Judgment : Per B. RAJENDRAN, J. These appeals arise out of the Judgment in O.S. No. 16 of 2002 decreeing plaintiffs suit passing Preliminary decree for partition granting 1/3rd share to plaintiffs 2 to 6 and 1st defendant/Appellant and 1/6th share to each of 7th plaintiff and 2nd defendant. Unsuccessful 1st defendant is Appellant in A.S. No. 25 of 2004. Being aggrieved by disbelieving of Exhibit A-1-Will and directing allotment of 1/6th share to him, 7th plaintiff has filed A.S. No. 906 of 2004. Cross Objection No. 46 of 2004 in A.S. No. 25 of 2004 filed by plaintiffs 2 to 6. For convenience, the parties are referred as per their array in the original rank. 2. Since both the Appeals and Cross Objection arise out of the same judgment, both the Appeals and Cross Objection were taken up together and disposed of by this Common Judgment. 3. Plaintiffs and defendants are related as under: Kaliammal (Senior) [Died in 1947] W/o Kalianna Gounder | ………………………………………………………………………………………….. | | | | Kaliammal Karunaiammal Palaniammal Pongiammal (died on 110. 56) (died on 30.5.99) (died on 1942) (1st Defendant) | (1st Plaintiff) | ……………………………………………………………………………………………………………………….. | | | | | Palaniappan Kandappan Kaliammal Valliammal Kandayal (P2) (P3) (P4) (P5) (P6) 4. Thesuit properties are the properties of Kaliammal (senior) which she obtained as per the Will dated 112. 1917 ands as per the settlement deed dated 4. 1933 executed by her husband. On the death of Kaliammal (senior) in the year 1947, the estate left by her devolved on her daughters viz., Kaliammal (junior), 1st plaintiff and 1st defendant and each daughter got 1/3rd share in the estate. On the death of Kaliammal (junior) as well as her husband, 1/3rd share of Kaliammal (junior) has devolved on plaintiffs 2 to 6. Case of plaintiffs is that suit properties were all along treated as joint properties of plaintiffs and defendants. 2nd plaintiff while he was a M.L.A., during 1971-76 used the house as his residence and was in enjoyment of co-owner. 1st defendant filed suit O.S. No. 469 of 1990 seeking for declaration of her exclusive right over the suit properties contending that in the family arrangement in 1947 among two other sisters agreed that all properties left by Kaliammal (senior) should belong to 1st defendant. After an elaborate trial, the said suit O.S. No. 469 of 1990 was dismissed on 211. 1993. After an elaborate trial, the said suit O.S. No. 469 of 1990 was dismissed on 211. 1993. Appeal preferred in A.S. No. 2 of 1994 also came to be dismissed on 8. 1995. Second Appeal has been preferred in S.A. No. 809 of 1996 and the same was also disposed on 211. 2000. As per the decision in the suit and appeal, plaintiffs are deemed to be in joint possession of the suit properties. 1st plaintiffs – Karunaiammal died on 30.5.1999. The Power Agent son of Kaurnaiammal filed petition to implead his as 7th plaintiff. 5. Case of 7th plaintiff is that while the 1st plaintiff was in a sound disposing state of mind executed Exhibit A-1-Will on 18. 1993 bequeathing her 1/3rd share in favour of 7th plaintiff. Sister of 7th plaintiff has been impleaded as 2nd defendant, plaintiffs filed suit for partition claiming to be entitled to 1/3rd share and plaintiffs 2 to 6 together are entitled to 1/3rd share and 1st defendant is entitled to 1/3rd share. 6. 1st defendant filed written statement contending that husband of Kaliammal (senior) had performed the marriage of hi two elder daughters viz., Kaliammal (junior) and Karunaiammal, the deceased 1st plaintiff into affluent families. He had executed settlement deed on 4. 1993 in favour of his wife. At that time, he had two other daughters to give away in marriage. However, he died without giving them in marriage. After the death of Kalianna Gounder, Kaliammal (senior) had to get her two younger daughters married and as she could not afford to be (sic) given them in marriage in affluent families. Daughter Palaniammal was given in marriage to Peria Gounder and Palaniammal died within two years after her marriage. After the death of Kaliammal (senior), with the consent of the other family members, 1st defendant was given in marriage to the same Peria Gounder. According to 1st defendant, at that time there was a specific understanding in the family that all the properties of kaliammal (senior) and Kalianna Gounder would belong only to 1st defendant since the other two daughters had been given in marriage to affluent persons. According to 1st defendant, at that time there was a specific understanding in the family that all the properties of kaliammal (senior) and Kalianna Gounder would belong only to 1st defendant since the other two daughters had been given in marriage to affluent persons. Even at the time of death of Kaliammal (senior) in 1947, family members agreed by way of an arrangement that all the properties should belong only to 1st defendant and that the other two daughters of kaliammal (senior) should have no share or interest in the same. According to 1st defendant, family arrangement was given effect to and has been acted upon ever since 1947. 1st defendant has averred that the entire suit properties are in her exclusive and continuous and uninterrupted possession asserting her title ever since the family arrangement on the death of Kaliammal (senior) in the year 1947. Further case of 1st defendant is that when S.A. No. 809 of 1996 is pending, the suit filed by the plaintiffs for partition cannot be maintained. 7. The second defendant has filed a separate statement denying execution of the Will dated 18. 1993 bequeathing 1/3rd right in the entire suit property in favour of the 7th plaintiff. The truth execution, validity and attestation of the Will are all denied. The 2nd defendant also would contend that the 1st plaintiff was confined to her house. She was not in a healthy condition and virtually the first plaintiff was confined to bed and she was immobilised from 1990 onwards confined to bed only. She was lost memory power and unable to recognize even her son and daughter. In fact, her mental capacities were not good right from the year 1985 and she was not at all in a sound disposing mind to execute the Will much less on 18. 1993 and furthermore, it is very curious that the Will dated 18. 1993 is registered after a period of 21/4 years, i.e. on 211. 1995 which is also a very clear suspicious circumstances and the 7th plaintiff has to prove the execution, registration and attestation of the Will. The 7th plaintiff is only a power agent of the first plaintiff and the first plaintiff was not even aware of the filing of the suit. 8. 1995 which is also a very clear suspicious circumstances and the 7th plaintiff has to prove the execution, registration and attestation of the Will. The 7th plaintiff is only a power agent of the first plaintiff and the first plaintiff was not even aware of the filing of the suit. 8. This defendant being the only daughter of the first plaintiff cannot be deprived of entire property and the fact that the Will does not provide any property by itself would specifically prove that the Will is not genuine. Therefore, she claims to allot 1/6th share of the suit property by metes and bounds with reference to good and bad soil. Much after the filing of the written statement, at the time of trial, the first defendant filed an additional written statement claiming that he has not abandoned plea of adverse possession and she has not given any authority to any counsel to give up such plea. On the above pleadings, the trial Court had framed the following issues. .(a) whether the adverse possession claimed by the first defendant is true, valid and correct? .(b) whether the suit property is joint family property? .(c) whether the plaintiff is entitled to get a partition and the mesne profits and other reliefs? 9. The trial Court after taking into consideration the evidence both oral and documentary and taking into consideration the judgment in the previous suit where in the issue has already been decided in regard to adverse possession, decreed the suit ultimately granting 1/3rd share to plaintiffs 2 to 6 and 1st defendant and 1/6th share to 7th plaintiff and 1/6th share to 2nd defendant. Aggrieved against the grant of 1/6th share, the 7th plaintiff has filed the appeal in A.S. No. 906 of 2004 as the Court has disbelieved the Will. As against granting of the decree for partition, the first defendant in the suit has preferred the appeal in A.S. No. 25 of 2004. For non-granting the mesne profits, the plaintiffs 1 to 6 has preferred the Cross Objection. 10. We have herd all the parties concerned and the points for consideration in the appeal are – 1. Having been unsuccessful in the earlier round of litigation, whether is it open to the 1st defendant to re-agitate the matter regarding the properties? 2. For non-granting the mesne profits, the plaintiffs 1 to 6 has preferred the Cross Objection. 10. We have herd all the parties concerned and the points for consideration in the appeal are – 1. Having been unsuccessful in the earlier round of litigation, whether is it open to the 1st defendant to re-agitate the matter regarding the properties? 2. Whether having been unsuccessful in the earlier found of litigation, is it open to the 1st defendant to contend that she has proved her title by adverse possession. 3. Having come up with the plea of adverse possession in the earlier round of litigation, whether the 1st defendant is right in raising the same plea in the present suit? Whether the plea of adverse possession is not barred by res judicata. 4. Whether the execution of Will has been duly proved by the 2nd plaintiff? 5. Whether the trial Court was right in holding that the execution of the Will has not been satisfactorily proved by the 2nd plaintiff and that the Will is surrounded by suspicious circumstances? 6. Whether the plaintiffs are entitled to past mesne profits, if so, would it enure to the benefit of 2nd defendant. 11. Appellant is the 7th plaintiff in the suit who mainly contend that the suit properties originally belonged to Kaliammal referred to as Senior Kaliammal who had three daughters namely the first plaintiff Karunaiammal, Pongiammal, the first defendant and Kaliammal – deceased mother of the plaintiffs since 2 to 6. The senior Kaliammal died interstate and therefore the suit property devolved on the plaintiffs and first defendant since it was no longer possible to be in joint possession the present suit for partition was filed. .12. The first defendant has filed a separate appeal in A.S. No. 25 of 2004 and the case of the first defendant is after the death of the mother of Senior Kaliammal by a family arrangement there was an arrangement that all the properties should be taken by the first defendant pursuant to this first defendant was in possession and perfected title by adverse possession. In this context, it was also stated earlier the first defendant originally filed a suit in O.S. No. 469 of 1990 on the file of District Munsif Court, Gobichettipalayam praying for a declaration of her title to the very same suit property and for permanent injunction. 13. In this context, it was also stated earlier the first defendant originally filed a suit in O.S. No. 469 of 1990 on the file of District Munsif Court, Gobichettipalayam praying for a declaration of her title to the very same suit property and for permanent injunction. 13. After the trial of the suit, the family arrangement pleaded by the appellant (first defendant) was held to be not true and plea of adverse possession was not believed. Thereafter, the first defendant herein in the suit (appellant) filed an appeal in A.S. No. 2 of 1994 on the file of Sub Court, Gobichettipalayam wherein the plea of adverse possession was given up pursuant to the endorsement made in the appeal. The appellant thereafter filed a Second Appeal in S.A. No. 809 of 2006 wherein the substantial question of law relating to the family arrangement pleaded by the appellant was answered against the appellant herein, first defendant in the suit. As regards the plea of adverse possession also, the Senior counsel did not argue. But the first defendant/appellant in A.S. No. 25 of 2004 would now contend that the earlier suit is not barred a he had not given up the plea of adverse possession. No right was given to the learned counsel to give up the plea and therefore, even in the present suit, they mainly contended that it was only pursuant to the family arrangement she obtained title to the suit property and the question of adverse possession could be raised since the learned counsel who appeared has no authority to make such an endorsement and to give up such plea. 14. For the above said arguments made by the first defendant, the plaintiff in the suit, respondent in the A.S. No. 25 of 2004 would contend that the issue regarding the alleged family arrangement is already concluded and disbelieved in the earlier litigation up to the High Court and therefore this issue cannot be re-agitated. 15. Rejecting, learned counsel had no authority to make an endorsement giving up the plea of adverse possession, they would only contend that the same Advocate had not only appeared in, the earlier suit for the first defendant, present appellant and also in the first appeal. Also in the present suit, the same Advocate had filed a written statement. He would further contend in the Second Appeal before the High Court. Also in the present suit, the same Advocate had filed a written statement. He would further contend in the Second Appeal before the High Court. The learned Senior Counsel who appeared in the appeal has not specifically made a plea of adverse possession which has been noted by the learned Judge of this Hon’ble Court. Therefore, such a plea is not open to them in the appeal. On this, the lower Court has decreed the suit granting for partition and also disbelieved the Will. .16. As far as the decree for partition granted, the plaintiffs and 2nd defendant agree and accept the partition decree, But they would fight among themselves in so far the share in the property as the 7th plaintiff would now contend that pending suit, the first plaintiff died and she had executed a Will in favour of the 7th plaintiff. The said Will claims to have been executed on 18. 1993 marked as Exhibit A-1 and as per the Will, all the properties are bequeathed only to the 7th plaintiff and the second defendant sister of the plaintiff who has been impleaded in the suit has no legal right over the property. Inasmuch as the Will has been executed in a sound disposing state of mind and has been proved by examining the witnesses namely the Registrar and the attesting witnesses, the Will has been proved and therefore, the second defendant would not have any share in the property and all the properties should now be divided only between the plaintiffs and the first defendant. 17. The 2nd defendant would specifically attack the Will as the propounder of the Will in this case has taken active part in the execution and registration of the Will. The testator was not in a sound disposing state of mind, especially her health was feeble on and from 1983 onwards, she was bedridden and therefore, the alleged Will could not have been executed at all. Therefore, they are contesting only in respect of the share of the property whether the Will is true or not? But, insofar as the partition is concerned, she stands along with plaintiff. The first defendants’ family arrangements is illegal and that first defendant is not the absolute owner of the property. 18. In the lower Court, the 7th plaintiff has been examined as P.W.1 and also examined five witnesses. But, insofar as the partition is concerned, she stands along with plaintiff. The first defendants’ family arrangements is illegal and that first defendant is not the absolute owner of the property. 18. In the lower Court, the 7th plaintiff has been examined as P.W.1 and also examined five witnesses. The Registrar of the Will, two attesting witnesses and identifying witnesses and a third party village farmer viz., P.W.1 to 6 have been examined. On the side of the defendant, the first defendant Pongiammal, the second defendant Eswari and witnesses 3 to 7 have been examined. The plaintiffs have marked Exhibits A-1 to A-33 and the defendants have marked Exhibits B-1 to B-326. 19. We have carefully considered the submissions made by all the parties concerned and examined the documents and analyzed the deposition of the witnesses. Taking into consideration the point for consideration Nos. 1 to 3 together, the contention raised by the first defendant is that she has been in absolute possession and enjoyment of the suit property pursuant to a family arrangement which was given in the year 1947 as she was not given sufficient properties at the time of marriage whereas others have been given their due share and therefore, pursuant to the family arrangement, she has all along been in possession of the suit property and to this effect she has produced document to the effect namely the Patta, Adangal, Chitta, etc. a well as some of the tax receipts to show that the possession was with her. But, this was negatived by the lower Court taking into consideration that earlier the first defendant filed a suit in O.S. No. 469 of 1990 for the relief of declaration that she is the absolute owner of the property and for consequential injunction restraining others from disturbing her possession on the basis of the family arrangement. She also claimed title by adverse possession also. Originally, the suit was dismissed. When the appeal was preferred, we were able to see, as per paragraph 13 of the judgment in A.S. No. 2/94, it is very clear that an endorsement has been made by the learned counsel on record namely one Mr. S. Krishnamoorthy insofar as the plea to adverse possession is concerned, as it was given up. 20. When the appeal was preferred, we were able to see, as per paragraph 13 of the judgment in A.S. No. 2/94, it is very clear that an endorsement has been made by the learned counsel on record namely one Mr. S. Krishnamoorthy insofar as the plea to adverse possession is concerned, as it was given up. 20. It is also made clear that in the Second Appeal and also in A.S. No. 809 of 1996, the only question of law decided was regarding the family arrangement whereas the plea of adverse possession was totally given up. The Senior Counsel also did not argue in respect of the adverse possession. This, we are able to see from Paragraph 17 of the Second Appeal judgment made in S.A. No. 809 of 1996. Therefore, it is very clear that the first defendant had totally given up the plea of adverse possession in the 1st appellate stage itself. He has abandoned the plea. But, an additional written statement has been filed as if he has not authorized the Advocate to make an endorsement. Suffice to point out that even in this suit, originally the very same Advocate has appeared for the first defendant. He has also filed a written statement. In the original written statement, this plea was not raised and thereafter, after the trial commenced after changing the Advocate, an additional written statement was filed which is admittedly an afterthought to fill up the lacuna the earlier giving up the plea of adverse possession. Therefore, it is not open to the first defendant in the suit at this point of time to contend that the plea of adverse possession was not given up. Even otherwise, the Second Appeal judgment the family arrangement as claimed bny him under which he claims possession has been disbelieved throughout. The family arrangement has been negatived by the Courts. Therefore, the present plea made by the first defendant again only on the basis of the family arrangement is legally not sustainable. It is definitely hit by the principles of res judicata. It is very clear in the earlier suit in O.S. No. 469 of 1990, an issue has been framed as follows- TAMIL 21. On the above said issue, the Court had given a finding in the very same case that the family arrangement pleaded is disbelieved. It is definitely hit by the principles of res judicata. It is very clear in the earlier suit in O.S. No. 469 of 1990, an issue has been framed as follows- TAMIL 21. On the above said issue, the Court had given a finding in the very same case that the family arrangement pleaded is disbelieved. When the lower Court has also specifically given a finding that- TAMIL And the Court has given a clear finding that- TAMIL 22. A clear finding has been given that the adverse possession pleaded by him and the family arrangement set up by her has been negatived by the Court below which has been confirmed up to the second appeal stage. Even in the Second Appeal, it has been very clearly noted that the Senior counsel did not pursue the case with regard to adverse possession in paragraph 17 of the judgment and insofar as the family arrangement is concerned, pointed out that the patta continues to be a common patta and clearly because the plaintiff in that suit, the first defendant herein was managing some of the properties and her name figured first in the patta followed by word ‘Vagaira” and she has not taken any step to get patta in her own name, Court clearly held as follows- “My answer to these points is that even without relying on Exhibit B-25, the other documents filed on the side of the defendants clearly show that there could not have been a family arrangement as alleged by the plaintiff/appellant and in fact, on the contrary, the parties had been in joint enjoyment of the various properties”. and finally also concluded that the plaintiff in the suit, first defendant herein is managing the property on behalf of the owners and ultimately the second appeal was dismissed. Therefore, when the clear cut finding throughout was given that the property as such has been jointly owned and enjoyed, the present contention on the very same ground that that she enjoyed the property on the basis of the family arrangement and that she has prescribed title by adverse possession cannot at all be pleaded in the present suit. There is a specific bar as the parties are governed by the earlier judgment, definitely the said judgment is a res judicata on this appellant. Therefore, the answer to question insofar as the point Nos. There is a specific bar as the parties are governed by the earlier judgment, definitely the said judgment is a res judicata on this appellant. Therefore, the answer to question insofar as the point Nos. 1 to 3 are concerned, is against the appellant in A.S. No. 25 of 2004 and first respondent in A.S. No. 906of 2004 and in Cross Objection No. 46 of 2004. 23. We confirm the order of the lower Court granting for a partition in respect of the parties disbelieving the theory set out by the first defendant, appellant herein that she was in exclusive possession and enjoyment of the property in her own right. Therefore, the first point in answered against the appellant. 24. Insofar as A.S. No. 906 of 2004 is concerned, the 7th plaintiff in the suit is the appellant claiming under the Will, he has filed the appeal insofar as the denial of mesne profits has specifically pleaded that in view of the fact that 1st defendant in the suit has obtained injunction in the earlier suit and was in possession of the property, she is liable to pay mesne profits. The suit ought to have been decreed in toto. He would also contend that PW6 who is an agriculturist has spoken to the nature of cultivation of the crops, the yield and probable income from the suit properties and adangals Exhibits A-11 to 14 are produced to prove the nature of crops cultivated in the suit properties and the Court having not disbelieved the evidence of P.W.6 nor rejected the documents ought not to have denied the right of mesne profits. Of course, he has also raised the plea insofar as denial of the Will is concerned because he claims title under the Will, and, according to him, the Will has been duly executed and registered in accordance with law and evidence of P.W.1 to 5 have clearly proved regarding the Will and PW4 and 5 being the attesting witnesses who would contend that Will was prepared by the scribe, read over to the executant and thereafter it was sent for typing and after typing, again was also read over to Karunaiammal. Only thereafter, she has signed the Will and the Court ought not to have taken into consideration the one sentence in the cross examination that at the time of evidence in the earlier case, namely on 19. Only thereafter, she has signed the Will and the Court ought not to have taken into consideration the one sentence in the cross examination that at the time of evidence in the earlier case, namely on 19. 1993, the statement made by him that there was no Will executed as on that date would not be fatal to hi case. 25. Though the Will was executed on 18. 1993, merely because of one of out context statement made in a earlier case by itself could not be taken into consideration to disbelieve the execution and admission of the Will. Therefore, he claims title under the Will and aggrieved against the rejection of the Will by the lower Court, he has come forward with this appeal. The Cross Objections have been filed by the plaintiffs seeking for mesne profits. Insofar as these two appeals are concerned, as regards the points for consideration, namely 4, 5 and 6 and taken up together. 26. The first and foremost thing to be decided in the appeal is whether the Exhibit A-1 registered Will has been duly proved in accordance with law. The lower Court taking into consideration the evidence produced by parties and the documents have categorically held that the Will had not been held properly proved on the following grounds. .(a) Suspicious circumstances in the execution of Will .(b) Registration Registration 27. Insofar as the registration of the Will is concerned, even though registration is a solemn act, the question is what is the sanctity to be given to Exhibit A-1 which is a registered Will. Even according to the evidence of P.W.1, the propounder of the Will Exhibit A-1 did not come into existence on 18. 1993. The date on which it is said to have been executed by Karunaiammal. On a perusal of the document, the date of the Will is mentioned as 18. 1993 but the Will has been registered after 21/2 years on 211. 1995. It is also seen from the evidence that the Will has been registered in the house of the propounder. The Registrar has come to the house and registered the Will. On a perusal of the document, the date of the Will is mentioned as 18. 1993 but the Will has been registered after 21/2 years on 211. 1995. It is also seen from the evidence that the Will has been registered in the house of the propounder. The Registrar has come to the house and registered the Will. According to the Registrar who has been examined as P.W.2 would contend that it was registered in the evening between 5.00 p.m. and 6.00 p.m. He also would contend that normally the Will will not be registered during the office hours outside the office and if the same would be done only in the evening whereas contra in this case, it has been done as peer seen in the Will which was registered between 5.00 p.m. and 6.00 p.m. At the relevant point of time, it was suggested that the office hours was between 10.00 a.m. and 5.45 p.m. Therefore, he should not have registered the Will at 5.00 p.m. The Registrar who has been examined is also a retired registrar who says that he went for registration on 211. 1995 between 5.00 p.m and 6.00 p.m. .28. It was brought up in the cross examination of the registrar who accepted that there was no endorsement to the effect that the Will was read over to the executant and he admitted the execution. He also admit that he was not aware whether the attestors were present when he visited the house for registration and also did not enquire regarding the long delay in executing and the date of registration. Evidence of P.W.2 would reads as follows- .TAMIL .29. It is also further strange to note that the registrar would admit that normally a copy of the Will should accompany at the time of registration and should be given whereas at the time of registration, it was not given to the registrar and above all these things, the learned counsel clearly point out that under Rule 38 of the Tamil Nadu Registration Rules that- .“an application for attendance at a private residence should be made in writing by the party concerned, namely the executor of the Will”. 30. 30. Only on the basis of a written request, the Sub Registrar should attend the house and register and unfortunately the registrar admits that no document has been produced to the effect that such an application was made by the testator in writing seeking for registration in the house. When such an application is missing or not proved, as rightly pointed out by the learned counsel, it creates a doubt with respect to very registration of the document, namely the Will. Apart from this evidence, P.W.1 in the earlier case would depose on 19. 1993 that his mother has not executed the Will on that date. When he clearly admits in the earlier case that no Will was executed on 19. 1993 almost within a month from the date of execution of the Will, which should have been in his mind very afresh and clear, definitely creates a doubt. .31. The deposition in the earlier suit is marked as Exhibit B-2 in the suit. When the propounder of the Will himself has very clearly stated that the Will was not executed on that particular date, it was alleged to have been executed which is registered after more than 2 years and 3 months, as rightly pointed out by the Court below, the Will has to be looked into with suspicion. Coupled with the fact hat in so far as the registration is concerned, every one has given a different version Will definitely speak the volumes about the proof of the Will. P.W.3 would say that the testator, witnesses and himself has signed in Exhibit A-1 thereby using his pen. .TAMIL .32. But on a careful perusal of Exhibit A-1, we find that the scribe has signed in a black ink pen whereas the others have signed in blue ink pen. These discrepancies, insofar as the evidence is concerned, including the registrar’s witness, clearly show that the execution of the Will and the registration has not been properly established and proved. Even if we take the evidence of PW3 the scribe, he would admit that it was Eswaran, the 7th plaintiff who had given the description of property. He also would admit that he has executed more than 50 to 60 documents for 7th plaintiff. He would admit that- .TAMIL 33. Even if we take the evidence of PW3 the scribe, he would admit that it was Eswaran, the 7th plaintiff who had given the description of property. He also would admit that he has executed more than 50 to 60 documents for 7th plaintiff. He would admit that- .TAMIL 33. PW3 would say that the Will was executed only in the evening at 4.00 p.m. after getting it typed in Sathyamangalam, P.W.4 attesting witness would say that it was executed at 10.00 to 11.00 a.m. and he signed them,. It was also suggested that the scribe has actually made the Will as per the direction of the propounder. 34. On taking into consideration the suspicious circumstances in regard to the execution of the Will, apart from proving the testimonial disposition of the testator, the burden lies on the propounder it prove the suspicious circumstances. The suspicious circumstances in this case are taking prominent part on the execution of the Will. In fact, in the evidence, he has categorically stated: TAMIL .(a) exclusion of daughter from inheritance .(b) falsity of the claim that the daughter was also provided with property. .(a) Exclusion of daughter from inheritance: .35. The 7th plaintiff would specifically contend that Exhibit A-3 the settlement deed was executed by the 7th plaintiff and Exhibit A-4 the settlement deed was executed by Karunaiammal by herself in favour of his daughter Eswari and under these two documents since not only Karunaiammal and the 7th plaintiff himself has given property to the second defendant Eswari in the Will, no property has been given to her share in the Will. Therefore, there is nothing wrong in excluding the daughter from the Will, it cannot be a suspicious circumstances and she had been sufficiently provided for the mere exclusion cannot be termed as suspicious in respect of the execution of the document. .36. The learned counsel for the second defendant categorically brings to the notice of the Court that Exhibit A-4, settlement deed executed by Karunaiammal is dated 20.10.1967. Actually, the second defendant got married only in the year 1977. Those properties were settled when even she was a minor in her name in view of the coming into force of the Land Ceiling Act and even those properties were sold before her marriage and some of them were sold immediately after marriage. Actually, the second defendant got married only in the year 1977. Those properties were settled when even she was a minor in her name in view of the coming into force of the Land Ceiling Act and even those properties were sold before her marriage and some of them were sold immediately after marriage. In fact, as per the evidence, even the husband of the second defendant did not know about the settlement of the deed or the sale of the properties and it was also specifically pleaded that 7th plaintiff had taken back the money arising out of the sale of the properly. Similarly, insofar as the property settled by the 7th plaintiff himself, the document is dated 2. 1959 when she was only 11 years old and P.W.1 himself in the earlier suit has categorically deposed- .TAMIL .37. Even in the suit, he has deposed as follows- .TAMIL 38. Added further, it is also admitted by P.W.1 in his evidence that all the 85 acres of land owned by his father has devolved upon him only. So, when he has got the father’s property and the present one, definitely the sister cannot be excluded. .39. As per the evidence, it is very clear that the properties which has been allotted to the share of the second defendant which was admittedly prior to her marriage and when she was a minor, all were prior to the marriage and after the marriage and even though the documents recites that the sale has been effected for getting some other property, no other property was purchased and it is further clarified that the proceeds have gone to the coffers of the 7th plaintiff and not to the 2nd defendant and when analyzing this aspect how a mother could exclude her daughter knowing fully well that no property at all was allotted to the share of the daughter and it is also not the case of the parties that the daughter was inimical (sic) to her mother. Therefore, the exclusion of the 2nd defendant in the Will is one of suspicious circumstances. Therefore, the exclusion of the 2nd defendant in the Will is one of suspicious circumstances. No doubt, mere exclusion by itself would not amount to wrongful but yet in this particular case, when especially when parties were at loggerheads and there are litigations long before when the propounder of the Will has taken active participation in Execution of the Will, there is a definite suspicious circumstance when the daughter has been totally excluded from the Will. Coupled with the fact, when the evidence of P.W.1 would only state that in the Will she was excluded because the properties were given under the settlement deed. When it is proved that such property was not at all given to her, definitely, there raises a suspicion. From the evidence, we are also able to see that the 7th plaintiff had executed a maintenance deed as early as on 2. 1959 as the mother wanted to live separately from the son which was also admitted by him. Therefore, it could also be pleaded that the mother was not in good relationship with the son. If she had not been in good relation with the son, can it be now said that the entire property would have been executed only in favour of the son excluding the daughter? Therefore, this exclusion and the proof that the alleged settlement deed under which no property was given to the daughter would definitely create a suspicion in the mind everyone, as rightly pointed out by the lower Court also. .40. In regard to the sound disposing state of mind, as far as the Will is concerned, we will also have to take into consideration the sound disposing state of mind of the parties. As far as the sound disposing state of mind is concerned, when we analyse the evidence, the propounder of the Will P.W.1 himself clearly deposed in the earlier suit as- .TAMIL 41. In the earlier suit, he also would say- TAMIL Whereas in this suit, he contradicts and the same was marked a Exhibit B-2. In this suit, he would say- TAMIL 42. Further, it is also argued that P.W.1 himself has deposed in the earlier suit that the Will was not executed on 19. 1983 whereas the Will is dated 18. 1993. The contradiction has been marked as Exhibit B-2. Coupled with the fact that in earlier suit Karunaiammal was not examined. In this suit, he would say- TAMIL 42. Further, it is also argued that P.W.1 himself has deposed in the earlier suit that the Will was not executed on 19. 1983 whereas the Will is dated 18. 1993. The contradiction has been marked as Exhibit B-2. Coupled with the fact that in earlier suit Karunaiammal was not examined. An application in I.A. No. 1501 of 1990 in O.S. No. 469 of 1990 was taken to examine Karunaiammal on commission but she was not examined through commission. Even as admitted by him, in view of the feeble health of Karunaiammal and she was nervous in front of the strangers, if we take into consideration, as pointed out by the counsel for the respondents, if she was nervous to the strangers, whether it is possible for her to understand and accept the registration before the Registrar. Coupled with the fact the registrar has not made an endorsement that the Will has been read over to her and that she understood the Will and accepted to sign the same. 43. It is also clear from the evidence that P.W.1 himself has made that she was not well from 1985 onwards and admittedly from 1990, he was not in a position to move about and the fact that even though the Will has been alleged to have been executed in 1993, why it was registered in 1995 has not at all been properly explained. .44. The evidence of P.W.1 is as follows .TAMIL .45. When PW1 himself has admitted in the previous suit that she cannot even depose before the Commission and she was not in a good state of mind. Definitely, the suspicious circumstances in this case looms large on the face of the record, especially when the registration took place after a period of 2 years and 3 months. The exclusion, the attestation and the sound disposing state of mind has not been properly proved in accordance with law, as there are vital discrepancies among the evidence of PW3 the scribe and attesting witnesses PW4, 5 and the identifying witnesses PW6. 46. The exclusion, the attestation and the sound disposing state of mind has not been properly proved in accordance with law, as there are vital discrepancies among the evidence of PW3 the scribe and attesting witnesses PW4, 5 and the identifying witnesses PW6. 46. Though the appellant in A.S. No. 906 of 1994 would contend that under Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act, when the propounder of the Will has examined the evidence of the scribe, the attesting witnesses as well as the identifying witnesses, that itself coupled with the fact it is a registered Will, is proved beyond any reasonable doubt cannot be accepted in view of the various circumstances as pointed out by the lower Court and as sculled out in the judgment here. 47. We have taken into consideration the legal aspects submitted by both the parties. Suspicious Circumstances: In a judgment reported in Guardial Kaur and Others v. Kartar Kaur and Others AIR 1998 SC 2861 : 1998 (4) SCC 384 : (1998) 2 MLJ 128, the Supreme Court has categorically held that the mere fact that the Will is a registered Will will not by itself to be sufficient to dispel all suspicions regarding the validity of the Will where suspicions exist at p. 129 of MLJ 3. The law is well-settled that if there is suspicious circumstance about the execution of the Will, it is the duty of the person seeking declaration about the validity of the Will to dispel such suspicious circumstances. In this connection, reference may be made to the decision of this court in Rani Purnima Debi and Another v. Kumar Khavendra Naravan Deb and Another, (1962) 1 MLJ 27 has been held in the said decision that if a Will being registered and having regard to the other circumstances, is accepted to be a genuine, the mere fact that the Will is a registered Will it will not by itself be sufficient to dispel all suspicions regarding the validity of the Will statement by witness that he had witnessed the testator admitting execution of the Will was not sufficient to dispel suspicions regarding due execution and attestation of the Will. It has been specifically held that registration of the Will by itself was not sufficient to remove the suspicion, Relying on an earlier decision of this Court reported in H. Venkatachala Iyengar v. B.N. Thimmajamma, it has been held in the said decision that where the propounder was unable to dispel the suspicious circumstances which surrounded the question of valid execution and attestation of the4 Will, no letters of administration in favour of the propounder could be granted. 4. The law is well settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstances, the obligation is cast on the propounder of the Will to dispel suspicious circumstance. As in the facts and circumstances of the case, the Court of Appeal below did not accept the valid execution of the Will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction of the Court and such finding of the Court of Appeal below has also has been upheld by the High Court by the impugned judgment, we do not find any reason to interfere with such decision. This appeal, therefore, fails and is dismissed without any order as to costs. Prepounder of the will has taken an important role 48. In a judgment reported in Surendra Pal and Others v. Dr.(Ms.) Saraswati Arora and Another AIR 1974 SC 1999 : 1974 (2) SCC 600 , a three Judges (sic) Bench of the Supreme Court has categorically held in cases where the propounder himself has taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. 7. 7. The propounder has to show that the will was signed by the testator: that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the will are not the result of the testator’s free will and mind. In all such cases where there may legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the will is accepted. Again in cases were the propounder has himself taken a prominent part in the execution of the will which confers on him substantial benefit that is itself, one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. See H. Venkatachala Iyengar v. B.N. Thimmajamma and Others 1959 Su 1 S.C.R. 426;(1) and Rani Purnima Devi and Another v. Kumar Kbagendra Naravan Dev and Another. In the latter case this Court, after referring to the principles stated in the former case emphasized that where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine; and where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same. It has been further pointed out that the suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator’s mind, the dispositions made in the will which may be unnatural or unfair or improbable when considered in the light of the relevant circumstances. If the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the will had been obtained by fraud or undue influence, a probate of the will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mine. The observations of the Privy Council in Motibai Hormusjee Kanga v. Jamsetjee Hormusjee Kanga AIR 1924 PC 28 support the above proposition. Mr. Ammer Ali observed at p.33 “It is quite clear that the onus of establishing capacity lay on the petitioner. It is also clear that if the caveator impugned the will on the ground that it was obtained by the exercise of undue influences. Excessive persuasion or moral coercion, it lay upon him to establish that case.” In the light of what has been stated if the various requirements of a valid will are established, then as observed by the Privy Council in Motibai Hormusjee Kanga’s case (supra) “ A man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his volition.” 13. It is true that Wills are transactions of a nature which give rise to certain special considerations affecting their validity irrespective of the time when or the country in which they are made. Dispute over Wills invariably arise after the testator’s made. Dispute over Will invariably arise after the testator’s death; so that the alleged maker of the Will is not before the Court to deny the execution or to testify about the circumstances in which the alleged disposition was made. There are such possibilities of fraud and fabrication, particularly in cases of old and feeble persons, that Courts have to be very circumspect in dealing with them and scrutinize the surrounding circumstances very carefully. There are such possibilities of fraud and fabrication, particularly in cases of old and feeble persons, that Courts have to be very circumspect in dealing with them and scrutinize the surrounding circumstances very carefully. This is not less, if not much more, necessary in a country like ours where misplaced confidence of unsophisticated persons is often abused by cunning and unscrupulous individuals and perjury is not less frequent than elsewhere. 49. THE Supreme Court, after considering various judgments of the Supreme Court has categorically held that suspicious circumstances have definitely to be taken note of and the propounder of the Will has to dispel such suspicious circumstances for proving the Will. 50. Per contra, the learned counsel for the appellant in A.S. No. 906 of 2004 has cited a judgment reported in Sushila Devi v. Krishna Kumar AIR 1971 SC 2236 : (1971) 3 SCC 146 for the preposition that the Non-bequest of property to the children of the testator does not make the Will invalid if the execution of Will is satisfactorily proved. But, in the very same judgment, it is also clearly pointed out that if the bequest made in the will appears to be unnatural, the Court has to scrutinize the evidence in support of the execution of Will with greater decree of care than usual. Coupled with the fact that the other two judgments are three Judges Bench of the Supreme Court where it has been categorically held and insofar as the suspicious circumstance is concerned, it depends on the facts and circumstances of each case. In the case on hand, the cumulative effect of all these circumstances would clearly prove that beyond any reasonable dou8bt, the will could not have been executed in the manner as it is stated to be. Hence, this rule does not come to the rescue of the appellant. 51. The learned counsel for the appellant has also relied upon a judgment reported in Thiruvengadam Pillai v. Navaneethammal and Others 2008 (4) SCC 530 : (2008) 2 MLJ 1115 in regard to the comparison of thumb impression with the Court especially without the assistance of the experts. Hence, this rule does not come to the rescue of the appellant. 51. The learned counsel for the appellant has also relied upon a judgment reported in Thiruvengadam Pillai v. Navaneethammal and Others 2008 (4) SCC 530 : (2008) 2 MLJ 1115 in regard to the comparison of thumb impression with the Court especially without the assistance of the experts. In this case, as we have not taken into consideration the thumb impression at all, even otherwise, the Supreme Court have stated that the Court can compare provided the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The Court should avoid reaching conclusions based on a mere causal or routine glance or perusal. The Court also would say that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record a opinion or finding on such comparison, only after analyzing of characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. 52. The 2nd defendant in the suit is 7th defendant in A.S. No. 25 of 2004 and 2nd Defendant in A.S. No. 906 of 2004. K. Eswari have pleaded that even though they have not made any separate Cross Appeal insofar as it relates to grant of past mesne profits, yet, when the Court is considering the Cross Appeal filed by the other plaintiffs seeking for past mesne profits, the same is also liable to be granted to her. This contention is supported by the decision reported in Bihar Supply Syndicate v. Asiatic Navigation AIR 1993 SC 2054 : (1993) 2 SCC 639 . 53. The learned counsel for respondents judgment reported in Bihar Supply Syndicate v. Asiatic Navigation (supra) for the preposition under Order 41 Rule 33 if no cause of action is established against one of the defendants, the decree passed against him by the trial Court can be set aside by the Appellate Court. The Court further held that a Court not withstanding that the appeal is has to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed appeal or objection. 28. The Court further held that a Court not withstanding that the appeal is has to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such respondents or parties may not have filed appeal or objection. 28. If the relief can be granted by the appellate Court even when no appeal or cross-objections were filed by the respondent, surely relief can be granted by the appellate court when cross-objections have been filed by the respondent against a correspondent. Order 41 Rule 33 of the CPC reads as under: 33. Power of Court of Appeal – The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or make and to pass or made such further or other decree or order as the case may require, and this power may be exercised by the Court not withstanding that the appeal is as to part only of the decree and may be exercise in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. 29. Really speaking the Rule is in three parts. The first part confers on the appellate Court very wide powers to pass such orders in appeal as the case may require. The second part contemplates that this wide power will be exercised by the appellate Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. The third part is where there have been decrees in cross-suits or where two or more decrees are passed in one suit, this power is directed to be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. 54. The third part is where there have been decrees in cross-suits or where two or more decrees are passed in one suit, this power is directed to be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. 54. As per the above judgment, it is very clear that the Appellate Court has got vide power notwithstanding that the appeal has to part only for the decree and to be exercised in favour of all or any of the respondents or parties even though they have not filed any appeal or cross objection. Therefore, when we hold that the plaintiffs are entitled to for mesne profits, the same benefits will also enure to the benefit of 2nd defendant in the suit. 55. The learned counsel for the appellant relied upon a judgment reported in Narayan Patil v. Puttabai AIR (32) 1945 PC5 : (1944) 2 MLJ 358 for the preposition that even though earlier declaration and injunction suit was pending or ultimately adjudicated by the High Court, there was no proclusion for the defendant in the suit to file a suit for possession when ultimately it was clearly established that they are in possession. Therefore, they could not claim possession as it is bared by limitation. In that suit, the Privy Council held that the institution of the suit for possession was not in any way curtailed and the subsequent suit by the defendants after 12 years from the date of dispossession was bared by limitation. But in this case, the contention of the appellant was not accepted. In fact, the Court throughout held that the possession was only a joint possession and not totally independent possession of the appellant. Furthermore, when the family arrangement has been totally disbelieved and finding has been rendered by the Court and thereafter it has been very clearly stated that the possession is a joint possession as between co-owners, there cannot be any dispossession at all,. Therefore, the ruling, as, relied upon by the appellant will not come to rescue. 56. The learned counsel also relied upon a Division Bench judgment in Muthiah Pillai (died) v. Vedambal 98 L.W.606 for the preposition that the persons in possession was hostile to the real owner and amounted to the denial of the title to the property claimed. Therefore, the ruling, as, relied upon by the appellant will not come to rescue. 56. The learned counsel also relied upon a Division Bench judgment in Muthiah Pillai (died) v. Vedambal 98 L.W.606 for the preposition that the persons in possession was hostile to the real owner and amounted to the denial of the title to the property claimed. The animus of the person doing the acts is the most crucial factor. No doubt, the Division Bench has categorically held that animus is crucial for setting up adverse possession. No doubt, the earlier proceeds, the second defendant set up adverse possession but the animus was not clearly proved. Even otherwise in the very same ruling, it is very categorically ruled that the party claiming to rule the immovable property totally must go on to prove that it was not denial of the onus title and that he excluded him from the enjoyment of the property. Here, there was no contra denial of the property whereas it was only held to be a joint possession and when once the same has been disbelieved right up to the Second Appeal as we have already held, it is open for the appellant at this stage to raise this plea. Hence, this will not be applicable to this case. 57. No doubt, the learned Advocate also pointed out the comparison of signature or thumb impression by the trial Court when the admitted document namely Power of Attorney and pleaded that the Court should not have taken the steps of comparing the signature especially the thumb impression without the assistance of a qualified person. Even discarding this, as we have found out many discrepancies in the execution of the Will and the attestation, definitely the Will has not been proved but on a careful analysis and on looking in to the Exhibit A-1, the original Will at the outlook as stated by the Court below, the signature in the Will and the signature at the time of registration on the back side is little bit different which is also admitted by the Registrar in the evidence. Even assuming for a moment that due to the old age there is a discrepancy, when we carefully look into the signature in the Will and the Power of Attorney, eventhough there is a gap in number of years, the signature looks identical to that of the Power of Attorney. Therefore, the suspicious circumstances in this fact also could be looked into. 58. We have taken into consideration other main discrepancies as well. Therefore, on a careful analysis of all the evidences and documents, we have only come to a conclusion that the Will has not been properly proved. As rightly pointed out by the Court below, the Will has not been executed as stated and definitely the sound disposing state of mind of the testator has not been properly proved and under those circumstances, the claim made on the basis of the Will is rightly negatived by the Court below. If the Will is not there, then the 7th plaintiff cannot exclude the 2nd defendant and therefore the suit has been rightly decreed. Hence, the point is answered that the Will is not properly proved and it is answered against the appellant in A.S. No. 906 of 2004. 59. The Court has dismissed the plea insofar as the mesne profits is concerned on the ground that the earlier suit or in the appeal or in the notice, they have not claimed the mesne profits. No doubt, in the earlier claim, that is a suit filed by 1st defendant for a declaration and injunction, there is no need or necessity at that point of time for claiming the mesne profits but since they have alleged to have been in possession and ultimately in the Second Appeal, this Court has categorically held that the possession is joint possession. Definitely, the first defendant is bound to render true and proper accounts and also mesne profits. But this mesne profits, they can only be claimed for a period of 3 years prior to the filing of the suit. In the evidence also, PW6 has been examined who is an agriculturist for the purpose of establishing that Sugar Cane was cultivated. Taking into consideration the long possession of the 1st defendant without giving any income over the property, the past mesne profits also claimed by the plaintiff and the 2nd defendant is liable to be granted. In the evidence also, PW6 has been examined who is an agriculturist for the purpose of establishing that Sugar Cane was cultivated. Taking into consideration the long possession of the 1st defendant without giving any income over the property, the past mesne profits also claimed by the plaintiff and the 2nd defendant is liable to be granted. Insofar as the quantum of past mesne profits are concerned, the ascertainment of mesne profits prior to the institution of the suit (only for 3 years prior to the suit) and subsequent to the filing of the suit, plaintiffs and 2nd defendant shall be entitled to claim the same by having recourse to Order 20 Rule 12 of CPC. 60. In the result, the Appeals in A.S. No. 25 of 2004 and 906 of 2004 are dismissed without costs and insofar as the Cross Objection No. 46 of 2004 is concerned, the same is partly allowed in terms of observation noting that the plaintiffs and the second defendant are entitled to the past mesne profits also. Ordered accordingly.