Madras High Court
S.Bhakthavatchalam vs Visalakshi on 8 July, 2026
Author: N.Sathish Kumar
Bench: N. Sathish Kumar
AS Nos.385 & 151 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08-07-2026
CORAM
THE HONOURABLE MR JUSTICE N. SATHISH KUMAR
AND
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
AS Nos.385 & 151 of 2022
and CMP Nos. 5465, 5468, 13658 & 13660 OF 2022
A.S.No.358 of 2022
S.Bhakthavatchalam Appellant(s)
Vs
1. Visalakshi
2.Kamalakshi
3.Thanigainathan
4.Selvi.N.Nilayadatchi
5.Selvi.Kamatchi
S.Shanmugham (Died)
6.S.Kalathi
K.Gowrishankar (Died)
7.C.Vijayakumari
8.C.Bharanidharan
9.The Sub Registrar
Tiruvallur, Taluk Office Compund and Post,
Tiruvallur 602 001.
10.The Sub Registrar
Perambakkam, Office at Perambakkam
Village and post,Tiruvallur Taluk & District
11.The Sub Registrar
Kancheepuram Vanigar Street,
Kancheepuram Town and Taluk,
Kancheepuram Dist.
12.The Tahsildar
Tiruvallur Taluk J.N.Road, Tiruvallur Town
and Tk, Tiruvallur Dist.
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AS Nos.385 & 151 of 2022
13.The Dist. Collector
Tiruvallur Dist. Master Plan Complex,
Tiruvallur.
14.K.Rathinabai Respondent(s)
AS No. 151 of 2022
Bhakthavatchalam Appellant(s)
Vs
Egambaram (Died)
1.Kalathi
2.Vijayakumari
3.Vishalakshi
4.Kamalakshi
5.Thanigainathan
6.Nilaya Thatchi
7.Kamatchi
8.The Special Tahsildar
Adi Dravidar Welfare Department,
R.D.O.Campus, J.N.Road, Tiruvallur
Town, Tiruvallur Tk and Dist. Respondent(s)
PRAYER in A.S.No.385 of 2022: Appeal Suit filed under Section 96 read with
Order 41 Rule 1 of CPC, against the Judgment and Decree dated 12.04.2019
made in O.S.No.134 of 2009 on the file of I Additional District Judge,
Tiruvallur.
PRAYER in AS No. 151 of 2022: Appeal Suit filed under Section 96 read with
Order 41 Rule 1 of CPC, against the Judgement and Decree dated made in
OS.No.118 of 2005 on the file of I Additional District Judge, Tiruvalur dated
12.04.2019.
AS No. 385 of 2022
For Appellant(s): Mr.N.Manokaran
For Respondent(s): Ms.R.V.Gayathri for R3 & R6
Mr.P.B.Ramanujam
Mr.A.Palaniappan for R7 & R8
Mr.M.Hemanth Kumar for R9 to R13
Government Counsel
No appearance for R1, 2, 4, 5 & 14
AS No. 151 of 2022
For Appellant(s): Mr.S.Vinod
For Respondent(s): Ms.R.V.Gayathri for R1,3 to 7
Mr.P.B.Ramanujam
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AS Nos.385 & 151 of 2022
Mr.A.Palaniappan for R2
Mr.M.Hemanth Kumar for R8
Government Counsel
COMMON JUDGMENT
(Judgment delivered by N.Sathish Kumar J.)
(i) Aggrieved by the judgement and decree of the Trial Court granting
preliminary decree of 1/5th share in the suit properties to the plaintiff and
dismissing the suit in respect of other reliefs in O.S.No.134 of 2009, the
plaintiff/appellant has come up with the Appeal Suit in A.S.No.385 of 2022.
(ii) Aggrieved by the judgement and decree of the Trial Court declaring
the plaintiffs to claim shares in the compensation amount awarded in
LAOP.No.361/1991, the first defendant in the suit in O.S.No.118 of 2005 has
come up with the Appeal Suit in A.S.No.151 of 2022.
2.The private parties in both the appeal suits are brothers and sisters. The
core issue in the both the suits is with regard to the validity of the will relied
upon by the appellant in A.S.No.385 of 2022. If the appeal in A.S.No.385 of
2022 arising out of the suit in O.S.No.134 of 2009 is disposed off, it will
address the issue arising in the other connected appeal suit in A.S.No.151 of
2022. Though two suits were disposed of by the Trial Court by way of separate
judgements, since the issues are inter-connected, we are inclined to dispose of
both the appeal suits by way of this common judgement.
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3. The suit in O.S.No.134 of 2009 is a comprehensive suit filed for
partition and other reliefs by the appellant in A.S.No.385 of 2022 and the suit in
O.S.No.118 of 2005 is filed by the defendants in the said suit as against the
plaintiff in O.S.No.134 of 2009 for a declaration that they are entitled to receive
the compensation in LAOP.No.361/1991. The suit in O.S.No.134 of 2009 was
decreed granting preliminary decree of 1/5th share in the suit properties and the
suit in O.S.No.118 of 2005 was partly decreed declaring the plaintiffs therein
are entitled to claim share in the compensation amount awarded in LAOP.
Challenging the said decree and judgments, the plaintiff and the first defendant
in the suits in O.S.Nos.134 of 2009 and 118 of 2005 has come up with the
instant appeal suits.
4. For the sake of convenience and clarity, the parties are arrayed to as per
their own ranking before the Trial Court in O.S.No.134 of 2009.
5. The following are the brief facts in O.S.No.134 of 2009:-
5.a. Originally, partition deed was entered into between Subramania
Mudaliar, his wife Sakunthala Ammal and their sons Ekambaram, Kalathi and
Bakthavachalam on 21.06.1970, whereby, the ‘A’ schedule properties was
allotted to Subramania Mudaliar and his wife Sankunthalama, The ‘A’ schedule
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AS Nos.385 & 151 of 2022properties therein is the subject matter of the suit. The properties allotted to
other sons are not the subject matter of the issue. The entire issue in the suit is
relating to the properties allotted to the parents of the parties. The father namely
Subramania Mudaliar died intestate on 29.07.1987 leaving behind his wife
Sakunthala Ammal, Ekambaram, Shanmugam, Kalathi,
plaintiff/Bakthavachalam and Vijayakumari as his legal heirs. It is the case of
the plaintiff that after the death of his father, his mother Sakunthala Ammal was
looked after by the plaintiff and they were residing in ‘C’ schedule property. The
‘A’ and ‘B’ schedule property was cultivated by the plaintiff. Sakunthala Ammal
executed an unregistered will dated 02.01.2002 bequeathing her properties to
the plaintiff. In the said will, his mother has clearly narrated the fact that the
eldest son Ekambaram obtained signatures in certain blank papers when she was
ill. Later, she has also executed another registered will dated 12.08.2002
bequeathing her properties in favour of the plaintiff. According to the plaintiff,
the said will was executed while she was in sound state of mind. She died on
24.06.2003, therefore, the plaintiff become entitled to the entire properties of
her mother by virtue of will dated 12.08.2002.
5.b. It is the further case of the plaintiff that on the 16 th day of ceremony
of Sakunthala Ammal, the plaintiff has informed about the will to the brothers
and sister. Based on the will, the plaintiff got himself included as the legal
representative of his mother in LAOP.No.361/1991 which was conducted by the
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AS Nos.385 & 151 of 20227th defendant as her power of attorney. The said LAOP was decided on merits
and award was passed on 30.04.2004. Neither the 7 th defendant nor the other
legal heirs of Sakunthala Ammal ever raised any objection or disputed the will
in favour of the plaintiff. The first defendant chose to create a forged and
fabricated document using the signatures already obtained from Sakunthala
Ammal. Based on the will, the plaintiff is entitled to ½ share in the suit
properties and remaining ½ share of the their father devolved upon his legal;
heirs. Hence, the suit.
5.c.Written statement filed by the 7th defendant was adopted by the other
defendants 1,2,3,4,5,8,9 & 10, wherein, it was the contention of the defendants
that their mother was not looked after by the plaintiff alone. The plaintiff is far
away from the ‘A’ and ‘B’ schedule properties and therefore, only the defendants
are cultivating the ‘A’ and ‘B’ schedule properties. According to them,
Sakunthala Ammal executed a will dated 14.03.2003 bequeathing her share
equally to all her children including the plaintiff. The defendants are in
possession of the ‘A’ and ‘B’ schedule properties. The Wills relied upon by the
plaintiff is forged, fabricated and the same has been created by the plaintiff. The
7th defendant Kalathi has executed a registered settlement deed on 06.08.2003 in
favour of Gowri Shankar. Vijayakumar has executed a registered settlement
deed dated 14.08.2003 in favour of Bharanidharan. All the settlees were issued
patta in their favour. The last will of their mother is acted upon. Hence, it is the
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contention that based on the will, the plaintiff claimed compensation in
LAOP.No.361/2001, in which, the defendants filed an application on
08.09.2004, however, the same was retuned stating that the OP was already
disposed. Hence, the defendant filed a suit in OS.No.118/2005 for declaration
that they are also entitled to receive the compensation amount in the above
LAOP. It is also the contention that their parents have already sold the suit item
11 in ‘A’ schedule and 7,8 & 11 of ‘B’ schedule. Hence, sought for dismissal of
the suit.
5.d.The trial court framed the following issues for consideration:-
a. Whether the suit properties are available for partition?
b. Whether the Will dated 12.08.2002 has been proved in accordance with
law?
c.Whether the Will dated 14.03.2003 is the last Will of deceased
Sakunthala Ammal?
d. Whether the Will dated 14.03.2003 has been proved in accordance with
law?
e.Whether the plaintiff is entitled to the relief as claimed for?
f.To what other reliefs?
5.e.On the side of the plaintiffs, PW1 to PW3 were examined and Exs.A1
to A79 were marked. On the side of the defendants, DW1 and DW2 were
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AS Nos.385 & 151 of 2022examined and Exs.B1 to B12 were marked.
5.f. Upon considering the oral and documentary evidence, the trial court
decreed the suit in part granting preliminary decree of 1/5th share in the suit
properties to the plaintiff and dismissed the suit in respect of other reliefs.
5.g. The other suit in O.S.No.118 of 2005 has been filed by the
defendants in the above suit seeking for a declaration that the plaintiffs are also
entitled to receive the compensation amount along with the first
defendant/Bhaktavatchalam in Land Acquisition OP.No.361/1991. The first
defendant in O.S.No.118 of 2005 has obtained award in the above LAOP based
on the will dated 02.01.2002 and 02.08.2002. The Trial Court framed the
following issues for consideration:-
a. Whether the Will dated 14.03.2003 is the last Will of deceased
Sakunthala Ammal?
b. Whether the Will dated 14.03.2003 has been proved in accordance with
law?
c. Whether the first defendant is entitled to claim compensation amount as
per the will dated 12.08.2002?
d. Whether the Will dated 12.08.2002 has been proved in accordance with
law?
e.Whether the plaintiffs are entitled to the relief as claimed for?
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5.h.On the side of the plaintiffs, PW1 & PW2 were examined and Exs.A1
to A13 were marked. On the side of the defendants, DW1 to DW3 were
examined and Exs.B1 to B11 were marked.
5.i. Upon considering the oral and documentary evidence, the trial court
decreed the suit in part declaring the plaintiffs to claim share in the
compensation amount and dismissed the suit in respect of other reliefs.
Challenging the above decree and judgments, the plaintiff and the first
defendant respectively has filed the instant appeal suits.
6. Mr.N.Manokaran, learned counsel for the appellant in AS.No.385 of
2022 submitted that the Trial Court has disbelieved the will merely on the the
ground that the mother excluded the other legal heirs, whereas, the evidence of
PW2 and PW3 clearly proves not only the execution but also the attestation of
the wills. In the cross examination, nothing is elicited to discredit the document.
In Ex.A15, first will dated 02.01.2002, though it is unregistered, the mother has
clearly given a reason for writing the will in favour of the plaintiff, i.e., the
eldest son has obtained signatures from her in a blank paper, thus, in order to
avoid any fabrication of the document, mother has executed the will. When no
suspicious circumstances whatsoever brought on record, the will has to be
believed. It is the further contention that registered will in Ex.A16 dated
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12.08.2002 also contains the same recitals as that of Ex.A15/unregistered will.
The registration has been made only to ensure that the will was executed by his
mother. When the attesting witnesses have clearly spoken about the execution
and attestation of the wills and the evidence has not been discredited and no
circumstances was brought on record to suspect the will, mere disinheritance of
some of the legal heirs is not a ground to disbelieve the will. The mother has
clearly given evidence to the effect that only the younger son was looking after
her and already, there are other properties allotted to others legal heirs. Such
being the position, the wills ought to have been relied upon. The defendants has
propounded the will dated 14.03.2003, the same has been registered only after
the death of the testatrix. The plan appended to the will has seen the light only
when the Ex.B4 was filed before the Court for the first time. Registration of the
will after several years clearly indicate that Ex.B4 has been created to non-suit
the wills relied upon by the plaintiff.
7. Further, when the plaintiff was prosecuting the land acquisition case
based on the will relied upon by the plaintiff, the same has not been objected by
the other legal heirs. Though, originally the LAOP was prosecuted by the 7 th
defendant as power of attorney to his mother, even after the plaintiff relied upon
the wills in the said proceedings, the other legal heirs have not impleaded
themselves, this itself clearly shows that they were aware of the will. This
aspect was never considered by the Trial Court. That apart, merely, because the
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attesting witnesses are close to the beneficiary, that cannot be a suspicious
circumstances to disbelieve the will. In support of his submissions, he relied
upon the following judgments:-
a. Sridevi & Ors v. Jayaraja Shetty reported in (2005) 2 SCC 784
b. Pentakota Satyanarayana v. Pentakota Seetharatnam reported in
(2005) 8 SCC 67
c. Savithri & Ors v. Karthyayani Amma & Ors reported in (2007) 11 SCC
621.
8. The learned counsel for the private respondents submitted that the will
propounded by the plaintiff, viz., Exs.A15 & A16 is shrouded with serious
suspicious circumstances. The wills have been prepared at the instance of the
beneficiary and the attesting witnesses are his close friends and employee. In
both the wills, the same attesting witnesses have attested the wills and there are
serious of inconsistencies found in their evidences. This raises serious doubt
about the wills. It is further contended that the evidence of DW1 would clearly
show that mother was moving with all other sons. Even assuming that one of
the sons obtained signatures on blank papers from the mother, only to avoid the
same, will has been executed by the mother, there is no reasons as to why other
legal heirs have been excluded from inheriting the properties and there was no
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adverse report whatsoever established against any of the other legal heirs to
exclude them in the will. Further, the will admittedly said to have been prepared
on the basis of Ex.A10/partition deed dated 21.06.1970 which contains all the
details of the properties allotted to the mother and father, whereas, conveniently
in Exs.A15 & A16, details of the properties have not been given. This itself
clearly shows that will has been prepared in an hurried manner, therefore, mere
registration of the wills in Exs.A15 & A16 will not dispense with the proof of
will and the plaintiff has not dispelled the suspicious circumstances attached to
the will. According to the learned counsel, the documents itself contains
inherent suspicious circumstances, hence, the Trial Court has rightly disbelieved
the will and granted preliminary decree allotting 1/5 th share to the plaintiff and
held that all other defendants are Class I legal heirs and they are entitled to 1/5 th
share. Hence, seeks for dismissal of these appeal suits.
9. In light of the above submissions, the admitted facts are as follows:-
a. The parties are the legal heirs of one Subramania Mudaliar and
Sakunthala Ammal. It is not disputed by both sides that the ‘A’ schedule
properties in partition deed dated 21.06.1970 were allotted to both husband and
wife. The suit is filed in respect of Sakunthala Ammal’s share allotted under
Ex.A10/partition deed by plaintiff/younger son of Sakunthala Ammal, who
propounded the will dated 02.01.2002 under Ex.A15 and a registered will
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AS Nos.385 & 151 of 202212.08.2002 under Ex.A16 claiming to be the beneficiary. The eldest son
propounded the will dated 14.03.2003 under Ex.B4, the same has been
registered after the death of the testatrix. The Trial Court appreciating the
evidence of both sides disbelieved the wills projected by both sides and held
that the plaintiff being the legal heir is entitled to 1/5 th share. Challenging the
same, appeal suit in A.S.No.385 of 2022 has been filed.
b. As against the judgement and decree of the the Trial Court disbelieving
the will dated 14.03.2003/Ex.B4 propounded by the defendants, no appeal or
cross appeal whatsoever is filed by the defendants, therefore, now, the issue
revolves around in these appeal suits is only with regard to Exs.A15 and A16
alone.
10. In light of the above submissions, now the following points arise for
consideration:-
(i) Whether the will dated 02.01.2002 is true, valid and proved in
accordance with law?
(ii)Whether the will dated 12.08.2002 is true, valid and proved in
accordance with law?
(iii) Are there any suspicious circumstances attached to the will and if so,
the same has been dispelled by the propounder?
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Points (i) to (iii)
11. As already indicated, parties are contesting the matter only in respect
of the properties allotted to their mother namely Sakunthala Ammal under
Ex.A10 dated 21.06.1970. The ‘A’ schedule properties were jointly allotted to
Subramania Mudaliar and Sakunthala Ammal, therefore, from the said
allotment, it is clear that both Subramania Mudaliar and Sakunthala Ammal
were jointly entitled to ½ share each in the ‘A’ schedule property allotted under
Ex.A10. Now, the dispute is only with regard to the share of Sakunthala Ammal.
Admittedly, Subramania Mudaliar and Sakunthala Ammal had four sons and
one daughter. The plaintiff is the younger son and the first defendant is the
eldest son. According to the plaintiff, mother was living with him, he was
looking after her, therefore, she has left the will under Ex.A15 and
Ex.A16/wills, since the eldest son Ekambaram has obtained signatures in certain
blank papers and to avoid fabrication of the same, the will has been executed
out of love and affection in favour of the plaintiff, since, the plaintiff was
looking after her. Ex.A15 will dated 02.01.2002 was freely executed by her
while she was in sound state of mind, later another registered will/Ex.A16 dated
12.08.2002 was executed bequeathing her entire share in favour of the plaintiff.
12. It is well-settled that the propounder must prove due execution and
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attestation in terms of Section 63 of the Indian Succession Act and Section 68 of
Evidence Act, i.e., that the testatrix executed the Will voluntarily, in a sound and
disposing state of mind, and that it was attested by two competent witnesses. 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. The Court
while assessing the will has to assess the same sitting in the arm chair of the
testatrix. The Hon’ble Supreme Court in the case of Venkatachala Iyengar vs.
B.N.Thimmajamma, reported in AIR 1959 SC 443, has reiterated that, while
examining the validity and naturalness of a testamentary disposition, the Court
must place itself in the “armchair of the testator” and consider the surrounding
circumstances as they would have appeared to the executant.
13. Similarly, the Hon’ble Supreme Court in the case of Sridevi vs.
Jayaraja Shetty reported in (2005) 2 SCC 784 has held as follows:-
“ 11. It is well settled proposition of law that mode of
proving the Will does not differ from that of proving any other
document except as to the special requirement of attestation
prescribed in the case of a Will by Section 63 of the Indian
Succession Act, 1925. The onus to prove the Will is on the
propounder and in the absence of suspicious circumstances
surrounding the execution of the Will, proof of testamentary
capacity and proof of the signature of the testator, as required by
law, need be sufficient to discharge the onus. Where there are
suspicious circumstances, the onus would again be on the
propounder to explain them to the satisfaction of the court before15/31
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AS Nos.385 & 151 of 2022the Will can be accepted as genuine. Proof in either case cannot be
mathematically precise and certain and should be one of
satisfaction of a prudent mind in such matters. In case the person
contesting the Will alleges undue influence, fraud or coercion, the
onus will be on him to prove the same. As to what are suspicious
circumstances has to be judged in the facts and circumstances of
each particular case.”
14. Applying these settled principles, when Exs.A15 and A16 carefully
seen, Ex.A15 is a will written on the white paper said to have been prepared in
the presence of one Krishnan, Advocate & Notary Public and attested by two
witnesses, PW2 and PW3 and one Suresh and the document has been prepared
by scribe namely Chidambaranadhan. The recitals in the will shows that the
entire property belong to the testatrix namely the mother of the plaintiff, who
bequeathed the same to her younger son. The reason for writing the will as per
the recitals in the document is that the elder son has obtained signature in the
blank papers while she was ill, therefore, there is every likelihood that he may
create any other document and the reasons for excluding the other sons is that
they have not extended any support to the testatrix. In the entire will, absolutely,
there is no reason whatsoever assigned as to why she has excluded her daughter
Vijayalakshmi. Be that as it may, another will under Ex.A16 is also executed
and the entire recitals in Ex.A15 is incorporated and further, it is also recited
that since for several years, she was residing with the beneficiary namely the
plaintiff and he has been extending all the support to her, therefore, she is
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writing the will in favour of the younger son and it is also stated that eldest son
has obtained signature in blank papers and he may fabricate the same, in order
to avoid the will, she is writing the will. The will of-course is registered and the
three attesting witnesses who have signed the earlier will attested the will
namely PW2 and PW3 and one Suresh; however, the will is said to have been
prepared by another document writer namely Venkatachalam. On careful
perusal of both the wills under Exs.A15 & A16, this Court is of the view that
there was no reason whatsoever assigned to exclude the daughter though it is
stated that other sons are not helping her. Though the first will was said to have
been prepared in the presence of Advocate and Notary Public and prepared by
one Chidambaranadhar, the second will is not prepared in the presence of an
Advocate, whereas, a different writer has prepared and the same has been
registered. Though the registration carries presumption that every official acts
are done properly, mere registration of the will will not dispense the proof and
validity of the will.
15. Now, in the light of the above, we have to analyse the evidences of
PW2 and PW3, who are the attesting witnesses to both the wills. On careful
perusal of the evidence of PW2/one of the attesting witness, his evidence in the
chief affidavit clearly shows that he and beneficiary namely the plaintiff were
close friends from the young age and both of them are also running medical
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shop. On 02.01.2002, the scribe brought the will, after reading out the will,
Sakunthala Ammal has signed the will in the presence of Advocate and Notary
and all the witnesses signed at the directions of the Sakunthala Ammal.
Similarly, on 12.08.2002, one Venkatachalam/scribe brought typed copy of
Ex.A16 and the said document is also read out later in the Sub Registrar Office
and Sakunthala Ammal signed the document in their presence. It is also stated in
the chief examination that while executing both the wills, she was in sound state
of mind; later on 03.07.2003, the execution of the will has been informed to all
other legal heirs. In the cross examination of PW2 when carefully seen, he
stated that he had gone at the instruction of the plaintiff and the will was
prepared by the scribe in the house. The first will was executed at about 7 pm
and he had signed as the first attesting witness and later one Suresh signed.
Ex.A16 was prepared by one Venkatachalam and he has also seen the testatrix
signing the document. On careful perusal of his evidence, though the cross
examination is very short, the fact remains that all the attesting witnesses are
close aid of beneficiary and in fact, PW2 is friend and partner with the
beneficiary namely the plaintiff. In the chief examination, it is the specific
evidence of PW2 that typed will was brought to the house by the scribe
Chidambaranadhar, whereas, in the cross examination, his evidence is to the
effect that the will was prepared in the house itself. Though the contradictions
appear to be small in nature, it has relevance to assess the entire matter
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compared with the evidence of PW3. In the entire cross examination of PW2, he
has never stated about the presence of another attesting witness namely Suresh
and Notary Public. Similarly, when the evidence of PW3/another attesting
witness is carefully seen, it clearly indicates that he was working as
representative under the beneficiary for more than 7 years. His evidence also
clearly show that the scribe has typed both the wills in the house. In the cross
examination, he has clearly stated that the first will/Ex.A15 was prepared by
Paramasivam, whereas, it is the specific case of the plaintiff and the PW2 that it
was prepared by Chidambaranadhar. In his entire cross examination, he has
never whispered about the presence of another witness.
16. In the wills under Exs.A15 and A16, there are three attesting
witnesses, in the normal circumstances, only two attesting witnesses will sign
the will, whereas, unusually, in the subject wills, three attesting witnesses have
signed. It is further to be noted that three attesting witnesses had signed in
different inks in both the wills. In the registered will, only serial number 1 and 2
is typed in the place of attesting witnesses, whereas, No.3 has been written in
hand. If really all the witnesses were present on the same day and it was
prepared in the presence of the three attesting witnesses, in the normal course,
Serial No.3 would have been typed as typed in Ex.A15. This also gives raise to
some doubt. Further, it is to be noted that though the evidence of the PW2 and
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PW3 with regard to the execution and attestation is not fully challenged that
itself is not sufficient to dispel the suspicions which are inherent in the
documents.
17. Admittedly, both the attesting witnesses are close friends and
employee of the beneficiary. PW1 evidence, when carefully seen in this regard,
clearly show that PW2 and PW3 are close associates of the beneficiary. PW1
evidence further clear show that at the time of the first will, Ex.A15, only PW2,
PW3, scribe and Suresh were present and he clearly deposed that Will was
brought by the scribe. In his cross examination, it does not show that the will
was signed in the presence of Advocate and Notary Public. Whereas, PW2 and
PW3 evidences in chief examination clearly indicate that Advocate was present
at the relevant point of time, whereas, PW1 in his evidence never stated
anything about the presence of the Advocate and Notary at the relevant point of
time. In the entire PW1 evidence show that Ex.A15 was signed by the PW1 in
the Notary Public Office. His evidence clearly indicate that all of them went to
the office in Auto and the will has been signed by the testatrix before the Notary
and he has admitted that PW2 is a partner and PW3 is a employee and another
attesting witness is also the employee of PW1. His entire evidence clearly show
that from the very beginning till the second will was registered, PW1 was
actively participating in preparing the will and calling all the attesting witnesses,
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who are either employees or friend, therefore, the evidence of PW1 to PW3
when carefully scanned together makes it clear that there are serious
inconsistencies with regard to the place of the execution of the document. PW2
and PW3 in the chief examination deposed that the first will was executed in the
presence of Notary Public, whereas, in the cross examination of PW1, the
presence of Notary Public during the execution of the will in the house of PW1
is totally absent. PW1 stated that Ex.A15 was executed in the presence of the
Notary Public in his office. Whereas, the evidence of PW2 and PW3 asserted
that the will was executed in the house itself. According to them, Notary Public
was present in the house. All these facts creates serious doubt about the very
execution of the will namely Ex.A15. Therefore, merely because some of the
interested witnesses namely employees and partner of the beneficiary have
verbatim stated in the chief examination about the execution of the will and
their evidence is also not properly cross-examined by the Mofussil lawyers, that
itself cannot be a ground to believe that the document was validly executed as
the last testament of the testatrix.
18. It is relevant to note that the reasons assigned to exclude the other
legal heirs is that one of the legal heir namely eldest son obtained signature of
the testatrix in blank papers, therefore, the same may be misused by him later,
therefore, the Will has been written. Such reason is highly improbable for the
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simple reason that even if such allegations are taken to be true that one of the
son namely the elder son has taken signature in certain blank papers, therefore,
she executed the will in favour of younger son, there was no reason whatsoever
to exclude the other legal heirs in entirety, particularly, there is no circumstances
whatsoever established on record to show that other legal heirs are not
maintaining the good relationship with the testatrix and the relationship with the
testatrix became rancour at any point of time. PW1 evidence also clearly show
that he and 9th defendant were partners in Vijay Medicals for some time and the
said partnership was conducted in the same house and 9 th defendant also used to
come to house. His evidence further shows that both the wills right from the
preparations and arranging the witnesses and registration, he was actively
participating. In the entire will, absolutely there is no details about the
properties except stating that the properties of the mother is bequeathed, but the
fact remains that Item No.11 of ‘A’ schedule and Item Nos.7,8 and 11 of ‘B’
schedule properties are already sold by the mother during her lifetime, but the
same is also included in the suit.
19. DW1 evidence clearly shows his mother was prosecuting the LAOP
in which the 7th defendant was appointed as power agent and he was prosecuting
the case on behalf of his mother. It is suggested to the DW1 to the effect that
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there was Panchayat in the year 2001 to divide the property of the mother, since,
there was no resolution reached in the Pachayat, signature was obtained in the
blank papers which was later used to create Ex.B4 propounded by the
defendant. The very suggestion put to DW1 clearly show that in respect of the
suit property, there was a Panchayat in the year 2001. Further, cross
examination clearly show that mother has also executed rectification deed in
respect of the plots sold by her. In the said document, DW1 has also signed as
one of the witness. The fact that 7 th defendant, one of the son prosecuting the
LAOP filed by her mother and power of attorney was also given in his name
was not disputed. That apart, DW1 has also signed as witness in the
Rectification Deed dated 03.02.2003. These facts clearly show that the
relationship with the 7th defendant namely one of the son with the mother is also
cordial, there was no circumstances whatsoever available on record to show that
other legal heirs acted adverse to the mother so that she has disinherited them in
the will. The reasons for writing the Exs.A15 and A16 Wills is only on the
ground that she has been looking after by only one son and since the elder son
has obtained signature in some blank papers, he may misuse the same; but the
evidence of DW1 when suggestion put to him clearly show that mother had a
very good relationship and in fact, Power of Attorney is also given to the 7 th
defendant to prosecute the LAOP on her behalf, that apart, even on 03.02.2003,
when the rectification deed was executed by the testatrix, the DW1 has
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accompanied her and signed as witness. These facts shows that the relationship
with the other legal heirs was very cordial with the mother.
20. The Hon’ble Supreme Court in Meena Pradhan vs. Kamla Pradhan
reported in (2023) 9 SCC 734, in paragraph 10.11 has held as follows:-
“ 10.11. Suspicious circumstances must be “real, germane
and valid” and not merely “the fantasy of the doubting mind
[Shivakumar v. Sharanabasappa, (2021) 11 SCC 277]”. Whether a
particular feature would qualify as “suspicious” would depend on
the facts and circumstances of each case. Any circumstance raising
suspicion legitimate in nature would qualify as a suspicious
circumstance, for example, a shaky signature, a feeble mind, an
unfair and unjust disposition of property, the propounder himself
taking a leading part in the making of the will under which he
receives a substantial benefit, etc.”
21. Recently, in Sardari Lal vs. Bishan Dass and others reported in 2026
SCC OnLine SC 1266, the Hon’ble Supreme Court has held as follows:-
“ 32. Survey of judicial precedents makes it clear that the
burden to prove the Will lies on its propounder. Besides, the
exercise of proving the Will is not confined to proving its execution
in terms of Section 63 of the Succession Act by the mode prescribed
by Section 68 of the Evidence Act. This is just the first step in that
exercise. The exercise is complete when the propounder satisfies
the Court’s conscience that the testator had signed the Will with
free will, being aware of its contents, and after understanding the
nature and effect of the dispositions in the Will. And, if there are
suspicious circumstances raising doubts about the Will, it is the
duty of the propounder to explain those suspicious circumstances
to dispel the doubts and satisfy the Court’s conscience. As to what
would be considered a ‘suspicious circumstance’ depends on the
facts and circumstances of each case. Broadly, any circumstance,
or set of circumstances, which gives rise to a legitimate suspicion
about the valid execution of the Will could be considered a
suspicious circumstance. However, those suspicions must not be a24/31
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AS Nos.385 & 151 of 2022figment of imagination or fantasy of a doubting mind.
22. In light of the above, when there are no other circumstances
whatsoever brought on record to show that the relationship between the other
legal heirs and the mother so rancour that she has excluded them in entirety in
huge properties, this creates serious doubt about the genuineness of the will.
The beneficiary namely the plaintiff took active role from the very beginning in
preparing the wills by the two document writers, got it attested in front of
Advocate Notary and took her to the Registration Department and this has also
been admitted in his evidence. These facts shows about his active participation
for preparing the will. In this regard, the Hon’ble Supreme Court in the case of
H.Venkatachala Iyengar vs. B.N.Thimmajamma reported in AIR 1959 SC 443
has held as follows:-
“ 34… (i) when a doubt is created in regard to the condition
of mind of the testator despite his signature on the will;
(ii) when the disposition appears to be unnatural or wholly
unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in the
execution of will which confers on him substantial benefit”
23. Further, as already indicated, PW1 evidence shows that the first will
was signed in the Office of the Notary Public Office, whereas, the attesting
witnesses evidence indicates as the will was signed in the house of testatrix.
These facts creates serious doubt. As already stated, in cross examination of
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PW2 and PW3, the other witness name is not whispered and the third witness
has signed in a different ink and in Ex.A16, serial number 3 is also written in
hand, this is also against the normal circumstance. If really, all the witnesses
were present, the normal conduct of the scribe or document writer is to type the
serial number in the machine, whereas, filling the serial number clearly gives an
inference that the other attesting witness has been included later.
24. Further, it is also to be noted that inserting the clause in both the wills
that blank paper is already left by the testatrix, the same may be misused,
therefore, she is writing the will is quite unnatural, whereas, the suggestion put
to DW1 clearly indicate that blank paper was given at the time of the Panchayat
convened to divide the properties in the year 2001, therefore, inserting such
clause is also attached with some artificiality to exclude all the legal heirs. As
already stated even assuming that one of the legal heir had taken advantage of
blank paper, there was no reason as to why the other legal heirs, particularly,
DW1 in whose favour, Power of Attorney was executed and was all along
accompanied his mother to the Register Office and signed as a witness in the
rectification deed and still excluding all the other legal heirs without any
circumstances of strained relationship established creates serious doubt about
the genuineness of the Will. When there was no strained relationship with other
legal heirs, it is highly improbable to comprehend that parent will discriminate
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the other legal heirs and bequeath the entire huge property to one of the legal
heir.
25. In Pentakota Satyanarayana v. Pentakota Seetharatnam reported in
(2005) 8 SCC 67, the Hon’ble Supreme Court has held that registration of the
Will does not dispense with the need of proving, execution, and attestation of a
document which is required by law to be proved in the manner as provided in
Section 68 of the Evidence Act. Even the Will is duly proved, the onus is
discharged by the propounder adducing prima facie evidence providing the
competence of the testator and execution of the Will in the manner
contemplated by law. In such circumstances, the onus shifts to the contestant
opposing the Will to bring material on record meeting such prima facie case in
which event the onus shifts back on the propounder to satisfy the court
affirmatively that the testator did know well the contents of the Will and in
sound disposing capacity executed the same.
26. Absolutely, there is no dispute with regard to the above proposition,
mere proof of the will alone is not sufficient. When the suspicions are inherent
as pointed above, it is again the onus shifts on the propounder to dispel the
suspicious circumstances which has not been done in this case. Huge properties,
more than 30 acres are sought to be deviated by way of succession each and
every suspicions has to be dispelled by the propounder which has not been done
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so.
27. Considering the above, we are of the view that Exs.A15 & 16 are not
genuine, true and valid. Suspicions are inherent in the documents as discussed
above. Accordingly, these points are answered in negative.
28. Though several documents have been filed by both sides, the same are
not relevant to decide the issue since the entire issue and the right of the parties
revolving around the Wills propounded by the plaintiff have been disbelieved by
this Court. Therefore, we do not find any infirmity in the order passed by the
Trial Court. Accordingly, the appeal suit in A.S.No.385 of 2022 is dismissed.
The Trial Court granting preliminary decree and allotting 1/5 th share to the
plaintiff in view of this Court is correct.
29. Since, this Court also disbelieved the wills propounded by the
plaintiff, we are inclined to concur with the judgement of the trial Court as
discussed above and the appeal filed against the judgement and decree of the
Trial Court in O.S.No.118 of 2005 and the appeal suit in A.S.No.151 of 2022
has to necessarily fail. Accordingly, all the legal heirs are certainly entitled to
equal share in the compensation awarded in the Land Acquisition Proceedings
in LAOP.No.361/1991 on the file of the learned Sub Court, Tiruvallur.
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30. In the result, these appeal suits are dismissed. No costs. Consequently,
connected miscellaneous petitions stand closed.
(N.SATHISH KUMAR J.)(M.JOTHIRAMAN J.)
08-07-2026
dhk
Index:Yes/No
Speaking/Non-speaking order
Internet:Yes
Neutral Citation:Yes/No
To
1.The I Additional District Judge
I Additional District Court, Tiruvallur.
2.The Sub Registrar
Tiruvallur, Taluk Office Compund and
Post, Tiruvallur 602 001.
3.The Sub Registrar
Perambakkam, Office at Perambakkam
Village and post, Tiruvallur Tk and
Dist.
4.The Sub Registrar
Kancheepuram Vanigar Street,
Kancheepuram Town and Taluk,
Kancheepuram Dist.
5.The Tahsildar
Tiruvallur Taluk J.N.Road, Tiruvallur
Town and Tk, Tiruvallur Dist.
6.The Dist. Collector
Tiruvallur Dist. Master Plan Complex,
Tiruvallur.
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7.The Special Tahsildar
Adi Dravidar Welfare Department,
R.D.O.Campus, J.N.Road, Tiruvallur
Town, Tiruvallur Tk and Dist.
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N.SATHISH KUMAR J.
AND
M.JOTHIRAMAN J.
dhk
AS Nos. 385 & 151 of 2022
08-07-2026
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