Judgment : The defendants 1 and 3 are the appellants. .2. The averments in the plaint are as follows: The plaintiff and defendants 1 and 2 are the daughter and sons of Kumarasami Gounder to whom the suit property belonged. Kumarasami Gounder who was enjoying the properties as head of the joint family died intestate on 26. 1967. Even after celebrating the marriage of the plaintiff, Kumarasami Gounder was detaining the plaintiff, her husband and their children with him. His wife predeceased Kumarasami Gounder. The first defendant was away from the village on account of his employment. But yet, the plaintiff and the second defendant who were residing in the family house, used to give a share of the yield due to the first defendant and he was also enjoying the same. The second defendant had helped the plaintiff in taking 6 acres of land in Pandali village of Kollegal taluk on lease. The second defendant was giving share from the yield of the family property to the plaintiff till 1986 Vaikasi. The plaintiff came to know that defendants 1 and 2 have divided the properties among them by means of a partition deed dated 23. 1981. When the plaintiff attempted to take registration copy of the said document, she came to know that the first defendant had sold a portion of the property in favour of the third defendant. When the plaintiff demanded partition in the village panchayat, the defendants refused. The defendants did not effect partition inspite of the notice issued by the plaintiff. The plaintiff is entitled to l/9th share as per the Hindu Succession Act. Hence the suit. .3. The first defendant in his written statement contends briefly as follows: The father of the plaintiff and the defendants 1 and 2, Kumarasami Gounder while in a sound and disposing state of mind had executed a will in favour of defendants 1 and 2 in the presence of Oor Gounder, one Ramadoss Gounder and others even on 23. 1965. The recitals in the document allotting 1/3rd share to Kumarasami Gounder is valid. After the death of Kumarasami Gounder on 26. 1967, the defendants 1 and 2 acquired a right in the 1/3rd share of Kumarasami and are enjoying the same as per the terms of the Will. The first defendant had also discharged the loans of his father to the tune of more than Rs.45,000. After the death of Kumarasami Gounder on 26. 1967, the defendants 1 and 2 acquired a right in the 1/3rd share of Kumarasami and are enjoying the same as per the terms of the Will. The first defendant had also discharged the loans of his father to the tune of more than Rs.45,000. The allegation that the plaintiff was residing with her father till his death is not true. The plaintiff quarrelled with her father and her brothers three years after the marriage and they were not even visiting each other thereafter. The plaintiff did not even attend the funeral of her father. The claim that the plaintiff was enjoying the suit property along with the second defendant and was giving 1/3rd share to the plaintiff is not true. The defendants 1 and 2 have effected a partition in respect of the properties belonging to them to the knowledge of the plaintiff’s husband even in 1981. In the said registered document, the plaintiff’s husband has signed as an attestor. The first defendant had sold a portion of the property allotted to him only in favour of the third defendant. The claim of the plaintiff that she demanded partition in the presence of villagers is not true. The third defendant had taken possession of the property on the date of the sale in his favour. The plaintiff had lost her interest if any even on 23. 1965 the date of the execution of the Will by their father The suit is therefore liable tp be dismissed. 4. The third defendant in his written statement has contended briefly as follows: The third defendant has purchased a portion of the property allotted in favour of the first defendant after due enquiry for a valid consideration of Rupees one lakh. An agreement of sale had already been effected between the third defendant and the first defendant on 12. 1986 itself. The plaintiff and her husband are aware of the same. The partition deed dated 23. 1981 was effected to the knowledge of the plaintiff and her husband. It was signed by the plaintiff’s husband also. The plaintiff has no right over the suit property since the first defendant and his brother were alone allotted the properties belonging to the joint family by Kumarasami Gounder in his will. The partition deed dated 23. 1981 was effected to the knowledge of the plaintiff and her husband. It was signed by the plaintiff’s husband also. The plaintiff has no right over the suit property since the first defendant and his brother were alone allotted the properties belonging to the joint family by Kumarasami Gounder in his will. The suit is barred by limitation since the plaintiff has not come forward within 12 years from the date of the death of Kumarasami Gounder. The suit is therefore liable to be dismissed. 5. In the additional written statement filed by the first defendant, the first defendant has stated that the plaintiff is not entitled to demand partition of the joint family house so long as the defendants 1 and 2, the male heirs are jointly residing in the said property without effecting any division between them. 6. In the reply statement, the plaintiff has stated that her husband has not signed the partition deed, that there’ was no partition between the defendants 1 and 2, that the deceased Kumarasami did not execute any will and that if there is any such will, it is a forged document. It is also stated by her that even if there is any such Will, will be valid only in respect of the 1/ 3rd share of the father. In the additional reply statement, she has stated that the defendants 1 and 2 have divided the joint family house among them and they wanted it to be divided among themselves and therefore she is entitled to demand partition. 7. On the above pleadings, the learned Sub Judge, Gobichettipalayam, after trial, has passed a decree granting partition and separate possession of l/9th share in the plaint items 1 and 2 in favour of plaintiff and dismissed the suit in respect of the other property and also relegated the enquiry with regard to the mesne profits to a separate proceedings under O.20, Rule 18 of Code of Civil Procedure. 8. Aggrieved over the same, the first and third defendants have come forward with this appeal. 9. The point for consideration is: whether the judgment and decree of the trial court in respect of items 1 and 2 of the suit schedule properties is not valid? 8. Aggrieved over the same, the first and third defendants have come forward with this appeal. 9. The point for consideration is: whether the judgment and decree of the trial court in respect of items 1 and 2 of the suit schedule properties is not valid? 10.Point: The plaintiff has filed the suit for partition and separate possession of her l/9th share in the suit properties contending that the properties belonged to her father Kumarasami Gounder who died intestate on 26. 1967, and that the first defendant as an elder brother who is now looking after the properties has contended that their father had executed a Will while in a sound and disposing state of mind on 23. 1965 under which he had bequeathed the properties in favour of his two sons viz., the second defendant and himself. The plaintiff has also stated that the claim of the first defendant that their father had executed a Will and he had sold his share of the property in favour of the third defendant is not correct since their father had not executed any Will. The defendants 1 and 3 contested the suit by contending that the father of the plaintiff had executed a Will while in a sound and disposing state of mind and the brothers viz., defendants 1 and 2 have divided the properties among them and the first defendant had executed a sale deed in respect of the properties allotted in his favour in favour of the third defendant for valid consideration and the plaintiff is not entitled to any share. It is also contended by the first defendant that the plaintiff being a female heir of the deceased Kumarasami Gounder, she cannot claim partition of her share if any in the joint family house so long as the male heirs of Kumarasami Gounder have not divided the properties among themselves. The trial court has held that the Will relied by the defendants said to have been executed by the father under Ex.B-8 is not true and valid and that the plaintiff is entitled to a share as per the Hindu Succession Act in all the properties including the house property since the brothers viz., defendants 1 and 2 have allowed the property to be occupied by strangers. The learned Sub Judge has pointed out a number of suspicious circumstances to hold that the Will under Ex.B-8 cannot be true. Let us consider the suspicious circumstances subsequently. It is to be noted that in the Will under Ex.B-8 a substantial portion viz. last two lines of the first page to eight lines in the second page has been scored. The Will does not have any ‘shara. ‘to the scoring of this particular portion of the Will. The scoring has not been attested by either the testator or by the scribe or by any one of the attestors. In the scored portion, it has been written that the testator had educated the first defendant to such an extent, that the first defendant is employed and the first defendant has also been married whereas the testator had not done any help to the second son viz., the second defendant who was then a minor and he had not spent any amount towards his education or marriage and therefore, the first defendant should pay a sum of Rs.3,000 from out of the income of the properties allotted in his favour to the second defendant to enable him to celebrate the marriage and if the first defendant fails to pay the said amount at the time of the division of the properties one acre should be allotted in excess in favour of the second defendant. This particular portion which has been scored in the Will reads as if the intention of the testator was that he has to make some additional provision in favour of the second son on account of his failure to make proper provision to him at the time of the execution of the Will and he has . intended that this should be done by his eldest son the first defendant. 11. The first defendant examined as D.W.1 has stated that his father had handed over the Will to him after the execution of the same and after going through the Will he had informed his father that the direction given by his father to him in the Will that some amount should be paid in excess to the second defendant or some property should be allotted more than his due share in favour of the second defendant, is wrong and on his representation his father had scored the same whole-heartedly. It is also stated by him that in the Will, it is specifically stated that one acre of land or sum of Rs.1,500 should be paid by him to his younger brother and on his objection the said recital was scored by the father and he had celebrated the marriage of his brother at an expense of Rs.2,500. This evidence of D.W.I would show that the will had not been executed by Kumarasami Gounder even assuming it was executed by him while in a sound and disposing state of mind, as per his will and desire. The admission of D.W.I that on his objection with regard to the certain recitals in the Will, his father had scored them, assumes importance since on account of the scoring of the said recitals the first defendant is absolved from a duty towards his younger brother which the father wanted him to discharge. At a later stage of cross examination, he would say that after going through the Will, he had informed his father that this particular recital, will be a nuisance to him and handed over the Will to his father himself and he does not know when his father scored the same. It is also stated by him that when his father returned the will three months later, he had informed him that he has scored the recitals in the Will which were of nuisance character in favour of the first defendant in the presence of Ramadoss Gounder and Vadamalai Gounder. The scoring of the particular recital has not been attested by either the father Kumarasami Gounder or Vadamalai Gounder or Ramadoss Gounder in whose presence the scoring is said to have been done by his father. The two witnesses examined on behalf of the defendants to prove the Will viz., D.Ws.2 and 3 have categorically stated that they do not know when the recitals in the document has been scored out and by whom. The evidence of D.W.1 would thus show that the Will under Ex.B-8 had lost its solemnity when a particular portion of the Will which was made in the interest of the second defendant by his father was said to have been scored by the testator at the instance of the first defendant who was his eldest son. The evidence of D.W.1 would thus show that the Will under Ex.B-8 had lost its solemnity when a particular portion of the Will which was made in the interest of the second defendant by his father was said to have been scored by the testator at the instance of the first defendant who was his eldest son. The Will should reflect the desire and intention of the testator as to how the properties belonging to him shouldbe shared between the beneficiaries for whom he wants to give his properties after his death. This element of solemnity having been taken away by the person who is said to have scored the particular portion of the recitals in the Will, at the instance of one of the beneficiaries I am of opinion that the Will under Ex.B-8 cannot be said to be a true and valid document binding on the parties to the suit. 12. Now, let us consider the genuineness of the Will. Before proceeding further, it is necessary to recollect some of the established principles which the court has to bear in mind while considering the genuineness of a Will. In the decision reported in Pushpavathi v. Chandraraja Kadamba, A.I.R. 1972 S.C. 2492: (1973)3 S.C.C. 291 , it is held as follows: “It is for the propounder of the Will to prove it, and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient, to discharge the onus which is placed upon the pro-pounder of the Will. Where there are suspicious circumstances, the propounder of the Will has to explain them away to the satisfaction of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator’s mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator’s mind was not free”. In the decisions reported in Lasman Mandal v. Saro Devi, A.I.R 1985 Pat. 151,Dinesh Kumar v. Khazan Singh, A.I.R. 1988 Del 273 and Billeswar Kumar v. Nirupama Debi, A.I.R. 1973 Cal 460, it has been held that the propounder has to prove genuineness and satisfy the conscience of the court that there is no unconscionability. In the decisions reported in Lasman Mandal v. Saro Devi, A.I.R 1985 Pat. 151,Dinesh Kumar v. Khazan Singh, A.I.R. 1988 Del 273 and Billeswar Kumar v. Nirupama Debi, A.I.R. 1973 Cal 460, it has been held that the propounder has to prove genuineness and satisfy the conscience of the court that there is no unconscionability. It is in evidence that the testator Kumarasami Gounder has taken ‘Dheetchai’ renouncing the interests in the worldly affairs and was writing ‘Sivayanamaha’ under the belief that a person who writes ‘Sivayanamaha’ for more than a lakh of times will attain salvation. It is in evidence of P.W.1 that Kumarasami Gounder did not even visit his house on the death of his wife and it is stated mat he had gone behind the temple where he was staying when the funeral procession of his wife passed through that place under the belief that he should not see the face of the dead-body. If it were so, it is highly improbable that he would execute the will to the exclusion of his only daughter, the plaintiff. Excluding his daughter in the Will is a strong suspicious circumstance against the genuineness of the Will. It is stated by D.W.3 that he wrote a draft and after writing the fair Will, scored the draft and he wrote two Wills. There is no explanation as to why a person executing a Will should write two Wills. The writing of two Wills by Kumarasami Gounder is also a circumstance with regard to the genuineness of the Will marked as Ex.B-8. The attestor D.W.2 has not stated that he had seen the testator signing the first page of the Will which consists of two pages. The scribe also does not say that he saw the attestor signing both the pages even though he has stated that he saw the testator signing the Will and the testator saw his signing the Will. When the attestor D.W.2 and the scribe of the Will have not spoken that they saw the testator signing the first page of the Will, it cannot be stated that they have proved the Will. The Will is said to have been executed on 23. 1965. D.W.3 would say that he wrote the Will four years prior to the death of Kumarasami Gounder. Kumarasami Gounder died in the year 1967 is not in dispute. The Will is said to have been executed on 23. 1965. D.W.3 would say that he wrote the Will four years prior to the death of Kumarasami Gounder. Kumarasami Gounder died in the year 1967 is not in dispute. If it were so, the Will ought to have been executed in 1963. But the case of the defendants is that the Will has been executed on 23. 1965. When exactly the Will was executed has not been, clearly stated by the witnesses examined on behalf of the defendants. Certain other documents have come into existence subsequent to the Will. Ex.B-7 is dated 14. 1968 written by the second defendant to the first defendant. In Ex.B-7, the second defendant has written to his brother, that the first defendant is not acting in accordance with the panchayat decision and the Will executed by his father is in his custody and he is prepared to give the Will to his brother viz., the first defendant. It is not the case of the first defendant that he got the Will under Ex.B-8 from his younger brother the second defendant and produced it in court. D.W.1 has stated that three months after the execution of the same, the Will was handed over by his father to him. How the first defendant has got the custody of the Will is under suspicious circumstances in view of the recitals in Ex.B-7 and the evidence of D.W.1 regarding the same. Ex.B-5 is the registered partition deed between defendants 1 and 2 in which it is specifically stated that the properties which they are dividing under the said document belonged to them ancestrally and was in their enjoyment commonly and the division was as per the advice of the panchayatdars who are interested in their welfare. There is no mention of the execution of the Will by their father in their favour and they are dividing the properties as per the terms of the Will in this partition deed of the year 1981 between the defendants 1 and 2. Ex.B-9 is an agreement of sale said to have been entered into between the defendants 1 and 3 in respect of the share which is said to have been allotted in favour of the first defendant in the partition. Ex.B-9 is an agreement of sale said to have been entered into between the defendants 1 and 3 in respect of the share which is said to have been allotted in favour of the first defendant in the partition. In this agreement of sale under Ex.B-9 as well as the sale deed in favour of the third defendant under Ex.B-10, no mention of the Will under Ex.B-8 has been made by the first defendant. In the sale agreement reference to the partition deed under Ex.B-5 has been made and no reference to the Will under Ex.B-8 finds a place in this agreement. So, also, the sale deed in favour of the third defendant also does not refer to the Will of the father even though this document also refers to the partition deed between the brothers. If the Will had come into existence in the year 1965 as claimed by the defendants 1 and 3, there is no reason as to why the same has not been mentioned in the subsequent documents especially when the first defendant along with his brother the second defendant makes a claim in respect of the suit properties in his favour only in accordance with the Will of Kumarasami Gounder to the exclusion of his sister, the plaintiff. Therefore, when we consider the above suspicious circumstances around the Will, there is every reason to hold that the Will is not a true and valid document executed by Kumarasami Gounder while in a sound and disposing state of mind. As I have already observed even assuming the Will is said to be a true document, it cannot be considered as a valid docu- ment since it does not reflect the intention of the testator on account of the fact that a portion of the same has been scored by somebody. It is thus seen that on consideration of the materials placed before the court, the trial court has rightly come to the conclusion that the first defendant has failed to prove that the Will under Ex.B-8 is a true and valid document. 13. The suit is resisted on the ground that the plaintiff a female heir of Kumarasami Gounder is not entitled to a division of the properties especially the house property so long as the male members did n&t divide the same among them. This objection is based on Sec.23 of the Hindu Succession Act. 13. The suit is resisted on the ground that the plaintiff a female heir of Kumarasami Gounder is not entitled to a division of the properties especially the house property so long as the male members did n&t divide the same among them. This objection is based on Sec.23 of the Hindu Succession Act. It is not in dispute that there are tenants in a portion of the house property belonging to the family of the plaintiff and the defendants. It goes to show that possession of the house does not continue to be with the male members of the family. It has been held in the decision reported in Usha v. Smriti, A.I.R. 1988 Cal. 115, that restriction on the right of a female heir to claim partition in respect of the dwelling house of her predecessor-in-interest will, not operate when it is partly occupied by members of family and the plaintiff was entitled to partition in respect of her share. Considering the provisions of Sec.23 of Hindu Succession Act and apply the above proposition to the case on hand, it would lead us to an inference that the plaintiff s case that she is entitled to a share in the family house has been rightly upheld by the trial court. It is thus seen that the learned Sub Judge, Gobichettipalayam, after considering all the aspects in this case, has rightly held that the plaintiff is entitled to her l/9th share and relegated an enquiry regarding the mesne profits to a separate proceeding and there is nothing to interfere with the same. Since the suit is one for partition and the plaintiff s share is only l/9th I am of opinion that at the time of the passing of the final decree, the parties are at liberty to suggest mode of division allotting l/9th share of the entire properties in favour of the plaintiff in such a manner it does not interfere with the rights of the third defendant since he has purchased the property for valid consideration after due enquiry. I hold on the point accordingly. 14. I hold on the point accordingly. 14. In the result, the appeal is dismissed confirming the judgment and decree of the trial court with the following observation: At the time of the final decree proceedings, parties are at liberty to suggest mode of division of the properties and allotment of 1/ th share in favour of the plaintiff in such a way it does not interfere with the possession and enjoyment of the properties purchased by the third defendant from the first defendant. The plaintiff is also at liberty to receive the value of her l/9th share in cash in lieu of her share from the defendants 1 to 3 jointly and severally. No costs.