The judgment emphasizes the importance of proving a Will in accordance with the law and the impact of suspicious circumstances on the validity of a Will.

ORDER

Leave granted.

2. Aggrieved by the judgment and decree of the High Court of Judicature at Madras in a second appeal, reversing the concurrent judgments and decrees of both the Courts below and thereby dismissing her suit for declaration of title and injunction, the original plaintiff has come up with the above appeal.

3. We have heard Shri Jayanth Muth Raj, learned senior counsel for the appellant and Mr. Harshvir Pratap Sharma, learned senior counsel for the first respondent.

4. The appellant filed a suit in O.S. No.25 of 2004 on the file of the sub-court, Krishangiri for a declaration of title and for permanent injunction in respect of certain properties. Her claim was based upon the last Will and Testament dated 15.07.1992 of one Chi. Munisamy Chettiar, whom the appellant claimed to be her husband.

5. The six sons and four daughters of Munisamy Chettiar allegedly born through his first wife were impleaded as defendant Nos.1 to 10 in the suit. The defendant Nos.2 and 3 filed a written statement, which was adopted by defendants 1, 5 and 7 to 10, contending that the appellant was not the wife of their father and that she was actually the legally wedded wife of one Marimuthu Gounder and that she also gave birth to two daughters in her marriage. Though defendants 4 and 6 filed a separate written statement, they also opposed the suit on the same grounds as the other defendants did. The truth and validity of the Will was also questioned by the defendants.

6. The first respondent herein, who was the sixth defendant in the said suit, filed an independent suit in O.S No.35 of 2004, seeking a declaration of his title and for a permanent injunction, against the appellant herein.

7. Both these suits were taken up together and by a judgment and decree dated 30.06.2008, the trial Court decreed the suit filed by the appellant herein, holding that the appellant was the second wife of the testator and that the Will stood proved. The independent suit filed by the first respondent herein was also decreed, as the same concerned one item of property.

8. Aggrieved by the decree passed in the appellant's suit, the first respondent herein filed a regular first Appeal in A.S No.26 of 2008. But the first appellate Court dismissed the appeal by a judgment and decree dated 23.12.2009. Therefore, the first respondent herein filed a second appeal on the file of the High Court of Judicature at Madras. The High Court framed two substantial questions of law as arising for consideration, which are as follows:

"1. Whether the presumption drawn by the courts below that both Munisamy Chettiar and Saroja Ammal were living as husband and wife for the long time?

2. Whether Ex.A9 has been proved as required under Section 68 of the Evidence Act, coupled with Section 63 of the Indian Succession Act?"

9. On the first question of law, the High Court held that, (i) long and continuous cohabitation of a man and a woman; (ii) their treatment as such for a number of years by the society; and (iii) the fact that they are living under the same roof, may ordinarily lead to a presumption that they are living as husband and wife, but the benefit of such presumption will not be available if either of the spouses had been married to another person. Since on facts, the appellant was married to one Marimuthu Gounder and had also borne two children for him, the High Court answered the first question of law against the appellant herein.

10. The second question of law was also answered by the High Court against the appellant on the ground that there were suspicious circumstances surrounding the execution of the Will and that the Will cannot be taken to have been proved in accordance with law. As a result of both the questions of law being answered against the appellant, the High Court allowed the second appeal filed by the first respondent herein. Therefore, the plaintiff, who is back to square one, is before us.

11. At the outset we should say that the question whether the appellant was the