JUDGMENT : C. PRATHEEP KUMAR, J. 1. The appellants are the defendants in O.S No. 270 of 2002 on the file of the Sub Court, Palakkad. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court. ) 2. The plaintiff filed this suit for partition. The plaintiff is the son of late Vijayan, who died on 23.03.2002. The defendants are the widow and daughter of Vijayan. According to the plaintiff, Vijayan died intestate and as such, the plaint schedule property is liable to be partitioned into three shares and he is entitled to get one such share. According to him, since the defendants are not co-operating with him for amicably partitioning the plaint schedule properties, he preferred this suit for partition and separate possession of his 1/3 rd share from the scheduled properties. The defendants filed a written statement contending that Vijayan had executed a 'Will' reserving life interest to the 1st defendant and bequeathing the plaint schedule properties to the 2nd defendant and as such the plaint schedule properties are not partible. Therefore, according to them, the suit is liable to be dismissed. 3. The trial court framed nine issues. The evidence in the case consists of the oral testimonies of PWs 1 and 2, DWs 1 and 2, Exhibits A1 to A17 and B1 to B21. After evaluating the evidence on record, the trial court found that the defendants failed to prove the due execution of Exhibit B21 Will and therefore decreed the suit and passed a preliminary decree dividing the scheduled properties into 3 shares and permitting any of the sharers to file an application for passing a final decree in tune with the preliminary decree. Aggrieved by the above preliminary decree and judgment passed by the trial court, the defendants preferred this appeal, raising various grounds. 4. Now the points that arise for consideration are the following: 1. Whether late Vijayan had executed Exhibit B21 Will voluntarily with free disposing state of mind? 2. Whether the defendants have succeeded in removing the suspicious circumstances, if any, surrounding Exhibit B21 Will? 3. Whether the imputed judgment and decree of the trial court calls for any interference in the light of the grounds raised in the appeal? 5. Heard Sri Shahul Hameed Mooppan, the learned counsel for the appellants and Sri. Vinod Bhat, the learned counsel for the respondent. 3. Whether the imputed judgment and decree of the trial court calls for any interference in the light of the grounds raised in the appeal? 5. Heard Sri Shahul Hameed Mooppan, the learned counsel for the appellants and Sri. Vinod Bhat, the learned counsel for the respondent. 6. The points :- The relationship between the parties is not disputed. Admittedly, the plaint schedule properties belonged to late Vijayan, who died on 23.03.2002. In fact, it was a suicide. The plaintiff is his only son and the 2nd defendant is his only daughter and the 1st defendant is his widow and the mother of the plaintiff and 2nd defendant. While according to the plaintiff, Vijayan died intestate, according to the defendants, Vijayan executed Exhibit B21 Will bequeathing plaint schedule properties in favour of the 2 nd defendant subject to the life interest of the 1 st defendant. According to the learned counsel for the appellants, from the evidence of DW2, one of the attesting witnesses, the defendants have succeeded in proving the due execution of Exhibit B21 Will. Further, according to the learned counsel, In this case, there is no suspicious circumstance surrounding the Will and as such, the trial court was not justified in rejecting Exhibit B21 and decreeing the suit. 7. On the other hand, the learned counsel for the plaintiff would argue that since the plaintiff is the only son of deceased Vijayan, the fact that he was not given any properties as per Exhibit B21, is a serious suspicious circumstance surrounding the Will. Further, according to the learned counsel, even as per Exhibit B21, Vijayan previously executed another Will, bequeathing the plaintiff's properties in favour of his grandchildren, namely the children of the plaintiff and there was absolutely no reason for Vijayan to cancel the said Will and disinheriting the grand children. Therefore, according to him, it is another suspicious circumstance surrounding the execution of Exhibit B21 Will. In the above circumstance, according to the learned counsel for the plaintiff, the trial court was justified in rejecting Exhibit B21 Will. Further, the learned counsel would argue that for about two years prior to the execution of the alleged Will, Vijayan was suffering from unsoundness of mind, that during the said period he was incapable of knowing the nature and consequence of his acts and as such, he was incapable of executing valid documents during the said period. Further, the learned counsel would argue that for about two years prior to the execution of the alleged Will, Vijayan was suffering from unsoundness of mind, that during the said period he was incapable of knowing the nature and consequence of his acts and as such, he was incapable of executing valid documents during the said period. On that ground also, the learned counsel prayed for rejecting Exhibit B21 Will. 8. Exhibit B21 is a registered Will. It was registered as document No. 1/ III of 2002. In Exhibit B21, it is stated that previously he had executed and registered a Will No. 13 of 2001 and that because of change in his intention, he has executed the new Will. Exhibit A21 Will is attested by two witnesses, one Jaganivasan and another Krishnan. The first witness, Jagani Vasan was examined on behalf of the defendants as DW2. 9. Section 63 of the Indian Succession Act relating to execution of unprivileged Wills states that: S.63. Execution of unprivileged Wills.— Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:— (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 10. 10. Section 68 of the Indian Evidence Act , dealing with the proof of execution of a Will is extracted below for reference: S.68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until 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 : [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] [Inserted by Act 31 of 1926, Section 2.] “ 11. DW2, the 1 st witness to Exhibit B21 Will, in categorical terms deposed that at the instance of Vijayan, he went to the residence of Vijayan and when he reached there, the 2nd witness Krishnan was present there along with Vijayan. Both of them accompanied Vijayan in the car driven by Vijayan and they reached the scribe’s office wherein the Will was ready for execution. According to DW 2, the scribe read over the contents of the Will and thereafter Vijayan affixed his signature in all the pages in the presence of himself and the other attestor Krishnan. Thereafter, he along with the other witnesses, Krishnan, affixed their signatures in the Will in the presence of Vijayan. He again clarified that he along with Krishnan has seen Vijayan affixing his signature in Exhibit B21 and also that Vijayan had seen the attestors affixing their signature. According to DW2, thereafter, the Will was taken to the Sub Registrar's Office by Vijayan himself and he along with Krishnan, accompanied Vijayan to the Sub Registrar's office and they identified Vijayan before the Sub Registrar. The Sub Registrar also read over the contents of the Will and Vijayan subscribed his signature after understanding the contents of the Will. They also affixed their signature in Exhibit B21 Will identifying Vijayan. Though DW 2 was cross-examined in detail, nothing material could be brought out to discredit his testimony. The Sub Registrar also read over the contents of the Will and Vijayan subscribed his signature after understanding the contents of the Will. They also affixed their signature in Exhibit B21 Will identifying Vijayan. Though DW 2 was cross-examined in detail, nothing material could be brought out to discredit his testimony. Therefore, as fairly conceded by the learned counsel for the plaintiff, DW2 has given evidence in tune with the requirements of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act . 12. The plaintiff has denied the execution of Exhibit B21 Will by contending that, the Will was not executed by Vijayan. It was further contended that even if it is executed by Vijayan, it was vitiated by fraud, undue influence, coercion etc. He has also raised a contention that since two years prior to the date of execution of Exhibit B21, Vijayan was suffering from unsoundness of mind and his condition was too bad during the last six months. Therefore, according to the plaintiff, during the relevant period, Vijayan was not at all capable of executing any valid documents. However, according to the defendants, except cardiac ailments, Vijayan was not suffering from any other ailments. 13. Exhibits A13 series are the prescriptions issued to Vijayan, from Cardiac Care, Lakshmi Nursing Home, Chittur road, Palakkad and produced by the plaintiff. The above prescriptions are for the period from 1995 to 2001, issued by the consultant Cardiologist of Cardiac Care, Lakshmi Nursing Home, Chittur road, Palakkad. It was argued by the learned counsel for the plaintiff that, out of the medicines prescribed in Exhibit A13, two medicines are for mental illness. As I have already noted above, Exhibit A13 series are seen issued by a consultant Cardiologist and not by any psychiatrist. Even the consultant cardiologist of Cardiac Care, was not examined in this case. The contention of the learned counsel for the plaintiff that out of the medicines prescribed by the cardiologist in Exhibit A13, two medicines are for mental illness could not be believed in the absence of some expert medical evidence in that respect. Therefore, there is no reliable evidence to show that any of the medicines prescribed to Vijayan, as per Exhibit A13 series, contain medicines for mental illness. Therefore, there is no reliable evidence to show that any of the medicines prescribed to Vijayan, as per Exhibit A13 series, contain medicines for mental illness. When the plaintiff was examined as PW1, he claimed that he had taken Vijayan to a doctor by name Raman, for treatment of mental illness. However, the plaintiff has not produced any documents to prove that Vijayan was treated by any such doctor for mental illness. 14. The learned counsel for the plaintiff would argue that it is the burden of the defendants to remove all suspicious circumstances surrounding the Will and it is not the duty of the plaintiff to prove that Vijayan was suffering from mental illness at the relevant time. It is true that the burden is on the propounder of the Will to remove all suspicious circumstances surrounding the Will. According to the defendants, except cardiac ailment, Vijayan had no other illness. It is the case of the plaintiff that Vijayan was suffering from mental illness and that he had taken Vijayan to one doctor by name Raman for treating mental illness. Even the name of the said doctor and his address was not disclosed in the pleadings. Not even a prescription issued by the Psychiatrist was produced in this case. Since Ext.A13 series prescriptions for the period from 1995 to 2001 were produced by the plaintiff, if there was any prescription issued by any psychiatrist, as claimed at the time of evidence, the plaintiff would definitely have produced them to substantiate his case that Vijayan was suffering from mental illness. Since it is only the plaintiff who asserts that Vijayan was examined by Dr.Raman for mental illness, it is his duty and not that of the defendants, to examine and to prove that aspect. Non- production of any such document and non-examination of any such doctor presupposes absence of any such treatment as well as bonafides in the said contention. 15. Since Exhibit A13 series prescriptions were issued by a consultant cardiologist, it will only lead to the conclusion that Vijayan was treated for cardiac ailments and that, he was only suffering from cardiac ailments. In this case, there is absolutely no reliable evidence to prove that Vijayan was suffering from any mental illness at any time during his lifetime. 15. Since Exhibit A13 series prescriptions were issued by a consultant cardiologist, it will only lead to the conclusion that Vijayan was treated for cardiac ailments and that, he was only suffering from cardiac ailments. In this case, there is absolutely no reliable evidence to prove that Vijayan was suffering from any mental illness at any time during his lifetime. On the other hand, when DW1 and DW2, namely the widow of Vijayan and one of the attesting witnesses to Exhibit B21 were examined, they categorically deposed that on the date of execution of Exhibit B21, Vijayan himself drove his car to the scribe's office and then to the Sub Registrar's office, accompanied by the two attesting witnesses to the Will. The above evidence of DWs 1 and 2 that on the date of execution of Exhibit B21, Vijayan and the attesting witnesses went to the scribe’s office and then to the Sub Registrar's office, in the car driven by Vijayan, was not challenged by the plaintiff during cross examination. The fact that on the date of execution of Exhibit B21, Vijayan has driven his own car to the scribe’s office and then to the Sub Registrar's office along with the attestors means that even on that day Vijayan owned a car and that he had valid driving license. Further, the above evidence of Dws 1 and 2 that even on the date of execution of Exhibit B21 Will, Vijayan was capable of driving a car safely to the scribe’s office and then to the Sub Registrar's office substantiates the defendants’ case that, on the date of the execution of Exhibit B21, Vijayan was in very good health, both physically and mentally. 16. The defendants relied upon Exhibits B1 to B4 documents also to substantiate that Vijayan was in good health both physically and mentally at the time of executing Exhibit B21. Exhibit B1 is the identity card issued to Vijayan on 06.06.2001 from the Muthalamada Service Cooperative Bank Ltd. No. 1197. It means that just about 6 months prior to the execution of Exhibit B21, Exhibit B1 identity card was issued from the above Service Cooperative bank to Vijayan. Exhibit B2 is a receipt issued from Muthalamada Service Cooperative Bank Ltd., dated 11.01.2002 in favour of Vijayan. Exhibit B3 series are carbon copies of receipts issued by Vijayan to his customers in connection with his business in mango fruits. Exhibit B2 is a receipt issued from Muthalamada Service Cooperative Bank Ltd., dated 11.01.2002 in favour of Vijayan. Exhibit B3 series are carbon copies of receipts issued by Vijayan to his customers in connection with his business in mango fruits. Those receipts contained the signature of Vijayan. The learned counsel for the plaintiff would argue that marking of the above documents were objected and in spite of that, no steps were taken to produce its originals. It is true that marking of the above documents were objected, and no steps were taken to produce the originals. Exhibit B4 is the receipt issued to Vijayan on 04.03.2002 in respect of sale of mango fruits. Exhibit B4 is the original receipt received by Vijayan. Even though Exhibits B3 series are only carbon copies, Exhibits B1, B2 and B4 are originals. Exhibits B1 and B2 show that, just six months prior to the date of execution of Exhibit B21, Vijayan became a member of the Muthalamada Service Cooperative Bank and availed a loan from the said bank. From Exhibit B4 receipts it can be seen that on 04.03.2002 also Vijayan was doing business in mango fruit. Exhibits B1, B2 and B4 further substantiate the evidence of DWs 1 and 2 that at the time of execution of Exhibit B21 Will, Vijayan was in sound state of mind and health. 17. Both DWs 1 and 2 would swear that, at the time of executing Exhibit B21 Will and during the relevant period, the plaintiff and Vijayan were not in good terms. From the evidence of the plaintiff as PW1, it is revealed that on 23.03.2002, Vijayan committed suicide by consuming cyanide and at that time, the plaintiff alone was there in the house in addition to Vijayan. It is also revealed that at the time of suicide, Vijayan was in possession of a gun and he had used the firearm also. Therefore, from the evidence of PW1 itself, it is revealed that, on the date of suicide, Vijayan was in possession of a firearm. It is true that both parties have not produced any license in favour of Vijayan in respect of the firearm held by him. At the same time, even the plaintiff has no case that the firearm held by Vijayan was an unlicensed one. It is true that both parties have not produced any license in favour of Vijayan in respect of the firearm held by him. At the same time, even the plaintiff has no case that the firearm held by Vijayan was an unlicensed one. Therefore, in the facts and circumstances of this case, it is to be presumed that the firearm held by Vijayan was a licensed one. The fact that even on the date of suicide, Vijayan was holding a firearm substantiates the conclusion that while executing Ext.B21, Vijayan was in very good health and improbabilises the case of the plaintiff that he was unsound for over 2 years before his death. 18. It is true that PWs 1 and 2 deposed that there was no animosity between Vijayan and the plaintiff and hence there is no reason for disinheriting his only son, by Vijayan. At the same time, DW1, the widow of Vijayan and DW2, a common relative of the plaintiff and the defendants, in categorical terms deposed that the plaintiff and Vijayan were not in good terms. From the evidence of DW2 it is revealed that in the first Will executed by Vijayan also, he along with Krishnan were the atterstors. At that time also, they accompanied Vijayan to the Sub Registrar's office for the purpose of registering the first Will. I have already found that there is absolutely no grounds to disbelieve the testimony of DW2. Therefore, from the evidence DW 2, it is revealed that in the 1 st Will also, Vijayan had disinherited his only son, namely the plaintiff. In the 2 nd Will Exhibit B21 also, he had excluded the plaintiff. Unless there was compelling reasons, a father will never disinherit his sole son. In the above circumstance, there is every reason to believe the testimonies of DWs 1 and 2 that the plaintiff and Vijayan were not in good terms. The fact that when Vijayan committed suicide, the plaintiff alone was there in the house in addition to Vijayan, is another circumstance substantiating the above conclusion. 19. From the evidence of DW1 and 2 it is revealed that the plaintiff is a drunkard and that he used to quarrel with Vijayan after drinking. It is also revealed that they were on inimical terms. The evidence of DW2 in that respect remains unchallenged. 19. From the evidence of DW1 and 2 it is revealed that the plaintiff is a drunkard and that he used to quarrel with Vijayan after drinking. It is also revealed that they were on inimical terms. The evidence of DW2 in that respect remains unchallenged. Therefore, it is to be held that there was good reasons for Vijayan to exclude the plaintiff and grand children from inheriting him. 20. As argued by the learned counsel for the plaintiff, there was no reason for believing that Vijayan had any animosity towards the children of the plaintiff. It is true that the 1 st Will was executed by Vijayan in favour of the children of the plaintiff and in the 2 nd Will he excluded his grandchildren also. It is also true that in Exhibit B21 Will, no reasons were assigned by him for changing the 1 st Will and for executing a new Will in favour of the defendants. However, as I have already noted above, there is no grounds to disbelieve the testimony of DW 2 and as such, for the mere reason that in Exhibit B21 the grandchildren were excluded, it cannot be viewed with suspicion. 21. From the evidence of DWs 1 and 2 it is revealed that on the date of execution of Exhibit B21 Will, Vijayan was in very good health, both physically and mentally. Due execution, attestation and registration of Ext.B21 Will was proved by DW2. Further, the defendants have also succeeded in removing the suspicious circumstances surrounding the execution of Ext.B21. Therefore, in the light of the evidence on record, I am constrained to hold that the defendants have succeeded in proving the due execution and registration of Exhibit B21 Will. 22. The evidence on record reveals why Vijayan had excluded his son, namely the plaintiff from inheriting his property. Therefore, it is to be held that the defendants have also succeeded in removing all suspicious circumstances surrounding the execution of accused Exhibit B21 Will. Therefore, it is to be held that the plaint schedule properties are not available for partition and as such, the suit is liable to be dismissed. 23. It is true that the defendants have raised a counter claim also, along with the written statement. Therefore, it is to be held that the plaint schedule properties are not available for partition and as such, the suit is liable to be dismissed. 23. It is true that the defendants have raised a counter claim also, along with the written statement. The contention taken by the defendants in the counter claim is that the counter claim schedule properties were purchased by Vijayan using his own funds in the name of the plaintiff. However, at the time of arguments, the learned counsel for the defendants fairly conceded that there is no reliable evidence to prove that the counter claim schedule properties were purchased by Vijayan using his funds in the name of the plaintiff. Therefore, the learned counsel for the defendants submitted that he is not pressing the relief raised in the counter claim. Moreover, during the cross-examination of DW1, she also conceded that the counter claim was raised against the properties standing in the name of the plaintiff, as the plaintiff filed the suit against them. In the above circumstance, the trial court was justified in dismissing the counterclaim. Points answered accordingly. In the result, this appeal is allowed. The impugned judgment and decree in O.S. No. 270 of 2002, on the file of the Sub Court, Palakkad, is set aside and the suit is dismissed. Considering the close relationship between the parties, I direct both the parties to suffer their respective costs. All pending interlocutory applications in the appeal will stand dismissed.