Judgment :- 1. Defendants 1 to 3 and 5 in O.S. No. 183 of 1976, on the file of District Munsif, Kallakurichi, are the appellants. 2. The relevant facts of the case may be summarised thus: — “The plaint ‘A’ schedule property originally belonged to the deceased 1st plaintiffs mother Mulhammal. It is their case that under the original of Ex.A-1 dated 11.7.1932, 1st plaintiffs father Muthu Udayar purchased ‘A’ Schedule property in the name of Muthammal who died eight years prior to the institution of the suit. The deceased 1st plaintiff was the only daughter and she had a brother, by name Narayana Udayar. On the death of Muthammal, her right over the ‘A’ Schedule property devolved on her and h er brother Narayana Udayar in equal share. Narayana Udayar died and his half share devolved on his widow, the 1st defendant and his daughters-defendants 2 and 3. The 1st plaintiff claimed half right in ‘A’ Schedule property. In regard to ‘B’ Schedule property, it originally belonged to her father Muthu Udayar. After his death, his right over the property devolved on his widow and his only son Narayana Udayar. On the death of Muthammal, her right over the property devolved on her son and the daughter the 1st plaintiff. Thus the 1st plaintiff is entitled to 1/4th share in ‘B’ Schedule properties and defendants 1 to 3 are entitled to the remaining 3/4th share. A notice was issued seeking partition, for which a reply was sent repudiating the claim of the 1st plaintiff. The suit was therefore, filed for partition.” 3. In the written statement filed by the defendants it is stated that the sale deed-Ex. A-1 is a sham and nominal. Muthammal never enjoyed the property. Regarding ‘B’ Schedule properties also, it is stated that the plaintiffs are not entitled to any share. Muthammal had executed a will on 10.3.1965, bequeathing all her rights in the properties to the 1st defendant. They also put forward a plea of adverse possession and limitation. 4. The trial court as per Judgment dated 29.11.1980, passed a preliminary decree as prayed for. While passing the decree, the trial court came to the conclusion that the contention that Ex.A-1 is sham and nominal is not substantiated. They also put forward a plea of adverse possession and limitation. 4. The trial court as per Judgment dated 29.11.1980, passed a preliminary decree as prayed for. While passing the decree, the trial court came to the conclusion that the contention that Ex.A-1 is sham and nominal is not substantiated. It was further found that there is no necessity for the deceased Muthu Udayar to execute a sham document in favour of his wife and the circumstances pleaded by the defendants cannot be believed. It was also found that the will-Ex.B-8 is not a will, but a document created a right in presenti and the same is invalid being an unregistered one. Apart from the same, the evidence of the attestors was also considered and it came to the conclusion that it is not executed by late Muthammal. 5. Against the preliminary decree granted by the trial court, an appeal was filed by the defendants as A.S. No. 201 of 1981, on the file of Sub-Court, Vridhachalam. The lower Appellate Court also confirmed all the findings of the trial court and dismissed the appeal. The concurrent judgment is assailed on the following substantial questions of law: — “1 Whether the finding of the lower appellate court on the non-registration of the will is not correct in law. 2. Can the genuineness of a will be decided by considering the circumstances only, without considering the oral evidence especially the evidence of the scribe and the attestors to the will? 3. Whether the courts below are not correct in their finding on Ex.A-1s benami character?” 6. Question No. 3 was not seriously pursued by the appellants counsel. Under Ex.A-1, the property stands in the name of late Muthammal. It is the case of the plaintiffs that the document is executed by Muthu Udayar in favour of his wife and she is the owner. As against the said contention, it was alleged by the appellants that such a document was necessitated due to the then prevailing circumstances. According to them, that they were apprehending some maintenance suit from the sister-in-law of late Muthu Udayar, and to over-come the same such a document was executed by him. It was never intended to come into effect. As against the said contention, it was alleged by the appellants that such a document was necessitated due to the then prevailing circumstances. According to them, that they were apprehending some maintenance suit from the sister-in-law of late Muthu Udayar, and to over-come the same such a document was executed by him. It was never intended to come into effect. The case of the appellants is that Muthu Udayars sister-in-law Vridhambal was about to file a suit and claim maintenance and to shield the property from the so-called creditors, Ex.A-1 happened to be executed. It is come out in evidence that Vridhambal never filed a suit nor Muthu Udayar gave maintenance and there was also no necessity for executing such a deed. I do not think that any purpose could be served by executing a document in favour of late Muthammal. It is admitted that Muthammal did not have any source of income. Whatever property acquired by her can only be from the advance made by her husband. If Vridhambal had to file a suit and claim maintenance, she could very well proceed against the property on the ground that the property belonged to Muthu Udayar and not Muthammal. When she has not taken any action till her death, the so-called intention to purchase the property in benami can never be accepted. Counsel for the appellants fully aware of the weakness in his case and it was for that reason, he has not pursued his argument any further. Question No. 3 is therefore, found against the appellants. 7. Question Nos. 1 and 2 can be considered together. In fact the contention of benami and the contention that late Muthammal had executed a Will in respect of the plaint properties are really inconsistent. If the appellants wanted to claim a right under the Will, naturally they will have to admit the right of Muthammal over the property. On a reading of Ex.B8, I do not think that it could be construed as a will. A Will is a solemn document executed by a person whereby he bequeathes his properties with intent to come into effect after his death. It is always revocable at the volition of the executant. It is optionally registerable. In Ex.B8, I find that a right in praesenti is created and it further declares that the executant will have no right to cancel the same. It is always revocable at the volition of the executant. It is optionally registerable. In Ex.B8, I find that a right in praesenti is created and it further declares that the executant will have no right to cancel the same. These two stipulations in the deed create a doubt in the mind of the court, whether the document is a testamentary disposition or not. 8. It is seen from Ex.B8, that the 1st defendant is given a right of enjoyment without the right of encumbrancing the same and the grand-children are given the absolute right of disposal of the same. It is also stated in Ex.B8 that the daughter is not entitled to any share over the items bequeathed. Once I held that it is not a will, I do not think that any further question would arise in this case. But the courts below after considering the above aspect have also taken into consideration the oral evidence that was let in this case. D.W.1 is the 2nd defendant. Ex.B8 Will was marked through her. She is not an attestor of the will nor she identified the signature of either the executant or the attestors. The said document was marked subject to objection. Even at that time an objection was raised that the document itself could not be admitted, since the same require stamp duty penalty and registration. The trial court, after recording the objection has held that the will is not properly proved and there is also no evidence regarding the actual execution of the will. As I said earlier, D.W.1 is incompetent to prove the execution of Ex.B8. D.W.3 is one of the attestors to Ex.B8. A reading of his evidence makes it clear that the Will is not prepared by him nor he identified any of the signatures in Ex.B8. He only said that he is an attestor to Ex.B8 will. Muthammal signed in the presence of attestors and the attestors also signed in the presence of Muthammal. He also said that Muthammals son i.e. , the husband of the 1st defendant was also alive at that time and he was also aware of the execution of the will. Why he was not made as an attestor is not explained by anyone. Even though a reference was made to the 1st defendant, she only said that she is not entitled to any share. Why he was not made as an attestor is not explained by anyone. Even though a reference was made to the 1st defendant, she only said that she is not entitled to any share. Taking into consideration the human conduct, it is only proper to explain the reason why the son was not provided any property and she has preferred her daughter-in-law. 9. D.W.4 is the husband of 3rd defendant. He also came to be as an attestor. According to his evidence will be of no use. His wife is also one of the beneficiaries under the will and the 3rd defendant is interested in upholding the will in this case. In A.I.R. 1959 S.C. 443 (H. Venkatachala Iyengar v. B.N. Thimmajamma and others), their Lordships considered the question regarding the proof of Will. It was held thus: — “The party propounding a Will or otherwise making a claim under a 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 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. 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 or 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 testators mind and his signature as required by law. 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. 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 propounders 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” 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 testators free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before 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 wills which confer on them substantial benefits. 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 wills which confer on them substantial benefits. It 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 suspcious 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. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and q uality of the evidence adduced by the parties.” 10. As I said earlier, the evidence of D.W.4 cannot be said to be disinterested. In fact they are interested in upholding the will, since the legacy is in their favour. He also does not identify any of the signatures in the will. It is in evidence that the deceased 1st plaintiff and Muthammal were in very good terms till their death. If so, under normal circumstances, taking into consideration the social and community set up, to which the parties belong, a mother-in-law will never prefer daughter-in-law, ignoring the claims of the only surviving daughter. It is in evidence that the deceased 1st plaintiff and Muthammal were in very good terms till their death. If so, under normal circumstances, taking into consideration the social and community set up, to which the parties belong, a mother-in-law will never prefer daughter-in-law, ignoring the claims of the only surviving daughter. It must also be noted that Narayana Udayar was also alive when Ex.B8 will was executed. It is admitted even by the defendants that Muthammal and other defendants were living with him. Why Narayana Udayar was disinherited and there is not even a reference about him in the will. When she is a dependant of her own son, giving the entire property to her daughter-in-law and her children would be a suspicious circumstance, which the defendants are bound to ex plain. Absolutely, no evidence has been let in that regard. They say that even though Narayana Udayar was aware of the bequest, he was not made as an attestor. The only sentence in Ex.B8 was disinheriting the plaintiffs reads thus: — Tamil A testator is entitled to bequeathe her property in the ways she like But when persons who are legally entitled to a share are disinherited, they are at least entitled to know why they were not provided. If the testator had no intention to provide, in spite of retaining good relationship, she could have made mention of it in the will itself. The legal representatives are none other than her son and daughter. They are excluded from the bequest. No attempt was made by the appellants to explain the same. 11. Even though Ex.B8 will be alleged to have been executed in the year 1965, she died only four years thereafter. The Will is also not registered. Reason is mentioned in Ex.B8, that since she cannot go to the Sub-Registrars office, because of his ailment, the document is not registered and given to her. It is the case of the appellants that at the time when Ex.B8 was executed she was hale and healthy and understood the consequence of bequest. If that be so, the reason mentioned in Ex.B8- Will for non-registration also raises a suspicion. As I said earlier, the wordings therein are also unusual. 12. D.W.1 is a document writer. From his cross-examination, it is seen that he has written so many wills. If that be so, the reason mentioned in Ex.B8- Will for non-registration also raises a suspicion. As I said earlier, the wordings therein are also unusual. 12. D.W.1 is a document writer. From his cross-examination, it is seen that he has written so many wills. If he is a professional document-writer, who is well-versed with the preparation of the will, I feel that the wordings would have been entirely different. He also said that even if the executant is not well, the Sub-Registrar can be brought to the house and get the document registered and he also aware of it. A reading of his evidence also shows that he is also not speaking truth. In this connection, it is also worthwhile to token into consideration the decision reported in 1996 2 M.L.J. 596 (Suguna Bai v. Muniammal @ Dhanalakshmi and others), wherein this court has held as to how the evidence of the attestors of the will could be taken as a proof of execution of the will. It was held therein that “when attestation to a will is sought to be proved, naturally, the witness must say that the document contains either the thumb-impression or signature of the executant and that he has also signed, in token of the attestation. He must identify the signature as seen in the document.” The said decision was followed in the decision reported in 1997 (3) L.W. 673 (Govindan Chettiar (died) Etc. v. Akilamdam alias Seethalakshmi & 24 others). There is absolutely no evidence in this case, regarding the proof of the execution or attestation of the will. As I said earlier, D.W.1 is not an attestor, but only a beneficiary. It is through him Ex.B8 is marked. He also does not identify any of the signatures nor the so-called attestors. In the Suguna Bais case, I have also taken into consideration the decision reported in 1990 S.C.J. 588 (Ram Piari v. Bhagwant and others), wherein their Lordships of the Supreme Court have held thus: — “Soft corner for grand-children or like ability for a son or daughter or their issues is not uncommon to our society. Rather at times it becomes necessary either to provide for the lesser fortunate or to avoid the property from passing out of the family. Rather at times it becomes necessary either to provide for the lesser fortunate or to avoid the property from passing out of the family. But when disputes arise between heirs of same degree, and the beneficiary even chooses to deny the blood ties, and that too unsuccessfully, men courts responsibility of performing its duties carefully and painstakingly multiples. Unfortunately it was not properly comprehended by any of the courts, including the High Court which was swayed more by happy marriage of appellant, a consideration which may have been relevant for testator but wholly irrelevant for courts as their function is to judge not to speculate. Although freedom to bequeathe ones own property amongst Hindu is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at the time of disposition knew and understood the property he was disposing and persons who were to be beneficiaries of his disposition. Prudence, however, requires reason for denying benefit to those who were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a Will but it shrouds the disposition with suspicion as it does not give any inkling to the mind of testator to enable the court to judge if the disposition was voluntary act.” 13. The various suspicious circumstances have also not been dispelled. It may also be stated that the will is not a compulsorily registrable document but registration is also a proof regarding the genuineness. If the registration formalities are complied with, as per rules, the statutory presumption may not be available in regard to unregistered wills and the case law is in abundance where documents are created even after the death of the owner. While appreciating the evidence of the attestors, the court is also bound to take into consideration the surrounding circumstances. Taking into consideration all these facts and also the evidence which I have already discussed, the only conclusion that could be reached in this case is that Ex.B8-Will is not a genuine one and the findings of the courts below are only to be confirmed. Question Nos. 1 and 2 are also therefore, found against the appellants. 14. In the result, the Second Appeal is dismissed. No costs.