3/respondent No.3) and one daughter by name Mahalakshmi (plaintiff No.5/respondent No.5). While the marriage with the first wife Rajammal was subsisting, Balasubramaniya married Leela (petitioner No.1/defendant No.1) and as such, she is an illegitimate wife. Sivakumar (petitioner No.2/defendant No.2) and Lt. Mageshwaran (petitioner No.2/defendant No.3) are the illegitimate sons of Balasubramaniya through Leela. 3. Earlier, Balasubramaniya Thanthiriyar instituted O.S. No.504/ 1986 against his first wife and children through her viz., plaintiff Nos.4, 1 to 3 and 5 respectively. Later, it was compromised at the instance of the elderly villagers and partition of properties effected between them as per partition deed dated 04.12.1989. As per the partition deed, his properties were divided into four schedules. Properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t filed a written statement which was adopted by defendant Nos. 2 and 3/respondents 2 and 3. Now, respondent No. 3 is no more and he is represented by his legal heirs. 6. In the suit, the appellants herein/the defendants produced the Will dated 06.04.1990 which is an unregistered one. They filed a written statement stating that Balasubramaniya was being harassed and assaulted by the plaintiffs and it is due to that harassment that the partition deed dated 04.12.1989 was executed. The plaintiff/ respondents herein could not claim any right over the properties based on the partition deed. The plaintiffs got no right over the first-schedule properties which was allotted to Balasubramaniya. It is their contention that the first-schedule properties belonged to Balasubramaniya and, therefore, after his demise only the second and third defendants got entitlement. 7. Based on the rival pleadings, the Trial Court framed the following issues: - "(i) Whether the plaintiffs are entitled to a share in the first schedule of the properties? (ii) Whether the will dated 06.04.1990 is valid? (iii) Whether the plaintiffs and defendants 2 and 3 are in joint enjoyment of the suit properties? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if only the finding on the validity and enforcement of the alleged Will dated 06.04.1990 is interfered with in this proceeding. 12. The learned Senior Counsel appearing for the appellants would contend that the Courts below have erred in arriving at the finding that the said Will is not genuine and shrouded with suspicious circumstances. It is the submission that the appellants/defendant Nos.1 to 3 had succeeded in establishing its execution in terms of Section 63 of the Indian Succession Act, 1925, by examining two attesting witnesses and Section 68 of the Indian Evidence Act, 1872. It is also the contention that both the Trial Court and the High Court have failed to consider that initially there was a dispute on the entire property belonging to Balasubramaniya Thanthiriyar between him, on the one side and his first wife and children through her born to him on the other side viz., O.S. No.504 of 1986 filed by Balasubramaniya Thanthiriyar himself. It is the further contention that later, he effected a partition of the said properties through a partition deed dated 04.12.1989 into four schedules and except the first schedule the others were given in favour of the plaintiffs and onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged, it is for the objector to pinpoint the suspicious circumstances. It is also the settled position that upon such objection, it is for the propounder to remove such suspicious circumstances. (See the decision of this Court in Derek A.C. Lobo v. Ulric M.A. Lobo (Dead) by LRS. 2023 SCC OnLine 1893; 2023 INSC 1093), in one among us (C.T. Ravikumar, J.) is a party. 15. Now, we will refer to the suspicious circumstances pointed out by the Courts below: - (i) That the first appellant (DW-1) one of the beneficiaries and the mother of the other beneficiaries played active role in the execution of the Will in question and concealed this fact before the Court; (ii) Contradictory recitals on the health of the testator in the Will and the evidence of DW-1 herself strengthening the same; (iii) Non-matching of the signature of the testator in Ext.A1-partition deed and Ext.B2-Will dated 06.04.1990; (iv) Non-examination of the person who typed the Will; (v) Non-examination of the Scribe; (vi) Incongruity with respect to the place of execution of the Will. (vii) Failure to prove that the testator executed the Will after understanding its contents. 16. At the outset, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeded in proving the execution of the Will and if so, whether the appellants who disputed its execution and also challenged the Will on the ground of existence of suspicious circumstances would make the same unreliable and not worthy for proceeding further. 20. There can be no doubt with respect to the manner in which execution of a Will is to be proved. In the light of plethora of decisions including the decisions in Moturu Nalini Kanth v. Gainedi Kaliprasad (Dead, through Lrs.) 2023 SCC OnLine SC 1488; 2023 INSC 1004 and in Derek AC Lobo's case (supra) this position is well settled that mere registration of a Will would not attach to it a stamp of validity and it must still be proved in terms of the legal mandates under the provisions of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. It is not the case of the appellant that the Will dated 06.04.1990 is a registered one. 21. Now, Section 63 of the Succession Act reads thus:- "63. Execution of unprivileged wills.-Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Will in question is the brother of DW1, the first appellant. Going by her oral evidence, it was DW1, her brother who had brought the same to her. She had also deposed that in 1990 her husband, the testator was unwell and was under treatment in Madras and his health was in bad condition. Add to it, she deposed that his and her life was in danger from the sons of his first wife. Thus, if DW1 is to be believed the testator's physical and also mental conditions were not in sound disposition, as held by the Trial Court and appreciating the evidence the Courts have found that there is no such circumstance of threat as alleged and attempted to be proved by the first defendant (DW1) necessitating the testator to execute the Will. 25. Now, going by DW1, she had no role in the preparation of the Will. But the undisputed and proven fact is that two stamp papers on which the Will was typed were brought in the name of the first defendant from Tenkasi. In this context, it is also to be seen that the attesting witness who was examined as DW2 in Court is admittedly the brother of the first defendant viz., DW1 and further that it is her case that the Will in question was given to her by DW2 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re that her husband was going to execute a Will at Madurai and then, the proven fact is that two stamp papers, on which 2 pages of the Will were typed, were purchased in the name of the first defendant from Tenkasi, create some suspicion. As noted earlier, the health of testator was in bad condition and if so, the case that the execution of the Will was at a far away place from Madurai is also a matter casting suspicion. Evidently, it was taking into consideration all the aforesaid and such other circumstances that the High Court arrived at the finding that the execution of the Will itself was not proved. The circumstances surrounding the Will were also concurrently held as suspicious. 31. In the circumstances, the evidence of DW2 cannot be taken sufficient to prove the execution of the Will in question in the manner it is required to be proved and to accept it as genuine. It can only be held that the defendants have failed to prove that the testator executed the Will by putting his signature after understanding its contents. In such circumstances, when the findings are concurrent how can the findings on the validity and genuineness of the Will in question by the Trial Court and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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