Judgment :- As the parties in both the suits are one and the same and the subject matter involved in both the proceedings is one and the same, a common judgment is pronounced. T.O.S. 13/98 : 2. This suit has been filed for grant of letters of administration in respect of the Last Will and Testament of Murugesa Nattar dated 24-5-1994. Tr. C. S. No. 159/2000 : 3. This suit has been filed for partition and separate possession of the plaintiff's 1/9th share in the joint family properties, for rendition of accounts, for mesne profits, and for permanent injunction restraining the defendants from in any manner interfering with the plaintiff's peaceful possession and occupation of the entire second floor of the 'A' schedule property. T.O.S. 13/98 : 4. Plaint averments are as follows : Husband of the first plaintiff viz., Murugesa Nattar died on 29-10-94 at No. 16, Veerasamy Street, Purasawalkam, Madras-7. He was permanently residing in that addess. His last Will and Testament was duly executed by him at the said address and registered on 24-5-94 in the presence of the witnesses. The plaintiffs are the beneficiaries named in the Will dated 24-5-94. The defendants are also the legal heirs of the deceased and the testator has not made any provision in the Will in their favour. The testator owned the property, viz., house, ground and premises bearing door No. 16, Veerasamy Street, Purasawalkam, Madras-7. Hence the suit. 5. It is alleged in the written statement filed by the defendants that it is a vexatious test suit resorted to by the plaintiffs with a view to grab the only item of property, excluding their own brothers and to harass them as much as possible in order to forcefully drive them out of the father's house and to enjoy the property exclusively. The testator died leaving behind his wife, 6 sons and 2 daughters. The first son M. Sambandam predeceased the father leaving behind his wife. Wife and two daughters of the testator are the plaintiffs herein. Defendants are sons of the testator. He died leaving behind only one item of immovable property viz., ground and house situate in Purasawalkkam, Chennai No. 16, O. S. No. 1024, R. S. No. 1474/2 and admeasuring 1200 sq. ft. To the best of knowledge and information of the defendants, no such Will was executed by him. Defendants are sons of the testator. He died leaving behind only one item of immovable property viz., ground and house situate in Purasawalkkam, Chennai No. 16, O. S. No. 1024, R. S. No. 1474/2 and admeasuring 1200 sq. ft. To the best of knowledge and information of the defendants, no such Will was executed by him. There was no occasion or necessity to execute such a Will by late Murugesa Nattar at any point of time. It is not a genuine and has been cooked up and created to defeat the shares of other children of the deceased in the only item of property left by him and to knock away the said immovable property. The deceased used to sign all papers and never used to affix thumb impression. In the Will the deceased had put thumb impression for the first time. This is one of the suspicious circumstances. The attesting witnesses are the henchmen and supporters of the plaintiffs. The alleged Will would have been registered through influence and the concerned Registrar was unduly influenced by the plaintiffs with the assistance of a nearby lawyer. The alleged Will is a fraudulent one invented rather cooked up with mala fide intention by the plaintiffs with the sole intention of grabbing the property and avoiding shares to the other children of the deceased. At the time of the death of the testator, he was 84 years old. He was admitted to the General Hospital, Chennai in the month of June, 1987 for cerebral haemorrhage due to hypertension. He also suffered a severe paralytic attack and his right side of the body was totally paralysed and was not able to move about. His brain was badly affected due to the abovesaid serious disease. He virtually lost his speech and never spoke at all to anybody till his death. He also completely lost memory and sight on account of loss of brain cells. Ultimately he was discharged from the General Hospital to be treated in the House. After discharge, he could not identify any person till his death. The doctors of the General Hospital informed all the members of the family that no recovery was possible to the deceased and handed over all the medical reports, prescriptions and other connected papers to his wife, the first plaintiff herein. After discharge, he could not identify any person till his death. The doctors of the General Hospital informed all the members of the family that no recovery was possible to the deceased and handed over all the medical reports, prescriptions and other connected papers to his wife, the first plaintiff herein. From June, 1987 till his death, he was fully bedridden and could not do anything on his own and could not speak to anybody or to move about. In a such pitiable and pathetic condition, he would not have executed such a Will. The deceased loved equally all the children and most of them lived with him in the house under one roof. He never discriminated any of his children. Mr. M. Ganesan and Dr. M. Gopalasundaram were driven away from the house by the plaintifs with the assistance and connivance of the last son M. Thanikai Arasu in the year 1994 only. Other children are still residing there. The first defendant is in possession of the entire second floor in the house with his family resisting all the troubles and problems created by the plaintiffs with a view to send him also out from the house. The defendants are entitled to 3/9th share in the joint family properties. The first defendant filed a suit in C. S. No. 343/95 before this Court for partition and separate possession of the properties. It was transferred to the City Civil Court and renumbered as O. S. 9193/95 and is pending disposal. The said Will cannot be acted upon and no relief as prayed for in the suit be granted to the plaintiffs. Hence the suit is liable to be dismissed with costs. 6. Plaint averments in Tr. C.S. 159/2000 are as follows : Plaintiff's father Murugesa Nattar died on 29-10-94 leaving behind the plaint mentioned joint family properties. It consists of three floors. The plaintiff is now in possession and occupation of the entire second floor including the front and back portions and the open space in between two portions. The defendants 1 and 6 to 8 are angry about it. He was living in the first floor before his marriage in June, 1992. After that it was decided that the plaintiff would live with his family in the second floor at the back portion. In July, 1992, the first defendant demanded rent from the plaintiff. The defendants 1 and 6 to 8 are angry about it. He was living in the first floor before his marriage in June, 1992. After that it was decided that the plaintiff would live with his family in the second floor at the back portion. In July, 1992, the first defendant demanded rent from the plaintiff. Since it was a joint family property, he refused to pay rent. In July, 1992, the defendants 1, 6 to 8 conspired together and stopped the drinking water supply to the second floor. When he installed a separate water pipe from the ground floor for the second floor, the 6th defendant abused him in filthy language, broke the water pipe and threw it in the street. Thereafter he was forced to bring water from a neighbour's house. He also gave a police complaint. During enquiry by the police, the first defendant gave a letter not to disturb the plaintif in any manner. The sixth defendant was warned by the police. Due to this, the defendants 1, 6 to 8 started harassing the plaintiff and his family. The sixth defendant installed two water filters on the outer edge of the open space, causing stagnation of waste materials which is hazardous to health. When the plaintif asked the defendants 1, 6 to 8 to remove the said water filters, he was abused in filthy language and the sixth defendant threatened the plaintif and his wife stating that he would kill them. He lodged a police complaint. But the sixth defendant who is a body builder is physically strong and also wields lot of influence. Therefore the police complaint given by the plaintiff did not yield any fruit. For both the first and second floors, the plaintiff is paying electricity charges. Defendants 1 and 6 to 8 have refused to instal a separate meter for the second floor or to pay the electricity charges. Every day he and his family members are harassed by them. The properties shown in the schedules to the plaint are joint family properties and he is entitled to 1/9th share in the same. Defendants 1 and 6 to 8 want to enjoy the joint family property themselves and want to somehow defraud the plaintiff of his share in the joint family property. The father of the plaintiff has not left any valid Will with regard to the property. Defendants 1 and 6 to 8 want to enjoy the joint family property themselves and want to somehow defraud the plaintiff of his share in the joint family property. The father of the plaintiff has not left any valid Will with regard to the property. The rents derived from the tenants in the ground floor have always been received only by the defendants 7 and 8. They should be directed to render accounts as to the rental amounts received by them. They received the rents but have not given a single paise to the plaintiff. Hence the suit. 7. The defendants 1, 6, 7 and 8 have filed a written statement, and the fourth defendant also filed a writen statement. The defendants 1, 6, 7 and 8 contended that P. Murugesa Nattar died on 29-10-94 leaving behind a registered Will bequeathing all his self acquired properties in favour of the first defendant, to her life and subsequent to her life time, the defendants 7 and 8 have to suceed the estate. There is no joint family properties in the hands of the deceased. 'A' Schedule property belonged to the deceased earned through his self acquisitions. He purchased the property from one Kuppuswamy Mudaliar by sale deed dated 7-10-61. The plaintiff was allowed to reside in the suit property by his father on humanitarian grounds in spite of the fact that he neither helped the family, and also in spite of the fact that his conduct and behaviour are bad. The alleged demand of rent is false. There is no occasion to stop drinking water or breaking the water pipe. The plaintiff is in the habit of threatening the womenfold and obtained signatures and thumb impressions in blank paper by coercing them and preferred frivolous complaints before the police. This caused the defendants 1 and 6 to prefer two police complaints on 25-2-94 and 30-3-94. The plaintiff attempted to place his commission and omissions over the defendants herein. The plaintiff who has no right over the property started to alter the structures and caused damage to the property without obtaining permission from the real owners viz. the defendants 1, 7 and 8. The main door is used to be locked after 10'O clock in the night. The plaintiff who has no right over the property started to alter the structures and caused damage to the property without obtaining permission from the real owners viz. the defendants 1, 7 and 8. The main door is used to be locked after 10'O clock in the night. But when the plaintiff started to come with rowdy elements and gained access to the house through the main door and started to coerce the womenfolk and forced them to sign blank papers, the main door remained closed. The electricity charges are paid by these defendants. The plaintiff influenced the police and gave lot of troubles and womenfold were taken to the police station and the plaintiff threatened them with dire consequences, armed with the exparte orders obtained by him. The plaintiff trespassed into the portion occupied by the 4th defendant, after he vacated the premises. There is no necessity for them to render accounts. They are the owners of the property. The defendants 7 and 8 are continuously receiving the rents as owner of the property. There is no cause of action for the suit and the alleged cause of action are all imaginary. The plaintiff is not entitled to any relief, as prayed for since the property is not a joint family property and his occupation is not that of a co-sharer. There is no valuation given for movables mentioned in schedules 'B' and 'C' and no court-fee has been paid. Hence the suit may be dismissed with costs. It is alleged by the 4th defendant that the averments made in the plaint are correct; that the parties are entitled to partition and separate possession of 1/9th share and that the suit may be decreed, as prayed for. 8. The following issues were framed in TOS 13/98 : 1) Whether the registered Will dt. 24-5-94 propounded by the plaintiffs is true and genuine? 2) Whether the said Will dt. 24-5-94 was executed by late Murugesan out of his own free Will and volition and while in a sound state of mind? 3) Whether the plaintiffs are entitled to grant of letters of administration with the Will annexed? 4) To what reliefs are the parties entitled to? 9. The following issues arise for consideration in Tr. C. S. 159/2000: 1) Whether the plaintiff is entitled to partition and separate possession, as asked for ? 3) Whether the plaintiffs are entitled to grant of letters of administration with the Will annexed? 4) To what reliefs are the parties entitled to? 9. The following issues arise for consideration in Tr. C. S. 159/2000: 1) Whether the plaintiff is entitled to partition and separate possession, as asked for ? 2) Whether the plaintiff is entitled for rendition of accounts, for mesne profits and for permanent injunction, as prayed for ? 3) To what relief the plaintiff is entitled to? 10. ISSUES 1 to 4 in TOS 13/98 and ISSUES 1 to 3 in Tr. CS 159/2000 :- The plaintiffs in TOS 13/98 have filed the suit seeking the grant of letters of administration alleging that Murugesa Nattar executed his last Will and Testament on 24-5-94 at Madras. The plaintiff in Tr. CS 159/2000 has filed the suit seeking for partition and separate possession of the plaintiff's 1/9th share in the suit property, for rendition of accounts, for mesne profits and for permanent injunction. 11. The parties hereinafter Will be referred to as plaintiffs and defendants as mentioned in T.O.S. 13/98. 12. The third plaintiff has examined herself as P.W. 2.She would State that herself and the second plaintiff are not married. Her father Murugesa Nattar died on 29-10-94. He was 84 years old at the time of his death. He was a dry fish merchant. He was suffering from paralysis attack from 1987 on his right leg. He was given physiotherapy treatment. After that he was able to walk and speak partially. He was not able to sign. They are all living at No. 16, Veerasamy Street, Purasawalkam. R1 is living in the second floor of the property, independently, R4 is living outside the premises. R 3 is living in his uncle's house. R 2 is living in his mother's house. R 5 is living separately. R 1 to R 5 never helped her parents. Her father is the owner of the property at 16 Veerasamy Street. Ex. P1 is the Will executed by his father Murugesa Nadar. A retired District Judge by name Mr. Ethiraj prepared the Will. He was living in the opposite house. His father was affected by paralysis attack on his right leg in June, 1987 and he had undergone treatment for two months. After discharge, he was given physiotherapy treatment. He recovered partially to speak, walk and climb the stairs. A retired District Judge by name Mr. Ethiraj prepared the Will. He was living in the opposite house. His father was affected by paralysis attack on his right leg in June, 1987 and he had undergone treatment for two months. After discharge, he was given physiotherapy treatment. He recovered partially to speak, walk and climb the stairs. He was not bedridden and he could walk. He gave instructions to the retired Judge one week prior to the registration. The retired Judge suggested one Ramaseshan, a handicapped person for writing the Will. R 6 went to Ramaseshan for writing the Will. The Will was typed by R 6 in his institute. Ramaseshan's brother V. Shankar and his own auto driver Srinivasan helped for writing the Will. They brought the Sub-Registrar Mrs. Anushaya Doss on 24-5-94 at 5.30 p.m. On that her father's physical condition was normal. The Sub-Registrar wanted Mr. V. Shankar to read the Will. He read it over. Her father consented for the Will. He affixed his thumb impression in Ex. P 1 Will. The plaintiffs, R 6 and two attestors were there at the time of executing the Will. After the testator affixed his thumb impression, the witnesses also signed the Will. Even at the time of registration, the attestors have signed. D1 had filed a partition suit against herself and others. She claimed right in the property by virtue of Ex. P 1 Will. 13. The first plaintiff examined herself as P.W. 2. Her evidence is that her husband who acquired the suit property from his business left a Will. He died five months after the execution of the Will. At the time of execution of the Will he was hale and healthy and in sound mind. He executed the Will on his own accord. He was attacked with paralysis six years before his death. He was given treatment in the General Hospital. After physiotherapy treatment, he was able to walk and speak. She was residing in the first floor of the suit property. D1 and D 4 are residing in the second floor separately. D 6 is residing with her. Her husband consulted Mr. Ethiraj, a retired District Judge and wrote the Will. The Will was typed by Sankaran and was registered at her house. Before registration, the Will was read over to her husband and he gave commission for the registration. D1 and D 4 are residing in the second floor separately. D 6 is residing with her. Her husband consulted Mr. Ethiraj, a retired District Judge and wrote the Will. The Will was typed by Sankaran and was registered at her house. Before registration, the Will was read over to her husband and he gave commission for the registration. Her husband affixed his left thumb impression, because he was not able to hold the papers and put his signature. The attesting witnesses Shankar and Srinivasan were present, besides Anusha, Sub-Registrar. Apart from them herself, plaintiffs 2 and 3 and D 6 were present. Nobody compelled her husband to execute the Will. Sons are not given any property, since all of them are well of. 14. One of the attesting witnesses viz., Shankar was examined as P.W. 3. He would deposte that he was the first attesting witness of that Will. He knew Thanikai Arasu, one of the sons of Murugesa Nattar, for the last six years. One of his staff by name R. Swaminathan typed the Will. In page 3 of the Will he has written "mas" which means Madras. He signed as attesting witness immediately after Murugesa Nattar affixed his left thumb impression. Mr. Srinivasan, a autorickshaw driver of P.W. 3 was the second attesting witness. He was along with his side when Murugesa Nattar affixed his left thumb impression. Thanikai Arasu came with his sister and asked him to arrange for typing and registration of the Will. He could not say how many documents were registered on 24-5-94 at his instance. Thanikai Arasu came to the Registrar's Office on 24-5-94. A receipt was given for the payment made to the Registrar. He informed the Registrar that the testator's health was not good on 24-5-94. He asked the Registrar to come to the house for the registration. Ex. P2 is the original receipt issued by the Sub- Registrar, Purasawalkam for the payment made to him by D 6. Ex. P3 is the original receipt issued by the Sub-Registrar for the house visit made by them for registration purpose. 15. The fifth son of late Murugesa Nattar, Dr. M. Gopalasundaram was examined as D. W. 1. He would state that his father was 84 years old at the time of his death. His father fell down while going to the shop in June, 1987. 15. The fifth son of late Murugesa Nattar, Dr. M. Gopalasundaram was examined as D. W. 1. He would state that his father was 84 years old at the time of his death. His father fell down while going to the shop in June, 1987. D. W. 1 was present in his house when the testatrix was brought in. He was in a state of unconsciousness. Immediately D. W. 1 took him to the General Hospital along with his brothers and other relatives. It was detected that his father was having cerebral haemorrhage affecting the left side of the brain, frontal and parietal lobes and putaman region. At that time, due to the damage of the brain cells, his speech and eye sight were affected. The brain cells were never recovered. His father lost his memory power. He was under treatment for one month. The Doctors told them that he has to be given prolonged treatment and he was discharged. At the time of his discharge, his father was not completely cured. After discharge, his father was under his treatment. Once brain cells are damaged, they cannot recover at all. A medical report was prepared at the time of his discharge. He went through the report and had discussions with the doctors in the hospital regarding his father's health. The said report is with his brother. He was given physiotherapy treatment, by him. He left the suit house after his death. He was driven away from the suit house by his youngest brother and youngest sister. The first defendant is still residing in the suit house. His father was treating all the eight children with equal love and affection. At the time of execution of the Will, his father was not in a sound and disposing state of mind. There was no house registration of any Will, because he was available at home normally after 4 pm everyday. Ex. P1 Will could not have been executed by his father, with all the ailments that he was suffering from. Ex. P 4 is the letter dated 23-7-96 from Chicago written by him to his sister Sivakami. 16. The first defendant examined himself as D. W. 2 deposing that his father had eight children comprising of 6 sons and two daughters. Ex. P 1 Will was not executed by his father and it is not genuine Will, but fabricated. Ex. P 4 is the letter dated 23-7-96 from Chicago written by him to his sister Sivakami. 16. The first defendant examined himself as D. W. 2 deposing that his father had eight children comprising of 6 sons and two daughters. Ex. P 1 Will was not executed by his father and it is not genuine Will, but fabricated. His father had a paralytic stroke and was completely bedridden. He was in a vegetative state. In June, 1987 his father fell down while he was going to a shop and D4 brought him to the house, at which time he was unconscious. D. W. 2 was in the house. His father was then taken to the G.H. and admitted in the I.C.U. He was treated for one month. Thereafter, he was discharged. At the time of discharge he was not completely cured. He was given treatment by his younger brother Dr. Gopalasundaram at home. His father never completely recovered till the time of his death. He is presently residing in the 2nd floor of the suit property along with his family. Since August, 1992, the plaintiffs and the 6th defendant have been trying to drive him away from the house. Due to the threat and harassment made by D6, he filed police complaints as found under Exs. D1 to D5. He filed a suit in C. S. 343/95 for partition of the suit property and it was transferred to the City Civil Court and renumbered as OS 9193/95, which was retransferred to the High Court to be tried along with the other suits and was renumbered as Tr. C. S. 159/2000. He has 1/9th share in the suit property. The testator could not have put his thumb impression in the said Will because he was completely bedridden, having lost his speech and eye sight and was not knowing anything of what is happening around him. His father was not of sound and disposing state of mind at the time of execution of the said Will. The said Will was created to deprive them of their shares in the suit property. There was no house registration. 17. With consent of both the parties, the evidence was recorded in T. O. S. 13/98. The plaintiffs have come forward with the request of grant of letters of administration of Ex. The said Will was created to deprive them of their shares in the suit property. There was no house registration. 17. With consent of both the parties, the evidence was recorded in T. O. S. 13/98. The plaintiffs have come forward with the request of grant of letters of administration of Ex. P.1 Will alleging that the said instrument was executed on 24-5-94 by Murugesa Nattar, the husband of the first plaintiff and the father of the plaintiffs 2 and 3 herein, in the presence of two witnesses and it was also registered the very day at his residence. The contesting defendants have vehemently opposed the request, stating that Ex. P1 Will is not a genuine document; that Murugesa Nattar was not in a state of sound disposing mind to execute the document; that he would not have executed such a Will excluding and disinheriting all his sons, since he loved all the children equally without any discrimination; that there are so many suspicious circumstances, attendant on the execution, attestation and registration of the document; that the first defendant herein has filed a suit for partition of his 1/9th share in the property impleading the plaintiffs and others, wherein the plaintiffs have filed a written statement stating that in view of the Will executed by Murugesa Nattar, there was no partible joint family property available and hence the suit has got to be dismissed. 18. Advancing his arguments, the learned counsel for the plaintiffs Mr. V. R. Gopalan would submit that Murugesa Nattar executed his last Will and testament Ex. P1 in the presence of two attesting witnesses viz. 18. Advancing his arguments, the learned counsel for the plaintiffs Mr. V. R. Gopalan would submit that Murugesa Nattar executed his last Will and testament Ex. P1 in the presence of two attesting witnesses viz. Shankar and Srinivasan; that the testator was 84 years old; that except the property in question, he had no other immovable property; that the testator had 8 children consisting of 6 sons and two daughters; that all his sons were given full education by the testator and were also well placed; that the first plaintiff was the aged wife of the testator while plaintiffs 2 and 3 were his unmarried daughters that the testator had a paralytic stroke in the year 1987 and he was hospitalised for a period of two months and after discharge, he was given physiotherapy treatment continuously, but he was fully conscious of what was going around; that he was able to see and speak and then there arose a necessity to make some arrangement and make some provisions for his aged wife and unmarried daughters and under such circumstances, Murugesa Nattar has executed Ex. Pl Will; that the same was prepared by a retired District Judge on the instructions of the testator and it was executed by him in the presence of the two attesting witnesses viz. P.W. 3 Shankar and one Srinivasan; that the plaintiffs 3 and 1 have examined themselves as P.Ws.1 and 2 respectively, who have clearly spoken to all those above facts and apart from that one of the attesting witnesses viz. P.W. 3 Mr. Shankar was examined, from whose evidence it would be clear that the testator was in a good and sound disposing state of mind, when he executed the document and apart from that since Murugesa Nattar could not go to the Sub-Registrar's Office, the Sub- Registrar on payment of due fees has come over to the residence of Murugesa Nattar and has duly registered the document, as required by law; that this fact would be evident from the necessary entries made for the registration of the document, apart from the evidence of the above witnesses. Added further, the learned Counsel that after the paralytic stroke that took place in the year 1987 he was discharged from the hospital within two months and the testator has lived for a period of seven years thereafter; and after the execution of the testament, he has lived for five months; that the plaintiffs were living with the testator all along; that it is pertinent to note that what was given to the first plaintiff under the testament was only a life interest and the other two unmarried daughters were to take the property after the first plaintiff and if either, or both of them were to marry during the life time of the first plaintiff, the property was to be sold and the marriage to be celebrated out of the sale proceeds and the balance to be divided by them; that the testator has not given anything to the sixth respondent in the O.P. viz., Thanikai Arasu, and all would clearly indicate that he had no role to play in the execution, attestation and registration of the document; that the testator himself has adduced the reasons for making such a disposition, which are cogent, convincing and there is nothing unnatural or unreasonable; that though it is contended by the defendant's side that from 1987 onwards, the testator did not regain his mental faculties and that he lost his eye sight, speech and everything and was under the continuous treatment all along for those diseases, the same is only a tissue of falsehood and they have also not adduced any documentary evidence to prove the same; that the Court has to consider the fact that D.W. 1 was a fully qualified Doctor by profession and admittedly he has given treatment to his father and hence he should be with the custody of all the documents and hence non-production of the case sheet and the subsequent treatment, files pertaining to the testator would lead to the adverse inference against the defence put forth by the defendants; that D.Ws. 1 and 2 who clearly knew about the genuineness and truth of the document have come forward with the false defence; that there are no suspicious circumstances attending and the plaintiffs have proved the instrument as required by law by putting forth necessary and sufficient evidence and hence the request has got to be ordered as asked for. 1 and 2 who clearly knew about the genuineness and truth of the document have come forward with the false defence; that there are no suspicious circumstances attending and the plaintiffs have proved the instrument as required by law by putting forth necessary and sufficient evidence and hence the request has got to be ordered as asked for. Added further the learned counsel that since the testator has executed the above testament under Ex. P1 in favour of the plaintiffs in respect of the only immovable property, the suit filed by the second defendant seeking for partition has got to be dismissed. 19. Vehemently opposing the above contentions of the plaintiffs' side the learned counsel appearing for the contesting defendants Mr. C.S. Gopalakrishnan would argue that the father of the defendants Murugesa Nattar never executed any Will; that there are so many suspicious circumstances shrouded in the execution, attestation and registration of the document; but the plaintiffs have not dispelled even anyone of them; that the plaintiffs have not strictly proved anyone of the requirements expected in law in that regard; that there is no evidence to indicate that the testator was in sound state of mind to make the Will nor have they proved the genuineness of the thumb impression in the document or the condition of the testator's mind and health; that a perusal of the entire evidence would go to show that the propounders have taken a prominent part in the execution, attestation and registration of the document; that it is pertinent to note that in the Instant case, the defendants have specifically pleaded and proved the suspicious circumstances also by adducing oral testimony through D.Ws. 1 and 2 apart from filing number of documents; that there was no necessity or occasion for the testator to execute such a Will; that the instrument was not a genuine one, but it has been cooked up, fabricated and created to defeat the rightful claim and shares of the other children of the deceased that it is also pertinent to note that the deceased had only one immovable property viz. the subject matter of the Will; that there was no reason for the testator to exclude his loveable sons; that he used to sign in all the papers and he never used to affix his thumb impression; that in the Will the deceased has put the thumb impression for the first time which would be a suspicious circumstance; that according to the plaintiffs, the document was attested by two witnesses; that both the attesting witnesses are not respectable witnesses; that P.W. 3 Shankar one of the attesting witnesses has been the close friend of Thanikal Arasu, who has taken a prominent role in the execution and attestation of the document; that the other witness was autorickshaw driver, but he was not examined; that the testator was 84 in 1994; that in June 1987 admittedly, the testator had paralytic stroke; that even after the discharge, he was completely bedridden and lost eyesight, speech and memory, and he was virtually vegetative and was not in a state of disposing mind on 24-5-94, the date of the alleged Will; that a person of 84 years in the normal course would not be having full memory power and when it is coupled with various ailments, the deceased would not have been having sound disposing state of mind; that the evidence of P.Ws.1 and 2 would clearly reveal that the testator did not possess sound and disposing state of mind; that P.W. 3 has categorically admitted that he saw the testator on 24-5-94 for the first time; that a careful scrutiny of the evidence of P.W. 3, the only attesting witness examined would clearly reveal that he is not only an interested witness, but his evidence is untrustworthy and unreliable; that D.W. 1 who was a Doctor by profession has been attending on his father all along, and he has clearly spoken to the fact that his father was bedridden and lost his faculties and memory; that it is pertinent to note that at the time of the alleged execution of the Will in 1994, the first defendant was residing in the same house in the second floor; that it is admitted by the witnesses that they were present at the time when the testator gave instructions to the retired District Judge for the preparation of the draft; that P.W. 3 was not only a document writer, but was also running a typewriting and xerox institute and he has stated that it was Thanikai Arasu, one of the sons of Murugesa Nattar came to his shop and handed over the draft to type It and make arrangements for the registration on 24-5-94; that from the evidence of P.W. 3, It would be further clear that it was on the instructions of the Advocate for the plaintiffs he came to give evidence; that it is pertinent to note that the draft of the Will alleged to have been prepared by the retired District Judge has not been filed in the Court; that Ex. P1 did not contain anything that it was prepared by a retired District Judge; that the said retired District Judge has not been examined; that regarding the execution of the document, P.W. 1 would say that nobody helped for affixing the thumb impression of the testator and he himself has done it while P.W. 3 would say that an Assistant from the Sub-Registrar's Office has made the testator to sit and he held his hand and helped him to affix his thumb impression and from this, the health condition and the soundness of the mind would be so easily gathered; that it would indicate that the alleged thumb impression was affixed to the Will without the knowledge of the testator; that P.W. 3 has admitted that he was very influential person in the Sub Registrar's Office and the officials in that office would render any help to him as he went to the office dally; that it has to be noted that in Ex. P1 Will no endorsement is made stating that the said Will was read over to the testator and this would show that the thumb impression of the testator was obtained without himself knowing the contents of the same; that P.W. 3 has also admitted that it was he who brought the Sub-Registrar to the residence of the testator; that P.W. 3 has deposed that the plaintiffs and Thanikai Arasu were present at the time of the execution of the document and he has admitted that it was he who wrote L.T. I. of Murugesa Nattar under the thumb impression; that in this case it can be stated that the thumb impression of Murugesa Nattar has not been proved beyond doubts since there are three different versions given by the three witnesses examined by the plaintiffs that all would go to show that Murugesa Nattar did not affix his thumb impression with his knowledge and sound mind; that as per the admission of P.W. 3 he was so influential in the Office of the Sub-Registrar and he has been a good friend of Thanikai Arasu; that the other attesting witness was a autorickshaw driver of the brother of P.W. 3 and thus all would go to show the collusion among those persons in preparing a document and the mala fide intention to concoct a fraudulent Will; that generally document writers who arrange for the registration, would not stand as witnesses in the document; that in the instant case he is one of the attesting witnesses of the instrument and he was the only person examined also to prove the execution and attestation of the document; that the non-examination of the other attesting witness under the aforestated suspicious circumstances would be fatal to the plaintiffs' case; that there is no evidence to show that the testator knew them previously or consented them to be as attesting witnesses and both the attesting witnesses were strangers to the testator; that there is nothing to indicate that the testator acknowledged the correctness before the Sub-Registrar since no endorsement is found on the document to that effect; that the Sub-Registrar has not been examined; that P.W. 3 has deposed that it was he who read out the document on the request of the Sub-Registrar and thus it would be clear that it was not read out by the Sub-Registrar; that the Sub-Registrar did not attach any certificate of endorsement to the effect on the Will in order to conclude that the Will was read over and explained to the testator, who on doing so admitted the contents; that it is true that if a Will is registered, there is a presumption of genuineness, but it will not by itself dispel all the suspicions without necessary evidence as required to prove the document; that in view of all these above suspicious circumstances present in the execution, attestation and registration of the document and since the plaintiffs have not dispelled anyone of them, it would be clear that the plaintiffs have not proved the testament as required by law and hence the document has got to be rejected by the Court. Admittedly Murugesa Nattar had only the suit property at the time of his death. He did not execute a document as found in Ex. P1 and hence by operation of law, the second defendant is entitled to 1/9th share and hence the suit for partition has got to be decreed along with other reliefs. 20. The facts that are admitted by both sides could be stated as follows : Murugesa Nattar, who was born in 1910 lived 84 years and died on 29-10-94, leaving behind him, the plaintiffs and the defendants, and two sons viz., Palani and Thanikai Arasu and daughter-in-law Parvatha Rajakumari, as his heirs. He had eight children consisting of six sons and two daughters and his first son who was employed as a teacher in BHEL School at Trichy died in 1985. One of his sons Mr. Gopalasundaram, third defendant herein is the Doctor by profession. The testator had a paralytic stroke in June 1987 and he was admitted in the General Hospital, Madras, had treatment for about six weeks and was discharged and was bedridden till his lifetime. The first plaintiff aged 74 years is the wife of Murugesa Nattar while the plaintiffs 2 and 3 are his unmarried daughters. One of the six sons of Murugesa Nattar viz. Thanikai Arasu was not married and also living with the plaintiffs, in the suit property. Murugesa Nattar out of his income in his business purchased the only immovable property situated in door No.16, Veerasamy Street, Purasawakkam which is the subject matter in the Will. 21. In order to prove the due execution and attestation of Ex. P1 instrument, the plaintiffs have examined one of the attesting witnesses viz. Mr. Shankar as P.W. 3A perusal of Ex. P1 would indicate that it was attested by two witnesses, out of whom P.W. 3 is one. Since the other attesting witness is not examined by the plaintiffs, the evidence of P.W. 3 the only attesting witness examined has to be carefully scrutinised. Admittedly P.W. 3 is a document writer. In the chief examination he has deposed that he is the first attesting witness in Ex. P1; that he has also signed as a witness for registration; that Ex. Admittedly P.W. 3 is a document writer. In the chief examination he has deposed that he is the first attesting witness in Ex. P1; that he has also signed as a witness for registration; that Ex. P1 Will was typed in his shop; that the second witness Srinivasan is an auto driver, who was employed under his brother and he has also signed as a witness for registration; that Thanikai Arasu and Murugesa Nattar's daughter came to their shop and informed that a Will was drafted by a retired District Judge and they asked him to type it and make arrangements for registration on 24-5-94. The witness has further added that it was he who informed the Sub-Registrar about the testator's health condition and requested him to come to the house for registering the Will and the auto driver Srinivasan picked up the Sub-Registrar and two Assistants of that Office to the house of the testator and then he went to the testator's house, where the execution and registration took place. P.W. 3 is a document writer by profession. He has admitted that Thanikai Arasu was known to him for the last six years and he came to Court 8 days to give evidence, though he was not summoned and the advocate for the plaintiffs asked him to give evidence. According to the witness, he had no prior occasion to see the testator and he met him for the first time only on 24-5-94 and he has also admitted that he was not aware that the testator was completely bedridden due to paralysis, cerebral haemorrhage with hypertension from 1987. The above part of the evidence would indicate that he was not a competent witness to speak about the physical or mental condition of the testator prevailing in or about the time of the execution of the instrument. It is contended by the plaintiffs' side that the Will was drafted by a retired District Judge on the instructions given by the testator. The said retired District Judge who drafted the document has not been examined. According to P.W.3, the draft was handed over to him by Thanikai Arasu and his sisters two days before the execution and asked him to type and arrange for registration and he returned the same, but the plaintiffs have not filed the said draft of the Will. The said retired District Judge who drafted the document has not been examined. According to P.W.3, the draft was handed over to him by Thanikai Arasu and his sisters two days before the execution and asked him to type and arrange for registration and he returned the same, but the plaintiffs have not filed the said draft of the Will. P.W. 1 has stated that the plaintiffs and Thanikai Arasu were present when their father gave instructions to the retired District Judge and it was he who prepared the Will and suggested one Ramaseshan for writing the Will and the Will was typed by Thanikai Arasu in his institute and Ramaseshan's brother V. Shankar and the auto driver Srinivasan helped for writing the Will. But in her cross-examination she has stated that the retired District Judge who prepared the Will in Tamil and gave a copy to them and he himself wrote the Will and gave the draft to Thanikai Arasu. P.W. 2 has stated that the retired District Judge wrote the Will and it was typed by Shankar; that she did not know the contents of the Will; that the said Thanikai Arasu brought the retired District Judge to the house for preparing the Will, but he did not prepare the Will and he did not write the Will, but the said Shankar wrote the Will and herself, daughters and sons were present at the time of writing the Will by Shankar. The evidence as narrated above by P.Ws. 1, 2 and 3, though filled with inconsistencies as to the preparation of the Will, would make it clear that the plaintiffs, Thanikai Arasu and P.W. 3 have taken a prominent role in the preparation, and typing of the testament. 22. Regarding the execution of the document P.W. 1 has stated that nobody helped for affixing the thumb impression of the testator and he himself has done it, while P.W. 3 who was a literate and a document writer having good experience has stated that an Assistant from the Sub-Registrar's Office made the testator to sit and held his hands and thumb and helped him to affix his thumb impression. It is also admitted by the witnesses that the plaintiffs and Thanikai Arasu were present at the time of the execution of the Will. It is also admitted by the witnesses that the plaintiffs and Thanikai Arasu were present at the time of the execution of the Will. The inconsistent evidence of P.W. 1 and P. W. 3 as to the execution of the document by the testator casts a cloud of suspicion whether the testator affixed his thumb impression in the document as alleged by the plaintiffs' side. 23. When the Court analyses the question whether the plaintiffs have proved the attestation of the instrument, it has to be answered in the negative. As stated above, the only attesting witness P.W. 3 is a document writer and he has been a good friend of the said Thanikai Arasu, one of the sons of the testator, for number of years. It was he who arranged typing the Will and arranged for the registration of the document. He has admitted that he had no occasion to see the testator earlier. Thus it would be clear that the witness had no occasion to visit the house of the testator prior to 24-5-1994 and it can be well stated that he is a stranger and third party insofar as the testator was concerned. Needless to say that generally document writers who arrange for registration would not stand as witnesses in the instrument. It is a matter of surprise to note that he has stated that he signed the instrument as the witness only on the request of the Sub-Registrar. The other attesting witness Srinivasan, an auto driver was employed under P.W. 3, and he has not been examined. No explanation is forthcoming from the plaintiffs' side for his non-examination. It is true that a testament can be proved by examining one of the attestors. But that is applicable to a case where the evidence of the attesting witness is satisfactory, reliable and inspiring the confidence of the Court and not applicable to the instant case, where so many criticisms are levelled against the testimony of P.W. 3. Under the stated circumstances a duty is cast upon the plaintiffs to examine the second attesting witness also which they have failed to do so. Concededly P.W. 3 has admitted that he knew nothing about the testator's family or family affairs and he saw the testator for the first time on the day of the execution of the Will. The second attesting witness Mr. Concededly P.W. 3 has admitted that he knew nothing about the testator's family or family affairs and he saw the testator for the first time on the day of the execution of the Will. The second attesting witness Mr. Srinivasan was employed under the first attesting witness viz., P.W. 3. Thus they are utter strangers to the testator, but they have been close to Thanikai Arasu. The testator Murugesa Nattar was living in that area and in particular in the suit immovable property for a long time and he was familiar in that locality. Had the testator been in a sound and disposing state of mind and had mental faculties to give instructions for the preparation of the Will and had knowledge of understanding the contents therein, certainly he would not have chosen or asked the said two strangers to be as attesting witnesses to his Will, an important and solemn document and thus the evidence adduced by the plaintiffs' side in respect of the attestation of the document is not satisfactory and not free from suspicion. 24. Much reliance was placed by the plaintiffs' side on the factum of registration of the document. It is true that a presumption of genuineness can be drawn if the instrument is registered. But the registration by itself would not be sufficient to dispel the doubts as to the genuineness of the Will. There must be satisfactory evidence to show that the registration was made In such a manner that the testator was made known of the fact that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted his execution and signed it in token thereof. What are all found as to the registration in Ex. P. 1 Will is as follows : "Presented at the private residence No. 15 Veerasamy Street, Purasawakkam, Madras-7 and fee of Rs. 200/- paid between the hours of 5.45 and 6.45 p.m. on the 24th day of May 1994 by mark of Murugesa Nattar. Execution admitted by mark of Murugesa Nattar." A very reading of the above would clearly show that the instrument was neither read over nor the contents were admitted by the testator. 200/- paid between the hours of 5.45 and 6.45 p.m. on the 24th day of May 1994 by mark of Murugesa Nattar. Execution admitted by mark of Murugesa Nattar." A very reading of the above would clearly show that the instrument was neither read over nor the contents were admitted by the testator. In the absence of an endorsement to the effect by the registering authority, it cannot be presumed that the testator was made known of the fact that the document what he was admitting is the execution of the Will or he knew about the contents of the same. While the endorsement of the certificate by the Sub-Registrar is mandatory and in the absence of any such endorsement as stated above, the plaintiffs should have examined the Sub-Registrar, who registered the document. It is highly surprising to note that P.W. 3 has stated that the Sub-Registrar asked him to read out the contents of the Will and he did so. From the version of P.W. 3, it would be clear that the said Thanikai Arasu accompanied the witness to the Sub-Registrar's Office on 24-5-94 and took the Sub-Registrar to the house of the executant. P.W. 3 has stated as follows : "It is true I am very influential person in the Registrar's Office, Purasawakkam. I know Mrs. Anusuya Annamalal, Sub-Registrar, very well. The Sub-Registrar and officials in the Office would render all help to me as I go to the office daily. In the autorickshaw, Mr. Srinivasan, Sub-Registrar and one office Assistant came to the house of the deceased. Nobody has come along with me to Sub-Registrar's Office except D-6". Thus P.W. 3, a close friend of Thanikai Arasu, who according to the defendants is the brain behind the plaintiffs, has taken substantial part in the preparation, execution and registration of the document. Apart from that he has added that he came to Court 8 days to give evidence. All the above would be indicative of his interestedness on the plaintiffs and the said Thanikai Arasu. After careful and thorough scrutiny of his evidence, the Court has to necessarily state that his evidence is highly untrustworthy and unreliable and the same does not Inspire the confidence of the Court. With the above evidence it would be highly unsafe to hold that Ex. P1 testament was duly proved. 25. After careful and thorough scrutiny of his evidence, the Court has to necessarily state that his evidence is highly untrustworthy and unreliable and the same does not Inspire the confidence of the Court. With the above evidence it would be highly unsafe to hold that Ex. P1 testament was duly proved. 25. It is not in controversy that the testator Murugesa Nattar was 84 years old in 1994. It is also not disputed by the plaintiffs that he loved all children equally without any discrimination. The testator who had a paralytic stroke in the year 1987 was admitted in the hospital and had treatment for six weeks and was discharged from the hospital on 27-7-87 as evidenced by Ex. D-6 discharge summary. Relying on Ex. D-6 discharge summary, the learned Counsel for the defendants pointed out that Murugesa Nattar was suffering from hypertension, and cerebral haemorrhage and due to that, there was damage of the brain cells, and his speech and eyesight were affected; that due to the cerebral haemorrhage he lost his memory power, which could not be cured till his lifetime and he never regained consciousness. The learned Counsel for the plaintiffs would submit that it was true that the testator had a paralytic stroke in 1987 and when he was discharged, he was suffering only from hypertension, but not with any other ailment and Ex. D-6 discharge summary would reveal that the instructions were given for treatment for hypertension and suggestion for physiotherapy and that there was a physiotherapist by name Vijaykumar, who was a tenant in the house and by his treatment, the testator became physically alright, though he could not move about like others and his mental condition was affected at no point of time and thus he was having sound and disposing state of mind at the time of the execution of Ex. P1 document. Concededly the testator who had a paralytic stroke on admission to the General Hospital had treatment for six weeks. In the face of Ex. D-6 it cannot be disputed that he was affected by cerebral haemorrhage. The contention of the defendants' side that the testator continued to be bedridden for a period of seven years till his lifetime is not denied by the plaintiffs' side. Even P.W, 3 has deposed that the testator was bedridden on 24-5-1994, when he went to his house. D-6 it cannot be disputed that he was affected by cerebral haemorrhage. The contention of the defendants' side that the testator continued to be bedridden for a period of seven years till his lifetime is not denied by the plaintiffs' side. Even P.W, 3 has deposed that the testator was bedridden on 24-5-1994, when he went to his house. It has to be borne in mind that a duty is cast upon the plaintiff to show that the testator was possessed with sound and disposing state of mind at the time of execution of the Will. In the instant case the plaintiffs have not done so. Instead, they have made an attempt to throw the burden on the defendants by stating that it is for the defendants to prove that the testator's mental faculties were affected by cerebral haemorrhage and he lost his eyesight, speech and memory power. In support of his contentions, the learned counsel for the defendants relied on a decision reported in, Jaswant Kaur v. Amrit Kaur, wherein it is held thus (at p. 77 of AIR): "In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will." 26. The Supreme Court has held in the decision reported in (Indu Bala Bose v. Manindra Chandra Bose) thus (at P. 134 of AIR) : "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 S. 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. 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 testato 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 such a case the Court would naturally except that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent 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 .......Any and every circumstance is not a "suspicious" circumstance. 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." 27. In the decision of the Division Bench of this Court, reported in (1999) 2 Mad LJ 634 (Thankam alias Karthiyani v. C. Madhavan), it has been held as follows : "It is settled law that if there are suspicious circumstances with regard to the due execution and attestation of a Will, the propounder is bound to remove all the suspicion. A Will to be genuine and valid must be free from suspicious circumstances and due execution and attestation of the Will ought to have been proved. A Will to be genuine and valid must be free from suspicious circumstances and due execution and attestation of the Will ought to have been proved. The Court is bound to take into consideration the evidence of the witnesses and if the evidence adduced is not satisfactory and sufficient to prove valid execution and attestation of the Will and if the Will was prepared under vitiating circumstances, the propounder must discharge his burden of proving the fact of valid execution and attestation. The mere fact of registration is, insufficient in the facts and circumstances of this case to dispel the suspicious circumstances." Applying the principles laid down by the Apex Court in the above decisions and the Division Bench decision of this Court cited supra, the Court has to necessarily state that the plaintiffs propounders have not dispelled the suspicious circumstances, levelled against and shrouded on the preparation, execution, attestation and registration of the document. In view of the reasons stated and discussions made above, the Court has to hold that the evidence led by the propounders of the Will no doubt, have not satisfied the conscience of the Court that it was duly executed by the testator. The propounders who sets up the instrument have not offered a cogent and convincing explanation of the suspicious circumstances, surrounding the making of the Will. In view of the facts and circumstances of the case, the Court is of the considered opinion that the plaintiffs have totally failed to discharge the heavy onus of explaining the suspicious circumstances, attendant on the execution of the Will. Therefore, the plaintiffs have not proved the testament and hence they are not entitled to the reliefs as asked for. Suit in TOS 13/98 is liable to be dismissed. 28. The only question that would arise in the suit for partition filed by the second defendant would be whether he is entitled for the partition asked for. It is not in dispute that Murugesa Nattar owned the suit immovable property and he left his wife and seven children and the wife and children of the predeceased son. Hence by operation of law, the second defendant plaintiff in Tr. CS 159/2000 is entitled to 1/9th share in the suit property. It is not in dispute that Murugesa Nattar owned the suit immovable property and he left his wife and seven children and the wife and children of the predeceased son. Hence by operation of law, the second defendant plaintiff in Tr. CS 159/2000 is entitled to 1/9th share in the suit property. The only defence that was putforth in the suit for partition was that Murugesa Nattar executed his last Will and Testament on 24-5-1994 in respect of the suit property and in view of the same partition suit has to be dismissed. After consideration of the rival pleadings and evidence, the Court has come to the conclusion that Ex. P1 Will dated 24-5-1994 is not true and genuine and the suit has also been dismissed. The learned Counsel for the plaintiffs has also fairly conceded that if the suit TOS 13/98 is dismissed, partition could be granted in favour of the second defendant. In view of the above, there is no factual or legal impediment for granting a preliminary decree in favour of the second defendant. viz., the plaintiff in Tr. C.S. 159/2000 for partition and separate possession of the 1/9th share in the joint family immovable property described in the 'A' schedule only to the plaint. In respect of the reliefs asked for by the second defendant viz., the plaintiff under Clauses (b), (c) and (d) in Tr. C.S. 159/ 2000, the second defendant viz., the plaintiff has not adduced any evidence whatsoever. Hence he is not entitled for those reliefs. All the issues in T.O.S. 13/98 and in Tr. C.S. 159/2000 are answered accordingly. 29. In the result suit TOS 13/98 is dismissed, but no order as to the costs. 30. In the result, a preliminary decree is granted in favour of the plaintiff in Tr. CS 159/2000 for partition and separate possession of his 1/9th share in 'A' Schedule only. In respect of the reliefs regarding 'B' and 'C' Schedule and the prayer column 'b', 'c' and 'd', the suit Tr. CS 159/2000 is dismissed. There shall be no order as to the costs. Order accordingly.