JUDGMENT : The Second Appeal has been filed against the Judgment and Decree passed in A.S.No.125 of 2000 dated 29.11.2001 on the file of the Principal District Judge, Pudukottai reversing the Judgment and Decree passed in O.S.No.249 of 1995 dated 16.06.2000 on the file of the District Munsif, Arantangi. 2. For the sake of convenience, the parties are referred to as per their ranking in the Trial Court. 3. The appellant is the first defendant and the respondents are the plaintiffs in the suit. 4. The brief averment of the plaint is as follows:- The suit property originally belonged to one Arunachalam Servai.Arunachalam Servai had two sons namely, Narayayanasamy (first plaintiff) and the Shanmugam Servai. Arunachalam Servai died intestate. Hence, his legal heirs are entitled to the properties owned by the said Arunachalam Servai. The first plaintiff Narayanasamy Servai died. His son Ganesan (second plaintiff), his wife Chinnammal (third plaintiff) and his daughter Umarani (fourth plaintiff) are his legal heirs. The said Shanmugam Servai, who is the brother of the first plaintiff, died on 25.08.1991. His wife Chinnammal (second defendant) is his legal heir. He had no children. After the death of the said Shanmugam Servai, the second defendant had executed a registered relinquish deed dated 29.12.1999 in favour of the first plaintiff and thereby, relinquishing her share in the plaint joint family properties. Therefore, the plaintiffs are entitled and having title over the plaint joint family property. The alleged Will dated 24.04.1991 is not true and genuine and it will not confer any title to the first defendant with respect to the suit property. Hence, the plaintiffs filed the suit for the relief of declaration declaring that the suit properties are the Hindu joint family property of the plaintiff and the consequential relief of permanent injunction. 5. The first defendant contested the suit and filed the written statement. The contention of the written statement is that the suit properties were divided between the deceased Shanmugam Servai and the first plaintiff Narayasansamy, 20 years ago. Shanmugam Servai had no issue. Therefore he executed a registered Will dated 24.04.1991 in favour of Hitler who is the son of the second defendant's brother. The second defendant is the wife of Shanmugam Servai. The Will is true and genuine one and therefore, the first defendant is entitled to the suit property pertaining to the Will. 6. Shanmugam Servai had no issue. Therefore he executed a registered Will dated 24.04.1991 in favour of Hitler who is the son of the second defendant's brother. The second defendant is the wife of Shanmugam Servai. The Will is true and genuine one and therefore, the first defendant is entitled to the suit property pertaining to the Will. 6. The second defendant filed the written statement by supporting the case of the plaintiffs. It is further contended that the alleged Will dated 24.04.1991 is a forged one and her husband Shanmugam Servail was not in fit state of mind for executing such Will dated 24.04.1991. 7. On the basis of the above said pleas set out by the respective parties, the following issues were framed by the Trial Court for consideration: 8. Before the Trial Court, on the side of the plaintiffs, the second plaintiff Ganesan examined himself as P.W.1 and examined three witnesses as P.W.2 to P.W.4 and marked 112 documents as Ex.A1 to Ex.A112. On the side of the defendants, the second defendant examined herself as D.W.1 and marked 96 documents as Ex.B1 to Ex.B96. 9. On consideration of the oral and documentary evidenced adduced by the respective parties and the submission made, the Trial Court found that the second defendant Chinnammal had executed a registered relinquish deed dated 29.12.1992 in favour of the first plaintiff Narayanasamy and in view of the Will dated 24.04.1991, she had no right to execute the relinquish deed dated 29.12.1992. The Trial Court further held that the first plaintiff is not a competent person to challenge the Will and in the absence of challenge by the second defendant, the plaintiff is not competent to challenge the Will dated 24.04.1991. The suit is filed by the plaintiffs relying upon the relinquish deed dated 29.12.1992 executed by the second defendant Chinnammal. Since she has no legal right to execute the relinquish deed and her husband executed a Will in favour of the first defendant's father on 24.04.1991, the Trial Court dismissed the suit against the plaintiffs. Hence, the plaintiffs filed the appeal suit in A.S.No.125 of 2000 before the Principal District Court, Pudukottai. Since she has no legal right to execute the relinquish deed and her husband executed a Will in favour of the first defendant's father on 24.04.1991, the Trial Court dismissed the suit against the plaintiffs. Hence, the plaintiffs filed the appeal suit in A.S.No.125 of 2000 before the Principal District Court, Pudukottai. The First Appellate Court, upon consideration of evidence on record, found that the Will dated 24.04.1991 is not true and genuine and has not been proved as per Section 3 of the Transfer of Property Act and Section 63(3) of the Indian Succession Act r/w Section 68 of the Indian Evidence Act allowed the appeal. Aggrieved by this, the first defendant has filed the present second appeal. 10. While admitting the second appeal, this Court has formulated the following substantial questions of law:- 1. Whether the lower Appellate Court is right in granting a decree declaring that the suit properties are undivided Hindu joint family properties and permanent injunction on that basis without any discussion or finding? 2. Whether the lower Appellate Court is right in holding that the Will dated 24.04.1991 is not genuine and execution of the Will is not proved in the absence of any pleading? 11. The learned Senior Counsel appearing for the appellants/defendants submitted that the judgment and decree of the First appellate Court is not justified in law and on facts. He further submitted that the plaintiffs claim that the suit properties originally belonged to one Arunachalam Pillai and on his death survived on his two sons namely, the 1 st plaintiff Narayanasamy and Shanmugham Servai, who is husband of the 2 nd defendant and Ganesan, the 2 nd plaintiff and son of 1 st plaintiff. Except the allegation in the plaint that the properties belonged to undivided Hindu joint family, there is no evidence on material produced to substantiate the said statement. He further submitted that the learned District Munsif without considering the prayer in the suit erroneously cast the burden on the defendant to prove that there was a partition between plaintiffs and Shanmugam Serval. Unless and until it is established that the suit properties are undivided Hindu joint family properties, the burden shifts to the defendant. In the absence of any evidence to show the character of the properties, it cannot be said that the suit properties are joint family properties. Unless and until it is established that the suit properties are undivided Hindu joint family properties, the burden shifts to the defendant. In the absence of any evidence to show the character of the properties, it cannot be said that the suit properties are joint family properties. The learned District Munsif considering the various documents, title deeds and patta, has held that the properties stand in the name of 1 st plaintiff and Shanmugam Servai. This by itself cannot be considered as evidence to hold that the properties are undivided Hindu joint family properties. At the most it can be only stated that the properties are jointly owned by 1 st plaintiff and Shanmugam Servai. The learned First Appellate Court failed to consider the discrepancies in the list of properties given in the plaint, suit notice and Ex B-95. In the plaint, 34 items are shown in the suit schedule. In the Ex A-9 and B-95, 47 items are shown. In the notice, 50 items are shown. There is no explanation for this discrepancy. Further, there is no material to relate the properties shown in the plaint Ex.A-9 and B-95 and in the Notice. There is not even pleading or evidence to show that the properties are the same. The learned First Appellate Court has erred in holding that the registered Will dated 24.04.1991 in Ex B-92 is not genuine and the Will in question was not proved as per the section 3 of the Transfer of Property Act and section 68 of the Indian Evidence Act. There is no material to hold so. Section 3 of the Act has no application genuineness of the Will is not an issue in the suit. The findings in this regards is unwarranted. 12. The learned Senior Counsel further submitted that the learned First Appellate Judge failed to see that the plaintiff having admitted the execution of the Will has not let in any evidence to substantiate the allegations of fraud and undue influence. Mere averment without evidence will not amount to proof of fraud and undue influence. The Court should have rejected the said allegation. The learned First Appellate Judge failed to see that the plaintiff having knowledge of the Will have not prayed for any declaration to set aside the Will. Mere averment without evidence will not amount to proof of fraud and undue influence. The Court should have rejected the said allegation. The learned First Appellate Judge failed to see that the plaintiff having knowledge of the Will have not prayed for any declaration to set aside the Will. In the absence of any prayer to declare the will as null and void the First Appellate Court is not justified in discussing the genuineness of the Will or giving any finding on the same. The findings in respect of the Will is unwarranted and beyond the scope of the suit. The learned First Appellate Judge failed to see that the Will was executed by Shanmugam Servai bequeathing his properties in favour of the appellant. It is an admitted fact that Mr Shanmugam Serval had no issues. The 2 nd defendant did not question the Will. The Plaintiffs have no locus standi to question the Will. This has not been considered by the First Appellate Court. The Plaintiffs have come forward with inconsistent plea. The 2 nd plaintiff claim that the suit properties are undivided Hindu joint family properties and the 2 nd defendant under Ex.A1 has released her right in favour of 2 nd plaintiff. On the date of Execution of Ex.A1, the 2 nd defendant has no right in the properties as the Will under Ex B-92 has come into operation after death of Shanmugam Servai on 28.05.1991 and the properties devolved on the defendant/appellant. 13. The learned Senior Counsel for the appellants further contended that there is a substantial compliance of attestation as defined under the Indian Succession Act, 1925 . Hence, such a finding of the First Appellate Court is erroneous. As per settled law omission to state in the evidence of attesting witnesses that the testator saw him attesting the Will and vice versa is not fatal for the proof of the Will as per the decision of Madras High Court reported in 1989 (1) LW 396 . Thus, he pleaded to allow the second appeal. 14. The learned Senior Counsel appearing for the respondents supported the judgment and decree of the First Appellate Court. She further contended that the mental state of the testator Late.Shanmugam was clearly explained by the 2 nd defendant, Chinnammal(DW1) and the same was not disputed by the defence in the cross examination of DW1 (Chinnammal). 14. The learned Senior Counsel appearing for the respondents supported the judgment and decree of the First Appellate Court. She further contended that the mental state of the testator Late.Shanmugam was clearly explained by the 2 nd defendant, Chinnammal(DW1) and the same was not disputed by the defence in the cross examination of DW1 (Chinnammal). Narayansamy (DW2) the father of the 1 st defendant has clearly admitted that the deceased Shanmugam Servai was in the habit of putting his signature in other documents and he had affixed his thumb impression in the Will (Ex.B92) clearly shows that the deceased Shanmugam Servai was not in a good health condition. In Ex.B92, the recital does not contain the date or the year of oral partition entered between Shanmugam and the 1 st plaintiff and it does not mention any specific provision for the allotment of any immovable property to the 2 nd defendant who is the only legal heir of Shanmugam, the testator and the description of properties were vague - held unnatural and suspicion. The attesting witnesses of the Will (Ex.B92), DW2 and DW3 never stated in their evidence that they saw the testator, Shanmugam Servai affixing his thumb impression on the Will dated 24.04.1991 and the deceased Shanmugam Servai also could not have seen the attesting witness DW3 and DW4 putting their signature on the Will in his presence clearly shows that the Will dated 24.04.1991 has not been proved as per Section 63(c) of Indian Succession Act and Section 68 of the Indian Evidence Act and attestation as per Section 3 of the Transfer of Property Act. 15. The learned Senior Counsel further submitted that the Will dated 24.04.1991 executed by the deceased Shanmugam Servai in favour of the 1 st defendant is not proved as per Section 63(c) of Indian Succession Act and Section 68 of The Indian Evidence Act and attestation as per Section 3 of the Transfer of Property Act. Though the Will dated 24.04.1991 came into existence before the execution of the relinquishment deed dated 29.12.1992 by the 2 nd defendant, Chinnammalin favour of the 1 st plaintiff, the 1 st defendant claiming title on the basis of the Will, has to prove the Will as required under Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act. Based on the evidence of the 2 nd defendant, Chinnammalas DW1, it is clear that the deceased Shanmugam Servai was not in good health and fit state of mind to execute the Will dated 24.04.1991 and the burden heavily rest on the propounder to prove the Will dated 24.04.1991. The first defendant failed to prove the valid execution of the Will dated 24.04.1991 allegedly executed by the deceased Shanmugam Servai as per Section 63(c) of Indian Succession Act and Section 68 of the Indian Evidence Act and attestation as per Section 3 of the Transfer of Property Act. Narayanasamy, father of Hitler, actively participated in the execution of the alleged will, being a sole beneficiary to the exclusion of the wife of Shanmugam Servai, which indicates that the Will is surrounded by suspicious circumstances. 6. D.W4 Kandasamy, one of the attestors has not specifically deposed that himself and the other attesting witness, saw the signing of the will by Shanmugam Servai, which is mandatory to prove the Will. 16. The learned Senior Counsel further submitted that D.W4 Kandasamy has further deposed that Shanmugam Servai brought the details of the suit properties during the execution of the Will, but the Will does not contain any of the details of the said properties. D.W3 Palaniandi has specifically stated that while reading the contents of the Will, survey numbers were also read out to all, but the above said details do not figure in Ex. B92. D.W3 Palaniandi, further deposed that the document writer held the hand of Shanmugam Servai and kept the thumb impression, which shows that Shanmugam Servai did not voluntarily affix his thumb impression. The Trial Court has specifically held that the properties have not been divided between Narayansamy and Shanmugam Servai. Though the 1 st defendant has filed a cross objection, the above findings of the Trial Judge has not been challenged therein in the First Appellate Court and therefore, the said point cannot be urged in the second appeal. The Trial Court has specifically held that the properties have not been divided between Narayansamy and Shanmugam Servai. Though the 1 st defendant has filed a cross objection, the above findings of the Trial Judge has not been challenged therein in the First Appellate Court and therefore, the said point cannot be urged in the second appeal. When the 1 st defendant failed to prove the due execution of the Will, Chinnammal D2, who is the wife of Shanmugam Servai, becomes the absolute owner and she is entitled to release her share in favour of the 1 st plaintiff and the trial court has categorically held that the release deed executed by Chinnammal D2, in favour of 1 st plaintiff Narayansamy is valid and the same is not challenged. A perusal of the Will Ex.B92 shows that Shanmugam Servai has not stated specifically the details of the properties and if the Will has been executed by Shanmugam Servai, in good state of mind, he would have definitely stated the properties obtained by him through partition. Therefore, not mentioning the property details clearly shows that the Will has been created by Narayansamy. Therefore, the findings of the 1 st appellate Court that the Will has not been proved, ought to be sustained and the second appeal has to fail on the ground that there is no substantial question of law raised in the above second appeal. In support of his contention, the learned counsel reliance on the Judgment of the Honourable Supreme Court reported in (2003)2 SCC 91 ( Janki Narayan Bhoir vs. Narayan Namdeo Kadam ) and (2009)3 CTC 801 ( Premavathi vs. Sundararajan ). 17. I have considered the matter in the light of the submissions made by the learned counsel on both sides and perused the materials available on records carefully. 18. A perusal of the records revealed that the following facts are admitted by the parties and not disputed. The relationship of the parties is admitted. The suit property belonged to one Arunachalam Servai. Arunachalam Servai had two sons, namely, Narayanasamy (first plaintiff) and Shanmugam Servai. Arunachalam Servai died intestate. His legal heirs are the first plaintiff Narayanasamy and Shanmugam Servai. The second defendant is the wife of Shanmugam Servai. Shanmugam Servai had no child. The first plaintiff Narayanasamy died. His legal heirs are the second plaintiff wife and the third plaintiff daughter Umarani. Arunachalam Servai had two sons, namely, Narayanasamy (first plaintiff) and Shanmugam Servai. Arunachalam Servai died intestate. His legal heirs are the first plaintiff Narayanasamy and Shanmugam Servai. The second defendant is the wife of Shanmugam Servai. Shanmugam Servai had no child. The first plaintiff Narayanasamy died. His legal heirs are the second plaintiff wife and the third plaintiff daughter Umarani. Since the Shanmugam Servai died, the second defendant is his legal heir. These facts are admitted by both the parties. 19. The plaintiffs based his claim upon the relinquish deed executed by the second defendant on 29.12.1992, which is evidenced as Ex.A1. It is a registered relinquish deed in favour of the first plaintiff Narayanasamy. The defendants contested the case on the ground that Shanmugam Servai before his death executed a registered Will dated 24.04.1991 in favour of the first defendant, which is evidenced by Ex.B92/Ex.A8. 20. Admittedly, the alleged registered Will is dated 24.04.1991.The alleged relinquish deed dated 29.12.1992 i.e., subsequent to the registered Will dated 24.04.1991. Now, the question is whether the alleged Will dated 24.04.1991 (Ex.B92/Ex.A8) is true and genuine, has to be decided. 21. On a perusal of the Trial Court Judgment, it is noticed that though in the plaint and written statement, though the plaintiffs pleaded about the registered Will dated 24.04.1991 executed by Shanmugam Servai, the Trial Court failed to discuss about the Will dated 24.04.1991 and not given any finding with regard to the genuineness of the registered Will dated 24.04.1991. A perusal of the Judgment of the First Appellate Court, it is noticed that a specific issue has been framed about the execution of the Will dated 24.04.1991. Upon consideration of evidence, on record orally and documentary, the First Appellate Court found that the registered Will dated 24.04.1991 (Ex.B92) is not genuine one and not proved by the defendant. Hence, the First Appellate Court allowed the appeal. 22. I have gone through the evidence on record. 23. To say will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with. This principle has been settled by the Honourable Supreme Court in (2003)2 SCC 91 [ Janki Narayan Bhoir vs. Narayan Namdeo Kadam ] . In this appeal, the attesting witnesses Palaniyandi Thevar (DW3) and Kandasamy (DW4). I have gone through the evidence of DW3 and DW4. This principle has been settled by the Honourable Supreme Court in (2003)2 SCC 91 [ Janki Narayan Bhoir vs. Narayan Namdeo Kadam ] . In this appeal, the attesting witnesses Palaniyandi Thevar (DW3) and Kandasamy (DW4). I have gone through the evidence of DW3 and DW4. DW3 Palaniyandi Thevar has specifically stated that Shanmugam Servai affixed his thumb impression, he attested the document and the Kandasamy attested the document. For better appreciation, his evidence is reproduced hereunder:- 24.Further, DW4 Kandasamy specifically deposed that he attested the Will. For better appreciation, it is extracted hereunder:- 25. In view of the above evidence, it is clear that the requirement of Section 68 of the Indian Evidence Act is complied with. DW3 is the one of the attesting witnesses giving evidence about the execution of the Will by Shanmugam Servai. Through DW3 one of the attesting witnesses has been examined before the Court. The Will is proved in terms of the clause (c) Section 63 of the Indian Evidence Act. The First Appellate Court contrary to the evidence held that the will is not proved and not genuine, which is against the evidence on record. Hence, the finding of the First Appellate Court is perverse one and it is liable to be set aside. Further, it is noticed that there is no evidence on record to show that any fraud or undue influence played upon the execution of the Will. Therefore, the finding of the First Appellate Court is against the evidence on record and a perverse one and liable to be set aside in this regard. 26. In view of the above, since the Will dated 24.04.1991 is true and genuine, the second defendant, who is the wife of Shanmugam Servai, has no right to execute the relinquish deed dated 29.12.1992 in favour of the first plaintiff Narayanasamy. Therefore, the claim of the first plaintiff Narayanasamy upon the relinquish deed dated 29.12.1992 is not maintainable. Therefore, the plaintiffs are not entitled to get the relief of declaration as prayed for. Therefore, the Trial Court dismissed the suit. 27. In view of the above, the First Appellate Court is not right in granting the decree declaring that the suit properties are the undivided Hindu joint family property and granting permanent injunction is also not right in holding that the Will dated 24.04.1991 is not genuine. The substantial questions of law are answered accordingly. 27. In view of the above, the First Appellate Court is not right in granting the decree declaring that the suit properties are the undivided Hindu joint family property and granting permanent injunction is also not right in holding that the Will dated 24.04.1991 is not genuine. The substantial questions of law are answered accordingly. 28. In the result, the Second Appeal is allowed. The Judgment and Decree dated 29.11.2001 made in A.S.No.125 of 2000 on the file of the Principal District Court, Pudukkottai is set aside and the Judgment and Decree dated 16.06.2000 made in O.S.No.249 of 1995 on the file of the District Munsif, Aranthangi is restored. No costs.