JUDGMENT : PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code against the Judgment and Decree dated 10.01.2022 in A.S.No.4 of 2021 on the file of the Subordinate Court, Manapparai, reversing the Judgment and Decree dated 15.02.2012 in O.S.No.18 of 2006 on the file of the District Munsif Court, Manapparai. This Second Appeal has been filed challenging the judgment and decree of the Lower Appellate Court namely Sub Court, Manapparai dated 10.01.2022. The appellant is the plaintiff in the suit O.S.No.18 of 2006 on the file of the District Munsif Court, Manapparai. The respondents are the defendants in the said suit. The suit was filed for partition claiming 1/4th share in the suit schedule property. The appellant claims that she is the daughter born through the first wife of her father Pethan. The respondents 2, 3 and 4 are the children born through the second wife of Pethan. The first respondent is the son of the second respondent/first defendant. In the forthcoming paragraphs, the parties are described as per their litigative status in the suit. 2. In the suit, the first defendant alone has filed his written statement. The second defendant, who is the son of the first defendant, adopted the written statement of the first defendant. The defendants 3 and 4, who are the sisters of the first defendant, remained ex parte before the Trial Court. But, however, before the Lower Appellate Court, they entered appearance and sailed along with Ponnusamy, the first defendant in the suit. The first defendant in the suit, who had filed the written statement which is adopted by the second defendant, had pleaded that Pethan, his father, had executed a Will dated 12.06.1990 by which Jothi Ponnarasu his son, namely, the second defendant was the sole beneficiary in respect of the suit schedule property. It is also pleaded in the written statement of the first defendant that the plaintiff along with the third and fourth defendants, who are his sisters, have released their share in the suit schedule property by executing a release deed in his favour. The plaintiff has however denied that she had executed any release deed in favour of Ponnusamy, the first defendant and has also disputed the Will, which is alleged to have been executed in favour of the second defendant, the alleged beneficiary. 3. The plaintiff has however denied that she had executed any release deed in favour of Ponnusamy, the first defendant and has also disputed the Will, which is alleged to have been executed in favour of the second defendant, the alleged beneficiary. 3. Based on the pleadings of the respective parties, issues were framed by the Trial Court, which are as follows: a) Whether the plaintiff is entitled for partition as prayed for in the plaint?; b) Whether the plaintiff is entitled for future damages for the alleged unlawful use and occupation of the suit schedule property by the defendants?; c) To what other reliefs?; 4. Before the Trial Court, on the side of the plaintiff, six documents were filed which were marked as exhibits A1 to A6, which are as follows: (i) Ex.A1 dated 02.05.1953 - Sale deed executed by Kaveri Chettiyar in favour of Pethan; (ii) Ex.A2 dated 18.04.2005 - Patta No.529 standing in the name of Ponnusamy; (iii) Ex.A3 dated 19.05.2005 - Legal notice issued by the plaintiff; (iv) Ex.A4 - Acknowledgment card; (v) Ex.A5 – 07.06.2005 - Reply notice sent by the first defendant; 22.03.2006 - Certified copy of the mortgage deed; (vi) Ex.A6 - Licence of the document writer, Chindhamani. On the side of the plaintiff, three witnesses were examined, namely, the plaintiff herself as P.W.1, Chindhamani, the alleged scribe of the Will as P.W.2 and Rengaraj, Panchayat Clerk as P.W.3. On the side of the defendants, three documents were filed which were marked as exhibits B1 to B3, which are as follows: (i) Ex.B1 dated 07.01.2010 – Patta No.529 standing in the name of Ponnusamy; (ii) Ex.B2 – Assessment tax receipts (13 in number) standing in the name of Ponnusamy; (iii) Ex.B3 dated 12.06.1990 – Will executed by Pethan. Three witnesses were examined on the side of the defendants, namely, D.W.1 – Ponnusamy, the first defendant in the suit, D.W.2 and D.W.3, namely, Mookan and Krishnan respectively, who are the alleged attesting witnesses to the disputed Will (Ex.B3). Apart from the above mentioned documents, Ex.X1, namely, Chitta standing in the name of the first defendant was marked through P.W.3, the Record Clerk. 5. Apart from the above mentioned documents, Ex.X1, namely, Chitta standing in the name of the first defendant was marked through P.W.3, the Record Clerk. 5. Based on the oral and documentary evidence, the Trial Court had decreed the suit in favour of the plaintiff by granting a preliminary decree of partition in respect of her 1/4th share in the suit schedule property by its judgment and decree dated 15.02.2012. Aggrieved by the same, the second defendant in the suit O.S.No.18 of 2006 preferred a first appeal before the Sub Court, Manapparai in A.S.No.4 of 2021. The Lower Appellate Court however reversed the findings of the Trial Court by dismissing the suit in O.S.No.18 of 2006 on the ground that the Will dated 12.06.1990 (Ex.B3) has been proved by the defendants to be genuine and there are no suspicious circumstances surrounding it. Aggrieved by the judgment and decree passed by the Sub Cout, Manapparai in A.S.No.4 of 2021 dated 10.01.2022, the plaintiff in the suit O.S.No.18 of 2006 has filed this Second Appeal. 6. This Court on 09.09.2022 admitted the Second Appeal by formulating the following substantial questions of law: (i) Whether the evidence of D.W.2 and D.W.3, who have failed to even identify the signature of the testator in Ex.B3 'Will' before the Court except making a general statement about execution and attestation of the 'Will', satisfies Section 63 (c) of Indian Succession Act? (ii) Whether the First Appellate Court is justified in overlooking the conduct of the 1st defendant in asserting title himself as evidence by various documents Ex.A5, Ex.B1 that create serious doubts about the existence of the Will from 1990 to 2005, sustainable in law?” 7. Heard, Mr.H.Lakshmi Shankar, learned counsel for the appellant and Mr.G.Aravinthan, learned counsel, representing M/s.E.Kasthuri, for the first and second respondents. 8. The learned counsel for the appellant would submit as follows: a) There are several contradictions in the pleadings of the defendants. He would point out from the written statement filed by the defendants that the pleadings are inconsistent and self contradictory. He would submit that the defendants cannot rely upon the Will in which the second defendant is the beneficiary and at the same time, cannot rely upon the release deed alleged to have been executed by the sisters of the first defendant releasing their rights absolutely in respect of the suit schedule property in favour of the first defendant. He would submit that the defendants cannot rely upon the Will in which the second defendant is the beneficiary and at the same time, cannot rely upon the release deed alleged to have been executed by the sisters of the first defendant releasing their rights absolutely in respect of the suit schedule property in favour of the first defendant. He would submit that if the Will is relied upon, the question of a release deed executed by the sisters of the first defendant, namely, the defendants 3 and 4, in favour of the first defendant will not arise and therefore, it is very clear that only for the purpose of unlawfully excluding the right of the plaintiff over the suit schedule property, a fabricated Will has been produced by the defendants in the suit; b) He would also submit that there is no dispute that the plaintiff is the daughter born through the first wife of Pethan and the defendants 1, 3 and 4 are the children born through the second wife of Pethan. He would submit that the defendants, as seen from their pleadings and deposition, have also not disputed the same and it is an undisputed fact; c) He also drew the attention of this Court to the deposition of the scribe to the alleged Will (P.W.2) and would submit that as seen from his deposition, he became a document writer only in the year 1993, whereas, the Will is executed in the year 1990 itself. He would also submit that as seen from P.W.2's (Scribe's) deposition, the place of execution of the subject Will is outside the Taluk office, whereas, D.W.2 and D.W.3, the attesting witnesses have deposed that the Will was executed in the Sub Registrar's office, which contradicts the statement of P.W.2. He would also submit that if the subject Will was executed in the Sub Registrar's office, the same could have very well been registered. But admittedly, the Subject Will is an unregistered document. He would also submit that if the subject Will was executed in the Sub Registrar's office, the same could have very well been registered. But admittedly, the Subject Will is an unregistered document. Hence, the execution of the Will is unbelievable and therefore the Lower Appellate Court ought to have confirmed the findings of the Trial Court, which had correctly rejected the Will based on which the defendants staked their false claim that the plaintiff is not entitled for any share in the suit schedule property; d) The learned counsel for the appellant would also submit that the defendants have also not satisfied the requirements of Section 63 (c) of the Indian Succession Act as the defendants have not identified the signature of the testator (Pethan) in the document (Will) which is mandatory as per the said Section; e) The second defendant, who is the beneficiary under the subject Will and is a propounder of the Will, has not been examined as a witness by the defendants and therefore, according to the learned counsel for the appellant, adverse inference will have to be drawn against the defendants. Hence, according to him, the Will has not been proved by the defendants in accordance with law; f) It is further submitted by the learned counsel for the appellant that D.W.2 and D.W.3 are strangers to Pethan as even according to them, as seen from the deposition, they know only the first defendant (Ponnusamy). Hence, the execution of the Will by Pethan is unbelievable according to the learned counsel for the appellant; g) The learned counsel for the appellant would further submit that the defendants can either rely upon the Will or rely upon the release deed executed by the sisters in favour of the first defendant. But in the written statement, they have relied upon both the documents and they have also pleaded ouster of the plaintiff in respect of the suit schedule property, which is self-contradictory and therefore, it is clear that the Will was never executed by Pethan in favour of the second defendant in the suit. According to him, all the aforementioned factors will clearly reveal that the suit ought to have been decreed in favour of the plaintiff as rightly held by the Trial Court. 9. According to him, all the aforementioned factors will clearly reveal that the suit ought to have been decreed in favour of the plaintiff as rightly held by the Trial Court. 9. The learned counsel for the appellant has relied upon the following authorities: a) a decision of the Hon'ble Supreme Court in the case of Jagdish Singh Vs. Madhuri Devi reported in (2008) 10 SCC 497 ; b) a decision of the Hon'ble Supreme Court in the case of Vidhyadhar Vs. Manikrao and others reported in AIR 1999 SC 1441 ; c) a decision of the Hon'ble Supreme Court in the case of Adivekka and others Vs. Hanamavva Kom Venkatesh (Dead) by LRs and others reported in AIR 2007 SC 2025 ; d) a decision of this Court in the case of Govindan Chettiar Vs. Akilandam reported in 1997 (3) LW 673 ; e) a decision of the Hon'ble Supreme Court in the case of H.Venkatachala Iyengar Vs. B.N.Thimmajamma and others reported in AIR 1959 SC 443 . 10. Per contra, the learned counsel for the respondents 1 and 2 would submit that the Will dated 12.06.1990 (Ex.B3) has been proved as a genuine Will as per Section 63(c) of the Indian Succession Act, 1925. He would submit that both the attesting witnesses to the Will were examined as witnesses before the Trial Court and only in accordance with Section 63(c) and the Indian Evidence Act, the Will came to be proved as held by the judgment and decree of the Lower Appellate Court. 11. The learned counsel for the respondents 1 and 2 would submit that at the time of execution of the Will, the second defendant in the suit, who is the beneficiary under the said Will, was a minor. He would further submit that unknowingly the second defendant has adopted the written statement of the first defendant, who is the father of the second defendant, before the Trial Court. Therefore, he would submit that the second defendant was not aware about the execution of the release deed by the other sisters, namely, the third and fourth defendants in favour of the first defendant, who is his father. Therefore, according to him, the Will dated 12.06.1990 overrides the release deed executed by the sisters. 12. Therefore, he would submit that the second defendant was not aware about the execution of the release deed by the other sisters, namely, the third and fourth defendants in favour of the first defendant, who is his father. Therefore, according to him, the Will dated 12.06.1990 overrides the release deed executed by the sisters. 12. However, the learned counsel for the appellant would submit that the first defendant while availing a loan by mortgaging the suit schedule property by way of memorandum of deposit of title deeds (Ex.A5) had relied upon the release deed for the purpose of claiming title over the suit schedule property. 13. The learned counsel for the respondents 1 and 2 relied upon the following authorities in support of his submissions: a) a judgment of the Hon'ble Supreme Court in the case of Daulat Ram and others Vs. Sodha and others reported in 2004 (5) CTC 790 ; b) a judgment of the Hon'ble Supreme Court in the case H.Venkatachala Iyengar Vs. B.N.Thimmajamma and others reported in AIR 1959 SC 443 of Savithri and others Vs. Karthyayani Amma and others reported in (2007) 11 SCC 621 ; c) a judgment of the Hon'ble Supreme Court in the case of Sridevi and others Vs. Jayaraja Shetty and others reported in AIR 2005 SC 780 . The aforesaid decisions were relied upon for the purpose of the respondents' contention that the Will dated 12.06.1990 in which the second defendant is the beneficiary has been duly proved as rightly held by the judgment and decree of the Lower Appellate Court. 14. The appellant has also filed an application under Order 41 Rule 27 CPC for receiving the release deed dated 26.04.2004 as additional evidence. The learned counsel for the appellant while referring to the same would submit that in the release deed, as seen from the recitals, it has been stated that the deceased Pethan apart from the defendants 1, 3 and 4 did not have any other legal heirs, though in the written statement filed by the defendants 1 and 2, they have admitted that the plaintiff is a legal heir as she is the daughter born through the first wife of the deceased Pethan. Therefore, he would contend that the contentions of the respondents are absolutely false and the Lower Appellate Court has erroneously misdirected itself by wrongly appreciating the pleadings and evidence available on record by erroneously coming to the conclusion that the Will dated 12.06.1990 is a genuine Will. Discussion: 15. Before deciding the issue as to whether the Will (Ex.B3) dated 12.06.1990, executed by Pethan, is a genuine will or not, the following undisputed facts as seen from the pleadings and evidence available on record are to be noted: a) The plaintiff is the daughter born through first wife of Pethan and the defendants 1, 3 and 4 are the children born through the second wife of Pethan; b) The plaintiff and the defendants 1, 3 and 4 are the legal heirs of the deceased Pethan; c) In the written statement filed by the first defendant and adopted by the second defendant, who is his Son and the beneficiary under the disputed Will (Ex.B3) dated 12.06.1990, they have pleaded that the plaintiff and the defendants 3 and 4 have relinquished their respective shares in the suit schedule property in favour of the first defendant under a release deed. The defendants 3 and 4 are the sisters of the first defendant; d) No release deed was filed by the defendants and was marked as an exhibit before the Trial Court to prove that the plaintiff and the defendants 3 and 4 have released their respective shares in the suit schedule property in favour of the first defendant; e) The defendants 3 and 4, who are the sisters of the first defendant remained exparte before the Trial Court as well as in the Lower Appellate Court. They were also not examined as witnesses before the Trial Court; f) The second defendant who is the son of the first defendant and the beneficiary under the Will (Ex.B3) dated 12.06.1990 was not examined as a witness before the Trial Court. The second defendant has also adopted the written statement of his father viz., the first defendant in the suit. The second defendant has also adopted the written statement of his father viz., the first defendant in the suit. The first defendant in the suit, in his written statement, has relied upon both the Will (Ex.B3) dated 12.06.1990 as well as the alleged release deed said to have been executed by the plaintiff and the defendants 3 and 4 in his favour for the purpose of establishing his claim that the plaintiff does not have any share in the suit schedule property subsequent to her alleged relinquishment in favour of the first defendant through a release deed along with defendants 3 and 4; g) The registered release deed dated 26.04.2004, which the Appellant/plaintiff seeks to rely upon by marking the same as an additional evidence under Order 41 Rule 27 of C.P.C., discloses in its recitals that Pethan died leaving behind only the defendants 1, 3 and 4 as his legal heirs. But whereas, in the written statement filed by the first defendant and adopted by the second defendant, both of them have admitted that the plaintiff, who is the daughter of Pethan born through his first wife, is also a legal heir along with the defendants 1, 3 and 4; h) Pethan, the father of the plaintiff and the defendants 1, 3 and 4 died on 19.11.1990; i) The first defendant has availed a loan from the bank on 22.03.2006 by mortgaging the suit schedule property by deposit of title deeds, disclosing that he is the owner of the suit schedule property and did not disclose to the bank that there is a Will (Ex.B3) dated 12.06.1990 under which the second defendant is the beneficiary. 16. The Judgments relied upon by the learned counsel for the Appellant/Plaintiff referred to supra as well as the recent Judgment of the Honourable Supreme Court in the case of Kavita Kanwar Vs. 16. The Judgments relied upon by the learned counsel for the Appellant/Plaintiff referred to supra as well as the recent Judgment of the Honourable Supreme Court in the case of Kavita Kanwar Vs. Pamela Mehta reported in 2021 (11) SCC 209 lays down the following principles which govern the adjudicatory process concerning the proof of Wills: a) Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of a prudent mind and proof of mathematical accuracy is not to be insisted upon; b) Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence; c) The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will; d) However, presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator; e) If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion etc., in regard to the execution of the Will, such pleas have to be proved, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter; f) A circumstance is “suspicious” when it is not normal or is ‘not normally expected in a normal situation or is not expected of a normal person’. The suspicious features must be ‘real, germane and valid’ and not merely the ‘fantasy of the doubting mind.’; g) As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder etc., are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation; h) The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?; i) In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.” 17. The plaintiff was examined as P.W.1. The alleged scribe of the disputed Will (Ex.B3) dated 12.06.1990 was examined on the plaintiff's side as P.W.2. The Record Clerk from the Revenue Department was examined as P.W.3. On the side of the defendants, the first defendant was examined as D.W.1. The plaintiff was examined as P.W.1. The alleged scribe of the disputed Will (Ex.B3) dated 12.06.1990 was examined on the plaintiff's side as P.W.2. The Record Clerk from the Revenue Department was examined as P.W.3. On the side of the defendants, the first defendant was examined as D.W.1. The alleged attestors to the Will (Ex.B3) dated 12.06.1990 viz., Mookan and Krishnan were examined as D.W.2. and D.W.3 respectively. The second defendant, who is the beneficiary under the Will (Ex.B3) was not examined as a witness by the defendants and he has also adopted the written statement of the first defendant who is his father. 18. While decreeing the suit in favour of the plaintiff, the Trial Court viz., the District Munsif Court, Manapparai by its Judgment and Decree dated 15.02.2012 in O.S.No.18 of 2006, rejected the Will (Ex.B3) in which the second defendant is the beneficiary by giving the following findings: a) In the alleged Will (Ex.B3) dated 12.06.1990, Pethan, the testator, has not disclosed as to why the suit schedule property is bequeathed exclusively to his grand son, viz., the second defendant; b) The statements made in the deposition of D.W.2 (attesting witness) are contradictory. In his cross examination, he has deposed that after he had signed the Will (Ex.B3), he does not know who else had signed the Will, but whereas, in his proof affidavit, D.W.1 has stated that D.W.2 had also signed the Will. During the cross examination, D.W.1 has also stated that he has not read the Will (Ex.B3), but, he has only signed the same. D.W.1 has also stated during his cross examination that he does not know as to whether anybody else had signed the Will (Ex.B3). During the cross examination, D.W.1 has also stated that he has not read the Will (Ex.B3), but, he has only signed the same. D.W.1 has also stated during his cross examination that he does not know as to whether anybody else had signed the Will (Ex.B3). He has also stated that when he had signed the document, the Will was already written; c) During the cross examination, D.W.3, the other attesting witness had stated that he and Mookan (D.W.2) signed the Will (Ex.B3) and before they had signed, Pethan (Testator) had put his signature; d) During his cross examination, the first defendant (D.W.1) has admitted that the plaintiff has not released his share in favour of the first defendant, which contradicts the pleadings, as found in the written statement, where the first defendant has pleaded that the plaintiff and the defendants 3 and 4 have relinquished their shares in the suit schedule property in favour of the first defendant; e) During his cross examination, the first defendant (D.W.1) has admitted that, on 22.03.2006, he had mortgaged the suit schedule property disclosing that he is the owner of the property and had availed a loan from a bank. D.W.1 has also admitted that he did not disclose to the bank that the property belongs to the second defendant as per the Will (Ex.B3) of Pethan. D.W.1 has also admitted that he did not disclose to the bank that the property belongs to the second defendant as per the Will (Ex.B3) of Pethan. D.W.1 has also admitted that he did not disclose to the bank that only for the benefit of his minor son (the second defendant), he has availed the loan and he has not disclosed that he is acting as a natural guardian for his minor son (the second defendant); f) D.W.1 has also admitted in his cross examination that he has not disclosed to the bank while availing the loan, the Will (Ex.B3) dated 12.06.1990; g) The patta (Ex.B1) stands only in the name of the first defendant and does not stand in the name of the second defendant, who is the beneficiary under the Will (Ex.B3); h) When the first defendant alleges that there is a Will (Ex.B3) dated 12.06.1990 executed by Pethan, there is no necessity for him to contend in his written statement that the plaintiff and the defendants 3 and 4 have executed a release deed in his favour for relinquishing their respective shares in the suit schedule property; i) P.W.2, in his deposition, has deposed that he was born on 08.05.1966 and he has deposed that on the date of his deposition he was 45 years old. However, during their cross examination, D.W.2 and D.W.3 have stated that the scribe to the Will (Ex.B3) was aged 45 years when they had prepared the Will (Ex.B3) dated 12.06.1990 which creates suspicion as regards the genuineness of the will; j) During his cross examination, D.W.1 has admitted that excepting for the suit schedule property, his father viz., Pethan did not own any other property. He has also admitted that only through the Will (Ex.B3), he has been in enjoyment of the suit schedule property. Therefore, the question of ouster of the plaintiff and the defendants 3 and 4 in respect of the suit schedule property will not arise; k) Plea of adverse possession cannot be accepted when plea of ownership based on title is pleaded by party claiming adverse possession. 19. Therefore, the question of ouster of the plaintiff and the defendants 3 and 4 in respect of the suit schedule property will not arise; k) Plea of adverse possession cannot be accepted when plea of ownership based on title is pleaded by party claiming adverse possession. 19. By rendering the above mentioned findings, the Trial Court on the ground that since the Will (Ex.B3) dated 12.06.1990 is surrounded by suspicious circumstances, has rejected the genuineness of the Will and held that the suit schedule property is a joint family property belonging to the plaintiff and defendants 1, 3 and 4 and not the exclusive property of the second defendant, the son of the first defendant, who claims that he is the beneficiary under the rejected Will (Ex.B3) dated 12.06.1990. Accordingly, the Trial Court viz., the District Munsif Court, Manapparai in its Judgment and Decree dated 15.02.2012 in O.S.No.18 of 2006 passed a preliminary decree in favour of the plaintiff for partition by granting her 1/4th share in the suit schedule property. 20. Aggrieved by the Judgment and Decree of the Trial Court, the second defendant, the alleged beneficiary under the disputed Will (Ex.B3) dated 12.06.1990, alone filed the first Appeal before the Lower Appellate Court viz., the Sub Court, Manapparai in A.S.No.4 of 2021. It is to be noted that the remaining defendants in the suit chose not to file an Appeal. But, they were arrayed as respondents in the first Appeal in A.S.No.4 of 2021. The Lower Appellate Court by its Judgment and Decree dated 10.01.2022 in A.S.No.4 of 2021 allowed the first Appeal filed by the second defendant in the suit by holding that there are no suspicious circumstances surrounding the subject Will (Ex.B3). But, they were arrayed as respondents in the first Appeal in A.S.No.4 of 2021. The Lower Appellate Court by its Judgment and Decree dated 10.01.2022 in A.S.No.4 of 2021 allowed the first Appeal filed by the second defendant in the suit by holding that there are no suspicious circumstances surrounding the subject Will (Ex.B3). The Lower Appellate Court held as follows: a) The Will has been proved through the evidence of the attesting witnesses, viz., D.W.2 and D.W.3 and that of the scribe, P.W.2; b) The contradictions/discrepancies in the evidence of P.W.2, D.W.2 and D.W.3 are due to the long passage of time between the date of the Will (Ex.B3) and the date of their deposition; c) The first defendant has proved the genuineness of the Will (Ex.B3) in accordance with the provisions of Section 63 of the Indian Succession Act as well as Section 68 of the Indian Evidence Act by examining the two attesting witnesses (D.W.2 and D.W.3) as well as through the evidence of P.W.2, the scribe of the Will (Ex.B3), by holding that the Will (Ex.B3) is a genuine will and is not surrounded by suspicious circumstances. 21. The Lower Appellate Court reversed the findings of the Trial Court by allowing the first Appeal and by dismissing the suit filed by the plaintiff. Aggrieved by the Judgment and Decree dated 10.01.2022 passed by the Lower Appellate Court, viz., the Sub Court, Manapparai in A.S.No.4 of 2021, the plaintiff in the suit has filed the Second Appeal. 22. It is to be noted that only for the first time, after the plaintiff issued the legal notice on 19.05.2005 (Ex.A3), seeking for partition of her 1/4th share in the suit schedule property, the first defendant in his reply dated 07.06.2005 (Ex.A5) refers to the existence of an unregistered Will executed by the deceased Pethan during his life time. Pethan died on 19.11.1990. Only for the first time, after almost 15 years after his death, the first defendant has intimated the plaintiff through his reply notice dated 07.06.2005 (Ex.A5) that there exists a Will executed by Pethan, which extinguishes the plaintiff's right to claim a share in the suit schedule property. Pethan died on 19.11.1990. Only for the first time, after almost 15 years after his death, the first defendant has intimated the plaintiff through his reply notice dated 07.06.2005 (Ex.A5) that there exists a Will executed by Pethan, which extinguishes the plaintiff's right to claim a share in the suit schedule property. The fact that the first defendant has informed the plaintiff only after the lapse of 15 years from the date of the death of Pethan that there exists a Will executed by Pethan is unnatural and highly suspicious, that too when the Will is an unregistered Will. 23. The Revenue records were mutated by the first defendant after the death of his father Pethan in his name as seen from the evidence of P.W.3. If the Will is a genuine Will, then the first defendant would have sought for patta mutation after his father's death in the name of his son, viz., the second defendant, who is the beneficiary under the said Will, by furnishing a copy of the Will to the Tahsildhar. Admittedly, this did not happen. Therefore, this is one more suspicious circumstance surrounding the Will (Ex.B3). 24. The first defendant has admittedly executed a Memorandum of deposit of title deed dated 22.03.2006 in favour of a Bank for securing a loan availed by him. It is marked as Ex.A5 along with a reply notice. Ex.A5 is a registered document which was registered after the institution of the suit by the plaintiff. The Memorandum of deposit of title deeds (Ex.A5) does not disclose that there is an existing Will (Ex.B3) by which the second defendant is the beneficiary. In the Memorandum of deposit of title deeds, executed in favour of the bank, the first defendant has claimed that the suit schedule property is his absolute property. Hence, an adverse inference can be drawn that the Will (Ex.B3) is a fabricated Will. 25. In the Memorandum of deposit of title deeds (Ex.A5) dated 22.03.2006, executed in favour of the bank by the first defendant, the registered partition release deed dated 26.04.2004 executed by the defendants 3 and 4 in favour of the first defendant is mentioned and it is also deposited with the bank along with patta passbook and other documents. 25. In the Memorandum of deposit of title deeds (Ex.A5) dated 22.03.2006, executed in favour of the bank by the first defendant, the registered partition release deed dated 26.04.2004 executed by the defendants 3 and 4 in favour of the first defendant is mentioned and it is also deposited with the bank along with patta passbook and other documents. If the Will (Ex.B3) was in existence and the suit property as per the Will belonged to the second defendant, then the release deed could not have been executed, as there was no necessity. The release deed is dated 26.04.2004, nearly 14 years from the death of Pethan. But the said release deed was not marked as an exhibit before the Trial Court. Release deed was also not produced by the defendants during the Trial. On the contrary, it is only the Appellant, who has filed an application in the Second Appeal in C.M.P.(MD).No.8168 of 2022, seeking permission of this Court to receive the release deed dated 26.04.2004 as an additional evidence under Order 41 Rule 27 of C.P.C. As seen from the registered release deed dated 26.04.2004, the existence of the plaintiff is suppressed and the recitals to the said release deed states that "after the death of their father on 19.11.1990, the first defendant and the defendants 3 and 4 have inherited the suit property as his legal heirs and they are releasing their share in favour of the first defendant". Therefore, it is clear that the Will (Ex.B3) cannot be a genuine Will. The document produced by the first defendant to the bank for availing the loan does not also disclose that the Will (Ex.B3) was produced by him. The first defendant has suppressed the Will (Ex.B3) before the bank and therefore, it is clear that only to prevent the plaintiff from staking her legitimate claim over the suit schedule property, the Will (Ex.B3) has been fabricated by the defendants. 26. In the written statement filed by the first defendant and adopted by the second defendant, they have relied upon both the Will (Ex.B3) as well as the alleged release deed executed by the plaintiff and the defendants 3 and 4 in favour of the first defendant for the purpose of unlawfully extinguishing the plaintiff's right to stake claim over the suit schedule property as a legal heir for the deceased Pethan. If there is a genuine Will (Ex.B3), there was no necessity for the defendants to rely upon the release deed which will clearly show that they have taken a vacillating and an inconsistent stand to deprive the legitimate right of the plaintiff, who is admittedly the daughter born through the first wife of the deceased Pethan to stake claim as a sharer over the suit schedule property. During his cross examination, D.W.1 (the first defendant) has also admitted that the plaintiff never released her share in the suit schedule property by executing a release deed in favour of the first defendant. But in the written statement of the defendants 1 and 2, the statement of D.W.1 (first defendant) is contradictory as he states that the plaintiff and the defendants 3 and 4 had executed a release deed in favour of the first defendant. 27. The first defendant has also raised a plea of ouster against the plaintiff. Such a plea clearly implies that the plaintiff's share is admitted. By taking the plea of ouster against the plaintiff, the Will (Ex.B3) can be held to be not a genuine Will, but a fabricated Will, to illegally oust the plaintiff from claiming any share in the suit schedule property. The plea taken by the defendants that the plaintiff has released her right in favour of the first defendant contradicts the plea of ouster. They are mutually inconsistent pleas. Both this pleas are completely destructive to the plea that the second defendant has got title over the suit schedule property under the Will (Ex.B3). Both the first defendant and the second defendant cannot have title over the property at the same time, which will prove the falsification of the Will (Ex.B3). The Lower Appellate Court in its Judgment and Decree dated 10.01.2022 passed in A.S.No.4 of 2021 has completely overlooked the aforementioned vital aspects by ignoring the evidence available on record. On the other hand, this Court is of the considered view that the Trial Court has rightly appreciated the evidence available on record and has rightly analysed all the aspects and has rightly disbelieved the Will (Ex.B3) on the ground that it is surrounded by suspicious circumstances. 28. On the other hand, this Court is of the considered view that the Trial Court has rightly appreciated the evidence available on record and has rightly analysed all the aspects and has rightly disbelieved the Will (Ex.B3) on the ground that it is surrounded by suspicious circumstances. 28. The Lower Appellate Court without assigning proper reasons for setting aside the well considered Judgment of the Trial Court has simply concluded that the Will has been proved by the evidence of D.W.2 and D.W.3, who are the attesting witnesses and the scribe (P.W.2). The contradictions/discrepancies in the evidence of D.W.2 and D.W.3 and P.W. 2 were overlooked by the Lower Appellate Court on an assumption that due to passage of time they had given such an evidence. But, on the contrary, P.W.2, D.W.2 and D.W.3 do not claim any such loss of memory in their testimony on account of the long passage of time. 29. The following aspects in the oral evidence and the proceedings during the Trial also falsifies the Will (Ex.B3) which was overlooked by the Lower Appellate Court: a) P.W.1 (plaintiff) was examined on 07.07.2009. The cross examination was done on 07.08.2010 and on 24.08.2010. But, the Will (Ex.B3) was not shown to P.W.1 during her cross examination and asked whether it was her father's will. In fact, it was filed into the Court only on 06.12.2010; b) The document writer (P.W.2) was examined on 22.11.2011 and he was aged 46 years at that time. He got the license only on 07.04.1993. But the Will (Ex.B3) is dated 12.06.1990. So it is impossible and unbelievable that he wrote the will and that Pethan would have approached an unlicensed person to write an important document like a Will; c) P.W.2 claims that he was working in Nachi Muthu Nathar shop at that time and the Will (Ex.B3) was prepared by him in the Taluk Office below a Banyan Tree. This version is unbelievable. P.W.2 was only 24 years of age. So the very claim that Pethan approached him to write the Will is baseless. 30. This version is unbelievable. P.W.2 was only 24 years of age. So the very claim that Pethan approached him to write the Will is baseless. 30. There are several contradictions in the deposition of D.W.2 and D.W.3 and P.W.2 which are as follows: a) D.W.2 and D.W.3 have stated in their deposition that the Will (Ex.B3) was prepared and executed in the Sub Registrar Office and not in the Taluk Office as claimed by P.W.2; b) As per D.W.2 and D.W.3, the scribe of the Will was aged about 45 to 50 years. But the age of P.W.2 (scribe) at the time of the Will would have been only 24 years, so P.W.2 cannot be the scribe or the Will that have been recently prepared so that the age of P.W.2 at the current time matches it; c) As per P.W.2, totally there were three persons at the time of execution of the Will. But according to D.W.2, there were 10 to 20 persons and as per D.W.3, there were 5 or 6 persons; d) As per the evidence of P.W.2, he prepared the Will and read it over to the testator, who signed it and thereafter the witnesses signed it. But D.W.2 claims to have reached the place, only after the Will (Ex.B3) was executed. He has stated that he was not aware of the other particulars. D.W. 2's statement about the age of Pethan and children of Ponnusamy (the first defendant) are false; e) D.W.2's chief examination is falsified by his answer, during the course of his cross examination; f) According to D.W.3 Krishnan, D.W.2 was present even before D.W.3. It contradicts the statement of D.W.2; g) The signature of the testator in the Will was not identified by the witnesses in the Court when the Will was marked. Section 63 (c) of the Indian Succession Act makes it clear that Will should be attested by two or more attesting witnesses and each of the attesting witnesses ought to have seen the testator sign or affix his mark in the Will. As seen from the cross examination of D.W.2 and D.W.3, the alleged attesting witnesses, they have not seen the testator (Pethan) signing the Will (Ex.B3) though they claim that they are the attesting witnesses. As seen from the cross examination of D.W.2 and D.W.3, the alleged attesting witnesses, they have not seen the testator (Pethan) signing the Will (Ex.B3) though they claim that they are the attesting witnesses. Having not seen the testator (Pethan) signing the Will (Ex.B3), D.W.2 and D.W.3 have not satisfied the mandatory requirements of Section 63 (c) of the Indian Succession Act. 31. The Judgment relied upon by the learned counsel for the Appellant/Plaintiff in the case of Govindan Chettiar Vs. Akilandam reported in 1997 (3) LW 673 supports the case of the Appellant/Plaintiff. Paragraph No.27 of the said Judgment makes it clear that the attesting witness having not identified the signature of the deceased (testator) and they having made only a general statement about the procedure of attestation, the Will cannot be treated to be proved. 32. The propounder of the Will has to remove all suspicious circumstances through oral and documentary evidence. In the case on hand, the second defendant, who is the beneficiary under the Will (Ex.B3), has not been examined as a witness. He has also supported the case of the first defendant, his father, by adopting the written statement filed by the first defendant. In the said written statement, the first defendant has relied upon both the Will (Ex.B3) as well as the alleged release deed alleged to have been executed by the plaintiff and the defendants 3 and 4 though the said documents were never produced by them before the Trial Court and during the cross examination, the first defendant (D.W.1) has also admitted that there was no such release deed executed by the plaintiff in his favour though the same was falsely pleaded in the written statement. Therefore, adverse inference has to be drawn against the second defendant that the Will (Ex.B3) is a fabricated Will, as it is surrounded by suspicious circumstances. In the case on hand, presence of suspicious circumstances over the Will (Ex.B3) makes the onus heavier on the propounder of the Will. Therefore, it is for the first and second defendants, the propounders of the Will (Ex.B3) to remove all the legitimate suspicions, before the Will (Ex.B3) can be accepted as the last Will of the testator (Pethan). In the case on hand, presence of suspicious circumstances over the Will (Ex.B3) makes the onus heavier on the propounder of the Will. Therefore, it is for the first and second defendants, the propounders of the Will (Ex.B3) to remove all the legitimate suspicions, before the Will (Ex.B3) can be accepted as the last Will of the testator (Pethan). Further, the unique feature of the Will is that it speaks from the death of the testator and therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of question as to whether the document propounded is the last Will of the testator. The initial onus, naturally lies on the propounder, but the same can be taken to have been primarily discharged on proof of the essential facts, which go into the making of the Will. In view of the several suspicious circumstances surrounding the subject Will (Ex.B3) as enumerated supra, this Court is of the considered view that the Lower Appellate Court viz., the Sub Court, Manapparai in its Judgment and Decree dated 10.01.2022 in A.S.No.4 of 2021 has misdirected itself by ignoring several circumstances, which will undoubtedly prove that the Will (Ex.B3) is surrounded by suspicious circumstances for which no explanation has been given by the defendants for removal of the same and hence, an absolute inference can be drawn that the Will (Ex.B3) is a fabricated Will created only for the purpose of unlawfully dis-entitling the plaintiff to be treated as a legal heir of the deceased, Pethan to stake a claim over the suit schedule property. The Trial Court viz., the District Munsif Court, Manapparai in its Judgment and Decree dated 15.02.2012 in O.S.No.18 of 2006 has rightly appreciated the pleadings and evidence available on record and has rightly decreed the suit in favour of the plaintiff by granting a preliminary decree for her 1/4th share in the suit schedule property. The findings of the Lower Appellate Court are perverse findings which has ignored several vital aspects as observed supra, which will undoubtedly make it clear that the Will (Ex.B3) is a fabricated Will. The findings of the Lower Appellate Court are perverse findings which has ignored several vital aspects as observed supra, which will undoubtedly make it clear that the Will (Ex.B3) is a fabricated Will. Being the undisputed daughter of Pethan, born through his first wife, the plaintiff is entitled for 1/4th share in the suit schedule property, as rightly decreed by the Trial Court in its Judgment and Decree dated 15.02.2012 passed in O.S.No.18 of 2006. 33. The Judgments relied upon by the learned counsel for the respondents viz., the Judgments in the case of Sridevi and others Vs. Jayaraja Shetty and others reported in AIR 2005 SCC 780, Daulat Ram and others Vs. Sodha and others reported in 2004 (5) CTC 790 and Savithri and others Vs. Karthyayani Amma and others reported in (2007) 11 SCC 621 referred to supra, all pertain to a case as to how a Will has to be proved. The propositions laid therein by the Honourable Supreme Court are well settled propositions which are not in dispute. Even as seen from those decisions, whenever there are suspicious circumstances in respect of a Will, the initial onus to remove those suspicions is on the part of the propounder of the Will. In the case on hand, as observed earlier, the propounders of the Will (Ex.B3) viz., the first and second defendants have failed to discharge their initial burden of removing the suspicious circumstances surrounding the Will (Ex.B3) in view of their contradictions in their pleadings as well as the oral evidence through P.W.2, D.W.1, D.W.2 and D.W.3. Hence, the decision relied upon by the learned counsel for the respondents referred to supra will not assist the respondents to confirm the Judgment and Decree of the Lower Appellate Court, as the Lower Appellate Court, erroneously by giving perverse findings, has reversed the well considered Judgment of the Trial Court. Hence, the substantial questions of law formulated by this Court at the time of admission of the Second Appeal on 09.09.2022 are answered in favour of the Appellant/Plaintiff by holding that the Will (Ex.B3) is not a genuine Will, but, is a fabricated one, created only to unlawfully disentitle the plaintiff from claiming her 1/4th share in the suit schedule property. 34. 34. For the foregoing reasons, the Judgment and Decree of the Lower Appellate Court viz., the Sub Court, Manapparai dated 10.01.2022 in A.S.No.4 of 2021 is hereby set aside and the Second Appeal is allowed by confirming the Judgment and Decree of the Trial Court viz., the District Munsif Court, Manapparai dated 15.02.2012 passed in O.S.No.18 of 2006. No Costs. Consequently, C.M.P.(MD).No.8168 of 2022 filed under Order 41 Rule 27 of CPC by the appellant to receive additional documents as additional evidence is also dismissed. The connected C.M.P.(MD).No.8167 of 2022 stands closed.