JUDGMENT :- 1. The Appellants/Plaintiffs have filed the instant appeal before this Court as against the Judgment and Decree dated 02.11.2004 in O.S.No.20 of 2004 passed by the Learned Additional District and Sessions Judge (Fast Track Court No.3), Dharapuram. The Plaint Background: 2. The Appellants/Plaintiffs 1 and 2 are the sisters of the 1st Respondent/1st Defendant. They are the only daughters of Late.Palanisamy Gounder. The 1st Respondent/1st Defendant is the only son of Late.Palanisamy. The 2nd Respondent/2nd Defendant is the minor son of the 1st Respondent/1st Defendant. 3. According to the Appellants/Plaintiffs, the suit properties and other properties originally ancestrally belonged to the Appellants/ Plaintiffs' father Palanisamy and his father Kolandaisamy Gounder. By means of a registered Partition Deed dated 17.10.1985, Kolandaisamy Gounder, Palanisamy Gounder and the 1st Respondent/1st Defendant divided the family properties. In the said Partition, 'A' schedule property was allotted to Kolandaisamy Gounder. 'B' schedule properties were allotted to the Appellants/Plaintiffs father Palanisamy Gounder and 'C' schedule properties to the 1st Respondent/1st Defendant absolutely and they were in possession and enjoyment of their respective schedules separately and as of their own rights. 4. The Appellants/Plaintiffs' grandfather Kolandaisamy Gounder died intestate in or about 1986, leaving his only son Palanisamy Gounder as his only Legal Heir. The wife and the mother of Kolandaisamy Gounder predeceased him. As such, after the death of Kolandaisamy Gounder, Palanisamy Gounder, the father of the Appellants/Plaintiffs became entitled to all the properties mentioned in the Schedules A and B to the registered Partition Deed dated 17.10.1985. Moreover, the Appellants/Plaintiffs' father had also purchased the properties of his own and enjoyed the same along with the properties of his father separately. 5. The Appellants/Plaintiffs' father viz., Palanisamy Gounder and the 1st Respondent/1st Defendant died intestate on 21.12.2002, leaving the Appellants/Plaintiffs and the 1st Respondent/1st Defendant and his wife Chellammal as his only Legal Heirs. The Appellants/Plaintiffs 1 and 2 and the 1st Respondent/1st Defendant and Chellammal became entitled to 1/4th share each in all the properties that belonged to Palanisamy Gounder on his death on 21.12.2002. After the death of Palanisamy Gounder, the Appellants/Plaintiffs, the 1st Respondent/1st Defendant and Chellammal were in joint possession and enjoyment of the suit properties which originally belonged to Palanisamy Gounder. 6. After the death of Palanisamy Gounder, the Appellants/Plaintiffs, the 1st Respondent/1st Defendant and Chellammal were in joint possession and enjoyment of the suit properties which originally belonged to Palanisamy Gounder. 6. In the meanwhile, the Appellants/Plaintiffs, came to know that the 1st Respondent/1st Defendant was attempting to change the revenue records pertaining to the suit properties in his own name ignoring the Appellants/Plaintiffs. Therefore, the Appellants/Plaintiffs issued a registered notice on 26.01.2003 to the 1st Respondent/1st Defendant, his mother Chellammal and the Tahsildar of Kangayam demanding not to entertain changes in the revenue records. On receipt of the said notice, the 1st Respondent/1st Defendant and his mother Chellammal issued a false reply on 14.02.2003 through their Counsel. 7. In the reply notice, they stated that Palanisamy Gounder, the father of the Appellants/Plaintiffs, had not left any property as on his death dated 21.12.2002. Also, Palanisamy executed a registered Will on 18.12.2001, bequeathing his properties to his son Minor Naveenkumar and after his death, all the properties of Palanisamy Gounder devolved upon Minor Naveenkumar as per his Will and that the Appellants/Plaintiffs were not entitled to any right therein. 8. The stand of the Appellants/Plaintiffs is that their father Palanisamy Gounder never executed any Will irrespective of his own properties. He died intestate only. The alleged Will was executed by Palanisamy Gounder and to be a forged and fabricated one. The Appellants/Plaintiffs suspect that the 1st Respondent/1st Defendant in order to deprive the Appellants/Plaintiffs legitimate share in their father's separate properties should have fabricated a Will by forging and by impersonation with the assistance of his relatives, friends and associates. Indeed, before his death it was only the Appellants/Plaintiffs who took care of his father by providing food, shelter and treatment, etc at various hospitals and the same was known to all the peoples in that locality. Under these circumstances, Palanisamy Gounder would not have executed any Will without the knowledge of the Appellants/Plaintiffs. Even if there was a Will already executed, it should be a fabricated and forged one. 9. In any event, Palanisamy Gounder would not have executed the said Will out of his freewill and volition, since Palanisamy Gounder was not in a sound and disposing state of mind at the time of the execution of the alleged Will. Even if there was a Will already executed, it should be a fabricated and forged one. 9. In any event, Palanisamy Gounder would not have executed the said Will out of his freewill and volition, since Palanisamy Gounder was not in a sound and disposing state of mind at the time of the execution of the alleged Will. It should have been obtained by the 1st Respondent/1st Defendant by way of coercion, undue influence, fraud, misrepresentation and without the consent of the deceased Palanisamy. The Appellants/Plaintiffs' father had love and affection with them and there was no reason for him to dislike the Appellants/Plaintiffs. The deposition under the Will was an unnatural and improbable one. The Will was neither true nor a genuine one. 10. The Appellants/Plaintiffs' father invested a huge amount in Nationalised Banks. The Appellants/Plaintiffs understand that the 1st Respondent/1st Defendant had fraudulently misrepresented and by exercising his undue influence, had made his father to withdraw such amount and now deposited the same in favour of his wife and his Minor son. As and when the Appellants/Plaintiffs came to know about the details of the aforesaid deposits they reserve their right to claim their due shares in it. 11. The Appellants/Plaintiffs issued a registered notice dated 06.03.2003 to the 1st Respondent/1st Defendant and his mother Chellammal calling upon them to agree for partition and separate possession of their shares. On 17.03.2003, the Appellants/Plaintiffs and the 1st Respondent/1st Defendant's mother Chellammal had died intestate leaving behind them as her Legal Heirs to succeed to the 1/4th Share in the suit properties left out by the deceased Palanisamy. Therefore, after the death of Chellammal, the Appellants/Plaintiffs and the 1st Respondent/1st Defendant are entitled to 1/3 share each in the suit properties. The Appellants/Plaintiffs after the death of Chellammal demanded partition and separate possession of their 2/3 share in the suit properties. But, the 1st Respondent/1st Defendant was not amenable for the same and deliberately not allowed the Appellants/Plaintiffs and their relatives to attend the funerals of their father and mother. 12. The Appellants/Plaintiffs are entitled to claim mesne profits from the Respondents/Defendants and they restrict their claim in this regard from the date of the suit till claiming of separate possession of their respective shares. 12. The Appellants/Plaintiffs are entitled to claim mesne profits from the Respondents/Defendants and they restrict their claim in this regard from the date of the suit till claiming of separate possession of their respective shares. Hence, the Appellants/Plaintiffs filed the present suit for Partition seeking division of the suit properties by metes and bounds into three equal shares and allot two such shares and also to deliver separate possession of such shares to them. The Written Statement Pleas: 13. The Plaintiffs' grandfather Palanisamy Gounder had two daughters along with the Appellants/Plaintiffs, who are their Heirs. As per Partition document dated 17.10.1985, the Appellants/Plaintiffs and the 1st Respondent/1st Defendant's father Palanisamy Gounder were allotted properties in B schedule and the said properties were enjoyed by him separately and in spite of the same, the father Palanisamy was under the care and maintenance of the 1st Respondent/1st Defendant. After the death of Late.Palanisamy Gounder's father Kolandaisamy Gounder and the deceased Palanisamy Gounder and his wife Chellammal were under the care and maintenance of the 1st Defendant in Paraiyakaduvalasil Village of the Respondents/Defendants. Since Palanisamy Gounder became old, his properties were managed by the 1st Respondent/1st Defendant by performing agricultural operation and paying kist. The 1st Respondent/1st Defendant at his own expenses treated the deceased Palanisamy Gounder, when he was not keeping good health by admitting him in Erode Sathiyamoorthy Hospital, Sudha Heart Hospital and Sachithanandam Hospital. 14. The deceased Palanisamy Gounder voluntarily without any one's instigation executed a Will dated 18.12.2001 in respect of his properties. As per the Will, the 1st Item of the property was allotted to the 1st Respondent/1st Defendant and the 2nd Item of the property was allotted to the 2nd Respondent/2nd Defendant Minor Naveenkumar. From the date of Will dated 18.12.2001 till the death of Palanisamy on 21.12.2002, the Respondents/Defendants looked after his medical expenses. After the death of Palanisamy, the 1st Respondent/1st Defendant performed his last rites and the Appellants/Plaintiffs came to know about the writing of the Will at the time of execution of the Will and because of the strained relationship, they had not attended the funeral ceremonies of Palanisamy Gounder and his wife Chellammal. The 1st Respondent/1st Defendant met the entire funeral expenses of the deceased Chellammal. 15. The 1st Respondent/1st Defendant met the entire funeral expenses of the deceased Chellammal. 15. The deceased Palanisamy Gounder performed the marriage of the Appellants/Plaintiffs in a grand manner with Seervarisai 35 years ago and they were residing separately with their husbands in a proper facilities. The deceased Palanisamy treated the suit properties as his separate properties for the past 15 years. In respect of the suit properties, the 1st Respondent/1st Defendant was paying the kist. 16. The deceased Palanisamy wrote a Will dated 18.12.2001 in respect of the suit properties. After his death, the Respondents/ Defendants acquired the suit properties and the said properties were in their enjoyment. Therefore, in the suit the Appellants/Plaintiffs were not entitled to claim any relief. 17. The Will dated 18.12.2001 executed by Palanisamy Gounder was not cancelled by him. After the death of Palanisamy, the Will came into effect and the suit properties are in possession and enjoyment of the Respondents/Defendants. Palanisamy Gounder either at the time of his death or before had not deposited any amount in the Banks. The deceased Chellammal had not left behind any property, since the suit properties had come to the hand of the Respondents/ Defendants by virtue of the Will. There was no cause of action for the Appellants/Plaintiffs to file the present suit. Since the Appellants/ Plaintiffs were not in possession of the suit properties, the valuation made by them in the Plaint was not correct. 18. Before the trial Court, on the side of the Appellants/Plaintiffs witnesses, PW1 to PW3 were examined and Ex.A.1 to Ex.A.17 were marked. On the side of the Respondents/Defendants, witnesses DW1 and DW2 were examined and Ex.B.1 to Ex.B.37 were marked. 19. The trial Court, on an appreciation of oral and documentary evidence available on record, had come to a resultant conclusion that 'the Will claimed by the 1st Respondent/1st Defendant, dated 18.12.2001 was a true and valid one and resultantly held that the Appellants/Plaintiffs were not entitled to claim any partition rights in the suit properties. Consequently, the suit was dismissed leaving the parties to bear their own costs.' 20. Being dissatisfied with the Judgment and Decree passed by the trial Court dated 02.11.2004 in O.S.No.20 of 2004 on the file of the Learned Additional District and Sessions Judge (Fast Track Court No.3), Dharapuram, the unsuccessful Plaintiffs had filed the present Appeal before this Court as an aggrieved Appellants. Being dissatisfied with the Judgment and Decree passed by the trial Court dated 02.11.2004 in O.S.No.20 of 2004 on the file of the Learned Additional District and Sessions Judge (Fast Track Court No.3), Dharapuram, the unsuccessful Plaintiffs had filed the present Appeal before this Court as an aggrieved Appellants. 21. The Points that arise for determination in this Appeal are: "1. Whether the Ex.B.2 Will dated 18.12.2001 executed by the deceased Palanisamy Gounder in favour of the 1st Respondent/1st Defendant was a true, genuine and valid one? 2. Whether the Court Fee of Rs.200/- paid by the Appellants/Plaintiffs in the Plaint on the basis of constructive joint possession was a valid and correct one in the eye of law? The Contentions, Discussions and Findings on Point No.1: 22. The Learned Counsel for the Appellants/Plaintiffs submits that the trial Court had not taken into account of the fact that the testator Palanisamy Gounder had affixed his left thumb impression in the alleged Ex.B.2-Will dated 18.12.2001 when an a later date i.e., in the year 2002, he had affixed his signature in the Bank records in Ex.A.16 and Ex.A.17, which would clearly proved that the alleged Will was not a true and genuine one. 23. It is the further contention of the Learned Counsel for the Appellants/Plaintiffs that the trial Court should have seen that the Will dated 18.12.2001 was obtained by coercion and undue influence. 24. The Learned Counsel for the Appellants/Plaintiffs submits that the deceased Palanisamy Gounder (testator) was completely under the control of the 1st Respondent/1st Defendant, but this aspect was not taken into account by the trial Court, while passing the Judgment in the suit. 25. According to the Appellants/Plaintiffs, their father had love and affection with them and there was no reason for their father to dislike them, but this aspect was not taken note of by the trial Court. 26. It is also the contention of the Learned Counsel for the Appellants/Plaintiffs that the trial Court came to the wrong conclusion that the Respondents/Defendants proved the truth and genuineness of the Will beyond reasonable doubt. 27. Lastly, the plea of the Appellants/Plaintiffs is that the trial Court should have rejected the oral and documentary evidence produced on the side of the Respondents/Defendants. 28. 27. Lastly, the plea of the Appellants/Plaintiffs is that the trial Court should have rejected the oral and documentary evidence produced on the side of the Respondents/Defendants. 28. The Learned Counsel for the Appellants/Plaintiffs cites the decision of the Honourable Supreme Court Gurdial Kaur and others v. Kartar Kaur and others, AIR 1998 Supreme Court 2861, at Page 4 wherein it is held as follows: “The law is well stated 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 circumstance, 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.” 29. He also relies on the decision P.Ramachandran Nair v. Suparna Tapan Das, AIR 2003 Bombay 457, it is held that 'the testator though seriously ill but was conscious but in fit mental condition, however, affixing thumb marks to Will when he could have signed it. Such fact will create suspicion about the execution of the Will.' 30. Also, in the aforesaid decision at Page 468 and 469, Paragraphs 29 and 30, it is held as follows: “29. Shri Merchant further pointed out two more circumstances and they are:(i)non-mention of all the properties of the deceased in the Will Excel and (ii) exclusion of the defendant from any benefit under the will. So far as the first circumstance is concerned, the will Exh. A reference to shop No. 6, shop No. 16 and shop No. 26 all situated in Kamal Kunj Co-operative Housing Society, Bandra, which were owned by the deceased. So far as the first circumstance is concerned, the will Exh. A reference to shop No. 6, shop No. 16 and shop No. 26 all situated in Kamal Kunj Co-operative Housing Society, Bandra, which were owned by the deceased. It also makes a reference to shop No. 11-A in the same society which was acquired by the deceased on tenancy basis. Under the Will, the deceased bequeathed these shops to his son Alok. There is no reference in the will to other properties owned by the deceased: However, it contains a general statement"...... and of other movable and immovable properties, which I may be possessed of or entitled to at the time of my death". The schedule of property shows that the deceased also owned the flat No. 9 in Oxford Co-operative Housing Society Limited, Bandra (West) and who had huge bank accounts with various banks. However, these do not find mention in the will, Excel. The plaintiff has admitted in para 12 of the cross-examination that the deceased has purchased a property at Virar, but that also does not found any mention in the Will. P.W. 4 Advocate Midha who drafted the will has stated that there is ho specific reference in the will to the ownership flat of the deceased but there is a general reference to all properties. He has admitted that during his discussion with the deceased, he noted down the details regarding the forth shop's and residential address. According to him, the deceased did not give him details or instructions with regard to any other properties. Advocate Midha further stated that he did not ask the deceased about his bank accounts, fixed deposits, shares and jewelleries. It appears that the deceased was also having a safe deposit vault in a bank that also does not find any mention in the bill. According to Shri. Merchant if the Will had not drafted as per the instructions of the deceased then all these properties would have found a mention in the will because the deceased would not have failed to give instructions regarding as other properties. According to Shri. Merchant if the Will had not drafted as per the instructions of the deceased then all these properties would have found a mention in the will because the deceased would not have failed to give instructions regarding as other properties. Shri.Ravi, the learned advocate for the defendants on the other hand contended that non mention of some of the properties in the will need not be viewed with suspicion, in view of the fact that the will contains a recital relating to the all other movable and immovable properties which the deceased might be in possession or entitled to at the time of his death. In this respect, he relied upon the decision in Rajeshwarirani v. Nirja Suleri wherein it was felt that no suspicion can be held to emanate from the facts that the details of the property are not mentioned in the Will. It was observed that it is not essential to give details of the property in the testamentary documents. However, in my opinion, wherein omission in the Will of certain properties should be viewed that suspicion or not, depends upon the facts and circumstances of each case for the instant case the deceased is said to have given instructions to Advocate Midha mention the shops in the will. There is no dispute of the fact that the residential flat in Oxford Cooperative Housing Society at Bandra belongs to the deceased. Therefore, normally he would not have failed to make a mention thereof in the Will if at all he wanted to make a bequest of all his property of his son Alok only. It appears that, Alok was residing with the deceased in the said flat. At any rate there is no satisfactory explanation as to why the deceased did not specifically incorporate in the will his other properties when he gave details in respect of the shop property. 30. The next circumstances alleged to be suspicious is the exclusion of the defendant from any benefit under the Will. It may be noted that, the deceased has only two issues namely a son by name Alok and daughter by name Suparna. The wife of the deceased had died long back during the childhood of the two children. The defendants Suparna is married and she resides with her husband at Santacruz. It may be noted that, the deceased has only two issues namely a son by name Alok and daughter by name Suparna. The wife of the deceased had died long back during the childhood of the two children. The defendants Suparna is married and she resides with her husband at Santacruz. As seen from the Will EXCEL the deceased purports to have bequeathed all his properties to his son Alok only and nothing has been given to the defendant. Shri. Merchant submitted that, as a matter of feet, the relations between the deceased and his son Alok had got strained on account of latter's marriage. The evidence of the defendant shows that Alok got married in January 1993 with one Punjabi girl. It was an inter-caste marriage and the same was not approved by the deceased. The defendant has further stated that there used to be disputes between the deceased and Alok and the deceased had removed him from partnership. The statement made by the defendant in this respect have not been challenged in the cross-examination. Therefore, there is no reason to discard the same. What is more important to note is that the plaintiff did not examine Alok as his witness to state about the relationship between Alok and the deceased. In fact Alok could have been the best witness to speak about his relationship with the deceased. However, there is no explanation for the non-examination of Alok as a witness. It is true that the defendant is a married daughter of the deceased and probably she is well placed. However, it is pertinent to note that the will is totally silent about her. It does not make even mention of her name, leave apart giving reason as to why no benefit has been conferred upon her under the will. The defendant being the only daughter of the deceased, in the normal course she would not have felt to mention her name as well as assign a reason for not giving her any benefit under the will particularly when his relations with his son were not cordial. Under these circumstances, the exclusion of the defendant from any benefit under the will appears to be somewhat suspicious. Under these circumstances, the exclusion of the defendant from any benefit under the will appears to be somewhat suspicious. Shri. Merchant referred to the decision in Ram Piari v. Bhagwant wherein the facts were that the father executed the Will bequeathing all his property in favour of one daughter and thus inherited the other property to had no sore relations with him. It was held that, even though it cannot be said to be, hard and fast rule yet when disinheritance is amongst heirs of equal decree and no reasons for exclusion is disclosed, within a standard of scrutiny is not the same. In the instant case it is not in dispute that all the properties of the deceased were his self acquired properties. The defendant and her brother Alok are the sole heirs of the deceased of equal decree. The Will Excel does not contain any reason of non giving of any benefit to the defendant. Under these circumstances, the exclusion of the defendant from any benefit under the will appears to be suspicious. 31. The Learned Counsel for the Appellants/Plaintiffs seeks in aid of the decision of this Court L.H.Vidyapoornan v. L.H.Premavathy and others, AIR 2005 MADRAS 193, wherein in Paragraphs 23 to 27 and 29, it is observed as follows: “23. However, the learned counsel for the plaintiff and contesting defendants have also pointed out the following suspicious circumstances surrounding the execution of Ex.B-1, the will. The first and foremost circumstance pointed out by them is that the stamp papers for engraving the Will had been purchased from a vendor at Watrap in Ramanathapuram District only on 29.10.1986 and there is no reason for the deceased Kamalammal to purchase the stamps from a place which is more than 300 miles away from Madras on the previous day of the execution of the document. Similarly, according to D.W.2, it was about noon he signed as witness in Ex.B-1. It is evident that Kamalammal never left Madras during her last days. Hence, the learned counsel for the contesting plaintiff and defendants have in our opinion raised a pertinent question as to how Kamalammal could have purchased stamp papers for writing an important document such as Will from a stamp vendor from a far away place on the previous day. It is evident that Kamalammal never left Madras during her last days. Hence, the learned counsel for the contesting plaintiff and defendants have in our opinion raised a pertinent question as to how Kamalammal could have purchased stamp papers for writing an important document such as Will from a stamp vendor from a far away place on the previous day. In the absence of any evidence to explain the above suspicious circumstance adduced on the part of the 5th defendant, it cannot be said that he has discharged the onus of proof as adumbrated in the ratio laid down by the Apex Court in the decision referred to above. The above circumstance shrouded with suspicion has not been explained by the 5th defendant and hence, we are constrained to endorse the finding rendered by the learned Single Judge on this aspect of the matter. 24. Further, it is important to note that even though the will Ex.B-1 was type-written, no particulars of the person who typed it had been mentioned therein. Hence, it is rightly contended by the learned counsel for the contesting parties to the suit that in addition to the above circumstances, the non-mentioning of the name and address of the person who typed the document would go to show and prove that the Will propounded by the 5th defendant is not a true and genuine document. 25. Moreover, as has been rightly argued by the contesting parties, the bequeath under Ex.B-1 is not beyond suspicion for the simple reason that all the immovable properties belonging to Kamalammal, namely, item Nos.2 to 4 were bequeathed in favour of 3 sons and that 2/3rd share in the jewels belonging to her must go to the female children among three sons. It is pertinent to note that the 6th defendant had no issues and the 4th defendant had only two male children and it is the 5th defendant who alone has a girl child. Hence, it goes without saying that the said document had been cunningly drafted at the instance of the 5th defendant so as to get 2/3rd share in the jewels bequeathed in favour of his daughter. It follows that the above circumstance is also suspicious one which has not been explained satisfactorily by the propounder of the will, namely, the 5th defendant herein. 26. It follows that the above circumstance is also suspicious one which has not been explained satisfactorily by the propounder of the will, namely, the 5th defendant herein. 26. Though the learned counsel for the 5th defendant would rely upon the decision, S.Sundaresa Pai v. Sumangala T.Pai ( AIR 2002 S.C. 317 ) that even if some of the heirs are excluded in the legacy under the will, it is not a suspicious circumstance. However the facts involved in the said case are such that the ratio laid down therein cannot be made applicable to the case on hand for the simple reason that the Will in question in that case, had been proved to have been executed by the testator in a sound and disposing state of mind and the only question involved therein was about the uneven distribution of assets among the children which by itself held to be not a suspicious circumstance surrounding the execution of the Will. On the contrary, in this case, the daughters of Kamalammal are not getting any share in the immovable properties, namely, item Nos.2 to 4 to plaint 'A' schedule and also in the jewels left by Kamalammal, only the three sons were bequeathed with immovable properties and 2/3rd share in the jewels to the girl child of the 5th defendant to the exclusion of other heirs. It is in these circumstances, we are constrained to hold that the ratio laid down in the said decision does not advance the case of the 5th defendant in any manner. It follows necessarily that even the bequeath under Will Ex.B-1 creates the strong suspicion which has not been dispelled by the 5th defendant as narrated above. 27. It is in the evidence of D.W.1, 4th defendant that the mother Kamalammal never told him that she executed a Will and that he is unable to say whether the signature found in Ex.B-1 is that of his mother. Further according to him, his mother was an illiterate, but she used to sign her name in Tamil by putting her initial in English and yet he is unable to state definitely whether the signature found in Ex. B-1 is that of his mother. It is the admitted case of both sides that Kamalammal died on 24.11.1986. Further according to him, his mother was an illiterate, but she used to sign her name in Tamil by putting her initial in English and yet he is unable to state definitely whether the signature found in Ex. B-1 is that of his mother. It is the admitted case of both sides that Kamalammal died on 24.11.1986. It is in the evidence of D.W.1 that he visited his mother 1-1/2 months prior to her death and she had not informed about the execution of the Will at that time. In the above circumstances, apart from the evidence of the 5th defendant as D.W.3 , there is no other evidence worth mentioning to prove the due execution of Ex.B-1 by Kamalammal. Hence, the learned Single Judge came to the irresistible conclusion that in the absence of proper explanation as to the custody of Ex.B-1 with the 5th defendant, the said document cannot be said to be true and genuine. 28...... 29. Thus, we record a finding that the said Will dated 30.10.1986 is not executed by Kamalammal in a sound and disposing state of mind as claimed by the appellant herein, that therefore, the testamentary disposition made under the Will regarding the suit item Nos.2 to 4 to the plaint 'A' schedule is not true and valid and that consequently, the 5th defendant is not entitled to any letters of administration in respect of the said Will.” Also, in the aforesaid decision at Paragraph 31, it is laid down as follows: “31. Having regard to the totality of the evidence and the circumstances that the 5th defendant and his wife had taken parental care of the mentally ill person, namely, his sister 3rd defendant (since deceased) for about 11 years, we are of the considered view that in equity, the 5th defendant may be allotted item No.2, house property described in plaint 'A' schedule and 50 cents in the land described under item No.3 to 'A' schedule and remaining items may be allotted to the plaintiff and the defendants 1, 2, 4 and 6. Similarly, the plaintiff and the defendants may each be allotted 1/6th share in the suit 'B' schedule jewels. The finding recorded by the learned Single Judge that the movables mentioned in 'C' and 'D' schedule to the plaint schedule are not available for partition is not challenged. Similarly, the plaintiff and the defendants may each be allotted 1/6th share in the suit 'B' schedule jewels. The finding recorded by the learned Single Judge that the movables mentioned in 'C' and 'D' schedule to the plaint schedule are not available for partition is not challenged. It is in these circumstances, we hold that the defendant is entitled to the equity in the allotment of properties in the final decree proceedings as mentioned above.” 32. He also invites the attention of this Court to the decision of the Honourable Supreme Court Niranjan Umeshchandra v. Mrudula Jyoti Rao and Ors, AIR 2007 SC 614, wherein it is held as follows: “There are several circumstances which would have been held to be described by the Supreme Court as suspicious circumstances. These circumstances are (i) When a doubt is created in regard to the condition of mind of the testator his signature on the Will; (ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.” 33. Conversely, it is the contention of the Learned Counsel for the Respondents/Defendants that the trial Court had appreciated the oral and documentary evidence produced on both sides and had come to the right conclusion in dismissing the suit and also, the trial Court rightly held that the Will dated 18.12.2001 executed by the testator Palanisamy Gounder was a true and valid one and as such, the same need not be interfered with by this Court, at this distance of time. 34. However, the Learned Counsel for the Respondents/ Defendants cites the decision of the Honourable Supreme Court Balathandayutham and another v. Ezhilarasan, wherein in Paragraph 4, it is observed as follows: “On these facts the learned First Appellate Court held, when the execution of a Will asserted by one party is denied by the other party, then the burden is on the party who relies on the Will to prove its execution. But when execution of the Will is not denied then no burden is cast on the party who relies on a Will to prove its execution. Relying on the aforesaid principle, the First Appellate Court held, and in our view rightly, that the existence of the first Will dated 25.09.1972 has been admitted. But when execution of the Will is not denied then no burden is cast on the party who relies on a Will to prove its execution. Relying on the aforesaid principle, the First Appellate Court held, and in our view rightly, that the existence of the first Will dated 25.09.1972 has been admitted. But the appellants' case is that the same has been revoked. However, there is no attesting witness to prove Ex.B-19 dated 2.5.1980 and Ex.B-20 dated 25.4.1980, which are the two subsequent Wills. The First Appellate Court also noted that it was admitted that the subsequent Will dated 25.4.1980 is an unregistered one and attestors to the said Will were alive even though scribe was not alive. It was also admitted by the appellant that testator was not well for about four months prior to his death. Admittedly Ex.B-19 and Ex.B-20 were allegedly executed when the testator was unwell. On those facts the learned First Appellate Court held that the subsequent two Wills being Ex.B-19 and Ex.B-20 were not proved.” 35. Also, in Paragraphs 11 to 13, the Honourable Supreme Court has held as follows: “11. In so far as execution of the Will is concerned, under Section 63 of the Indian Succession Act, 1925 it has to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence, and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. Section 68 of the Indian Evidence Act, 1872 further provides if a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to the process of the Court is capable of giving evidence. There is a proviso under Section 68 but we are not concerned with the proviso here. 12. There is a proviso under Section 68 but we are not concerned with the proviso here. 12. Commenting on these provisions, this Court in H. Venkatachala (supra) laid down that Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. It was further held that Section 63 of Indian Succession Act requires that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This Section also requires that Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. [see pg 451] 13. The law thus laid down in H. Venkatachala (supra) is still holding field and this Court has followed the same in various other judgments. [See Madhukar D. Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85 ; Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and others., (2006) 13 SCC 433 and Savithri and Others v. Karthyayani Amma and Others, (2007) 11 SCC 621 ]” 36. [See Madhukar D. Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85 ; Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and others., (2006) 13 SCC 433 and Savithri and Others v. Karthyayani Amma and Others, (2007) 11 SCC 621 ]” 36. He also relies on the decision of the Honourable Supreme Court Janki Narayan Bhoir v. Narayan Namdeo Kadam, at Page 102, wherein the Honourable Supreme Court has held that 'although Will is required to be attested by two witnesses, it could be proved by examining one of the attesting witnesses as per Section 68 of the Indian Evidence Act and further, one attesting witness examined should be in a position to prove an execution of the Will and as per Section 71 of the Indian Evidence Act, if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence and moreover, this Section has no application when one attesting witness has failed to prove the execution of the Will and other attesting witnesses were available who could prove the execution if they were called.' 37. Added further, the Learned Counsel for the Respondents/ Defendants places reliance on the decision of the Honourable Supreme Court Savithri and others v. Karthyayani Amma and others, (2008) 1 MLJ 1337 (SC), at Page 1338 wherein it is held hereunder: “Deprivation of a due share to the natural heirs itself is not a factor which would lead to the conclusion that there exists suspicious circumstances in the execution of a Will. For this purpose, the background facts should also be taken into consideration.” 38. At this stage, it is useful for this Court to refer to the evidence of PW1 to PW3 and DW1 and DW2 in detail for fuller and better appreciation of the facts of the case. 39. It is the evidence of PW1 (1st Respondent/1st Defendant) that she was residing at Kangayam with her husband for the past 30 years and for the family, Rice Mill business and also, the agriculture were the occupation and further that for the 2nd Appellant/2nd Plaintiff, agriculture was the occupation and she used to go to Paraiyakaduvalasil for the purpose of agricultural operations and that the 1st Respondent/1st Defendant is a brother, but resides at Paraiyakaduvalasil and the entire properties were separate properties of her father Palanisamy Gounder, who enjoyed the same till his lifetime. Moreover, it is the evidence of PW1 that the 1st Respondent/1st Defendant and his father resided in the same house and four months before the death of her father Palanisamy, he was not keeping good health and he took treatment at Erode Sathiyamoorthy Hospital and Sudha Heart Hospital and it was not correct to state that the 1st Respondent/1st Defendant took her father for treatment and that she only provided treatment to her father. 40. The further evidence of PW1 that she does not know whether Duraisamy (1st Respondent/1st Defendant) provided treatment to her father and it was not incorrect to state that her father was a heart patient and that the distance between Kangayam and Paraiyakaduvalasil is 25 Kms. 41. Also, PW1 proceeds to add that she does not know her father was in the hospital for heart problem and they visited their father once in ten days and her husband at the time of marriage was running a Rice Mill and he was in good condition and at the time of her marriage her father put 10 sovereigns of jewels and no other Seervarisai were given to her and for her daughter 25 sovereigns of jewels were put and no amount was given in cash. 42. PW1 goes on to add in her evidence that it was not correct to state that her daughter was given 100 sovereigns of jewels and Rs.1,00,000/- in cash and it was also incorrect to state that her father at the time of her marriage gave 50 sovereigns of jewels and Rs.1,00,000/- in cash. Likewise, it was also not correct to state that the 2nd Appellant/2nd Plaintiff was also provided with jewels and dowry and the problem arose because her father wrote a Will in favour of the Respondents/Defendants and that she had not attended the funeral of her mother. 43. PW1, in her cross examination, had deposed that in their family, on 17.10.1985, her grandfather, father and brother had not partitioned and no partition document was entered into between them and she does not know what item of property was given to her father in the list and that her father till his death was in good memory and was in a talking terms and at the time of his death, his father had no nerve problem and that her father wrote a Will two days prior to his death. 44. 44. PW2 (the 2nd Appellant/2nd Plaintiff), in her evidence, had deposed that her father till his death was in good memory and in conscious state and 20 years had elapsed ever since her marriage. At the time of her marriage 10 sovereigns of jewels were given to her by her mother's house and it was not correct to state that she was given 40 sovereigns of jewels and a cash of Rs.20,000/- and her father in respect of 19 acres, had executed a Will in favour of his grandson and she does not know her father writing a Will in favour of her brother and they are claiming partition for 19 acres. 45. PW2, in her evidence, had also stated that it was not correct to state that the Respondents/Defendants should get properties as per the Will and also, it was not correct to state that the 1st Respondent/1st Defendant is enjoying the properties based on Will. 46. Furthermore, it is the further evidence of PW2 that at the time, when her father was not keeping good health, she took him to the hospital and it was not correct to state that the 1st Respondent/1st Defendant treated her father when he was not well and with her father, she was in talking terms. 47. PW3 (Bank Manager), in his evidence, had stated that he is working as Manager of State Bank, Kangayam and he is serving as Personal Loan Manager and in Ex.A.16, Palanisamy and Chellammal have jointly deposited the money and in joint account, there was no nominee at the time of deposit this amount and at the time of withdrawing the same, he was not the Manager and when the amount was received by Palanisamy Gounder, he alone signed and took the money and he signed before the Manager and took the money. 48. Continuing further, it is the evidence of PW3 that in Ex.A.16, there was no mention that the signature was put before the Manager and the signature in the front portion of the receipt was signed at the time of deposit receipt being given (back portion signature) and it was not correct to state that the back portion signature and the front portion signature of the receipts were a different one and in Ex.A.17, it was not correct to state that signature was not affixed in front of the Bank Manager. 49. 49. Added further, it is the further evidence of PW3 that in Ex.A.16 and Ex.A.17, cash was ordered to be paid by the Bank. 50. DW1 (the 1st Respondent/1st Defendant), in his evidence, had stated that the 2nd Respondent/2nd Defendant is his son and in the year 1985, there was a partition between him, his father and grandfather and his grandfather wrote a document in respect of his properties and died and after the death of his grandfather, his Aunts filed a case and his grandmother's properties were partitioned in the Court and in the suit properties, his Aunts had no share. Further, it was not correct to state that after partition, his father was enjoyed the properties separately, but, they enjoyed the same jointly and in respect of the income concerning the properties of his father, he enjoyed the same and also gave it to his father. 51. Continuing further, DW1 also deposed that it was not correct to state that the amount deposited in the Bank were obtained from the income of the properties of his father and that his father had deposited the balance amount from and out of the money given by him and from the year 1985 till his father's death, it was not correct to state that his father enjoyed the properties as his separate properties. Also, the person Muthusamy, who signed in the Will was his relative and in the Will, no mention was made in the Bank deposit and after the execution of the Will, his father would have withdrawn the money from the Nathakadaiyur Bank about which he does not know personally and there is no enmity between the father and the Appellants/Plaintiffs and he only met the Medical Expenses of his father and that the Appellants/Plaintiffs had not met the medical expenditure of his father. 52. Proceeding further, DW1 has also stated that it was not correct to state that the alleged execution of Will by his father was created in his favour at his instigation and that his father had no drinking habit and further he had no paralytic decease and till his death, he was in good state of mind. 53. 52. Proceeding further, DW1 has also stated that it was not correct to state that the alleged execution of Will by his father was created in his favour at his instigation and that his father had no drinking habit and further he had no paralytic decease and till his death, he was in good state of mind. 53. DW2, in his evidence, had stated that Palanisamy Gounder one year before his death was affected slightly with paralytic attack and thereafter, after recovery, he was in good state and for writing of the Will, he and Palanisamy Gounder went in TVS-50 and only after her arrival the recitals of the Will were mentioned and he does not know in the recitals of the Will which item of the property had been allotted to a particular person and the 1st Respondent/1st Defendant had not come to the Registration Office and his Cousin had also not attended the Registration Office. 54. Added further, it is the evidence of DW2 that the Will was prepared with the help of Computer and it was not typed and in the Will, there was no mention about the paralytic decease of Palanisamy Gounder and that he had not signed in the Will and also, his hand was shivering and it was not correct to state that they purchased a liquor and took Palanisamy Gounder and with his shivering hand, they took his signature and after putting the signature, they are all returned to the house. 55. DW2 also stated in his evidence that the Appellants/Plaintiffs during the lifetime of the father had connection with him and they took him to the hospital and maintained him and the Appellants/Plaintiffs' father had love and affection with them and further, he had known the Appellants/Plaintiffs well. 56. A perusal of Ex.B.2-Will dated 18.12.2001 executed by the deceased Palanisamy Gounder indicates that the same was executed in favour of the 1st Respondent/1st Defendant in respect of the 'A' schedule properties absolutely and in respect of 'B' schedule items of properties, the same after his lifetime was to be enjoyed by the 1st Respondent/1st Defendant's son and his grandson viz., the 2nd Respondent/2nd Defendant. In the said Will, the left thumb impression of the deceased Palanisamy Gounder was found in all the pages. In Ex.B.2 Will dated 18.12.2001, two witnesses had signed. DW2, one Thangarasu had signed as a 2nd witness. In the said Will, the left thumb impression of the deceased Palanisamy Gounder was found in all the pages. In Ex.B.2 Will dated 18.12.2001, two witnesses had signed. DW2, one Thangarasu had signed as a 2nd witness. The Ex.B.2 Will was drafted and typed by one Venugopal. As a matter of fact, Ex.B.2 Will dated 18.12.2001, was a registered one in Book 3 as Document No.66/2001 on the file of the Sub Registrar, Chennaimalai. 57. At the time of execution of Ex.B.2 Will dated 18.12.2001, the age of the deceased Palanisamy was mentioned as 81 years. In Ex.B.2 Will dated 18.12.2001, the deceased Palanisamy had mentioned that the Appellants/Plaintiffs, his daughters were given in marriage at proper places with Seervarisai as per customs, etc. In Ex.A.16 and Ex.A.17 (Special Term Deposit Receipts), on the reverse side, the deceased Palanisamy had signed in one place over the one rupee revenue stamp in Tamil and in another place, he had affixed his signature over the ope rupee revenue stamp in Tamil. 58. One of the attesting witnesses, DW2 Thangarasu, to Ex.B.2 Will dated 18.12.2001 in his evidence had clearly stated that the deceased Palanisamy at the time of writing of the Ex.B.2 Will was one year before his death was slightly affected with sickness and later on he was in good state and he went along with Palanisamy in TVS 50 for writing of the Will and only on the instructions of Palanisamy, the property details were written and that the 1st Respondent/1st Defendant had not come to the Registration Office. 59. The categorical evidence of DW2 was that Palanisamy Gounder's hand was shivering and therefore, he had not affixed his signature in the Ex.B.2 Will. Even though in Ex.A.16 and Ex.A.17, the deceased Palanisamy Gounder had signed in Tamil on 21.06.2004 respectively. The Ex.B.2 Will was dated 18.12.2001 and at the time the deceased Palanisamy had put his left thumb impression on the said document because of his shivering in hand. The left thumb impression of the deceased Palanisamy Gounder in Ex.B.2 Will dated 18.12.2001 was said to be an unnatural one on the side of the Appellants/Plaintiffs because of the fact that the deceased Palanisamy had put his signature in Ex.A.16 and Ex.A.17 Bank deposit receipts which was of 21.06.2004. It is to be borne in mind that Ex.B.2 Will was said to be executed on 18.12.2001. 60. It is to be borne in mind that Ex.B.2 Will was said to be executed on 18.12.2001. 60. At this stage, it is not out of place for this Court to specifically point out that Section 68 of the Indian Evidence Act deals with the question of proof of the fact as to whether those formalities were observed or not. However, Section 63 of the Indian Succession Act requires that a Will must be attested by two witnesses. Section 68 of the Indian Evidence Act lays down that a Will can be proved by one of the attesting witnesses. 61. A person propounding a Will is to prove the same. Section 68 of the Indian Evidence Act is relevant as regards the proof of signature of the deceased or his acknowledgment that he signed in the Will, he would be presumed to know the provision of the instrument he had signed. But the said presumption was liable to be rebutted by proof of suspicious circumstances. Further, what circumstances would be regarded as a suspicious circumstances and could not be precisely defined or exhaustively enumerated as per decision of the Honourable Supreme Court H.Venkatachala Iyengar v. B.N.Thimmajamma and others, A.I.R. 1959 Supreme Court 443. 62. In law, a propounder of a Will should prove by satisfactory evidence that the Will was executed by the testator that he at the relevant point of time was in a sound and disposing state of mind, that he understood the nature and the effect of the disposition and executed the document voluntarily and at his free will. Indeed, the document ought not to be used in evidence until atleast one attesting witness was called as a witness by the propounder. This is the mandate of section 68 of the Indian Evidence Act. Even in a case where the opposite party does not specifically deny the execution of a Will or the possession remained the same. Also, the participation of an attesting witness even at the time of Registration does not dispense with proof of execution and attestation of a Will in accordance with law. 63. By attestation it means signing of a document to signify that the attestor is a witness to the execution of the document. Also, the participation of an attesting witness even at the time of Registration does not dispense with proof of execution and attestation of a Will in accordance with law. 63. By attestation it means signing of a document to signify that the attestor is a witness to the execution of the document. By section 63(c) of the Indian Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document as per decision of the Honourable Supreme Court Beni Chand (Since Dead) now by L.Rs. v. Smt.Kamla Kunwar and others, AIR 1977 Supreme Court 63. 64. If the propounder had taken a prominent part in execution of the Will and had received the substantial benefits under it, that itself was generally treated as a suspicious circumstances, as per decision of the Honourable Supreme Court Rani Purnima Debi and another v. Kumar Khagendra Narayan, AIR 1962 Supreme Court 567. 65. All legitimate suspicious circumstances made the early burden very onerous. Unless it was satisfactorily discharged a Court of Law would be reluctant to treat the document as the last Will of the testator. 66. The Learned Counsel for the Appellants/Plaintiffs vehemently contends that the Ex.B.2 Will dated 18.12.2001 does not say that the Appellants/Plaintiffs had not looked after their father Palanisamy (deceased) and the present case, there were no compelling reason to exclude the daughters namely the Appellants/Plaintiffs. 67. The Learned Counsel for the Appellants/Plaintiffs submits that the 1st Respondent/1st Defendant was at home at the time of writing of Ex.B.2 Will dated 18.12.2001 and Palanisamy died in the year 2002 and that suit was filed in the year 2003. Also that the 1st Respondent/1st Defendant as DW1 had deposed that at his request only, his father Palanisamy Gounder (deceased) wrote the Will settling the properties in his favour and therefore, this was a clear case of undue influence exercised by the 1st Respondent/1st Defendant over his deceased father. 68. The term 'Attestation' was not defined either in the Evidence Act or in the Transfer of Property Act. 68. The term 'Attestation' was not defined either in the Evidence Act or in the Transfer of Property Act. The Privy Council in Shamu Patter v. Abdul Kadir Ravuthan and others, 35 Mad 607, has held that attestation to be valid must be made by the witness after seeing the actual execution and that the attesting witness must sign as such. 69. It is very much necessary that the witness had affixed his signature animo attestandi i.e., for the purpose of attestation to indicate that he saw the executant sign or had received from him a personal acknowledgment of his signature. 70. As per Section 68 of the Indian Evidence Act, the attesting witness to be called as a witness is to prove the due execution and attestation of Will as per decision Girja Datt Singh v. Gangotri Datt Singh, (S) A.I.R. 1955 S.C. 346. 71. In the case of Wills, it is desirable that all witnesses capable of being called should be examined as per decision Surendra Krishna Mondal v. Sreemati Ranee Dassi, 1924 CWN 860 Privy Council. 72. In Smt.Jaswant Kaur v. Smt.Amrit Kaur and others, AIR 1977 Supreme Court 74, it is held thus: “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 has to satisfy the conscience of the Court that the Will was duly executed by the testator. It is impossible to reach 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.” 73. It is not out of place for this Court to make a relevant mention that Section 103 of the Indian Evidence Act casts the onus of proving the undue influence upon the person who sets it up. Also, it is to be noted that whether a particular transaction was vitiated on the ground of undue influence is primarily a decision on the question of fact as per decision Ladli Prashad v. Karnal Distillery Co., AIR 1963 SC 1279 . 74. Also, it is to be noted that whether a particular transaction was vitiated on the ground of undue influence is primarily a decision on the question of fact as per decision Ladli Prashad v. Karnal Distillery Co., AIR 1963 SC 1279 . 74. A transaction may be vitiated because of undue influence where the relations between the parties are such that one of them is in a position to dominate the Will of the other and he uses his position to obtain an unfair advantage over the other. It is clear that both the conditions are ordinarily to be established by an individual seeking to avoid the transaction. 75. A party has to prove that the other party to a transaction was in a position to dominate his Will and that the other party had obtained an unfair advantage by using that position. Moreover, a person is deemed to be in a position to dominate the Will of another where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other or where he enters into a transaction with a person whose mental capacity is temporarily or permanently affected because of age, illness or mental or bodily distress. 76. Where it is established that an individual is in a position to dominate the Will of another such proof being furnished either by evidence or by the presumption arising under Sub-Section (2) and he enters into a transaction with that other person which on the face of it or on the evidence adduced, appears to be unconscienable, the burden of proving that the transaction was not induced by undue influence lies upon the person in a position to dominate the Will of the other. But Sub-Section (3) of Section 103 of the Indian Evidence Act, has a limited application. The presumption would arise only if it is established by evidence that the party who had obtained the benefit of a transaction was in a position to dominate the Will and the other and that the transaction was shown to be unconscienable. If either of these two conditions is not satisfied, the presumption of undue influence would not arise and burden would not shift as per decision Ladli Prashad v. Karnal Distillery Co., AIR 1963 SC 1279 . 77. If either of these two conditions is not satisfied, the presumption of undue influence would not arise and burden would not shift as per decision Ladli Prashad v. Karnal Distillery Co., AIR 1963 SC 1279 . 77. In the present case on hand, the person who prepared the Ex.B.2-Will dated 18.12.2001 and typed the same viz., Venugopal was not examined before the trial Court and the same was not fatal, in the considered opinion of this Court. Also, in Ex.B.2 Will dated 18.12.2001, the 1st witness was not examined before the trial Court. However, on the side of the Respondents/Defendants, the 2nd attesting witness in Ex.B.2 Will dated 18.12.2001, one Thangarasu was examined as DW2. In his evidence, the attesting witness DW2 had clearly deposed that Palanisamy Gounder (father of the 1st Respondent/1st Defendant) one year prior to his death was affected with sickness and later, he was in good state and in writing of the Will. Moreover, he and Palanisamy went in a TVS-50 and only after their arrival the recitals for the Will were spoken to and further, the property details were written only after Palanisamy mentioning the same. 78. It is the further evidence of DW2 that the 1st Respondent/1st Defendant had not visited the Registration Office. Therefore, the evidence of DW2 attesting witness was very much to the effect that because of shivering in hand of Palanisamy, he had not signed in the Ex.B.2 Will dated 18.12.2001. In short, the evidence of DW2 was in a cogent and coherent manner pointing out the execution of Ex.B.2 Will dated 18.12.2001 by Late.Palanisamy Gounder (father of the 1st Respondent/ 1st Defendant). As such, this Court accepts the evidence of DW2 in regard to the manner of the execution of the Will dated 18.12.2001 by Late.Palanisamy Gounder. Accordingly, this Court holds that the Ex.B.2 Will dated 18.12.2001 executed by the deceased Palanisamy Gounder in favour of the 1st Respondent/1st Defendant and in favour of the 2nd Respondent/2nd Defendant was a true, genuine and valid one and the Point No.1 is answered accordingly. The Contentions, Discussions and Findings on Point No.2: 79. The Respondents/Plaintiffs in the Plaint had valued the suit for the purpose of Court Fee and jurisdiction at Rs.6,00,000/- and paid a Court Fee of Rs.200/- as per Section 37 (2) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. The Contentions, Discussions and Findings on Point No.2: 79. The Respondents/Plaintiffs in the Plaint had valued the suit for the purpose of Court Fee and jurisdiction at Rs.6,00,000/- and paid a Court Fee of Rs.200/- as per Section 37 (2) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. They pleaded in the Plaint that they were in constructive joint possession of the suit properties and paid a fixed Court Fee of Rs.200/- as per Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. However, the Respondents/Defendants took a stand in the written statement that the Respondents/Defendants were not in joint possession of the suit properties and therefore, the valuation made by them in the suit was not a correct one. 80. In law, where the Plaintiff is not in joint possession of all or any of the common properties, the suit in respect of the Plaintiff's share in them should be valued as for possession, as per decision I.L.R. 1938 Mad. 309 : 70 M.L.J. 398. The rule is that the possession of one co-owner is possession of all co-owners and the Plaintiff must be deemed to be in joint possession even if he were not in actual possession or in receipt or rents and profits pertaining to his share. So long as his right to a share and the nature of the property as joint is not disputed, mere exclusion from enjoyment or receipt of income from property or even exclusive use of property by a co-sharer does not attract Sub-section (1) of Section 37 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, but, only Sub-Section (2) of Section 37 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. 81. PW1 (1st Appellant/1st Plaintiff) in her evidence had deposed that troubles started after her father wrote a Will in favour of the Respondents/Defendants. Also, PW1 in her cross examination had deposed that her father wrote a Will two days prior to his death. PW2 (2nd Appellant/2nd Plaintiff) in her evidence has stated that her father wrote a Will concerning 19 acres and she also came to know about the Will executed by her father in favour of the grandson (2nd Respondent/ 2nd Defendant). Also, PW1 in her cross examination had deposed that her father wrote a Will two days prior to his death. PW2 (2nd Appellant/2nd Plaintiff) in her evidence has stated that her father wrote a Will concerning 19 acres and she also came to know about the Will executed by her father in favour of the grandson (2nd Respondent/ 2nd Defendant). DW1 (the 1st Defendant) in his proof affidavit had stated that the Appellants/Plaintiffs had not known the factum of sale of a portion of the suit property 10 years ago by the deceased Palanisamy Gounder. In the suit property, the Appellants/Plaintiffs had not done any agriculture cultivation work. Inasmuch as after the death of Palanisamy Gounder, the Will dated 18.12.2001 had come into force and since the properties in entirety had become the separate property of the Respondents/Defendants, this Court comes to an inevitable conclusion that the Court Fee of Rs.200/- paid by the Appellants/Plaintiffs in the Plaint as per Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, was not a correct one and the Point is answered against the Appellants/Plaintiffs. In the result, in view of the findings rendered by this Court for Point Nos.1 and 2, the Appeal filed by the Appellants/Plaintiffs is dismissed leaving the parties to bear their own costs. Consequently, the Judgment and Decree dated 02.11.2004 in O.S.No.20 of 2004 passed by the Learned Additional District and Sessions Judge (Fast Track Court No.3), Dharapuram are affirmed by this Court for the reasons assigned in this Appeal.