Onus lies on the propounder of Will to remove suspicions.

N.V.Balasubramanian, J.

A.S.No.851 of 1989:

An interesting question of law arises in the appeal in A.S.No.851 of 1989 regarding the character of the Will left by one Palaniappa Chettiar (testator) and his wife Chinnammal @ Rangammal (testatrix) and the question is whether the Will left by them dated 26.9.1968 is a joint Will or a joint and mutual Will. The question that arises in A.S.No.606 of 1989 is whether the Will executed by Chinnammal @ Rangammal dated 27.11.1980 is a true, valid and genuine Will. Apart from the two questions in both the appeals, other points that arise are, whether the suit has been properly instituted after getting proper leave of the Court under section 92 CPC, whether the properties left by the testator and the testatrix are trust properties and whether the trust has been validly created and also other incidental questions regarding the maintainability of the appeal.

2. The brief facts of the case are as under:-

(a) The plaintiffs are the appellants in A.S.No.851 of 1989 and they have filed the appeal against the dismissal of suit in O.S.No.76 of 1981 on the file of Subordinate Judge, Gobichettipalayam. The other appeal, A.S.No.606 of 1989 is filed by the defendants 4 and 5 in the suit against the adverse finding regarding the validity of the will Ex.B-109.

(b) O.S.No.76 of 1981 was instituted before the Subordinate Judge, Gobichettipalayam by the plaintiffs, Senniappa Chettiar and G.K.Jayajothimurughan in their representative capacity on behalf of Hindu Community in General and Citizens of Gobichettipalayam. The suit was filed for a decree arranging for the management of the suit trust by the defendants 1 to 3 by entering on their duties as trustees or by appointing new trustees and settling a scheme to ensure an effective and proper administration of the trust and its properties. There is no prayer for costs. The suit was instituted on the basis of a Will dated 27.9.1968 (Ex.A-5) executed by N.Palaniappa Chettiar and his wife Chinnammal @ Rangammal. The eo-nominee first plaintiff is the brother of Rangammal and the eo-nominee second plaintiff is the first plaintiff's daughter's son and as persons interested in the trust, they filed the suit for proper administration of the trust as envisaged in Ex.A-5.

(c) Though the plaint runs to nearly 12 pages, the essential facts necessary for the disposal of the appeals are that Palaniappa Chettiar was a self-made man and he migrated from a village called, Siruvalur in or about 1930 to Gobichettipalayam. He had a lucrative shroff and money-lending business. Palaniappa Chettiar earlier executed a Will dated 15.7.1931(Ex.A-6) and the Will shows his philanthropic bent of mind and he bequeathed his properties for charities subject to variance depending upon begetting issues between him and his wife Chinnammal @ Rangammal. He also mentioned the list of properties as well as the list of charities to be done in the Will executed as early as on 15.7.1931 (Ex.A-6). Palaniappa Chettiar later executed a Will dated 15.7.1956 (Ex.B-14) and the Will has been taken into consideration only for identifying the signature of Palaniappa Chettiar and not for proving the contents of the document as seen from the deposition of D.W.1 at page 140 of typed-set of papers. The Will of Palaniappa Chettiar dated 15.7.1931 was cancelled by him by executing the document, Ex.B-110. The suit Will Ex.A-5 was executed by Palaniappa Chettiar and his wife Chinnammal @ Rangammal and the Will was also registered in the Office of Sub-Registrar, Gobichettipalayam.

(d) According to the plaintiffs, Palaniappa Chettiar acquired extensive properties of his own and he also acquired properties in the name of his wife Chinnammal @ Rangammal for his benefit and she had no wherewithal. Though a plea of benami was set up, the trial Court rejected the said plea on the ground that the properties held by Chinnammal @ Rangammal were not purchased benami by Palaniappa Chettiar. Mr.T.R.Mani, learned senior c