JUDGMENT : G. Chockalingam, J. 1. T.O.S. No. 22 of 2007 is numbered on conversion of O.P. No. 607 of 2007, praying that Letters of Administration with a Will annexed, may be granted to the plaintiff as the legatee under the Will of the deceased Saraswathy, having effect limited to the State of Tamil Nadu. 2. The case of the plaintiff in T.O.S. No. 22 of 2007 is that Tmt. Saraswathy died on 01.10.2005 and she was ordinarily residing at New No. 21 (15), Bharathiyar Street, Murugappa Nagar, Choolaimedu, Chennai - 600 094. The deceased, at the time of her death, left immovable property within the limits of the jurisdiction of this Court. The writing hereto annexed, now shown to the plaintiff and marked with letter "A" is the last Will and testament of Tmt. Saraswathy, W/o. Senthararaikannan, the mother of the plaintiff herein. It is the further case of the plaintiff that the said Will was duly executed by the deceased at Choolaimedu, Chennai on 10.08.2005 in the presence of witnesses, whose names appear at the foot thereof. Under the said Will, dated 10.08.2005, the deceased has not appointed any executor in the Will. The testatrix signed in all the pages of the Will. The plaintiff communicated the message about the Will executed by the deceased Tmt. Saraswathy to the second defendant herein, but he has not communicated to the remaining three defendants about the Will of the deceased. The plaintiff undertakes to duly administer the property and credits of the said Saraswahy, deceased, in any way concerning her Will by paying first her debts and then the legacies therein bequeathed so far as the assets will extend and to make a full and true inventory thereof and exhibit the same in this Court with the Will annexed and also to render to this Court true account of the property and credits within one year. It is the further case of the plaintiff that the amount of assets which are likely to come into the plaintiff's hands, does not exceed in the aggregate sum of Rs. 10,60,000/-. The plaintiff has impleaded all the next of kin and other persons interested to be impleaded. It is the further case of the plaintiff that the amount of assets which are likely to come into the plaintiff's hands, does not exceed in the aggregate sum of Rs. 10,60,000/-. The plaintiff has impleaded all the next of kin and other persons interested to be impleaded. It is the further case of the plaintiff that the deceased has left behind the following heirs at the time of her death: (i) K. Senthamaraikannan (husband) (second defendant); (ii) S. Bharathi Dasan (son) (first defendant); (iii) Tmt. Kannagi (daughter) (third defendant); (iv) S. Palani (son); (plaintiff) and (v) Tmt. Saroja (daughter) (fourth defendant). It is the further case of the plaintiff that no application has been made to any District Court, to delegate or to any other High Court for the probate of any Will of the deceased or Letters of Administration with or without the Will annexed of her property and credits. It is further stated by the plaintiff that the said late Tmt. Saraswathy bequeathed her immovable assets situated in Choolaimedu, Chennai, to the plaintiff herein. Hence, the plaintiff prays for the above said relief in T.O.S. No. 22 of 2007. 3. The first defendant in T.O.S. No. 22 of 2007 has filed written statement stating that the suit is neither maintainable in law nor on facts. The prayer of the plaintiff for the grant of Letters of Administration of the Will alleged to have been executed by Smt. Saraswathy Ammal is neither valid in law nor on facts. The first defendant denies the execution and genuineness of the Will. The plaintiff has come out with false and forged Will. The first defendant further states that his mother Smt. Saraswathy Ammal executed an irrevocable settlement deed on 22.07.2002 in his favour and plaintiff in equal shares in respect of the property bearing Door No. 21, Bharathiyar Street, Chennai-600 094, vide Registered Doc. No. 2753/03. The recitals in the deed clearly contained that the possession had been handed over to the settlees. It is further stated by the first defendant that the settlor authorised the the plaintiff and the first defendant to change patta, electricity and Corporation taxes in their names. The first defendant being the eldest son and out of love and affection and respect towards her, did not effect transfer during her lifetime. It is further stated by the first defendant that the settlor authorised the the plaintiff and the first defendant to change patta, electricity and Corporation taxes in their names. The first defendant being the eldest son and out of love and affection and respect towards her, did not effect transfer during her lifetime. It is further stated that the plaintiff grew inimical towards the first defendant and he became very greedy and wanted to knock of the whole property for himself. He wanted to drive him away from the suit premises. Therefore, the first defendant filed suit in O.S. No. 4269 of 2005 before the City Civil Court, Chennai for permanent injunction restraining the defendants therein from interfering with his peaceful possession. During the pendency of the suit, they made mother to cancel the settlement on 15.07.2005, vide Regd. Doc. No. 3011/05 at the SRO., Kodambakkam. The reason given in the cancelled deed is that she wanted to administer the property on her own. Already, she was ailing and there is no question of administering the property. It is further stated that on 10.08.2005, a fraudulent Will is alleged to have been executed, giving life estate to the first defendant and absolute estate to the plaintiff. She passed away on 01.10.2005. It is further stated by the first defendant that he filed a suit in O.S. No. 782 of 2006 on the file of the City Civil Court, Chennai, for partition against the plaintiff, claiming half share and separate possession of the suit property. The first defendant further states that his mother was ailing and bed-ridden. The plaintiff hatched a plan to bring about forged and fraudulent Will. Taking undue influence of her illness, the plaintiff would have obtained her signature. In any event, Smt. Saraswathy was not entitled to execute the Will, since she had already settled the property in favour of the first defendant and to the plaintiff in equal shares. It is further stated that the settlement is in force. As long as the settlement has not been cancelled by the Court of law, the settlement is very much subsisting and his mother had no right to cancel the settlement deed or execute the Will. It is further stated that the settlement is irrevocable and the signature in the alleged Will had been obtained by the plaintiff by undue influence. As long as the settlement has not been cancelled by the Court of law, the settlement is very much subsisting and his mother had no right to cancel the settlement deed or execute the Will. It is further stated that the settlement is irrevocable and the signature in the alleged Will had been obtained by the plaintiff by undue influence. The purported Will in respect of which Letters of Administration is sought by the plaintiff, was not validly executed and is inadmissible in law and hence, he prayed that the suit may be dismissed. 4. The second, third and fourth defendants in T.O.S. No. 22 of 2007 have filed written statement stating that the settlement deed, dated 22.07.2002 executed by Saraswathy Ammal, was never acted upon and the plaintiff and the defendants 1 and 2 were residing in the property bearing Old Door No. 15, New Door No. 21, Bharathiyar Street, Choolaimedu, Chennai-600 094, as family members. It is undisputed fact that the plaintiff's mother Saraswathy Ammal was the absolute owner of the house property. In the settlement deed, dated 22.07.2002, she had reserved life interest in her favour and in favour of her husband, the second defendant herein and after their lifetime, equal shares are given in favour of the plaintiff and the first defendant. The first defendant failed and neglected to take care of his mother Saraswathy Ammal and father, the second defendant herein and was dancing to the tune of his wife and father-in-law and gone to the extent of giving criminal complaint against his parents and thereafter filing suit in O.S. No. 4269 of 2005 on the file of the City Civil Court, Chennai, for permanent injunction restraining the defendants therein from interfering with the peaceful possession and enjoyment of the suit property and had ultimately resulted in cancellation of the settlement deed, dated 22.07.2002 by Smt. Saraswathy Ammal. It is further stated that since the first defendant developed hostile attitude towards his parents and his brother, the plaintiff, his mother Saraswathy Ammal voluntarily registered a cancellation deed on 15.07.2005, vide Doc. No. 3011/2005 at SRO, Kodambakkam. The settlement deed dated 22.07.2002 was never acted upon and the recitals in the document are only in papers. The original settlement deed dated 22.07.2002 was never handed over to the first defendant. No. 3011/2005 at SRO, Kodambakkam. The settlement deed dated 22.07.2002 was never acted upon and the recitals in the document are only in papers. The original settlement deed dated 22.07.2002 was never handed over to the first defendant. The changing of name in favour of the beneficiaries in the said deed in the Revenue records of Chennai Corporation with regard to property tax assessment, never took place. The patta also stands in the name of Smt. Saraswathy Ammal. As such, there was no mutation whatsoever effected in the name of the settlee under the settlement deed, dated 22.07.2002 and the first defendant as one among the family members, was in occupation of the first floor. In view of the care taken by the plaintiff towards his parents at their old age, the said Saraswathy Ammal, out of love and affection shown towards the plaintiff, had voluntarily executed a Will, dated 10.08.2005 registered as Doc. No. 107/2005 on the file of the SRO, Kodambakkam, bequeathing the property at Old Door No. 15, New Door No. 21, Block No. 10, T.S. No. 88, measuring an extent of 1840 Sq.Ft. at Bharathiar Street, Choolaimedu, Chennai-600 094, in favour of the plaintiff with life interest to the second defendant, while she was in sound and disposing state of mind, without any undue influence. In the said Will, the plaintiff's mother clearly explained about the first defendant's conduct of not looking after the needs of the mother Saraswathy Ammal and the father Senthamarai Kannan, which had resulted in the cancellation of the settlement deed. It is further stated that the pleadings in the plaint filed in O.S. No. 4269 of 2005 filed by the first defendant, clearly establishes the fact about the hostile attitude shown towards his parents and the plaintiff. The allegations made by the first defendant in his written statement in paragraph 4 are false and misleading. The averments contained in paragraph 5 of the written statement filed by the first defendant, clearly show the hostile attitude developed by the first defendant towards his parents and the plaintiff. The defendants 2 to 4 deny the allegations contained in paragraph 6 of the written statement filed by the first defendant. It is further stated that all the original documents including the settlement deed, dated 22.07.2002 pertaining to the property, was retained by her and the Revenue Records were never changed. The defendants 2 to 4 deny the allegations contained in paragraph 6 of the written statement filed by the first defendant. It is further stated that all the original documents including the settlement deed, dated 22.07.2002 pertaining to the property, was retained by her and the Revenue Records were never changed. The mother herself came to the Registrar Office at Kodambakkam for execution of the Will. The Will executed by Smt. Saraswathy Ammal, dated 10.08.2005 is genuine and it is her ultimate wish to name the beneficiary. The defendants 2 to 4 deny the allegations made in paragraph 7 of the written statement filed by the first defendant. It is further stated that the Will was not executed on fraud or on compulsion and was executed only on sound mind of Smt. Saraswathy Ammal and the defendants 2 to 4 have no objection in granting Letters of Administration in favour of the plaintiff. 5. Tr.C.S. No. 449 of 2008 numbered on transfer of O.S. No. 782 of 2006 from the file of the City Civil Court, Chennai and the amended plaint is filed by the plaintiff praying, (a) to pass a decree declaring that cancellation deed executed by Smt. Saraswathy Ammal on 15.07.2005, vide Doc. No. 3011/05 S.R.O. is not valid in law, inoperative and null and void; (b) to pass a decree for partition and separate possession of plaintiff's half share in suit property at No. 21, Bharti Street, Choolaimedu, Chennai-94, fully described in the schedule, by dividing it by metes and bounds and deliver it to the plaintiff, and (c) for costs of the suit. 6. The case of the plaintiff in the amended plaint in Tr.C.S. No. 449 of 2008 is as follows:-- (a) The suit property belonged to the deceased first plaintiff's mother Saraswathy Ammal and the defendant is his brother. On 22.07.2002, Smt. Saraswathy Ammal settled the suit property in favour of the plaintiff and the defendant in equal shares, vide Reg. Document No. 2753/2002. The recitals clearly contained that the possession had been handed over to the settlees. The settlor had authorised the plaintiff and defendant to change patta, electricity and Corporation taxes in their names. The deceased first plaintiff is the eldest son. Document No. 2753/2002. The recitals clearly contained that the possession had been handed over to the settlees. The settlor had authorised the plaintiff and defendant to change patta, electricity and Corporation taxes in their names. The deceased first plaintiff is the eldest son. Though the deceased first plaintiff was entitled to transfer patta, electricity connection, etc., he did not take any steps to effect transfer during her lifetime, since he loved and respected her very much. In pursuance of the settlement deed, the deceased first plaintiff was put in possession of the suit property in the first floor and thus the settlement deed had been acted upon. (b) From the very beginning, the defendant has been inimical towards the deceased first plaintiff and he wanted to grab the property and created misunderstanding between the deceased first plaintiff and his father. They joined together and wanted to dispossess the deceased first plaintiff. The deceased first plaintiff filed O.S. No. 4269 of 2005 on the file of the City Civil Court, Chennai, for permanent injunction restraining the defendants therein from interfering with his possession and an ad-interim injunction was granted by Court. The deceased first plaintiff also impleaded his mother as a party in the suit. (c) His mother Saraswathy Ammal passed away on 01.10.2005. After her death, by virtue of the settlement deed, dated 22.07.2002, the deceased first plaintiff and the defendant have become the absolute owners of the property. The deceased first plaintiff demanded partition of his half share in the suit property. The defendant declined to effect partition and informed the deceased first plaintiff that settlement deed executed by Smt. Saraswathy Ammal had been cancelled, which was surprise and shock to the deceased first plaintiff. The deceased first plaintiff applied for certified copy of the said cancellation deed and found that it was cancelled on 15.07.2005, vide Regd. Document No. 3011/2005. (d) The cancelled document is illegal, void ab-initio and not binding on the deceased first plaintiff. His mother Saraswathy Ammal would not have cancelled the deed. It is the hand work of the defendant. The settlement deed can be cancelled only by Court of law and not by a registered instrument. The settlement deed can be cancelled by Court of law only on the ground of fraud, threat, mis-representation and coercion. In the said cancellation deed, it is mentioned that she wanted to administer the property by herself. The settlement deed can be cancelled only by Court of law and not by a registered instrument. The settlement deed can be cancelled by Court of law only on the ground of fraud, threat, mis-representation and coercion. In the said cancellation deed, it is mentioned that she wanted to administer the property by herself. After the death of Saraswathy Ammal on 01.10.2005, in January 2006, the deceased first plaintiff demanded partition and on 19.01.2006, he issued a legal notice and subsequently filed the suit for the reliefs stated supra. 7. The defendant in Tr.C.S. No. 449 of 2008 filed written statement stating as follows: (a) The suit is bad in law for non-joinder of necessary parties. The defendant is the brother of the deceased first plaintiff. It is denied that Smt. Saraswathy Ammal settled the suit property in favour of the plaintiff and the defendant. It is false that the possession had been handed over to them. There is no such settlement deed in force as per the established principles of law. It is denied that the settlor as alleged by the deceased first plaintiff had authorised the deceased first plaintiff and the defendant to change patta, electricity and Corporation tax in their names. The deceased first plaintiff did not take any steps to effect transfer during her lifetime. If it was true that a settlement deed was in force, then the deceased first plaintiff would have acted upon it and made transfers. It is denied that the deceased first plaintiff had been put in possession in the first floor of the suit property. (b) The deceased first plaintiff was a dancing doll who danced according to the tunes of his wife and father-in-law and he has not given respect or showed love towards his parents. The deceased first plaintiff never looked after his mother and the defendant only looked after his mother, father and his sisters. The defendant denies that the deceased first plaintiff became the absolute owner of the property and demanded partition. The deceased first plaintiff is acquainted with the fact that there was a Will duly executed on 10.08.2005 by the mother in favour of the defendant. Hence, the deceased first plaintiff quarrelled with his mother, father, his sisters and the defendant and made false allegations against them and lodged complaint with the Police. The deceased first plaintiff is acquainted with the fact that there was a Will duly executed on 10.08.2005 by the mother in favour of the defendant. Hence, the deceased first plaintiff quarrelled with his mother, father, his sisters and the defendant and made false allegations against them and lodged complaint with the Police. They advised the deceased first plaintiff not to quarrel with his parents and they did not proceed further with the deceased first plaintiff's complaint. (c) The defendant denies the statement of the deceased first plaintiff in the plaint that the cancelled document is illegal, void ab-initio and not binding on him. The deceased first plaintiff has not come before this Court with clean hands. The deceased first plaintiff was defrauding the Government against the interest and welfare and development of the people of Tamil Nadu by under-valuing the suit property and had not paid correct Court fee. The plaintiffs are not entitled to the reliefs sought for and the defendant prayed for dismissal of the above suit. 8. This Court, by order dated 03.10.2013, framed the following issues for consideration in the respective suits: T.O.S. No. 22 of 2007: (1) Whether the Registered Will dated 10.08.2005 executed by late Mrs. Saraswathy Ammal is valid in law ? (2) Whether the settlement deed dated 22.07.2002 executed by late Mrs. Saraswathy Ammal had been acted upon or not? (3) Whether the settlor retaining life interest in the settlement deed dated 22.07.2002 can be construed as settlement or Will? (4) Whether the deed of cancellation of settlement, dated 15.07.2005 executed by late Mrs. Saraswathy Ammal is a valid document? (5) Whether the partition suit filed by the defendants in Tr.C.S. No. 449 of 2008 is liable for partition or not, in view of execution of registered Will, dated 22.07.2005 by late Mrs. Saraswathy Ammal in favour of the plaintiff? (6) Whether the plaintiff is entitled for Letters of Administration with the Will annexed or not? and (7) To what other reliefs, the plaintiff is entitled to? Tr.C.S. No. 449 of 2008: (1) Whether the settlement deed dated 22.07.2002 executed by late Mrs. Saraswathy Ammal had been acted upon or not? (2) Whether the settlor retaining life interest in the settlement deed dated 22.07.2002 can be construed as settlement or Will? (3) Whether the deed of cancellation of settlement, dated 15.07.2005 executed by late Mrs. Saraswathy Ammal is a valid document? Saraswathy Ammal had been acted upon or not? (2) Whether the settlor retaining life interest in the settlement deed dated 22.07.2002 can be construed as settlement or Will? (3) Whether the deed of cancellation of settlement, dated 15.07.2005 executed by late Mrs. Saraswathy Ammal is a valid document? (4) Whether the suit property is liable to be partition or not, in view of execution of registered Will, dated 10.08.2005 by late Mrs. Saraswathy Ammal in favour of the defendant? (5) To what other reliefs, the plaintiff is entitled to? 9. During the course of joint trial in both the suits, on the side of the plaintiffs, the plaintiff in T.O.S. No. 22 of 2007 examined himself as P.W. 1 (Palani) and P.W. 2 R. Kannan and P.W. 3 G.K. Settu, were examined and Exs. P-1 to P-6 were marked. On the side of the defendants, the fifth defendant in T.O.S. No. 22 of 2007 was examined as D.W. 1 (Rekha) and Exs. D-1 to D-3 were marked. 10. For the purpose of convenience, the parties are referred to as they are ranked in T.O.S. No. 22 of 2007. 11. It is admitted by both sides that the suit property belongs to Saraswathy Ammal. Further, it is admitted by both sides that Saraswathy Ammal is the wife of the second defendant/K. Senthamaraikannan. The plaintiff-S. Palani and the first defendant-S. Bharathi Dasan are the sons of Saraswathy Ammal and the defendants 3 and 4 are the daughters of Saraswathy Ammal. Saraswathy Ammal died on 01.10.2005. Further, it is admitted by both sides that the plaintiff and the defendants 1 to 4 are the only legal heirs of late Saraswathy Ammal. The deceased Saraswathy Ammal has settled the suit property in favour of her legal heirs viz., the plaintiff and the first defendant and executed a Settlement Deed in Document No. 2753 of 2002, on 22.07.2002. Saraswathy Ammal subsequently cancelled the above said Settlement Deed by way of registered Document No. 3011 of 2005, on 15.07.2005. The certified copies of the Settlement Deed and Cancellation Deed are marked as Ex. D-1 and Ex. D-2. It is admitted by both sides that during the pendency of the suit, the first defendant viz., Bharathi Dasan died and D. 5/Rekha and D. 6/Vijailokesh were impleaded as legal heirs of the deceased first defendant/Bharathi Dasan. 12. The certified copies of the Settlement Deed and Cancellation Deed are marked as Ex. D-1 and Ex. D-2. It is admitted by both sides that during the pendency of the suit, the first defendant viz., Bharathi Dasan died and D. 5/Rekha and D. 6/Vijailokesh were impleaded as legal heirs of the deceased first defendant/Bharathi Dasan. 12. Learned counsel for the plaintiff contended that since the suit property absolutely belongs to Saraswathy Ammal, she has executed a Settlement Deed on 22.07.2002, which is marked as Ex. P-1 = Ex. D-1. Even though it is termed as a Settlement Deed, it is only a Will. Subsequently, the first defendant/Bharathi Dasan is not having good relationship with his mother Saraswathy Ammal and he filed a suit in O.S. No. 4269 of 2005 before the City Civil Court, Chennai, for permanent injunction restraining the defendants therein from interfering with his peaceful possession. True copy of the plaint in O.S. No. 4269 of 2005 is marked as Ex. P-4 and the certified copy of the judgment and decree dated 21.11.2007 passed in the above suit is marked as Ex. P-5. Since the first defendant/Bharathi Dasan is not having good relationship with his mother Saraswathy Ammal, she cancelled the Settlement Deed Ex. P-1 = Ex. D-1 on 15.07.2005 and the cancellation Deed is marked as Ex. P-2 = Ex. D-2 and subsequently, when Saraswathy Ammal was in sound and disposing state of mind, she executed a Will on 10.08.2005 in the presence of witnesses. The Original Will is marked as Ex. P-3. Under the said Will-Ex. P-3, Saraswathy Ammal bequeathed the suit property to the plaintiff/S. Palani and therefore, he is entitled to the suit property. The plaintiff/S. Palani has filed a petition in O.P. No. 607 of 2007 for the grant of Letters of Administration with a Will annexed and the said petition was converted and numbered as T.O.S. No. 22 of 2007. Subsequently, Saraswathy Ammal died on 01.10.2005 and the original Death Certificate of Saraswathy Ammal is marked as Ex. P-6. Hence, the learned counsel for the plaintiff prayed that T.O.S. No. 22 of 2007 may be allowed and Tr.C.S. No. 449 of 2008 may be dismissed. 13. In support of his submissions, learned counsel for the plaintiff relied on the following decisions: (a) 2015 (2) CTC 365 (Sellayi (deceased) v. Valliammal @ Pappu): "45. The underlined contents of the document under Ex. 13. In support of his submissions, learned counsel for the plaintiff relied on the following decisions: (a) 2015 (2) CTC 365 (Sellayi (deceased) v. Valliammal @ Pappu): "45. The underlined contents of the document under Ex. A2, which is styled as Settlement Deed, imbibes the character of both the documents, viz., Will and Settlement Deed. A document can have only one character and such character can be decided on the basis of the contents of the said document and on that basis, the nomenclature of that document will be decided. ... .. 49. At a time, no document can have two characters. Either it should be a Will or Settlement Deed. No document can be called, simultaneously, as Will or Settlement Deed, even if it be called as both, it cannot be given effect to. In such circumstances, this Court is of the view that since Ex. A2 contains the character of both the two documents, viz., Will and Settlement Deed, it should be held as invalid as it cannot be given effect to." (b) 1997 (2) SCC 255 (Narmadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker): "5. Section 122 of the Transfer of Property Act, 1882 (for short, "the TP Act") defines "gift" to mean the transfer of certain existing moveable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. 6. Acceptance by or on behalf of the donee must be made during the lifetime of the donor and while he is still capable of giving." (c) ILR (1997) 1 Madras 1156 (Chandma Bibi v. Shiek Mohamed Sahib): "27. Learned counsel for the appellant submitted that there is delivery of possession which makes the gift complete. He also said that the 4th defendant has accepted the gift. It is true that there is a recital in Ex. A-1 that possession was handed over to the 4th defendant and her husband. It is also true that there is a presumption that when there is a statement or declaration by the donor that the property has been delivered, it binds the persons claiming under them. But that is only a presumption which could be rebutted by other evidence. By taking Ex. It is also true that there is a presumption that when there is a statement or declaration by the donor that the property has been delivered, it binds the persons claiming under them. But that is only a presumption which could be rebutted by other evidence. By taking Ex. B-4 and B-1 and the subsequent conduct of the plaintiff and the 4th defendant, it is clear that possession was not handed over, and the recitals in Ex. A-1 remain only in paper and not in reality. Even if possession was handed over, that is only for the purpose of taking the income, which will not confer any right on the plaintiff." 14. Learned counsel for the respondents/defendants contended that even though the entire suit property belongs to Saraswathy Ammal, during her life time, she settled the suit property and she executed a Settlement Deed on 22.07.2002 and as per the Settlement Deed, Saraswathy Ammal has no right to revoke the Settlement Deed unilaterally and the suit property absolutely belongs to the settles of the Settlement Deed. The cancellation deed subsequently executed by the Saraswathy Ammal unilaterally without the consent of others is absolutely not at all maintainable and she has no power to cancel the Settlement Deed already executed. It is further contended by the learned counsel for the defendants that since the suit property already settled, Saraswathy Ammal has no right to execute another Will for the same property in favour of the plaintiff or anybody. Since the deceased Saraswathy Ammal has no right or interest over the suit property after the execution of the Settlement Deed, no right could be conveyed to the plaintiff or he cannot derive any title to the suit property in pursuance of the Will-Ex. P-3. Further, the Saraswathy Ammal has no right or interest over the suit property after the execution of the Settlement Deed and she has no power to execute the Will and the Will cannot be probated as prayed for in the suit in T.O.S. No. 22 of 2007. Hence, the Will is properly attested is not at all relevant, since the Saraswathy Ammal has no right or interest over the suit property. The unilateral cancellation of the suit property by Saraswathy Ammal is not valid in the eye of law. Hence, the Will is properly attested is not at all relevant, since the Saraswathy Ammal has no right or interest over the suit property. The unilateral cancellation of the suit property by Saraswathy Ammal is not valid in the eye of law. As per the Settlement Deed, the plaintiff/S. Palani and the first defendant/S. Bharathi Dasan have got 1/2 share in the suit property. Hence, the learned counsel for the defendants prayed that T.O.S. No. 22 of 2007 may be dismissed and Tr.C.S. No. 449 of 2008 may be decreed as prayed for. 15. In support of his submissions, learned counsel for the defendants relied on the following decisions: (a) 1974 (2) SCC 600 (Surender Pal v. Saraswathi Arora): "7. The propounder has to show that the Will was signed by the testator; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testator's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. Again in cases where the propounder has himself taken a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. (See H. Venkatachala Iyengar v. B.B. Thimmajamma - 1959 Supp (1) SCR 426 : AIR 1959 SC 443 : 1959 SCJ 507 and Rani Purnima Devi v. Kumar Khagendra Narayan Dev - 1962 (3) SCR 195 : AIR 1962 SC 567 : 1962 (1) SCJ 725. In the latter case this Court, after referring to the principles stated in the former case emphasised that where these are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the court before the Will could be accepted as genuine; and where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same. It has been further pointed out that the suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will which may be unnatural or unfair or improbable when considered in the light of the relevant circumstances. If the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the Will had been obtained by fraud or undue influence, a probate of the Will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind. The observations of the Privy Council in Motibai Hormusjee Kanga v. Jamsetjee Hormusjee Kanga ( AIR 1924 PC 28 : 80 IC 777 : 26 BLJ 579) support the above proposition. Mr. Ammer Ali observed at p. 33: "It is quite clear that the onus of establishing capacity lay on the petitioner. The observations of the Privy Council in Motibai Hormusjee Kanga v. Jamsetjee Hormusjee Kanga ( AIR 1924 PC 28 : 80 IC 777 : 26 BLJ 579) support the above proposition. Mr. Ammer Ali observed at p. 33: "It is quite clear that the onus of establishing capacity lay on the petitioner. It is also clear that if the caveator impugned the Will on the ground that it was obtained by the exercise of undue influence, excessive persuasion or moral coercion, it lay upon him to establish that case." In the light of what has been stated if the various requirements of a valid Will are established, then as observed by the Privy Council in Motibai Hormusjee Kanga's case at p. 33: "A man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his volition." ... ... ... 14. Apart from general considerations emerging from the nature of a Will and the circumstances which not infrequently surround the execution of it, there are other matters which are peculiar to the times and the society and perhaps even to the person making the Will and his or her family. Inferences arising from relationships between a testator and a legatee are certainly so dependent upon the peculiarities of the society or community to which the testator and the legatee belong, their habits and customs, their values, their mores, their ways of thinking and feeling, their susceptibilities to particular kinds of pressures, influences, or inducements that it seems very difficult to reduce them to a general rule applicable at all times and everywhere so as to raise a presumption of undue influence from a particular type of relationship. The only kinds of relationship giving rise to such presumptions are those contemplated in Section 111 of the Evidence Act. Any other presumption from a relationship must, to be acceptable, be capable of being raised only under Section 114of the Evidence Act. Such presumptions of fact are rea ly optional inferences from proof of a frequently recurring set of facts which make a particular inference from such facts reasonable and natural. Any other presumption from a relationship must, to be acceptable, be capable of being raised only under Section 114of the Evidence Act. Such presumptions of fact are rea ly optional inferences from proof of a frequently recurring set of facts which make a particular inference from such facts reasonable and natural. If a particular situation arising from a set of facts, which may raise a presumption elsewhere, is exceptional or unusual here, there could be no question here of applying a presumption arising from a common or natural course of events. A suggested inference of undue influence would then be a matter of proof on the particular facts of the case before the Court. This, we think is the correct legal position here." (b) 1964 (1) SCR 270 : AIR 1963 SC 1279 (Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal and others): "25. A transaction may be vitiated on account 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 manifest that both the conditions have ordinarily to be established by the person seeking to avoid the transaction: he 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. Clause (2) lays down a special presumption that 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 by reason of age, illness or mental or bodily distress. Where it is proved that a person is in a position to dominate the will of another (such proof being furnished either by evidence or by the presumption arising under sub-s, (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 unconscionable 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) has manifestly a limited application: the presumption will only arise 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 of the other and that the transaction is shown to be unconscionable. If either of these two conditions is not fulfilled the presumption of undue influence will not arise and burden will not shift." (c) 1959 Supp (1) SCR 426 : AIR 1959 SC 443 (H. Venkatachala Iyengar v. B.N. Thimmajamma): "38. It is in the light of these circumstances that the direct evidence about the execution of the will has to be considered. The evidence of P.W. 1 is really inconclusive on the point about the execution of the will. Apart from the fact that he had no clear recollection as to what happened on the day when he attested the will, this witness has frankly stated that he could not state definitely whether the whole of the document was read over to the testatrix before he put the attesting signature; and it was natura ly of very great importance in this case to produce satisfactory evidence that the will was read out to the testatrix and she understood the nature and effect of its contents. On this point even if P.W. 1 is believed it does not help the appellant's case. The evidence of P.W. 2 cannot carry much weight because his main story that he was present at the time when the will was written is wholly inconsistent with the evidence of P.Ws. 3, 4 and 7. That leaves the evidence of the scribe and the appellant himself. The evidence of P.W. 2 cannot carry much weight because his main story that he was present at the time when the will was written is wholly inconsistent with the evidence of P.Ws. 3, 4 and 7. That leaves the evidence of the scribe and the appellant himself. The scribe (P.W. 3) is a near relation of Kalbagal and even he does not at al support the appellant's case about previous instruction because, according to him, the testatrix said that she would agree to whatever the appellant would get written. The relevant evidence of this witness is clearly inconsistent with the appellant's case about previous instructions and so it would be difficult to treat the evidence of this witness as sufficient to prove that the testatrix fully understood the nature of the recitals in the preamble and the effect of the dispositions before she put her signature to the will. The evidence of the appellant (P.W. 7) cannot obviously be useful because it is the evidence of an interested witness and is besides not very satisfactory. On behalf of the appellant it was urged before us by Mr. Iyengar that the evidence of Kalbagal (P.W. 4) is disinterested and so it should be believed. That also appears to be the view taken by the trial Court. In our opinion, however, it would not be right or correct to describe Kalbagal as wholly disinterested. Respondent No. 5 who is the step-brother of Kalbagal and who stays with him in the same house along with their father has admittedly received substantial benefit under the will. If an undivided brother of P.W. 4 has received this benefit it would not be accurate to say that the witness is wholly disinterested. Besides, it appears from the evidence of Kalbagal that he knew nothing about the execution of the will until the appellant asked him to get some attesting witnesses for the will. This evidence does not strike us as natural or probable; but apart from it, even Kalbagal's evidence does not show satisfactorily that the will was read out to the testatrix so as to enable her to understand its full effect before it was signed by her. That is the whole of the evidence led by the appellant on the question of the execution of the will. That is the whole of the evidence led by the appellant on the question of the execution of the will. On this evidence we are not prepared to hold that the High Court was in error in coming to the conclusion that it was not shown that the testatrix fully understood the contents of the will and put her signature on the instrument intending that the recitals and the dispositions in the will should be her recitals and dispositions. 39. In this connection we would like to add that the learned trial Judge appears to have misdirected himself in law inasmuch as he thought that the proof of the signature of the testatrix on the will raised a presumption that the will had been executed by her. In support of this view the learned Judge has referred to the decision of the Calcutta High Court in Surendra Nath Chatterji v. Jahnavi Charn Mukerji, (1928) ILR 56 Cal. 390. In this case no doubt the Calcutta High Court has held that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but Mr. Justice B.B. Ghose, in his judgment, has also added that the said presumption is liable to be rebutted by proof of suspicious circumstances and that undoubtedly is the true legal position. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case. Unfortunately the learned trial Judge did not properly assess the effect of suspicious circumstances in the present case to which we have already referred and that has introduced a serious infirmity in his final conclusion. Incidentally we may also refer to the fact that the appellant obtained a power of attorney from the testatrix on the same day; and that has given rise to the argument that the appellant was keen on taking possession and management of the properties under his control even before the death of the tastatrix. There is also another circumstance which may be mentioned and that is that the Sub-Registrar, in whose presence the document was registered on the same day, has not been examined though he was alive at the date of the trial. There is also another circumstance which may be mentioned and that is that the Sub-Registrar, in whose presence the document was registered on the same day, has not been examined though he was alive at the date of the trial. On these facts then we are inclined to hold that the High Court was justified in reversing the finding of the trial Court on the question of the due and valid execution of the will." (d) 2009 (3) SCC 687 (Bharpur Singh v. Shamsher Singh): "14. The legal principles in regard to proof of a will are no longer res integra. A will must be proved having regard to the provisions contained in clause (c) of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the Will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the Will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator. 15. This Court in H. Venkatachala Iyengar v. B.N. Thimmajamma ( AIR 1959 SC 443 ) opined that the fact that the propounder took interest in execution of the Will is one of the factors which should be taken into consideration for determination of due execution of the Will. It was also held that: (AIR p. 451, para 19) one of the important features which distinguishes Will from other documents is that the Will speaks from the date of death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. 16. 16. In H. Venkatachala case (H. Venkatachala Iyengar v. B.N. Thimmajamma- AIR 1959 SC 443 ), it was also held that the propounder of will must prove: (i) that the Will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and (ii) when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of propounder, and