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2015 DIGILAW 1950 (MAD)

Dhanalakshmi v. Mohanamurali

2015-04-21

V.M.VELUMANI

body2015
JUDGMENT : This Appeal has been filed against the judgment and decree dated 27.07.2009, made in O.S.No.20 of 2004, on the file of Principal District Court, Pudukottai. 2. The appellants 1 to 6 filed O.S.No.20 of 2004 on the file of Principal District Court, Pudukottai [originally O.S.No.203 of 1999, on the file of Subordinate Court, Pudukottai], against the respondents herein for declaration and possession of property and for future damages. The learned Principal District Judge, by judgment and decree, dated 27.07.2009, dismissed the suit. Against the said Judgment and Decree, the appellants 1 to 6 have filed the present appeal. Pending appeal, the second appellant died. The appellants 7 to 12 were brought on record as legal representatives of the deceased second appellant, vide order of this Court, dated 12.07.2013, made in M.P.(MD) No.1 of 2013 in A.S.(MD) No.28 of 2010. 3. The parties are referred to as per their rank in the Original Suit. 4. The case of the plaintiffs is as follows: (i) The plaintiffs are the grandchildren of one Ramachandra Mudaliyar @ Kottairaja. The plaintiffs are the children of Rengammal, the only daughter of Muthulakshmi, who is the first wife of Ramachandra Mudaliyar. After the death his first wife Muthulakshmi, Ramachandra Mudaliyar married Subbulakshmi, as his second wife. Through his second wife, he begot one son named as Muthu Subramanian. (ii) Ramachandra Mudaliyar worked in Railways. After meeting his family expenses, he had savings. He left his savings with his second wife Subbulakshmi. The said Subbulakshmi purchased the suit property from and out of the estate and funds of the Ramachandra Mudaliyar. She did not have any independent income of her own. She did not have right to deal with the property, as she is not a owner. (iii) Muthu Subramanian, son of Ramachandra Mudaliyar, married one Meenakshi. He died on 29.08.1982 without issues and his wife Meenakshi died on 03.01.1999 and Subbulakshmi, who is the second wife of Ramachandra Mudaliyar, died on 15.11.1987. (iv) The first defendant, who is one of the relatives of Subbulakshmi, was permitted to reside in the suit property to help Subbulakshmi and her daughter-in-law Meenakshi. The first defendant and Meenakshi created a Will as though Subbulakshmi had executed a Will bequeathing half share each to first defendant and Meenakshi. The alleged Will is not genuine and they cannot claim the suit property on the basis of forged and invalid Will. The first defendant and Meenakshi created a Will as though Subbulakshmi had executed a Will bequeathing half share each to first defendant and Meenakshi. The alleged Will is not genuine and they cannot claim the suit property on the basis of forged and invalid Will. (v) The defendants 2 and 3 entered into the suit property after the death of Subbulakshmi to help Meenakshi. They created another Will, as though Meenakshi executed it. Recitals in both the Wills will reveal that both were not executed by free Will and sound disposing state of mind. They are not valid in law and the defendants cannot claim any right, title or interest in the suit property. (vi) The plaintiffs as legal heirs of Ramachandra Mudaliyar, through his only daughter Rengammal, are entitled to the entire suit property. They issued a notice to Meenakshi demanding possession of the suit property from her. She sent a reply setting forth false contentions. (vii) The sale deed in favour of Subbulakshmi is sham and nominal document. Therefore, the defendants cannot claim the suit property as their own. The plaintiffs had sympathy towards the childless widow Meenakshi and allowed her to enjoy the property till her death. The defendants 2 and 3 managed to create a Will as though she is entitled to half share. She had no right to execute the Will and it was not executed in her free consent also. (viii) Under these circumstances, the plaintiffs have prayed for declaration that they are the owners of the suit property, recovery of possession of the suit property and for future damages. 5. The case of the defendants is as follows: (i) The defendants denied that the suit property was purchased from the income of Ramachandra Mudaliyar. The income earned by Ramachandra Mudaliyar as Railway employee was not sufficient to meet the family expenses and there was no savings. Ramachandra Mudaliyar did not possess any property. The plaintiffs are not the legal heirs of Ramachandra Mudaliyar. Ramachandra Mudaliyar himself did not have any right in the suit property. Hence, the plaintiffs claiming right through Rengammal have also no right in the suit property. (ii) The defendants are the close relatives of Subbulakshmi. After few years of death of her husband Ramachandra Mudaliyar, she purchased the suit property out of her own income and from the funds provided by her father. Hence, the plaintiffs claiming right through Rengammal have also no right in the suit property. (ii) The defendants are the close relatives of Subbulakshmi. After few years of death of her husband Ramachandra Mudaliyar, she purchased the suit property out of her own income and from the funds provided by her father. She was paying all taxes and she was dealing with the property by mortgaging the same and remodeling the super structure. (iii) On 17.10.1967, the said Subbulakshmi, when she was in sound disposing state of mind voluntarily executed the Will bequeathing half share each to her daughter-in-law Meenakshi and to the first defendant. After her death, the said Meenakshi and the first defendant were in possession and enjoyment of the property by paying taxes. They have let in a portion of the property and were collecting rents. The first defendant from his funds, obtained a water service connection from Pudukottai Municipality. The plaintiffs knew all these facts. (iv) Meenakshi, by Will, dated 11.02.1998, bequeathed her half share to the defendants 2 and 3 and registered the same. After the death of Meenakshi, the defendants 2 and 3 along with the first defendant are enjoying the suit property. The defendants got the name changed in the Property Tax Register and Water Service Connection Register. The defendants have let a portions of the property and were collecting rents. They took proceedings to evict the tenant in the upstairs portion and obtained favourable orders. (v) Both the Wills in question are genuine, valid and acted upon. The Wills are not cooked up ones. The claim of plaintiffs over the suit property through Ramachandra Mudaliyar is baseless, as Ramachandra Mudaliyar himself did not have any right over the suit property. The contentions of plaintiffs that the sale deed in favour of Subbulakshmi is sham and nominal, amounts to alleging that Subbulakshmi is Benami of Ramachandra Mudaliyar. For this reason itself, the suit is liable to be dismissed. (vi) No cause of action for the suit arose. The plaintiffs are not entitled to declaration of title to the suit property, in which they do not have any right or interest and the defendants are not liable to handover possession of the suit property to the plaintiffs. (vii) The plaintiffs have undervalued the suit property and they have not paid proper Court fee. Therefore, the suit is liable to be dismissed with exemplary costs. (vii) The plaintiffs have undervalued the suit property and they have not paid proper Court fee. Therefore, the suit is liable to be dismissed with exemplary costs. 6. Based on these pleadings, the trial Court framed appropriate issues. 7. Before the trial Court, the second plaintiff was examined himself as P.W.1 and two other persons namely, Jeyaraman and Nagarajan were examined as P.Ws.2 and 3 respectively and 18 documents were marked as Exs.A1 to A18. The first defendant was examined as D.W.1. The second defendant was examined as D.W.2 and two other witnesses namely, Arumugam and Dharmalingam were examined as D.Ws.3 and 4 and 42 documents were marked as Exs.B1 to B42. 8. The learned Principal District Judge, Pudukottai, after considering the pleadings, evidence and judgments relied on by the learned counsel appearing for the parties, dismissed the suit by judgment and decree, dated 27.07.2009. Aggrieved over the same, the plaintiffs have filed the present appeal. 9. Heard the learned counsel appearing for the parties. 10. The learned counsel for the plaintiffs in addition to the averments made in the plaint, contended that, (a) the trial Court failed to apply the correct principles relating to proof of Will, which completely vitiated the Judgment; (b) the plaintiffs being the legal heirs under Section 15 of the Hindu Succession Act, the defendants ought to have proved the Wills viz., Exs.B41 and B42. The defendants failed to remove the cloud and suspicious circumstances, which they were found to remove; (c) Subbulakshmi was aged about 75 years at the time of execution of Will Ex.B41. Therefore, the onus lies upon the defendants to prove that Subbulakshmi was in sound and good disposing state of mind, when she executed Ex.B41 Will; (d) DW1 played a very prominent role in bringing out the Will, Ex.B41. He and Meenakshi gave a declaration on the very same day, i.e. 17.10.1967 that they witnessed Subbulakshmi giving instructions to scribe and were present when the testatrix accepted the recitals in the Will, as correct, when it was read over to her and she put her thumb impression in the Will. But, DW1 denied his presence at that time Subbulakshmi executed the Will. But, DW1 denied his presence at that time Subbulakshmi executed the Will. The learned Principal District Judge, Pudukottai, failed to consider the contradiction while appreciating the evidentiary value of evidence let in by the defendants with regard to Exs.B41 and B42; (e) the learned trial Judge failed to consider the evidence of D.W.3 that Subbulakshmi was bed ridden and without any movement at the time of execution of Ex.B41. In view of this evidence, it is clear that the said Will is cooked up and fabricated by the defendants to grab the suit property; (f) Ex.B42 Will executed by Meenakshi is not validly proved and there is no recital about the Will executed by Subbulakshmi; (g) Patta and other Registers pertaining to the suit property came to be transferred long after the death of Subbulakshmi and Meenakshi. This leads to the conclusion that the Wills are not genuine ones, but fabricated one; and (h) there was no specific reference that the thumb impression in Ex.B41 is the left thumb impression of Subbulakshmi. From the evidence of defendants, it is gathered that it may be right thumb impression of Subbulakshmi. 11. The learned counsel for the plaintiffs referred to Sections 8 and 15 of the Hindu Succession Act, 1956 and following Judgments: (i) AIR 1990 SC 396 [Kalyan Singh Vs. Smt. Chhoti and others], wherein in paragraphs 20 and 21, it has been held as follows: "20. It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party. 21. In H. Venkatachala Iyengar v. S.N. Thimmajamma [1959 Supp. (1) SCR 426 : AIR 1959 SC 443 ],Gajendragadkar, J., as he then was, has observed that although the mode of proving a will did not ordinarily differ from that of proving any other document, nonetheless it requires an element of solemnity in the decision on the question as to whether the document propounded is proved as the last will and testament of departed testator. Where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the will could be accepted as genuine. Where there are suspicious circumstances, the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. These principles have been reiterated in the subsequent decision of this Court in Rani Purnima Devi v. Kumar Khagendra Narayan Dev [ 1962 (3) SCR 195 : AIR 1962 SC 567 ] and Smt. Indu Bala Bose v. Manindra Chandra Bose [ 1982 (1) SCC 20 : AIR 1982 SC 133 ]." (ii) 2009 (3) SCC 687 [Bharpur Singh and Others Vs. Shamsher Singh], wherein in paragraph 17, it has been held as follows: "17. This Court in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [2006 (13) SCC 433 : 2006 (14) Scale 186 ]held: (SCC pp. 447-48, paras 33-34) “33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende v. Tarabai Aba Shedage [ 2002 (2) SCC 85 and Sridevi v. Jayaraja Shetty [ 2005 (2) SCC 784 ]) Subject to above, proof of a will does not ordinarily differ from that of proving any other document. 34. There are several circumstances which would have been held to be described (sic) by this Court as suspicious circumstances: (i) when a doubt is created in regard to the condition of mind of the testator despite 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. (See H. Venkatachala Iyengar v. B.N. Thimmajamma [ AIR 1959 SC 443 ] and T.K. Ghosh’s Academy v. T.C. Palit [ 1974 (2) SCC 354 : AIR 1974 SC 1495 ]”" 12. Per contra, the learned counsel for the defendants in addition to reiterating the averments in the written statement, contended that the plaintiffs failed to prove that the suit property was purchased from and out of the estate and funds of Ramachandra Mudaliyar. On the other hand, they have given up the said claim and projected a new case that from and out of the estate and funds of Ramachandra Mudaliyar, an agricultural property was purchased in the name his son Muthtu Subramanian. From the income of the said agricultural land, the suit property was purchased. On the other hand, they have given up the said claim and projected a new case that from and out of the estate and funds of Ramachandra Mudaliyar, an agricultural property was purchased in the name his son Muthtu Subramanian. From the income of the said agricultural land, the suit property was purchased. The plaintiffs failed to prove this new case also, even though the same was not pleaded in the plaint. 13. The learned counsel for the defendants further contented that the defendants by acceptable evidence have proved that the suit property was purchased from and out of the income of Subbulakshmi and the funds provided by the father of Subbulakshmi. Therefore, Ramachandra Mudaliyar did not have any right, interest and title to the property. Therefore, the plaintiffs have no right to claim declaration of title and possession. 14. The averments of the plaintiffs that the sale deed in favour of Subbulakshmi is sham and nominal, amounts to alleging that Subbulakshmi is Benami of Ramachandra Mudaliyar. In that case, as per Section 3(2) of the Benami Transactions (Prohibition) Act, 1988, the purchase of property is presumed to the benefit of Subbulakshmi, who is the wife of Ramachandra Mudaliyar. The said Section reads as follows: "3(2) Nothing in sub-section (1) shall apply to- (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter;" 15. Secondly, the learned counsel for the defendants contented that two Wills, Exs.B41 and B42 are genuine, valid and legal. Both Subbulakshmi and Meenakshi executed the Wills voluntarily while in sound disposing state of mind. Ex.B42 Will executed by Meenakshi was registered one. The defendants examined the attesting witnesses and proved the Will. The plaintiffs are alleging that the Wills are cooked up and not executed while in sound disposing state of mind and based on hearsay evidence only. They knew nothing about the state of mind of testatrix. D.Ws.3 and 4 attesting witnesses categorically stated that the Wills were prepared and executed voluntarily and while in sound disposing state of mind. The defendants have proved the Will as per law. 16. They knew nothing about the state of mind of testatrix. D.Ws.3 and 4 attesting witnesses categorically stated that the Wills were prepared and executed voluntarily and while in sound disposing state of mind. The defendants have proved the Will as per law. 16. In support of his submissions, the learned counsel for the defendants relied on the following Judgments: (i) 2009 (1) LW 678 [C. Saradambal Vs. Padmavathi (died) and 16 others], wherein in paragraph 7, it has been held as follows: "7. The above provision would clearly show that it is enough if one attesting witness has been called for the purpose of proving the execution of a document. Admittedly, in this case, one of the attestors to Ex.P-1, Will, namely, Varadan, has been examined as P.W.2, who, in his evidence, has deposed that the testator, at the time of execution of the Will, was in a sound and disposing state of mind and he and the other attesting witness Dakshinamurthy saw the attestor executing the Will. ....." (ii) 2007 (2) CTC 543 [Palaniswami Vs. Ramayammal and others], wherein in paragraph 7(h), it has been held as follows:- "7(h). The learned counsel appearing for the respondents would contend that there are two attesters to Ex.B.2-Will, but only one attester was examined and there are discrepancy in the evidence of D.W.2. The learned counsel appearing for the respondents contended that D.W.2 has not deposed to the fact that other attesters had not signed in the Will. But, D.W.2 in his evidence has clearly stated that he has signed before the Sub-Registrar in the Will and Kaithamalai, the other witness also signed in the Will before the Sub-Registrar, but he cannot say whether he and other witness Kaithamalai had signed in the Will with the same pen. The dictums relied on by the learned counsel for the respondents i.e. Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, 2003 (1) CTC 308 : AIR 2003 SUPREME COURT 761; Rani Purnima Debi and another Vs. Kumar Khagendra Narayan Deb and another, AIR 1962 Supreme Court 567 and M.L.Abdhul Jabbar Sahib Vs. H. Venkata Sastry and Sons and others, AIR 1969 SUPREME COURT 1147 also emphasis that to prove a Will atleast one of the attestors to the Will should be examined. Kumar Khagendra Narayan Deb and another, AIR 1962 Supreme Court 567 and M.L.Abdhul Jabbar Sahib Vs. H. Venkata Sastry and Sons and others, AIR 1969 SUPREME COURT 1147 also emphasis that to prove a Will atleast one of the attestors to the Will should be examined. Apart this settled proposition of law, there is nothings adverse to the claim of the appellant was indicated in those dictums." (iii) 2005 (1) CTC 11 [Janaki Devi Vs. R.Vasanthi and others], wherein in paragraph 19, it has been held as follows: "19.The Will, Ex.P.1 has to be proved as required under law with regard to Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act, 1872. In certain circumstances, where it is not possible to prove the Will under Section 68 of the Evidence Act, it can be proved as contemplated under Sections 69 and 71 of the Evidence Act. A combined reading of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, makes it clear that a person propounding the Will has to prove that the Will was duly and validly executed. It cannot be done by simply proving the signatures on the Will were that of the attestors, but it must be proved that the attestations were made properly as required by clause (c) of Section 63 of the Indian Succession Act. Under Section 68 of the Indian Evidence Act, a concession has been made to prove and establish a Will, only by examining one attesting witness, even though the Will has to be attested by two witnesses, mandatorily. But, in his evidence, he has to satisfy the attestation of the Will by him and the other attesting witness, in order to prove that there was due execution of the Will. Sections 69 and 71 of the Indian Evidence Act is an exception to the general rule contained in Section 68 of the Indian Evidence Act. Under Section 69 of the Indian Evidence Act, if no attesting witness is found, it can be proved by other evidence that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. Under Section 69 of the Indian Evidence Act, if no attesting witness is found, it can be proved by other evidence that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. Section 71 of the Indian Evidence Act is to meet the situation, where it is not possible to prove the execution of a Will by calling the attesting witness, though alive, or when the attesting witnesses have been called, they deny or fail to recollect the execution of the document. In that way, Section 71 of the Indian Evidence Act is incorporated to safeguard the mandatory provisions of Section 68 of the Indian Evidence Act. Section 71 of the Indian Evidence Act is only to give assistance and come to rescue of a party who has taken steps to get attesting witness to give evidence, but he failed or such witness denied or failed to recollect the execution of the Will. This is only with a view to prove the due execution by "other evidence". In support of the above legal position, some useful reference may be made to the following decisions to have the guideline, in testing a Will." (iv) 2005 (1) SCC 280 [Meenakshiammal (Dead) Through LRS. and others Vs. Chandrasekaran and another], wherein in paragraphs 16,19 and 20, it has been held as follows: "16. We do not find any merit in this civil appeal. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before it accepts the will as genuine. Even where the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be regarding the genuineness of the signature of the testator, the condition of the testator’s mind, the disposition made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator’s mind was not free. The suspicious circumstances may be regarding the genuineness of the signature of the testator, the condition of the testator’s mind, the disposition made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator’s mind was not free. In such a case, the court would normally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. 19. In the case of Chinmoyee Saha v. Debendra Lal Saha [ AIR 1985 Cal 349 ] it has been held that if the propounder takes a prominent part in the execution of the will, which confers a substantial benefit on him, the propounder is required to remove the doubts by clear and satisfactory evidence. Once the propounder proves 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 disposition and put his signature out of his own free will, and that he signed it in presence of the witnesses who attested it in his presence, the onus, which rests on the propounder, is discharged and when allegation of undue influence, fraud or coercion is made by the caveator, the onus is on the caveator to prove the same. 20. In the case of Ryali Kameswara Rao v. Bendapudi Suryaprakasarao [ AIR 1962 AP 178 ], the Court while discussing the provisions of Section 63 of the Succession Act, 1925, has held that the suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from conflict of testimony which becomes apparent on an investigation of the transaction. That suspicious circumstances cannot be defined precisely. They cannot be enumerated exhaustively. They must depend upon the facts of each case. When a question arises as to whether a will is genuine or forged, normally the fact that nothing can be said against the reasonable nature of its provisions will be a strong and material element in favour of the probabilities of the will. They cannot be enumerated exhaustively. They must depend upon the facts of each case. When a question arises as to whether a will is genuine or forged, normally the fact that nothing can be said against the reasonable nature of its provisions will be a strong and material element in favour of the probabilities of the will. Whether a will has been executed by the testator in a sound and disposing state of mind is purely a question of fact, which will have to be decided in each case on the circumstances disclosed and the nature and quality of the evidence adduced. When the will is alleged to have been executed under undue influence, the onus of proving undue influence is upon the person making such allegation and mere presence of motive and opportunity are not enough." (v) 2006 (3) LW 641 [Dr. A. Ravikumar Vs. M. Savithiri and 6 others] wherein in paragraph 10, it has been held as follows: "10. The evidence on record clearly indicates that after the death of the first wife, the testator married the second wife, Respondent No.1, through whom he had begotten the present appellant and Respondent Nos.2 and 3, the three beneficiaries under the Will. The other heirs, including the second wife, who is the mother of the three beneficiaries, have given consent affidavits. The mere fact that all other legal heirs have been excluded, including the second wife, in the peculiar facts and circumstances of the case, cannot be considered as a suspicious circumstance, particularly when the consent affidavits have been filed on their behalf. Making no provision for the maintenance of the second wife is also of no consequence as her three sons are the beneficiaries." 17. I have carefully perused all the materials on record and considered the arguments of the learned counsel for the plaintiffs and the defendants. 18. The following points for consideration arise in the appeal. (a) Whether the suit property was purchased from and out of the estate and funds of Ramachandra Mudaliyar? (b) Whether the Wills, Exs.B41 and B42 are genuine and legally valid or cooked up and not executed while in sound disposing state of mind? (c) Whether the defendants have proved the execution of Wills Exs.B41 and B42? 19. (a) Whether the suit property was purchased from and out of the estate and funds of Ramachandra Mudaliyar? (b) Whether the Wills, Exs.B41 and B42 are genuine and legally valid or cooked up and not executed while in sound disposing state of mind? (c) Whether the defendants have proved the execution of Wills Exs.B41 and B42? 19. Point (a): (i) The plaintiffs in the plaint had contented that the suit property was purchased in the name of Subbulakshmi, the second wife of Ramachandra Mudaliyar, from and out of the estate and funds of Ramachandra Mudaliyar, who worked in Railways. Out of his salary, amounts were saved and the property was purchased in the name of Subbulakshmi. The sale deed is sham and nominal. In the trial, the plaintiffs did not let in any evidence to prove their case. On the other hand, they came out with the new case that from the income of Ramachandra Mudaliyar, an agricultural land was purchased in the name of his son Muthu Subramanian and from the income of the said agricultural land, the suit property was purchased in the name of Subbulakshmi. The plaintiffs did not prove this case also. The witnesses, who spoke about the transactions, did not substantiate the new claim of plaintiffs. (ii) On the other hand, the defendants have proved their consistent case that the suit property was purchased from the independent income of Subbulakshmi and the funds provided by her father. The defendants proved the means of Subbulakshmi’s father to provide funds to his daughter to purchase the suit property. Therefore, I am inclined to accept the contentions of the defendants that the suit property was purchased from and out of the income of Subbulakshmi and from the funds provided by her father and Ramachandra Mudaliyar does not have any right, interest and title to the suit property. 20. Points (b) and (c): (i) The plaintiffs have taken a contradictory stand with regard to Exs.B41 and B42. They contend that these two Wills are cooked up and fabricated documents. At the same time, they contend that these Wills were not executed while in sound disposing state of mind. The plaintiffs have not let in any evidence to prove these contentions. (ii) On the other hand, the second plaintiff in his evidence has stated that his relatives told him that the defendants have cooked up the documents. At the same time, they contend that these Wills were not executed while in sound disposing state of mind. The plaintiffs have not let in any evidence to prove these contentions. (ii) On the other hand, the second plaintiff in his evidence has stated that his relatives told him that the defendants have cooked up the documents. The defendants 1 and 2 as DWs.1 and 2 and two other attesting witnesses, DWs.3 and 4 have proved the genuineness of the Wills and that they were executed voluntarily and while in sound disposing state of mind. Further, Ex.B42, Will executed by Meenakshi is a registered Will. 21. The learned counsel for the plaintiffs referred to the evidence of DW.3 and argued that DW.3 in the cross-examination, admitted that Subbulakshmi was bedridden and without any movement. A reading of the entire evidence of DW.3 in the cross-examination, shows that even though Subbulakshmi was bedridden and not walking and without any movement, she was in good health and she only gave instructions for preparation of Will Ex.B41. The entire cross-examination of DW.3 is extracted for better appreciation. “Tamil” 22. After the Will, Ex.B41 was written, it was read over to her by Scribe and she admitted the contents thereof as true and correct and put her thumb impression in the presence of witnesses and the witnesses signed in her presence. Further, DW.3, in the cross-examination stated that Subbulakshmi put her left thumb impression. He denied that the thumb impression in the Will Ex.B43 was right thumb impression of Subbulakshmi. 23. Once the plaintiffs have put questions that the thumb impression in Ex.B41 is that of Subbulakshmi, their contention that Ex.B41 was cooked up and fabricated one, is falls to ground. 24. The learned counsel for the plaintiffs vehemently contended that the first defendant took active part in the execution of Will Ex.B41 by Subbulakshmi. But denied being present at the time of execution of Ex.B41. On the same day, Meenakshi and the first defendant have given a declaration that Ex.B41 was prepared as per instructions of Subbulakshmi. The trial Court failed to consider the attitude of the first defendant as DW.1. The contention of the learned counsel for the plaintiffs is untenable. There is nothing wrong in propounder taking active part in the execution of Will. But, he must prove the Will as per law and remove the suspicious circumstances. The trial Court failed to consider the attitude of the first defendant as DW.1. The contention of the learned counsel for the plaintiffs is untenable. There is nothing wrong in propounder taking active part in the execution of Will. But, he must prove the Will as per law and remove the suspicious circumstances. In the present case, the plaintiffs have not alleged any suspicious circumstances. The statement of the plaintiffs are that the Wills are cooked up and based on hearsay only. The defendants have proved the Will as per law and therefore, the active part taken by the first defendant does not vitiate the execution of Ex.B41. 25. In the judgments relied on by the learned counsel for the defendants, it has been held that the propounder can take active part in the execution of the Will. 26. All the Judgments relied on by the parties referred to above, support only the case of the defendants. The learned Judge has considered all the materials on record and appreciated the same in proper perspective. 27. In view of the above, I hold that the suit property was not purchased from and out of the funds of Ramachandra Mudaliyar and the Wills Exs.B41 and B42 are genuine and valid and executed by the Testatrix voluntarily while in sound disposing state of mind and the defendants have proved the genuineness of the Will as per law. Points a, b and c are answered accordingly. 28. In the result, the first appeal is dismissed with cost of defendants. Consequently, connected miscellaneous petition is closed.