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2019 DIGILAW 1501 (MAD)

A. Venkatasamy (died) v. V. Achammal

2019-06-04

R.PONGIAPPAN

body2019
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of C.P.C. Against the Judgment and Decree dated 29.11.2008 made in Cross Appeal in A.S.No.5 of 2008 on the file of the learned Subordinate Judge, Virudhunagar, confirming the Judgment and Decree dated 31.08.2007 on the file of the learned District Munsif, Virudhunagar.) 1. The deceased appellant A.Venkatasamy is the second plaintiff in O.S.No.493 of 2004 on the file of the District Munsif, Virudhunagar. He along with one A.Subbulakshmi (who died during the pendency of the suit) filed the suit in O.S.No.493 of 2004 as against the respondents, seeking the relief of partition of the suit schedule properties into 40 equal shares, allotting 7/40 shares to the plaintiff and to put her in a separate possession of such shares and also for a direction to the 4th defendant, directing to pay mesne profits at the rate that may be determined in a separate proceedings. 2. The learned District Munsif, Virudhunagar, by Judgment and Decree dated 31.08.2007, allowed the suit in part, declaring that the plaintiff is entitled to 7/40 shares in item Nos.1 to 34 and 36. In respect of other properties, the claim made by the plaintiff was dismissed. Aggrieved over the said findings, the defendant Nos.4 to 6 filed an appeal in A.S.No.5 of 2008 on the file of the learned Subordinate Judge, Virduhunagar. The learned Subordinate Judge, Virudhunagar, by Judgment and Decree, dated 29.11.2008, allowed the appeal and dismissed the suit. 3. Feeling aggrieved over the same, A.Venkatasamy, the second plaintiff filed this appeal. Since the said A.Venkatasamy died, his legal representatives were impleaded as 2nd to 4th appellants. 4. For the sake of convenience, the parties are referred to as, as described before the trial Court. 5. The averments made in the plaint, in short, read as follows: (i) Item Nos.1 to 36 are the ancestral properties of Alagarsamy Naicker, who is the husband of 1st plaintiff. Some of the properties were inherited by him and some are accretion from the joint nucleus and therefore, the properties are the joint family properties. (ii) Alagarsamy Naicker died leaving behind his wife, who is the first plaintiff and three daughters who are the defendants 1 to 3 herein and one son by name A.Rudhrappan, who is the only male member in the family. All the suit schedule properties were under the management of A.Rudhrappan. (ii) Alagarsamy Naicker died leaving behind his wife, who is the first plaintiff and three daughters who are the defendants 1 to 3 herein and one son by name A.Rudhrappan, who is the only male member in the family. All the suit schedule properties were under the management of A.Rudhrappan. From the income derived from item Nos.1 to 30, the said Rudhrappan purchased item Nos. 40 to 42 in the name of his wife, i.e. 4th defendant and item Nos.37 to 39 in the name of his son, i.e. 6th defendant and his wife, 4th defendant. The said properties have been purchased by benami in the name of defendants 4 and 6 for the benefit of the family. (iii) There had been no partition in the family and all the suit schedule properties belong to the first plaintiff and the defendants jointly. On the death of Alagarsamy Naicker, the first plaintiff became entitled to 1/10th share, while the defendants 1 to 3 entitled to 1/10th shares each and the said Rudhrappan became entitled to 6/10 shares in the suit schedule property. The first plaintiff was living with her son A.Rudhrappan. While so, A.Rudhrappan died on 27.12.1990 leaving behind his mother, the first plaintiff, his wife, 4th defendant and children, the defendants 5 and 6 herein, as his legal heirs, who are entitled to succeed to all his properties. (iv) Under the law, the first plaintiff and the defendants 4 to 6 are the class-I heirs. After the death of A.Rudhrappan, the 4th defendant quarreled with the first plaintiff and drove her out of his house. The first plaintiff had been residing with her last daughter, who is the 3rd defendant and she had been depending on her for her maintenance. The first plaintiff demanded partition in March 1992. Since the 4th defendant did not agree for the same, she filed the suit. (v) The defendants 7 to 9 were impleaded themselves in the suit, claiming shares in the item Nos.35 of the plaint schedule property. The 10th defendant has been added as party on the ground that item No.4 of the suit schedule properties had already been sold to him, under a registered sale deed dated 18.03.1985. (vi) According to the plaintiff, the defendants 7 to 9 have no right or title over the item No.35 of the suit schedule property. The 10th defendant has been added as party on the ground that item No.4 of the suit schedule properties had already been sold to him, under a registered sale deed dated 18.03.1985. (vi) According to the plaintiff, the defendants 7 to 9 have no right or title over the item No.35 of the suit schedule property. The sale deed relied upon by the 10th defendant is not a genuine one and the same is not supported by any consideration. (vii) During the life time of the first plaintiff, she had executed a registered Will on 02.12.1993 in a good and sound disposing state of mind and thereby, she was bequeathing her properties including her undivided share in the suit properties in favour of the second plaintiff. Since the first plaintiff died on 22.07.2001, the second plaintiff has been enjoying the suit schedule properties jointly along with the defendants. Hence, the second plaintiff was impleaded in the suit. For partition of the properties, the suit has been filed. 6. The averments made in the written statement filed by the 4th to 6th defendants, in short, are as follows: (i) The first plaintiff is aged about 84 years and she is not in a position to understand or appreciate anything due to her old age and due to her mental incapacity. But, the age of first plaintiff was wrongly mentioned in the plaint as 76 years purposely and fraudulently. The first plaintiff is a tool in the hands of her daughter Rajalakshmi, 3rd defendant and son-in-law A.Venkatasami. (ii) It is false to state that item Nos.1 to 36 ancestrally belonged to the plaintiff's husband Alagarsamy Naicker, some by inheritance and some are accretions from the joint family nucleus and all the suit properties are joint family properties. (iii) It is false to state that after the death of Alagarsamy Naicker, A.Rudrappan, who was the only son of the first plaintiff, was in management and possession of all the properties, received the income derived from the properties and purchased item Nos.40 to 42 in the name of his wife, 4th defendant and also purchased item Nos.37 to 39 in the name of his son, 6th defendant exclusively for the benefit of 4th defendant. (iv) According to the defendants, the suit properties in S.F.No.462/1, 462/2, 475/2-B were purchased by the 6th defendant's maternal grandparents with their funds exclusively for the benefit of 6th defendant. (iv) According to the defendants, the suit properties in S.F.No.462/1, 462/2, 475/2-B were purchased by the 6th defendant's maternal grandparents with their funds exclusively for the benefit of 6th defendant. There was no necessity or occasion to have any benami purchase. (v) It is false to state that only after the quarrel made by the 4th defendant on 27.12.1990, the first plaintiff joined with the 3rd defendant. According to the defendants, even before the death of Rudrappan, the first plaintiff had been residing with the 3rd defendant and her husband. Taking advantage of old age of the first plaintiff, the 3rd defendant and her husband fabricated and cooked up the document. There was no demand made by the plaintiffs for amicable partition. Therefore, there is no cause of action. Hence, the suit is liable for dismissal. 7. The averments made in the written statement filed by the 9th defendant, which was adopted by 7th and 8th defendants, in short, are as follows: (i) The 35th item of the plaint schedule property originally belonged to one Athi Subba Naicker. He had two sons, namely, Thiruvenkatappa Naicker and Ruthirappa Naicker. The said Thiruvenkatappa Naicker gave birth to three sons, namely, Gopal Naicker, Lakshmana Naicker and Chinna Rudhrappa Naicker. Gopal Naicker died after leaving behind his only son Ramasamy Naicker. The said Ramasamy Naicker is having a adopted son, namely, Venkatasamy Naicker and another son Gopalsamy Naikcer. The said Gopalsamy Naicker had two sons, namely, Srinivasan and Ramasamy, i.e. defendants 8 and 9 herein. (ii) In earlier, one another suit in O.S.No.854 of 1993 was filed and the same was amicably settled. The 9th defendant is having properties on the southern side of 35th item of the suit schedule property. Before the death of Ramasamy in the year 1942, he executed a will. Further, on 12.05.1975, one Chinnapandian purchased the property in Survey Nos.751 and 752. (iii) According to the defendants, in respect to 35th item of the suit schedule property, the plaintiffs are not having any right and title. 8. The averments made in the written statement filed by the 10th defendant reads as follows: On 18.03.1995, the suit 4th item of the property was purchased by this defendant, from one Rudrappan and thereafter, he was in possession and enjoyment of the said property. 8. The averments made in the written statement filed by the 10th defendant reads as follows: On 18.03.1995, the suit 4th item of the property was purchased by this defendant, from one Rudrappan and thereafter, he was in possession and enjoyment of the said property. In respect to the item Nos.19 to 23rd, 25 to 27 and 29 of the suit schedule property, mortgage deed was executed in favour of one Kottaisamy Naicker and the same was still in force. 9. The averments made in the additional written statement filed by the 4th defendant: The first plaintiff is a sick person for the past 15 years and she is not in a position to execute the Will dated 02.12.1993. Therefore, the alleged Will executed by the first plaintiff is false and unenforceable. 10. Based on the above pleadings, the learned District Munsif, Virudhunagar, framed necessary issues and tried the suit. 11. Before the Trial Court, on the side of the plaintiff, two witnesses were examined as P.W.1 and P.W.2 and one document was marked as Ex.A1. On the side of the defendants, four witnesses were examined as D.W.1 to D.W.4 and 20 documents were marked as Exs.B1 to B20. 12. Having considered all the materials placed before him, the learned District Munsif, Virudhunagar, arrived at a conclusion that the plaintiffs are entitled to the relief of partition to the tune of 7/40th share from the suit item Nos.1 to 34 and 36. 13. In the appeal, the learned Subordinate Judge, Virudhunagr, came to a conclusion that the findings arrived at by the Trial Court is beyond the scope of suit and hence, allowed the appeal. 14. Feeling aggrieved over the same, the second plaintiff has filed the present appeal. 15. While at the time of admitting the appeal, this Court has formulated the following substantial questions of law: “Whether the lower Appellate Court is right in holding that the will dated 02.12.1993 executed by the first plaintiff in favour of the appellant was surrounded by the suspicious circumstances and whether the reasoning given by the lower Appellate Court in disregarding the will as not a genuine one is correct?” 16. In earlier, the deceased Subbulakshmi filed the suit pertaining to this appeal in the year 1992, seeking the relief of partition, separate possession and mesne profits. In earlier, the deceased Subbulakshmi filed the suit pertaining to this appeal in the year 1992, seeking the relief of partition, separate possession and mesne profits. Subsequently, on 02.12.1993, the said Subbulakshmi executed a Will in favour of the second plaintiff, A.Venkatasamy, in which, she bequeathed the entire schedule of property in favour of the said A.Venkatasamy, who is arrayed as second defendant. In the meantime, on 14.12.2000, the learned Subordinate Judge, Srivilliputhur, dismissed the suit for default and thereafter, on 22.07.2001, the first plaintiff died and thereafter only, in the year 2004, the second plaintiff filed an application for restoration of the suit. Consequently, as per the order passed by this Court, the suit was restored to file on 10.11.2004. 17. It is admitted on either side that item Nos.1 to 36 belonged to the ancestral property of Alagarsamy Naicker, who is the husband of first plaintiff Subbulakshmi. The said Subbulakshmi gave birth to three daughters and one son, by name A.Rudrappan. In the present suit, the daughters of the first plaintiff was arrayed as 1st to 3rd defendants. Since the said Alagarsamy Naicker died in the year 1965, his son A.Rudrappan is the only male member in the family and he is under the management and possession of all properties, for example, item Nos.1 to 36. 18. It is alleged on the side of the plaintiff, from the income derived from item Nos.1 to 36, the said Rudrappan purchased item Nos.40 to 42 in the name of his first wife, i.e. 4th defendant. Further, the said Rudrappan purchased item Nos. 37 to 39 in the name of his son, i.e. 6th defendant in the suit. In fact, the said properties were purchased by Rudrappan in the name of his wife and his son as a benami. 19. It is admitted on either side that after the demise of Alagarsamy Naicker, the first plaintiff filed the suit, seeking the relief of partition and separate possession. Thereafter, the suit has been prosecuted by the second plaintiff, based on the Will dated 02.12.1993 executed by the first plaintiff in favour of the second plaintiff. 20. In fact, the second plaintiff is nothing, but, son-in-law of the first plaintiff and the husband of the 3rd defendant. Before the trial Court, the alleged will executed by Subbulakshmi was marked as Ex.A1. 21. 20. In fact, the second plaintiff is nothing, but, son-in-law of the first plaintiff and the husband of the 3rd defendant. Before the trial Court, the alleged will executed by Subbulakshmi was marked as Ex.A1. 21. Now, the only question to be decided is, whether the Will is proved apart from the suspicious circumstances or not. In otherwise, shares in respect to Defendants 1 to 6 are not disputed on either side. 22. In respect to the suspicious circumstances surrounding the Will, the learned counsel appearing for the appellant indicated three circumstances as follows: (a) The signatures found in the Will and the plaint are totally different. (b) In page 3 of the Will, there was a correction, but, there was no attestation to the said correction. (c) Without giving any intimation to Defendants 1 to 3, how the said Subbulakshmi executed a Will in favour of the second plaintiff? 23. In this regard, on going through the recitals found in Ex.A1, it is seen that there is a difference in between the signature of Subbulakshmi found in the plaint and the signature found in the Will. Further, in the 3rd line of page 3 of the Will-Ex.A1, there were corrections as “TAMIL” and “TAMIL”. More than that, there was no attestation with respect to the said correction. 24. Further, on going through the evidence let in by either side, it is seen that there is no serious dispute between the first plaintiff Subbulakshmi and her daughters. 25. It is a basic principle that the Will has to be proved under the provision of Section 68 of the Indian Evidence Act. However, Section 63 of the Indian Succession Act 1925 deals with the manner in which the Will has to be executed. 26. Before the trial Court, on the side of the plaintiff, in order to prove the Will, the attestator Damodaran was examined as P.W.2. At the time of giving evidence, he has clearly stated that after approving the same, corrections have been made by Subbulakshmi in the Will, in which, he signed as a witness. Further, he has stated that after execution of the Will, the deceased Subbulakshmi handed over the said registered Will to him, with a direction to hand over the same to the second plaintiff after her death. 27. Further, he has stated that after execution of the Will, the deceased Subbulakshmi handed over the said registered Will to him, with a direction to hand over the same to the second plaintiff after her death. 27. Now, it is to be noted that the first plaintiff Subbulakshmi aged about 70 years handed over the Will to P.W.2, who is aged about 19 years at the time of execution of the Will. The said circumstance alone is an unnatural circumstance arising in this case. 28. The learned subordinate Judge, Virudhunagar, in its Judgment, analyzed the said fact and came to the conclusion that when the deceased Subbulakshmi was having three daughters and one son, there was no necessity for the deceased to execute a will in favour of her son-in-law, which creates a doubt over the execution of the will. 29. In this regard, the learned counsel for the appellants relied upon the following Judgments: (i) 2018 (4) L.W. 781 (K.R.Sethupathy and another vs. Parvathy and others) (ii) AIR 2017 Madras 88 (Pattu vs. Krishnammal @ Singari) and (iii) (2018) 4 CTC 373 (Ramdoss vs. Subbayyan and another). 30. On culling out the entire ratio laid down in the above Judgments, this Court already settled that it is not necessary for the witness to the intricacy or germane details of the contents of the document. Further, it was observed by this Court that the property bequeathed in favour of sons after excluding the daughter is no way create a suspicious circumstances. Moreover, it was held that law does not prescribe in what manner or fashion, a Will should be written and it is scribe's discretion. 31. In the said circumstances, the Lower Appellate Court relied upon the Judgments reported in 2007 (8) CCC 86 (SC), 2007 (2) CCC 75 (SC), 2007 (2) L.W. 279 and 2008 (2) L.W. 196 . After perusing the above said judgments, the first appellate Court has held that if the will is surrounded by any suspicious circumstances, the burden is on the propounder of Will to remove the suspicious circumstance. Further, it is observed that the cumulative effect of all the circumstances taken together give rise to a genuine doubt regarding the genuineness of the Will and as to whether the same had, infact been executed by the testatrix if so, of her own free violation. 32. Further, it is observed that the cumulative effect of all the circumstances taken together give rise to a genuine doubt regarding the genuineness of the Will and as to whether the same had, infact been executed by the testatrix if so, of her own free violation. 32. Now, on applying the arguments advanced by the learned counsel appearing for the appellants with the findings arrived at by the trial Court, in this case, though the alleged Will was executed by the said Subbulakshmi on 02.12.1993, after her demise on 27.01.2001, the second plaintiff, who is the possessor of the Will, has not taken any steps to restore the suit till 2004. 33. The very specific evidence of P.W.2 is that he is aged about 19 years at the time of execution of the Will. The said circumstances create a doubt over the Will, since the Executor of the Will is a old lady and thereby, it is not at all necessary for the Executor to take P.W.2, who is the person aged about 19 years for the purpose of attesting the Will executed by her. 34. P.W.2 specifically stated in his cross examination that he had not known about the family members of the plaintiff and the defendants. P.W.2 further stated that after the execution of Will, the Executor handed over the Will to him, which also raises suspicious circumstance over the Will. In fact, when P.W.2 was not known to the family members of the beneficiary, how it is believable that the Executor handed over the Will to P.W.2. 35. Apart from that, P.W.2 has specifically stated that when at the time of preparing the Will, he had not known about the pendency of this suit. Since the Will was executed on 02.12.1993, i.e. after the filing of the suit, if really, the Executor executed a Will in a free and sound mind, she definitely mentioned the pendency of the suit in the Will. This also creates a doubt over the Will. 36. In general, when a question arises as to whether the 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 will. Mere proof of the signature of the testatrix shall not be sufficient to prove the will. In general, when a question arises as to whether the 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 will. Mere proof of the signature of the testatrix shall not be sufficient to prove the will. It is required to be proved that she put her signature intending to bequeath the property in the manner indicated. 37. Only in the absence of suspicious circumstances like undue influential or fraud or coercion, surrounding the execution of the will, the proof of testamentary capacity and signature of the testator as required by law are sufficient to discharge the onus. More than that, the non-mentioning of property bequeathed in favour of propounder is also created a strong suspicious circumstances, whether the will was executed as stated by P.W.1 and P.W.2. 38. The learned counsel appearing for the respondent relied upon the judgment reported in AIR 1959 SC 443 (H.Venkatachala Iyengar vs. B.N.Thimmajamma and others), in which, the Honourable Apex Court has held as follows: “There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature, the condition of the testator's mind may appear to be very feeble and debilitated, and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator, the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases, 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. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy, and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy, and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.” 39. Further, in the Judgment of this Court reported in (2011) 5 CTC 262 (G.Lalitha vs. G.Ponnurangam and others), it was observed by this Court as follows: “20. As far as the active role played by the Plaintiff in the execution and attestation of the will is concerned, it is apparent that the Plaintiff was available at the time of execution and attestation of the Will. The disposition in the Will is also obvious. There is no sufficient reasons mentioned in the Will for the exclusion of the sons of the testatrix. The testatrix has also not stated anything with regard to the strained relationship with her sons. She has merely stated that she has cancelled the earlier Will executed in favour of her sons. The Court would naturally expect that all the legitimate suspicions should be completely removed before the document is accepted as the last will of the Testator. If the testatrix intends to exclude her sons, she should have stated proper reasons for the same. There is no evidence on the part of the Plaintiff to show that there was love lost between the mother and her sons. The evidence would show that the sons were also residing in a portion of the suit property. When the Will provides absolute interest in favour of the Plaintiff, the propounder, it is her bounden duty to remove the legitimate suspicion as to the unnatural disposition of the propounder by excluding her other natural heirs in this case. In the considered view of this Court, the Plaintiff has not dispelled the same and the unnatural disposition would vitiate the Will and the same is not legally enforceable.” 40. In the considered view of this Court, the Plaintiff has not dispelled the same and the unnatural disposition would vitiate the Will and the same is not legally enforceable.” 40. The learned counsel further relied upon the Judgment of this Court reported in (2008) 5 CTC 294 (Sivasamy and two others vs. Poomalai and two others), in which, this Court has held as follows : “18. D.W.3 is the attesting witness. According to him, he had been taken by Masi Ambalam to Tanjore. After seeing the doctor on the way, Masi Ambalam had told him that a Will must be written and they went to a park and there, Masi Ambalam is said to have dictated the recitals to some scribe and some one told Masi Ambalam that there should be two attesting witnesses and therefore, Masi Ambalam went and brought one Vaithiya Nathan Iyer. Thereafter, both D.W.3 and the attesting witness saw the testator signed the Will and they saw each other attesting. Four days later, the Will was registered and again the same two persons had been taken along as witnesses during the registration. It is seen from the evidence that this witness did not know the other attesting witness. He did not know whether Masi Ambalam knew the other attesting witness. A question was asked to him as to whether there is such a person as Vaithiya Nathan Iyer. D.W.1 is the third defendant, who is the beneficiary under the Will. He had denied the suggestion that D.W.3 is a close friend. He did not know the identity of the other attesting witness. The Trial Court has commented upon the non-examination of the doctor, whom testator had allegedly visited before execution of the Will. It is not necessary to examine the doctor for proof of a Will, if the evidence of the attesting witness is sufficient. In this case, the examination of the doctor is not so important in the context of the mental capacity of the testator, but it would help to corroborate the narration of events leading towards the execution of the Will as spoken to by the defendant witnesses. It is here that Exs.A11 and A12 assume importance. In this case, the examination of the doctor is not so important in the context of the mental capacity of the testator, but it would help to corroborate the narration of events leading towards the execution of the Will as spoken to by the defendant witnesses. It is here that Exs.A11 and A12 assume importance. Ex.A1 is a notice given by the first respondent/plaintiff, where she claims that she is the sole heir of her father Masi Ambalam and that certain persons are attempting to create a Will or a settlement by fraud. This is denied allegedly by the testator by Ex.A.11, which is produced by the plaintiff, where he has said that whatever is stated in Ex.A1 is contrary to truth and that his condition of health is good. Reference to the Will at this juncture, in Ex.A11 would have dispelled all suspicion regarding the Will. While it is true that the doctor need not have been examined, it does create a doubt in our mind as to why Masi Ambalam went suddenly to Tanjore. According to D.W.3, the execution of the Will seems to have been more on an impulse on his return from the doctor's house. Masi Ambalam seems to have said, “let me go and execute the Will”. This is very unnatural, since execution of a Will is not done on an impulse. It is preceded by much thought and consideration as to how the property should be bequeathed. Then again, no one appears to know as to who is this Vaithiya Nathan Iyer, who is alleged to be the second attesting witness. If the evidence of the first attesting witness inspires confidence regarding the fact that the Will has been duly executed and attested by two witnesses, then the examination of the second attesting witness may not be necessary. But when there is some doubt regarding the very existence of the second attesting witness, the propounder of the Will should dispel the suspicion of the Court by proving that in fact, such a person exists, but is not available to give evidence or produce the said second attesting witness to speak about the attestation. But when there is some doubt regarding the very existence of the second attesting witness, the propounder of the Will should dispel the suspicion of the Court by proving that in fact, such a person exists, but is not available to give evidence or produce the said second attesting witness to speak about the attestation. Nothing has been done and it is very curious that even when the testator went to have the Will registered four days later, he again picked up the same Vaithiya Nathan Iyer, whose residence itself is now in doubt and about whom no one knows anything. Was the Will duly attested i.e. attested by two witnesses?” 41. More than that, in the Judgment reported in 2007 (4) CTC 672 (Josephine Jerome, W/o. Late S.Eric Jerome and others), the Division Bench of this Court has observed as follows: “18. It is of course true that ordinarily when a document is written in a language known to the Executant and the signature of the Executant is either admitted or proved, it is for the Executant of the document, if alive, to explain under what circumstances, the signature is appearing on the document. However, since the Will takes effect after the death of the Executant, obviously, the Executant would not be in a position to accept or deny the signature. Therefore, the initial burden is always on the propounder to prove that the testatrix has duly executed the testament which would obviously include attestation, as under Section 63 of the Indian Succession Act, attestation is considered to be a part of the execution. Attestation is required to be proved in accordance with Section 68 of the Evidence Act. Mere proof of attestation does not prove “due execution” in each and every case. It is well known that an attesting witness need not know the contents of the document and he merely attests the signature of the Executant. If any Will is prepared in the presence of attesting witness as per the instructions of the testatrix, obviously the attesting witnesses should be in a position to prove the execution of the Will. However, in the present case, the attesting witnesses have stated that by the time they came, the document was already prepared and the testatrix merely signed the document in their presence. However, in the present case, the attesting witnesses have stated that by the time they came, the document was already prepared and the testatrix merely signed the document in their presence. It was therefore necessary for the Propounder of the Will to prove that the Will had been executed by the testarix after understanding the contents thereof. This could have been done by proving that the document had been prepared as per the instructions of the testarix or that the testatrix herself gone through the document or that it had been read over and explained to her or even by other surrounding and circumstantial evidence like the testatrix acknowledging that the Will had been prepared according to her instructions or even by the fact that execution of the Will had been admitted before the statutory authority such as the Sub-Registrar.” 42. Further, in the Judgment reported in 2015 5 CTC 856 (Hemavathy vs. Udhavum Karangal, rep. by Mr.Vidyasagar, 460, N.S.K.Nagar, Chennai- 106 and another), this Court observed as follows : “28. Under normal circumstances, disinheritance of kith and kin would not alone be considered as suspicious circumstance and that may be a good reason for bequeathing the property in favour of third party, excluding the near Legal Heirs, but, that context must be supported by strong circumstances. The natural inclination of the human being is to support his near relatives and not strangers. Some times, Will is executed with a view to divest the property from the hands of the close relatives. But, in that case, the reason for divesting must be proved to the satisfaction of the Court.” 43. On perusal of the above said decisions, it is clear that it is necessary for the Propounder of the Will to prove that the Will had been executed by the testarix after understanding the contents thereof. Further, something more is required to be proved the execution of the Will than proving the signature of executors and attesting witnesses. Therefore, the court is required to be more careful and scrutinise the evidence of preparation and execution of the instrument. If there is convincing evidence on that behalf, the suspicion of the court is removed and the court is bound to pronounce in favour of the will. 44. Therefore, the court is required to be more careful and scrutinise the evidence of preparation and execution of the instrument. If there is convincing evidence on that behalf, the suspicion of the court is removed and the court is bound to pronounce in favour of the will. 44. Moreover, in the case on hand, there is suspicious circumstance surrounding the Will, which is noting, but a question of fact and not a question of law. Therefore, the First Appellate Court, only by considering the suspicious circumstance, rejected the genuinity of the Will and allowed the appeal. So, the Judgment rendered by the First Appellate Court is based on the question of fact. Therefore, the substantial question of law does not arise in this appeal. 45. Accordingly, the Second Appeal is dismissed, confirming the Judgment and Decree dated 29.11.2008 made in A.S.No.5 of 2008 on the file of the learned Subordinate Judge, Virudhunagar. No costs. Consequently, connected miscellaneous petition is closed.