Judgment : The case of the plaintiff is as follows: 1. Late Muthulinga Nayanar possessed of properties and executed his last Will and testament on 1. 1962. He died on 15. 1966. The plaintiff has been given right to enjoy the properties shown in the Will and he has been appointed as the sole executor and trustee of the estate of the deceased. The amount of assets which is likely to come to the plaintiffs hands does not exceed in the aggregate a sum of Rs.84,193 and the net amount of the said assets after deducting all items which the plaintiff, by law, is allowed to deduct is only of the value of Rs.84,193. The plaintiff duly undertakes to administer the property and the credits of the deceased. The plaintiff is entitled to probate of the Will. Hence, the plaintiff filed the petition for grant of probate of the Will. 2. But for the Will both this defendant and his sisters are entitled to 1/6th share each in the estate of the grandfather. This defendant filed partition suit in O.S.No.2418 of 1987 in City Civil Court, Madras. The plaintiff herein filed written statement in that suit wherein also the plaintiff has not come out with true facts and only at the time of trial of the said suit, this defendant was made aware of the testamentary proceedings and immediately he took steps for recall of the probate. The grandfather of this defendant did not execute any such Will that too of his own free will. Throughout the deceased was living away from the plaintiff and only this defendants parents, this defendant and also his to sisters were living with the grandparents. The defendants mother Angammal was the only daughter of the grandparents viz., Muthulinga Nayanar and Jagadathambal and the plaintiff herein is their only son. This defendant was living along with the grand parents. The plaintiff was nowhere in the scene throughout. So, the Will is not a true and genuine one. If really the grandfather had executed any such WIll, certainly he would have told this defendant and his family well about the same. The plaintiff is called upon to prove the genuineness of the Will. The suit has to be dismissed. 3. Onthe above pleadings, the following issues were framed for trial: 1. Whether the Will dated 1. 1962 is true and valid. 2. The plaintiff is called upon to prove the genuineness of the Will. The suit has to be dismissed. 3. Onthe above pleadings, the following issues were framed for trial: 1. Whether the Will dated 1. 1962 is true and valid. 2. Is the plaintiff entitled to issue of letters of administration. 3. To what reliefs. 4. Since the plaintiff filed the suit for probate of the Will, issue No.2 is reframed as under: 2. Is the plaintiff entitled to grant of probate of the Will. 5. Issues: The plaintiff filed the suit for probate of the Will. The plaintiff contends that his father executed his last Will and testament Ex.P-3 and he is appointed as executor under the Will and probate of the Will has to be granted in his favour. The defendant contends that Ex.P-3 is not a genuine one and his grandfather never executed Ex.P-3. 6. The plaintiff is the son of the testator Muthulinga Nayanar. The defendant is the grandson of the testator. The defendant vehemently contends that his grandfather used to sign as Muthulinga Nayanar and he never used to sign as Muthlingam and the testator has signed as Muthlingam in Ex.P-3 and the signature in Ex.P-3 is a forged one. 7. The defendant who has been examined as D.W.1 speaks in his evidence that the plaintiff did not reside with the testator at all and he lived separately and the plaintiff and his wife did not have good relationship with the testator and his wife and the testator only spent for the defendants education and the testator used to subscribe his signature in Tamil as Muthulinga Pandaram and the testator executed the settlement deed Ex.D-1 and Ex.D-1 is the registration copy of the settlement deed and in that settlement deed, his grandfather the testator subscribed his signature as Muthulinga Pandaram and he never subscribed his signature as Muthulinga Nayanar. 8. Ex.D-1 shows that the testator had signed the document as Muthulinga Pandaram. In that document, it is stated as Muthulinga Pandaram had executed the document and it is not stated as Muthulinga Nayanar whereas in Ex.P-3 Will, it is stated as Muthulinga Nayanar and the name of the father of the testator is stated as Subbiah Pandaram in Ex.D-1 whereas in Ex.P-3 the fathers name is stated as Subbiah Nayanar. In that document, it is stated as Muthulinga Pandaram had executed the document and it is not stated as Muthulinga Nayanar whereas in Ex.P-3 Will, it is stated as Muthulinga Nayanar and the name of the father of the testator is stated as Subbiah Pandaram in Ex.D-1 whereas in Ex.P-3 the fathers name is stated as Subbiah Nayanar. The testator has signed as Muthulinga Pandaram in Ex.D-1 whereas it is signed in Ex.P-3 as Muthulinga Nayanar. So, in the other registered document viz., settlement deed, the testator has described himself as Muthulinga Pandaram son of Subbiah Pandaram. The Will describes the testator as Muthulinga Nayanar son of Subbiah Nayanar. This leads to suspicion with regard to genuineness of the Will. 9. The Will Ex.P-3 is registered at Bombay. D.W.1 says that the testator never went to Bombay and resided with the plaintiff. His specific evidence is that his grandfather fell sick and he was admitted in the nursing home at Madras and at that time, his uncle the plaintiff was in Bombay and he came to Madras one day prior to the expiry of his grandfather and the plaintiff did not inform about the alleged Will executed by his grandfather when he was alive and the plaintiff also informed about the Will 21 years after the expiry of the grandfather. It is borne out by evidence that the defendant filed partition suit and only at that time the defendant was informed about the alleged Will. After the partition suit was filed, the plaintiff filed this suit. The specific evidence of D.W.1 is that is that the signature found in the Will Ex.P-3 is not that of his grandfather. He further says that none of the two attesting witnesses has been examined and Ex.P-3 is not a true and genuine Will. Further evidence of D.W.1 is that when the partition suit was filed, the plaintiff filed T.O.S.No.12 of 1994 claiming that his grandfather executed the Will and that suit was dismissed and Ex.D-2 is the certified copy of the judgment in that suit. 10. It is borne out by evidence that after the partition suit was filed, the plaintiff resorted to file T.O.S. for probate of the Wills. The previous suit filed viz., T.O.S.No.12 of 1994 for probate of the Will was dismissed on the ground that the Will came under suspicious circumstances. 10. It is borne out by evidence that after the partition suit was filed, the plaintiff resorted to file T.O.S. for probate of the Wills. The previous suit filed viz., T.O.S.No.12 of 1994 for probate of the Will was dismissed on the ground that the Will came under suspicious circumstances. The evidence of D.W.1 shows that the testator never lived with the plaintiff and he never went to Bombay. 11. The plaintiff has to dispel all the suspicious circumstances surrounding the Will. The plaintiff has not been examined in this case to substantiate his contention with regard to genuineness of the Will. Only his son has been examined as P.W..2. He admits that he has no personal knowledge of the Will executed by his grandfather and he says that his father is seriously ill and his father told him and showed the Will Ex.P-3. P.W.2 does not know about the Will. The plaintiff has not come forward to depose in the court to substantiate the contention of the plaintiff. 12. P.W.1 retired Deputy Commissioner of the Income Tax Department has been examined to speak about the signature of the attesting witness Sabapathy. None of the attestors has been examined. P.W.1 says that Sabapathy was working with him at Bombay and he knows the plaintiffs father also. P.W.1 says that the signature of the attesting witness found in Ex.P-3 ill is that of Sabapathy and Ex.P-1 affidavit contains the signature of Sabapathy. He states that during the conversation with the plaintiffs father, he told him that he had executed a Will. 13. So, the evidence of P.W.1 is that the signature shown to him is the signature of Sabapathy. The plaintiff and P.W.1 are colleagues. P.W.1 says that even after retirement, they continued their friendship. P.W.1 is not able to say as to from which ailment the plaintiff is suffering. Further evidence of P.W.1 is that the testator was an astrologer and he was residing at Madras. P.W.1 had no occasion at all to talk with the testator and he also does not know the educational qualification of the testator. P.W.1 has no idea whether the testator used to sign as Muthulinga Pandaram. Further evidence of P.W.1 is that the testator was an astrologer and he was residing at Madras. P.W.1 had no occasion at all to talk with the testator and he also does not know the educational qualification of the testator. P.W.1 has no idea whether the testator used to sign as Muthulinga Pandaram. P.W.1 is not personally aware of the execution of the Will, P.W.1 also does not know who gave instructions to whom, who prepared the Will and he does not know as to what happened at the time of execution of the Will. P.W.1s specific evidence is that he has come to court only to speak about the signature of the first attesting witness to the Will. The second attesting witness is the wife of the first witness and she is alive now. The evidence of P.Ws. proves that the second attestor to Ex.P-3 is alive now. Even then the plaintiff has not chosen to examine the second witness. P.W.1 does not know anything about the Will. He has no personal knowledge about the details of the Will. He simply states that the signature of the first attesting witness is that of Sabapathy and he is acquainted with that signature. The plaintiff has also not got into the witness box and deposed as to how the Will came into existence. The plaintiffs son P.W.2 has no personal knowledge about the Will. None of the attestors to the Will has been examined even though one of them is alive. The plaintiff has not chosen to examine the witness who is alive. 14. Further, it is significant to note that the Will was executed in 1962. The probate proceedings was taken 1988. After lapse of 26 years, the plaintiff has come forward for probate of the Will. This is also another suspicious circumstance surrounding the execution of the Will. There is also no evidence on the side of the plaintiff to prove with regard to due execution and attestation. The evidence of P.Ws.1 and 2 is not satisfactory to prove valued execution and attestation. 15. Learned counsel for the plaintiff submitted that the Will Ex.P-3 is a registered document and it is more than 30 years old and so, presumption under Sec.90 of the Evidence Act would arise and invoking that presumption the document has to be taken as a genuine one because it is more than 30 years old. 15. Learned counsel for the plaintiff submitted that the Will Ex.P-3 is a registered document and it is more than 30 years old and so, presumption under Sec.90 of the Evidence Act would arise and invoking that presumption the document has to be taken as a genuine one because it is more than 30 years old. He relies upon the decision in Munnalal v. Kashibai (1946)2 MLJ. 453 : L.R. 73 I.A. 223 : A.I.R. 1947 P.C. 15. 16. Learned counsel for the defendant submitted that the document involved is a Will and it is the duty of the plaintiff to prove the genuineness of the Will dispelling all the suspicious circumstances and simply because the document is of more than 30 years old, it cannot be taken as true and genuine one unless its genuineness has been validly established. He further submitted that the Will is of the year 1962 and probate proceedings commenced in 1988 and even then the 30 years period has not been elapsed and so, presumption under Sec.90 of the Evidence Act cannot be drawn and the plaintiff is not entitled to take shelter under that provision. 17. I find some force in the argument of the counsel for the defendant and I find that presumption under Sec.90 of the Evidence Act cannot be drawn for this case. In A.I.R. 1923 Nag. 169, it has been held that, “A Will purported to be executed in 1887 was brought to light for the first time in 1907 when it was produced in a Court of Law. In 1910 an application for probate in respect of it was made by a brother of the present applicant but the application was ultimately withdrawn. At that time only one of the attesting witnesses was said to have been alive. Yet not further attempt was made to bring the Will into court till some ten years after when even that witness was dead. There was no reasonable explanation about the delay after 1910 in making the application for probate. There was no evidence as to the custody of the Will before 1907 and that the applicant cannot get the benefit of Sec.90.” In Ramaswami Goundan v. Subbaraya Goundan (1948)1 MLJ. 215 : A.I.R. 1948 Mad. There was no reasonable explanation about the delay after 1910 in making the application for probate. There was no evidence as to the custody of the Will before 1907 and that the applicant cannot get the benefit of Sec.90.” In Ramaswami Goundan v. Subbaraya Goundan (1948)1 MLJ. 215 : A.I.R. 1948 Mad. 388 it has been held that, “Sec.90 states that the court may draw the presumption referred to in the section and not that it must draw the presumption, and indeed in many cases, it would be most dangerous to draw the presumption that a document was genuine merely because it was 30 years old according to the recitals in the document and came from proper custody. In such a case the proper course is to mark the document as exhibit without requiring formal proof and then consider, having regard to the evidence and surrounding circumstances, whether it is or is not genuine.” In Belgaum P.U. Co-op Credit Bank Ltd. v. S.Swamiji A.I.R. 1962 Mys. 53 it has been held that, “Sec.90 is worded in general terms as it was designed to meet situations varying in character, where passage of time might have obliterated the proof of the genuineness of any disputed document. Under this section wide powers were conferred on the court. A wrong exercise of the discretion under the provision is likely to strengthen the hands of the forger. It is not difficult to incorporate recitals in a document to show that it is over thirty years old. Hence before raising any presumption under Sec.90, great deal of circumspection is necessary lest the balance should be tilted in favour of an undeserving cause. The courts ought to be careful to see that provision is not made the forgers paradise. Sec.90 states that the court may draw a presumption and not that it must draw a presumption. In many cases it would be most dangerous to draw the presumption that a document was genuine merely because it was, thirty years old according to the recitals in the document and came from proper custody. If the trial court fails to adopt the correct approach, it is of the utmost importance that the appellate court should set matters right to further the case of justice. If the trial court fails to adopt the correct approach, it is of the utmost importance that the appellate court should set matters right to further the case of justice. Before any presumption under Sec.90 can be drawn, one fact must be satisfactorily proved and that is, the document in question has been produced from proper custody. The satisfaction of the court on this point is a judicial satisfaction and ought to be founded on the evidence on record, it is for the party who asks the court to draw the necessary presumptions under Sec.90 to prove by satisfactory evidence that the document was produced from proper custody. The finding of the trial court on this point is a finding of fact and, as in the case of any other finding of fact, is subject to the scrutiny of the appellant court. The importance of the proof of proper custody cannot be overlooked particularly in view of the wide scope of Sec.90. The factum of proper custody is not a matter for presumption but ought to be satisfactorily proved. It may be proved by one of the two ways i.e., either by adducing evidence aliunde to show that the document was produced from proper custody or by showing that the person who produced it was the depository of the document in question.” It has been held by the Andhra Pradesh High Court in Venkatarao v. Venkateswararao 1955 An.W.R. 783 : A.I.R. 1956 A.P. 1 that, “An anonymous document is not within Sec.90. Evidence aliunde cannot be availed of. If the proof so adduced to establish the handwriting of a particular person is inadequate, the presumption cannot be involved. A person can either seek to establish the handwriting to be in a particular persons hand by adducing proof or invoke a presumption permissible under Sec.90 in his favour. If he seeks to prove it and fails, there can be questioning of invoking the presumption under Sec.90. The Allahabad High Court held in Ghurahu v. Sheo Ratan A.I.R. 1981 All. 3 that, “Presumption relates to signature and handwriting and cannot be extended to correctness of contents of document.” This Court has held in Dhanapal v. Govindaraja A.I.R. 1961 Mad. 262 that, “Under Sec.90 the court has got a judicial discretion to be exercised in drawing the presumption. The Allahabad High Court held in Ghurahu v. Sheo Ratan A.I.R. 1981 All. 3 that, “Presumption relates to signature and handwriting and cannot be extended to correctness of contents of document.” This Court has held in Dhanapal v. Govindaraja A.I.R. 1961 Mad. 262 that, “Under Sec.90 the court has got a judicial discretion to be exercised in drawing the presumption. But, the court cannot arbitrarily say that it Will not draw the presumption merely because the matter is one for the exercise of its discretion. Under the section in the normal circumstances, where it is found that the document in question emanates from an apparently lawful custody and where the document is such that it is likely to have been executed having regard to the common course of human conduct, and where there are no circumstances to excite the suspicion of the court, such as unnaturainess and artificiality surrounding the transaction or an apparent interlineation or correction or tampering with the document, the court will draw the presumption.” It has been held by the Karnataka High Court in Kempamma v. Kalammal A.I.R. 1992 Karn. 282 that, “Where the propounder of a Will excepting propouding the existence of a Will executed thirty years before did not make any averments in her pleadings that the Will was acted upon after the death of the testator and that he was in sound condition of mind at the time of execution and that the Will was duly attested and it was the last Will and testament of the testator the presumptions available under Sec.90 could not be extended to a Will even if it was a registered Will.” A Division Bench of this Court has held in N.Ramaswamy v. C.Ramaswamy A.I.R. 1975 Mad. 88 that, “The rule in Sec.90 of the Evidence Act, that where a document is more than 30 years old a presumption about its due execution and attestation by the person by whom it is purported to be executed or attested should be drawn, is not absolute one and even in cases where the document is produced from proper custody the court has a discretion to draw the presumption or require the proof of execution. The court must have regard to the surrounding circumstances and apply its mind as to whether the presumption should be drawn or not. The court must have regard to the surrounding circumstances and apply its mind as to whether the presumption should be drawn or not. In the instant case presumption under Sec.90 was not drawn.” In the case on hand, even though one of the attesting witnesses is alone, the plaintiff has not chosen to examine that attesting witness. The probate proceedings has also been taken after a period of 20 years. So, I am not satisfied with regard to valid execution and attestation. So, the presumption under Sec.90 of the Evidence Act cannot be drawn and the plaintiff cannot take shelter under Sec.90 of the Evidence Act. 18. Probate of the Will cannot be granted as any other document, valid execution and attestation must be proved in the probate proceedings. The plaintiff must establish valid execution and attestation. The plaintiff himself has not been examined in court to prove with regard to the Will Ex.P-3. The plaintiff has also not examined the attestor to prove valid execution and attestation even though one of the attestors is alive. The Plaintiff must prove proper execution and attestation as required under Secs.68 and 69 of the Evidence Act read with Sec.63 of the Indian Succession Act. The evidence on the side of the plaintiff establishes that one of the attestors is alive and even then the plaintiff has not chosen to examine that witness. There is utter failure on the part of the plaintiff to prove with regard to valid execution and attestation. 19. The plaintiff is the son of the testator and the defendant is the grandson of the testator through his daughter. There is disinheritance among the heirs. The evidence of D.W.1 is that his grandfather never lived with the plaintiff and the grandson the defendant was taken care of his grandparents. No proper explanation is given for exclusion of the defendant the grand son of the testator in the Will. The other heir has been disinherited. This is another suspicious circumstance surrounding the Will. The Supreme Court has held in H.Venkatachala v. B.N.Thimmajamma A.I.R. 1959 S.C. 443 that, “The party propoundig 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. The Supreme Court has held in H.Venkatachala v. B.N.Thimmajamma A.I.R. 1959 S.C. 443 that, “The party propoundig 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. Secs.67 and 68 of the Evidence Act are relevant for this purpose. Under Sec.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 Secs.45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Sec.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, Secs.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 Sec.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.” The Supreme Court has laid down in Indu Bala v. Manindra Chandra A.I.R. 1982 S.C. 133 that, “The mode of proving a Will does not ordinarily differ from that of proving of other document except to the special requirement of attestation prescribed in the case of a Will by Sec.63 of the 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 the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testators mind, the dispositions made in the Will being unnatural, improbably or unfair in the light of relevant circumstances, or there might be other indicators mind was not free. In such a case 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. If the propounder himself of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. Any and every circumstance is not a ‘suspicious’ circumstances. A circumstance would be ‘suspicious’ when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. The Supreme Court has laid down in Shashi Kumar v. Subobh Kumar A.I.R. 1964 S.C. 529 that, “The mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Sec.63 of the Succession Act. The onus of proving the Will is one the propounder 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. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testators 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 testators mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.” In Ramachandra v. Ghampabai A.I.R. 1965 S.C. 354 it has been held that, “In all cases in which a Will is prepared under circumstances which arouse the suspicion of the court that it does not express the mind of the testator, or that it was prepared under highly suspicious circumstances, it is for the propounder of the Will to remove that suspicion.” 20. I have already discussed in the previous paragraphs with regard to the evidence let in this case for execution and attestation and I have given my finding above that the Will has come under suspicious circumstances. The attestor of the Will has not been examined. The evidence of P.Ws.1 and 2 is not satisfactory to prove valid execution and attestation. The plaintiff has not gone into the witness box and deposed. The plaintiffs son who does not know anything about the execution of the Will has gone into the witness box and deposed. He has stated that he does not know anything about the Will. The evidence of P.Ws.1 and 2 is not satisfactory to prove valid execution and attestation. The plaintiff has not gone into the witness box and deposed. The plaintiffs son who does not know anything about the execution of the Will has gone into the witness box and deposed. He has stated that he does not know anything about the Will. The evidence of P.W.2 is not satisfactory to prove due execution. On the whole, absolutely there is no evidence to prove valid execution and attestation. The plaintiff has not at all established that Ex.P-3 Will is a true and genuine one and it was validly executed and attested. 21. A perusal of the entire evidence goes to establish that the plaintiff is not entitled to succeed in the probate proceedings. In the result, the case of the plaintiff fails and the suit is dismissed. No costs.