Research › Search › Judgment

Madras High Court · body

2019 DIGILAW 2911 (MAD)

P. Jayajothi v. J. Rajathi Ammal

2019-10-24

S.S.SUNDAR

body2019
JUDGMENT : S.S. Sundar, J. 1. The plaintiffs in the suit in O.S. No. 141 of 2006 on the file of the Subordinate Court, Tuticorin, are the appellants in this second appeal. 2. The appellants filed the suit in O.S. No. 141 of 2006 before the Subordinate Court, Tuticorin for partition of their 1/6 share. 3. The brief facts, that are set out in the plaint, are as follows: 3.1. The suit properties belonged to one P.S.P.K. Jeyaraj Pandian, father of plaintiffs and defendants 2 and 3. The first defendant, namely, Rajathiammal, is the mother of plaintiffs and defendants 2 and 3. The plaintiffs' father died intestate, all of a sudden, due to illness on 26.06.2005 as a Hindu, though he was hale and healthy earlier. He never executed any Will. After the death of the father of the plaintiffs, the suit properties were jointly enjoyed by the plaintiffs and the defendants. 3.2. Though the first defendant agreed to divide the property and to allot the plaintiffs' share, at the instance of defendants 2 and 3, the first defendant is delaying. When demanded by the plaintiffs during February'2006, the defendants 2 and 3 refused to divide the property, but compelled the plaintiffs to execute a release deed, after receiving some amount. Hence, the plaintiffs issued a notice on 03.08.2006. The defendants have sent a reply containing false particulars. In the reply, they have also come forward with a case that the father of the plaintiffs executed a Will on 31.03.2004 bequeathing all the suit properties in favour of the defendants 2 and 3. The Will alleged to have been executed by the plaintiffs' father is a concocted document forged for the purpose of defeating the plaintiffs' right and share. When the father of the plaintiffs was sick, he wanted to give all the suit properties only to the plaintiffs, as he has already sold several other properties belonged to him for the benefit of defendants 2 and 3 and for their business. 4. The suit was contested by the defendants by filing a written statement. It is stated that the plaintiffs were given in marriage by spending huge amount and they were separated from the family. 4. The suit was contested by the defendants by filing a written statement. It is stated that the plaintiffs were given in marriage by spending huge amount and they were separated from the family. Though it is admitted that the suit properties are the properties of father of plaintiffs, it is contended by the defendants that the suit properties were given to defendants 2 and 3 under a Will dated 31.03.2004. It is the case of the defendants that the Will came into effect upon the death of father and it was acted upon. It is also stated that the defendants have divided the suit properties by a partition deed. It is further stated that the plaintiffs have not objected to the Will at the time, when the defendants 2 and 3 applied for change of Patta on the basis of the Will. It is also contended that the suit has also been instigated, since the defendants 2 and 3 refused to mobilize funds to help the second plaintiff to conduct her son's marriage. 5. The plaintiffs examined the second plaintiff as PW-1 and marked Ex-A1 to Ex-A8 before the trial Court. The defendants apart from examining themselves as DW-1 and DW-2, examined two other witnesses, namely, DW-3 and DW-4 and marked Ex-B1 to Ex-B33. 6. The trial Court, after comparing the signature in Ex-B3 with the signatures found in Ex-A6 and Ex-A8, came to the conclusion that the Will is not a genuine document and that it is surrounded by suspicious circumstances. The trial Court also found that the Will is not proved in accordance with the provisions of the Indian Succession Act, 1925, and Indian Evidence Act, 1872. Since the plaintiffs are admittedly the legal heirs of the deceased P.S.P.K. Jeyaraj Pandian and Rajathiammal, and Rajathiammal, mother of plaintiffs died during the pendency of the suit, the trial Court granted a decree for partition in respect of plaintiffs' 3/5 share. Aggrieved by the judgment and decree of the trial Court in O.S. No. 141 of 2006, the defendants 2 and 3 preferred an appeal in A.S. No. 11 of 2012, before the Principal District Court, Tuticorin. 7. The appellate Court, however, reversed the findings of the trial Court and held that the Will is proved in the manner known to law. 7. The appellate Court, however, reversed the findings of the trial Court and held that the Will is proved in the manner known to law. Holding that the the execution of the Will was proved by examining DW3 and DW-4 and suspicious circumstances have been properly dispelled by the defendants, the lower appellate Court has denied the reliefs to the plaintiffs. Aggrieved by the judgment and decree of the lower appellate Court, the present appeal has been filed. 8. At the time of admitting this appeal, this Court framed the following substantial questions of law: "1) Whether the defendants have proved Ex-B3, Will, dated 31.03.2004 in solemn for and whether Ex-B3 Will is a genuine one? 2) Whether the lower appellate Court is right in holding that the defendants 2 and 3 have proved Ex-B3 Will as per Section 63 of Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872? 3) Whether the lower appellate Court is right in holding that the defendants 2 and 3 have discharged the suspicious circumstances in executing Ex-B3 Will? 4) Whether the lower appellate Court right in holding that the deposition of the attesting witness DW-3 and DW3, Will is sufficient to prove the Will?" 9. The learned Senior Counsel appearing for the appellants, after reading the entire judgment of the appellate Court, submitted that the appellate Court, failed to consider the findings of the trial Court and the reasonings to hold that Will is not proved. The learned Senior Counsel for the appellants apart from relying upon the findings of the trial Court, has submitted that the Will, which was marked as Ex-B3 is a forged one, concocted by the defendants 2 and 3 to defeat the rights of the plaintiffs. The learned Senior Counsel for the appellants pointed out that the father of plaintiffs used to register all the documents executed by him. However, the disputed Will is an unregistered one, attested by strangers. The learned Senior Counsel further submitted that the suspicious circumstances around the Will under Ex-B3 are not dispelled properly. Referring to unnatural disposition, the learned Senior Counsel submitted that no credibility could be given to the evidence of DW-3 and DW-4. However, the disputed Will is an unregistered one, attested by strangers. The learned Senior Counsel further submitted that the suspicious circumstances around the Will under Ex-B3 are not dispelled properly. Referring to unnatural disposition, the learned Senior Counsel submitted that no credibility could be given to the evidence of DW-3 and DW-4. Since the mother of plaintiffs and defendants 2 and 3 was alive and it is further stated by the learned Senior Counsel that there is no explanation from the defendants as to why the Will was not attested by their mother. The learned Senior Counsel for the appellants listed the following suspicious circumstances and submitted that the defendants have not explained or removed the suspicious circumstances to the satisfaction of any prudent mind. a) The alleged Will, EX-B3 was in respect of two items, even though the father had three items, as on the date of execution of the Will. The third item of the property was sold later by the testator himself under the document Ex-A8, dated 14.02.2005. In the Will, it is mentioned that the testator made the Will to avoid dispute among the family members in future. If the Will is executed to avoid dispute in family in future, the testator would have included the other items also in the Will. (b) The wife of the testator was not given any property or share in any of the properties bequeathed under the Will. It is admitted that the testator's wife, namely, the mother of plaintiffs was living with her husband at the time of execution of the Will, and no reason can be gathered from the Will under Ex-B3 for excluding of the wife to get any property under the Will. (c) In the Will, under Ex-B3, it is stated that the defendants 2 and 3, namely, sons of testator, are looking after the testator and his wife. However, the defendants are residing separately. But on the contrary, the evidence of DW-3 and DW-4 and the admission of defendants show that the testator, the father of defendants 2 and 3 was financially supporting defendants 2 and 3. (d) The Will under Ex-B3, was attested by strangers. The attestors, namely, DW-3 and DW-4 in their evidence have admitted that they did not know about the family of testator. (e) The wife of testator was stated to be present at the time of execution of the Will. (d) The Will under Ex-B3, was attested by strangers. The attestors, namely, DW-3 and DW-4 in their evidence have admitted that they did not know about the family of testator. (e) The wife of testator was stated to be present at the time of execution of the Will. In fact, she was an attesting witness to the sale deed, executed by the testator, later on 14.02.2005, which was marked Ex-A3. However, no explanation as to why the Will was not attested by her. (f) The testator executed the registered settlement deeds under Ex-A6 and Ex-Ay, dated 27.08.2003 in favour of the defendants 2 and 3, prior to Ex-B3. The testator himself executed a lease deed in favour of his son under Ex-B4. Similarly, another lease deed was executed in favour of his other son under Ex-B5, dated 18.08.1984. These two lease agreements were registered. When the testator was in the habit of registering document, the Will under Ex-B3, is not registered and therefore, the genuineness of the Will is questionable. (g) The signature of the testator found in Ex-A6 and Ex-A7, dated 27.08.2003, is shaky and the testator had chosen to put his left thumb impression in the sale deed executed by him under Ex-A8, dated 14.02.2005, the signature found in Ex-B3, dated 31.03.2004 is clear and is legible and not shaky. Hence, the Will under Ex-B3 must have been forged. (h) DW-3, one of the attesting witnesses deposed to the effect that he was not aware about the preparation of Will or about the scribe who prepared the Will. DW-4, the other attestor of the witness has also deposed to the effect that he did not know where the Will was prepared. The evidence of DW-4 is contradicting DW-3 appears to be shaky. (i) Both the witnesses are strangers to the family and they were land brokers. The admission of attesting witnesses that they had no knowledge about the family of testator would also indicate that the attestors were not called by the testator to attest the document, as it was deposed by attesting witnesses. (j) The 3rd defendant in his evidence has spoken about the oral partition in the year 1966 and his evidence is therefore contrary to the recitals in the Will. (j) The 3rd defendant in his evidence has spoken about the oral partition in the year 1966 and his evidence is therefore contrary to the recitals in the Will. (k) The second defendant during his cross examination, admitted that his mother, namely, the 1st defendant was receiving rent from him in respect of 2nd item of suit property. After the death of testator, the property let out to him was bequeathed in favour of DW-1. If really there was a Will, which came into effect on the death of testator, there was no necessity for the second defendant to pay rent to his mother (l) The documents, Ex-B1 and Ex-B2, are relating to the proceedings of Tahsildar, Tuticorin, regarding sub division of properties bequeathed under the Will. The change of revenue records was not on the basis of Will under Ex-B3 and the defendants 2 and 3 have not produced the Will before the Tahsildar, even while applying for change of patta and sub division. Further, notice issued by the Tahsildar under Ex-B31 had addressed to the plaintiffs, but by giving the address of defendants. Hence, the defendants 1 and 2 have fraudulently obtained patta and behind the back of plaintiffs without disclosing the Will, under Ex-B3. 10. The learned Senior Counsel for the appellants submitted that the evidence of attesting witness DW-3 and DW-4 did not satisfy the requirement of Section 63(c) of Indian Succession Act, 1925. The learned Senior Counsel for the appellants relied upon a judgment of this Court in the case of G. Lalitha vs G. Ponnurangam, reported in 2011 (5) CTC 262 . Wherein, a learned Single Judge of this Court has held that, it is the bounden duty of the propounder of the Will to remove all the legitimate suspicion, as to unnatural disposition of the propounder by excluding the other natural heirs in that case. Since the plaintiff therein has not dispelled the suspicious circumstances, it was held that the Will is not proved. 11. The learned Counsel for the appellants then relied upon yet another judgment of Honourable Division Bench of this. Court in the case in N. Govindarajan vs N. Leelavathy and others reported in 2011-3-L.W. 774 : 2011(5) CTC 287 , wherein, it has been held as follows: "17. The burden of proof that the Will has been validly executed and is a genuine document, is on the propounder. Court in the case in N. Govindarajan vs N. Leelavathy and others reported in 2011-3-L.W. 774 : 2011(5) CTC 287 , wherein, it has been held as follows: "17. 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. Court granting Letters of Administration/Probate must satisfy itself not only about the genuineness of the Will, but also satisfy itself that it is not fraught with any suspicious circumstance. But the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. 18. ............... 19. In his chief examination/proof affidavit, PW 2 has stated that he signed in Ex. P1-Will after the testator N. Krishnamurthy signed it in his presence and after PW 2 signed as first witness, another witness by name Jalal who is also friend of Pws. 1 and 2 signed in Ex. P1-Will as witness and that one Advocate has signed in Ex. Pl-Will. PW 2 further stated that he saw N. Krishnamurthy signing his name in Ex. Pl-Will and only thereafter, PW 2 and Jalal and Advocate have signed. PW 2 has also stated that N. Krishnamurthy asked him to sign in the Will and after his signature Jalal also signed as a witness. PW 2 is admittedly friend of Plaintiff and both of them studied together at Crescent School, Vandalur and also stayed together in the hostel. PW 2 is stranger to testator; but friend/classmate of PW 1 and his evidence is to be viewed with caution. 20. ................ 21. The law is well settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Execution of Will is a solemn act of the executant who must own up the recitals in the instrument and there must be clear evidence that he puts his signature in a document after knowing fully its contents. The executant of a document must, after fully understanding the contents and the tenor of the document put his signature or affix his thumb impression. In other words, the execution of the document does not mean merely signing, but signing by way of assent to the terms of the contract of alienation embodied in the document. 22. ................ 23. ................ 24. The attestation of the Will is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attesting witness should put his signature on the Will animo attestandi. In the present case, no such evidence of animo attestandi is forthcoming. In his cross examination, PW 2 has stated that "..... he did not know that he was signing in the Will at all and only through Plaintiff, he came to know that he has signed in the Will". We may usefully refer to the evidence of PW 2 which reads as under:- "... As I did not know that Ex. P1 was a Will so I did not inform to the plaintiff. Late Krishnamoorthy also did not inform about the contents of Ex. P1 and he did not say it was a Will..." As pointed out earlier, in his capacity as attestor, PW 2 has spoken to about seeing the testator signing only in the second page of Ex. Pl-Will. He has not stated that he saw the testator signing in all pages of Ex. Pl-Will. Infirm evidence of PW 2 coupled with the fact that he is friend of PW 1, we are of the view that evidence of PW 2 is not sufficient to satisfy the requirement of the provisions of Sec. 63(c) of Indian Succession Act. 25. ............... 26. Learned counsel for Respondents 1 and 2 contended that absolutely no evidence is forthcoming as to who drafted Ex. Pl-Will and who typed it. Learned counsel would further contend that N. Krishnamurthy being a film distributor and who was also running Lodges, if really intended to execute the Will would have called his friends to attest the Will. ............... 26. Learned counsel for Respondents 1 and 2 contended that absolutely no evidence is forthcoming as to who drafted Ex. Pl-Will and who typed it. Learned counsel would further contend that N. Krishnamurthy being a film distributor and who was also running Lodges, if really intended to execute the Will would have called his friends to attest the Will. In this regard, learned counsel for Respondents 1 and 2 placed reliance upon (1977) 1 SCC 369 [Smt. Jawant Kaur v. Smt. Amrit Kaur and others] wherein the Supreme Court held as under:- "No evidence has been led as to who drafted the will, it being in legal jargon and who typed it. Neither is the place of execution mentioned. The will also lacks in description of the extensive properties allegedly bequeathed to the defendant. The inclusion of strangers as attesting witnesses is intriguing. The utter improbability of the testator accosting two strangers for getting his will attested and the fundamental contradictions in their evidence render it impossible to hold that they attested the will at the instance of the testator as alleged. A man of importance that the testator was, he could not ever have left the validity of his will to depend on the umpredictable attitude of unknown elements. Non-disclosure of the existence of the will by the attesting witnesses confirms the suspicion. Again the non examination of the executors of the will raises further doubt. Since executors of a will are usually consulted, ignorance of the executors as to the existence of the will further makes it doubtful. Moreover the will is unnatural and unfair in ignoring the testator's other descendants then existing. No evidence has been led to support the reason for exclusion of the plaintiff wife from any benefit. It seems difficult to believe that a person in the position of the testator who was possessed of a large estate, would disinherit so many of his near relatives including his wife and shower his bounty on the grandson, to the exclusion of everyone else. These circumstances are sufficient to discard the will. The defendant failed to discharge the heavy onus which lay on him of explaining the suspicious circumstances surrounding the execution of the will and of establishing that the document which he propounded was the last will and testament of his grandfather." 12. These circumstances are sufficient to discard the will. The defendant failed to discharge the heavy onus which lay on him of explaining the suspicious circumstances surrounding the execution of the will and of establishing that the document which he propounded was the last will and testament of his grandfather." 12. The learned Senior Counsel also relied upon a judgment of Honourable Supreme Court in the case of S.R. Srinivasa and others vs S. Padmavarthamma, reported in 2010(5)-SCC-274. Referring to earlier judgment of Honourable Supreme Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma and others, and some other judgments of Honourable Supreme Court, it has been held that the Will in that case was held to be not proved. Paragraph 38 of the judgment is relevant and hence the same is extracted below: 38. In the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, [1959 Supp (1) SCR 426] Gajendragadkar J. stated the true legal position in the matter of proof of Wills. The aforesaid statement of law was further clarified by Chandrachud J. in the case of Jaswant Kaur v Amrit Kaur [ (1977) 1 SCC 369 ] as follows: "1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. 2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. 3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. 4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. 5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. 6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. 6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter." 13. In the same judgment, the Honourable Supreme Court has further held in paragraphs 60 and 63, which as follows: "60. The High court ought to have taken great care to satisfy its judicial conscience that the execution of the Will was not surrounded by suspicious circumstances. The Appellate Court had pointed out so many suspicious circumstances which could not have been brushed aside as being conjectural. The findings were based on documentary evidence. It was necessary for the defendant No. 1 to answer a number of pertinent questions relating to the execution of the Will. 61. .................. 62. .................. 63. This Court in Iyengar case (supra) had clearly held that cases in which the execution of the Will is surrounded by suspicious circumstances, it may raise a doubt as to whether the testator was acting of his own free will. In such circumstances it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. The presence of suspicious circumstances makes initial onus heavier. Such suspicion cannot be removed by the mere assertion of the propounder that the Will bears signature of the testator or that the testator was in a sound and disposing state of mind at the time when the Will was made." 14. The learned Senior also relied upon the judgment of the Honourable Supreme Court in the case of Niranjan Umeshchandra Joshi vs. Mridula Jyoti Rao and others, reported in 2007(2)-CTC-172. In this judgment, the Honourable Supreme Court disbelieved the Will, as no reason was assigned as to why the testator has chosen only one of his legal heirs for giving the entire benefit of legacy. In the same judgment, the requirement of Section 63 of Indian Evidence Act, was also considered. Paragraphs 31 and 32 of the judgment are relevant, which read as follows: "31. In the same judgment, the requirement of Section 63 of Indian Evidence Act, was also considered. Paragraphs 31 and 32 of the judgment are relevant, which read as follows: "31. Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable. 32. 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. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document." 15. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document." 15. The learned Senior Counsel for the respondents, however, submitted as follows: (a) the trial Court in this case has found that the Will is not a genuine document by comparing the signature in the Will with the signatures found in Ex-A6 and Ex-A8 and on the ground that DW-3 and DW-4 have not spoken to satisfy the legal requirement of 63(c) of Indian Succession Act and by referring to certain suspicious circumstances. The lower appellate Court has reversed the judgment of the trial Court by holding that the execution of the Will had been proved in accordance with law and that the suspicious circumstances have been properly dispelled by giving cogent reasons. b) The signatures found in the Will has not been specifically denied by the plaintiffs either in the pleadings or during the evidence. The lower appellate Court has reversed the findings of the trial Court regarding genuineness of the Will. Since the burden lies on the person who dispute the signature to prove that the Will does not contain the signature of testator, the lower appellate Court is right in upholding the validity of the Will. c) The first defendant has filed a separate written statement supporting the case of her sons regarding the execution of the Will. Since the daughters are married, about 30 years back and they have sufficiently taken care of by her father, exclusion of all the daughters cannot be a suspicious circumstances. d) DW-3 and DW-4 satisfied the requirement of Indian Succession Act, as they have spoken to the effect that the testator has signed the document in their presence and that the witnesses have seen the testator signing the document. Since both the attesting witnesses have signed the document knowing the nature of document and the testator had seen the attesting witnesses affixing their signature in the Will, the legal requirement of Section 63(3) of Indian Succession Act is fully satisfied. Hence, the lower appellate Court is right in holding that the execution of the Will is proved in accordance with law. 16. Hence, the lower appellate Court is right in holding that the execution of the Will is proved in accordance with law. 16. Regarding suspicious circumstances, the learned Senior Counsel for the respondents submitted that the testator had entered into a sale agreement for the third item of the property even before the Will was executed. Since, they had already entered into a sale agreement, even before the execution of the Will, the property which was the subject matter of sale agreement was consciously omitted in the Will. Hence the non-inclusion one of the properties possessed by the testator cannot be a suspicious circumstance. The entire sale consideration received by the testator under Ex-A8 was given by the testator to his wife and it is an admitted. The testator was also confident about his sons that they will take care of his wife, namely, the first defendant. Further, the first defendant filed independent written statement accepting the Will. Hence the exclusion of mother in the Will cannot be a suspicious circumstance. 17. It is further contended that disinheritance/exclusion of the daughters cannot be the only basis for disbelieving Will. Since the daughters were given in married about 30 years ago and the daughters are well settled, the exclusion of daughters in the Will may not be a relevant fact to be considered. Merely because, the attesting witnesses are strangers, their evidence cannot be dispelled. Similarly, the fact that the mother has not attested the disputed Will is also explained by the learned Counsel for the respondents, by stating that the document Ex-A8 was executed by the testator, while he was traveling in Ambulance from Tuticorin to Sivakasi and that therefore, the first defendant, namely, the mother of plaintiff signed as an attesting witness in Ex-A8. It is pointed out that the mother has not signed any other document as an attestor. 18. The learned Senior Counsel for the respondents further stated that the second item of the suit property is D. No. 21A of North Cotton Road, Tuticorin. Since it is a residential house, wherein, the testator and his wife were residing, it is stated that the premises that was leased out to DW-2 was not the second item. Hence a wrong question was put to DW-2 and DW-2, without understanding the question, has stated that he has been paying rent to the mother, even after the death of the testator. Hence a wrong question was put to DW-2 and DW-2, without understanding the question, has stated that he has been paying rent to the mother, even after the death of the testator. The learned Senior Counsel for the respondents also submitted that DW-1 though in his deposition stated that his father was supporting them financially, the learned Senior Counsel for the respondents stated that it was a wrong understanding of a question as it is nobody's case that the father was supporting the sons. Again the non-production of the Will for effecting mutation in the revenue records was also sought to be explained by the learned Senior Counsel for the respondents that the revenue officials returned the Will as it was unregistered and that therefore there was no reference to the Will. 19. The learned Senior Counsel for the respondents further stated that mentioning of wrong address of the plaintiff cannot have any impact either believing or disbelieving the genuineness and the execution of the Will. He further stated that the event that happened subsequent to the execution of the Will cannot have any relevance to discredit the Will. The learned Senior Counsel for the respondents further stated that the testator belongs to a business community and that in that community, female heirs are not given any share. It was therefore, submitted that the suspicious circumstances are legitimately dispelled by the defendants in this case. 20. The learned Senior Counsel for the respondents relied upon the judgment of Honourable Supreme Court in the case of H. Venkatehala Iyengar vs B.N. Thimmarajamma and others reported in 2005-2-L.W. 89 : AIR-1959-SC-443 and submitted that the Will has to be proved like any other document and that the test to be applied is only the usual test of satisfaction of the prudent mind and that one cannot insist to prove with mathematical certainty. In the same judgment, the Honourable Supreme Court has held that suspicion cannot be removed by mere assertion that the Will contains the signature of the testator and that the testator was in a sound disposing state of mind and memory at the time when the will was made. Similarly, unnatural disinheritance has been accepted as a strong suspicious circumstance and that it cannot be explained merely by saying that the testator might have his own reason for excluding them. Similarly, unnatural disinheritance has been accepted as a strong suspicious circumstance and that it cannot be explained merely by saying that the testator might have his own reason for excluding them. No doubt it is stated in the said judgment that the allegation of fraud, coercion and uninfluence have to be proved by the person, who is disputing the Will. It is also observed by the Honourable Supreme Court that even in the absence of such pleas, the very circumstances surrounding the execution of Will may raise a doubt as to whether the testator was acting on his own free will and it would be part of the initial onus to remove such legitimate doubts. 21. The learned Senior Counsel for the respondents further relied upon a judgment of the Honourable Supreme Court in the case of Shashi Kumar Banerjee and others vs Subodh Kumar Banerjee and others, reported in CDJ 1963 SC-035, wherein, it has been held as follows: "17. Stress however has been laid on a slight discrepancy in the evidence of the two attesting witnesses as to the time of the execution of the will. According to Sambhunath the will is said to have been executed at about 3-0 p.m. and it took about 45 minutes for the testator to complete the will by filling up the blank spaces therein and correcting it here and there. Sambhunath's statement also is that he arrived about noon at the house of the testator and shortly thereafter Manmathanath Mookerjee arrived. On the other hand, the evidence of Manmathanath is that he arrived about noon 3-30 p.m. and thereafter the testator brought the will, filled up the blanks and made corrections in it and then the execution and attestation took place. So according to this statement the will must have been executed and attested at about 4-30 p. m. Further, according to Sambhunath Munshi, he stayed at the place for 2½ hours and Manmathanath Mookerjee came only a short time after he arrived. There is no doubt that there are these discrepancies as to time. But we are of opinion that the discrepancies are not so serious as to make us distrust the evidence of the two attesting witnesses. That evidence in substance shows that the will was executed and attested sometime in the afternoon of August 29, 1943. There is no doubt that there are these discrepancies as to time. But we are of opinion that the discrepancies are not so serious as to make us distrust the evidence of the two attesting witnesses. That evidence in substance shows that the will was executed and attested sometime in the afternoon of August 29, 1943. Sambhunath would place it somewhere between 1 p.m. and 3-30 p.m. while Manmathanath places it somewhere between 3 p.m. and 5 p.m. Considering that these witnesses were giving evidence almost 8 or 9 years after the execution of the will, this discrepancy in time is not so serious as to destroy the value of their evidence. In substance, it shows that the execution of the will took place in the afternoon according to both the witnesses; this is not a case where one witness says that execution took place in the morning while the other ways that it took place in the evening, which of course may introduce some infirmity in the evidence." 22. The learned Senior Counsel then relied on yet another judgment of this Court in the case of Mariammal and another vs. P. Indirani and others, reported in 2010(1)-CTC-652, wherein this Court has held that mere reduction or deprivation of share of a natural heir under Will will not throw suspicion and that such disinheritance can be considered while appreciating evidence and circumstances under which the testator chose to exclude a natural heir. 23. The learned Senior Counsel again relied upon another judgment of Honourable Supreme Court in the case of Sridevi and others vs Jayaraja Shetty and others reported in 2005-2-L.W. 89 : 2005(1) CTC-443 for the preposition that delay of 4 years in disclosing the Will itself will not affect the credibility of the Will. It is to be seen from the said judgment that the Will was made known to everyone who were present at the time of obeisance ceremony of the testator. 24. The learned Senior Counsel for the respondents also relied upon another judgment in the case of P.P.K. Gopalan Nambiar vs P.P.K. Balakrishnan Nambiar and others, reported in 1995-2-MLJ-87, wherein, the Honourable Supreme Court has held as follows: "5. ......It is trite that it is the duty of the propounder of the will to prove the will and to remove all the suspected features. ......It is trite that it is the duty of the propounder of the will to prove the will and to remove all the suspected features. But there must be real, germane and valid suspicious features and not fantasy of the doubting mind." 25. The learned Senior Counsel for the respondents further relied upon another judgment of Honourable Supreme Court in the case of Ramabai Padmakar Patil and others vs. Rukinibai Vishnu Vekhande and others, reported in 2004-1-L.W. 584 : (2003)-8-SCC-537. That is a case, where the testatrix bequeathed the entire property in favour of one of her daughters, who had become a widow at a very young age during the life time of her father. In the facts of the case, the Honourable Supreme Court has held as follows: "7. .....In our opinion, the fact that Smt. Yanumabai excluded all other daughter and gave the entire property to the plaintiff Smt. Ramabai could not be a ground to cast any doubt regarding the authenticity of the Will in the facts and circumstances of the case in hand. It is not a case of exclusion of a son who may have been living with the parents or looking after them. It is a case of making provision for a widowed daughter who had been left a destitute on account of death of her husband at a very early age. If the parental property was to be divided equally amongst all the seven sisters, the share inherited by Smt. Ramabai would have been quite small making it difficult for her to survive. The house is situate in a village and is not in a big town or city where it may have any substantial value. In fact, if the background in which the Will was executed is examined carefully, it would be apparent that this was the most natural conduct of the mother and giving of equal shares to all the daughters would have entailed a serious hardship to the plaintiff Smt. Ramabai." 26. The learned Counsel for the respondents also relied upon another judgment of Honourable Supreme Court in the case of Maheshkumar vs Vinothkumar and others, reported in (2012)-4-SCC-387, wherein the Honourable Supreme Court has held as follows: "48. The fact that the appellant was present at the time of execution of Will dated 10.2.1992 and that the testator did not give anything to respondent Nos. The fact that the appellant was present at the time of execution of Will dated 10.2.1992 and that the testator did not give anything to respondent Nos. 1 and 2 from his share in the joint family property are not decisive of the issue relating to genuineness or validity of the Will. The evidence produced by the parties unmistakably show that respondent No. 2 had separated from the family in 1965 after taking his share and respondent No. 1 also got his share in the 2nd partition which took place in 1985. Neither of them bothered to look after the parents in their old age. 49. The attitude of respondent Nos. 1 and 2 left Shri Harishankar and his wife with no choice but to live with the appellant, who along with his wife and children took care of the old parents and looked after them during their illness. Therefore, there was nothing unnatural or unusual in the decision of Shri Harishankar to give his share in the joint family property to the appellant. Any person of ordinary prudence would have adopted the same course and would not have given anything to the ungrateful children from his/her share in the property." 27. The learned Senior Counsel for the respondents further relied upon the judgment of this Court in the case of G. Seeni and another vs Avudaiammal and others, reported in 2018(1) MWM (Civil) 493. Wherein, this Court has held that small discrepancies cannot affect the credibility of witness, unless there are other strong circumstances. 28. From the judgments relied upon by both sides, it is settled that if there are suspicious circumstances, the burden lies on propounder of the Will to dispel all the suspicious circumstances to the satisfaction of the Court keeping in mind the various principles and the legal position laid by the Honourable Supreme Court. This Court is able to see that the suspicious circumstances are not explained in this case and that it has not been established to the satisfaction of the Court that the Will was prepared and executed by the testator out of his own free will and volition, after knowing the contents of the Will. In this case, the unnatural disposition is one of the suspicious circumstances projected by the appellants. The fact that the testator has not left any property to his wife is not in dispute. In this case, the unnatural disposition is one of the suspicious circumstances projected by the appellants. The fact that the testator has not left any property to his wife is not in dispute. The explanation by the respondents that the entire sale consideration after selling another property under Ex-A8 is offered before this Court. First of all, it is not proved by any concrete evidence that the entire sale proceeds by selling yet another property was paid to the mother. Secondly, the sale deed under Ex-A8 was after the Will. At the time of execution of the Will, the testator would have given the property sold by him later to his wife under the Will. 29. The Will has been attested by strangers, who have no connection whatsoever to the family of the testator. The testator would have obtained the signature from his wife, as she is not a beneficiary of the Will and her signature will carry more weight. It is admitted that the testator's wife, namely, the first defendant has attested the sale deed under Ex-A8. Hence, it is probable that the Will came into existence without the knowledge of mother, the first defendant. It is stated by the respondents that the first defendant filed an independent written statement supporting the case of the respondents. It is only in the said written statement, she has stated that she was present at the time of execution of the Will. Mother was not examined as a witness. Mother is old and she could not have given instruction for filing written statement. This Court cannot accept the written statement filed by her before her death as solomon truth. 30. From the evidence of DW-1 and DW-2, it is seen that the father was helping the sons, namely, DW 1 and DW 2. After the execution of the alleged Will, it is stated by DW-2 that the father was admitted in hospital. After the father was discharged from the hospital, it is stated by DW-2 that the father was brought to house, in which the defendants 2 and 3 were residing. It is only thereafter, the father executed a sale deed under Ex-A8, dated 14.02.2005. It is admitted by DW-2 that two months thereafter, father died. As stated earlier, DW-2 has admitted that the father was giving money to the second defendant and his brother. It is only thereafter, the father executed a sale deed under Ex-A8, dated 14.02.2005. It is admitted by DW-2 that two months thereafter, father died. As stated earlier, DW-2 has admitted that the father was giving money to the second defendant and his brother. DW-2 also admitted that his father used to give money for his business. The Will was executed at a time, when the father and mother were residing in the house, which is shown as second item in the suit schedule. The alleged Will is dated 31.03.2004 and the father was living in his own house away from his sons. In Ex-B3 Will, it is stated that the testator and his wife are under the care and custody of their sons and they are spending money for his medical expenses and family expenses. It is not the case of the defendants 2 and 3 that they were taking care of their parents. Hence, the recital in the Will are artificial and contrary to the facts admitted. 31. When the defendants 2 and 3 are residing separately and the defendants 2 and 3 were getting money from their father for their business, the recital in the Will is contrary to facts and the testator cannot be the author of the Will. The father, who was always independent, would not voluntarily record that he is under the care and custody of his own children in his last Will. DW-1, in his cross examination admitted that his mother was receiving rent from the suit second schedule property. The second item of suit schedule is a house, in which the testator was residing along with his wife. From the evidence, it can be seen that the mother of DW-2 and DW-3, namely, the first defendant was residing with the defendants. It is only in respect of the suit second item, rent was received by the mother. However, during the arguments, the learned Senior Counsel for the appellants submitted that the second defendant has deposed that his mother was receiving rent from him in respect of suit second item under lease. This is by mistake and the deposition is clear that the mother was collecting rent from the second schedule property from the tenant and not from the second defendant for the property, which was leased out to him. This is by mistake and the deposition is clear that the mother was collecting rent from the second schedule property from the tenant and not from the second defendant for the property, which was leased out to him. If the Will was acted upon, there is no scope for the mother to receive rent for the suit second schedule. 32. Taking advantage of the stand taken by the learned Counsel appearing for the appellants, the learned Senior Counsel for the respondents submitted that a wrong question was put to DW-2 and that a wrong answer given by DW-2 without understanding the facts cannot be taken as an admission. Having regard to the position that the evidence of DW-1 has not been properly explained, this Court is inclined to accept the admission of DW-1 as a circumstance in favour of the plaintiffs, who disputed the genuineness of the Will. 33. The signature of the testator in the settlement deed under Ex-A6 and Ex-A7 is shaky. The testator had chosen to place his left thumb impression in the sale deed that was executed by him on 14.02.2005 under Ex-A8. It is also true that the signature of the testator found under Ex-B3 is clear, when comparing to the signatures found in Ex-A6 and Ex-A7. However, from this, it cannot be concluded that the signature of the testator in Ex-B3 is forged. Similarly, the Will was made in a single sheet and the signature of the testator found without leaving any space, after the contents of the Will. As a matter of fact, the alignment of signature goes along with the last line of the Will. However, it was pointed out by the learned Senior Counsel for the respondents that the testator was in the habit of putting up his signature without leaving any space and immediately after the contents. In the document, Ex-A6, this Court is able to see that there is some space. In all the documents, except, Ex-A7, the testator has put his signature giving sufficient space. In Ex-B3, the signature found above the last line and overlapping into the contents of the Will. So there is a possibility of concocting the Will by using the signature of the testator in a blank paper. The signatures found in Ex-A6 and Ex-A7 are more shaky than the signature found in Ex-B3. In Ex-B3, the signature found above the last line and overlapping into the contents of the Will. So there is a possibility of concocting the Will by using the signature of the testator in a blank paper. The signatures found in Ex-A6 and Ex-A7 are more shaky than the signature found in Ex-B3. This also gives rise to a suspicion about the genuineness of the Will. 34. The defendants 2 and 3 have not produced the Will for mutation of revenue records and for getting change of patta and sub division in their name regarding the properties, which are the subject matter of the Will. Notice issued to the plaintiffs gives an indication that wrong address has been shown. The learned Senior Counsel for the respondents, however, tried to explain this by referring to some evidence, which are neither pleaded nor spoken by DW-2 and DW-3. The way, in which the defendants 2 and 3 obtained patta, gives an indication about the conduct of defendants 2 and 3. 35. The description of the properties has been typed in Ex-B3 Will, without giving any space between the first item and second item. The description is not given with reference to boundaries. The description of the property gives an indication that the Will is not in respect of the entire property, which was in S. No. 506/1. However, the second item of the suit property is not fully described. It gives an indication that the Will might be prepared to save space and to complete the Will within the sheet used for framing the Will. The testator has executed two settlement deeds under Ex-A6 and Ex-A7 in favour of his two sons in 2003, just six months prior to Ex-B3. Had the intention of the testator was to give suit properties to his sons, he would have included the properties covered under the Will in the settlement deed. 36. Even in the settlement deeds, absolutely, there is no explanation as to why and how the testator excluded the daughters in the Will. Absolutely, there is no reason, why the testator should ignore his wife and daughters. Even, the residential house, in which the testator was residing with his wife has been given to defendants 2 and 3 under the Will. Though the mother has filed a, written statement supporting the case of the defendants, she was not examined as witness. Absolutely, there is no reason, why the testator should ignore his wife and daughters. Even, the residential house, in which the testator was residing with his wife has been given to defendants 2 and 3 under the Will. Though the mother has filed a, written statement supporting the case of the defendants, she was not examined as witness. Since, she died during the pendency of the suit, the case of plaintiffs that they came to know from mother that the father never left any Will is probable, having regard to the facts and circumstances and the attending circumstances. Regarding the proof of Will, the Court has to decide taking into account the overall circumstances and evidence adduced. In this case, the evidence adduced is not sufficient to dispel the suspicious circumstances. 37. The evidence of DW-2 and DW-3 in the chief examination do not satisfy the requirement of valid attestation. However, during cross examination, suggestion put by the plaintiffs' counsel were derived. Having regard to the evidence in this case, the disinheritance of plaintiffs and their mother, who is the first defendant, cannot be taken so lightly and it is a strong suspicions circumstances and there is no explanation why the testator would even ignore his wife. The Will need not be registered. However, the testator is a person, who granted lease in favour of defendants 2 and 3 by registered document. Though the Will was executed, in the year 2004, it did not see the light till the suit was filed. Even before the revenue authorities for getting patta in their favour, the defendants have not produced the Will. In such circumstances, the burden lies on the propounder of the Will to remove all the suspicious circumstance to the satisfaction of the Court. 38. The lower appellate Court, in this case, has not even considered the circumstances and relied upon the recitals of the Will to remove the suspicious circumstance. Merely because, the daughters were given in marriage long back, it is not a valid reasons to think that their father would ignore them, when executing a Will bequeathing all his properties. 38. The lower appellate Court, in this case, has not even considered the circumstances and relied upon the recitals of the Will to remove the suspicious circumstance. Merely because, the daughters were given in marriage long back, it is not a valid reasons to think that their father would ignore them, when executing a Will bequeathing all his properties. Though question regarding proof of Will is a fact, this Court is able to see that the lower appellate Court has not applied its mind to the various suspicious circumstances around the execution of Ex-B3, Will, before holding that the Will has been proved in the manner known to law. 39. The defendants 2 and 3 have failed to discharge their burden to dispel of the suspicious circumstances. The deposition of DW-3 and DW-4, the testator of the Will did not satisfy the legal requirement under Section 63(c) of the Indian Succession Act. However, accepting the evidence of DW-3, the lower appellate Court has reversed the findings of the trial Court, which are well founded without assigning reasons. The lower appellate Court has not even considered the findings of the trial Court regarding the genuineness of the Will. Therefore, this Court find that the findings of the lower appellate Court is perverse and ignoring several aspects particularly, the suspicious circumstances surrounding the Will. Hence, the substantial questions of law are answered in favour of the appellants. 40. As a result, the second appeal is allowed and the judgment and decree of the II Additional District Jude, Tuticorin in A.S. No. 8 of 2014 are set aside and the judgment and decree of the Subordinate Judge, Tuticorin in O.S. No. 141 of 2006 is restored. The suit in O.S. No. 141 of 2006 on the file of the Sub Court, Tuticorin stands decreed. No costs. Consequently, connected miscellaneous petition is closed.