General principles governing execution of wills adopted.

A.S. VENKATACHALAMOORTHY, J.

The plaintiff in O.S.No.967 of 1980 on the file of the Subordinate Judge, Coimbatore is the appellant.

2. The case of the plaintiff can be set out as hereunder:-

The plaintiff and the first defendant are brothers and sons of one Patti Gounder who died in the year 1977. The defendants 2 to 4 are sons of the first defendant.

The plaint 'A' and 'B' schedule and other items of properties belonged to the plaintiff, the first defendant and their father late Patti Gounder. There was a partition in the family on 31.3.1955. According to the plaintiff, Patti Gounder assured at that time that in respect of his share, he would see that after his demise the properties go to both of them, namely, the plaintiff and the first defendant in equal share. Only because of that, the plaintiff agreed for the 1955 partition and allotment of one share to the first defendant, even though under law, the first defendant was not entitled to any share after execution of the deed of surrender in the year 1950. After the partition in the year 1955, Patti Gounder was in possession and enjoyment of his share till his death.

As per his assurance, late Patti Gounder executed a registered Will dated 4.6.1975 bequeathing the plaint schedule properties and other items of the properties, which he got in the family partition, to the first defendant and the plaintiffs. Even after the partition, Patti Gounder was taken care of only by the plaintiff, who was assisting him in cultivating the lands and collecting rent from the house properties. While so, the first defendant under the pretext of taking care of his father took him to his house and the plaintiff had no suspicion at that time. The plaintiff now understands on enquiry that the first defendant prevailed upon Patti Gounder to execute the second Will and he (Patti Gounder) had executed a Will bequeathing the plaint schedule properties in favour of his three sons, namely, defendants 2 to 4 to be enjoyed by them during their life time and thereafter to their children absolutely and cancelling the earlier Will executed in favour of the plaintiff and the first defendant. According to the plaintiff, the second Will is not a true and valid Will and it was brought about by the first defendant to defeat the rights of the plaintiff. The second Will is in violation of the assurance and undertaking given by the father Patti Gounder at the time of partition. It was the plaintiff who was looking after Patti Gounder for a very long time and Patti Gounder had no ill-feeling against the plaintiff. After Patti Gounder executing the first Will, he was not in sound health and that was the reason he was not conducting the Court proceedings and in fact, it was the plaintiff who was conducting the same. The second Will should have been brought about by undue influence and coercion by the first defendant who had vengeance against the plaintiff. Till Patti Gounder left the plaintiff's house early in the year 1976, there was no dispute or quarrel between him and Patti Gounder. Under the guise of looking after his father for some time, during his last lap of life, the first defendant had brought about the second Will into existence and claimed false rights taking advantage of the old age of Patti Gounder. In fact, Patti Gounder would not have voluntarily executed the second Will. After the death of Patti Gounder, the first defendant using his influence forcibly entered into the plaint 'A' schedule property and took possession and enjoyment of the same. The first defendant is liable to surrender the 'A' schedule property and also to repay the mesne profit from the date of death of Patti Gounder.

3. A common written statement has been filed on behalf of the defendants 1 to 4. The claim that the first defendant was leading a wavered life and hence with a view to save the properties, the surrender deed was executed by the first defendant has been denied. The circumstances under which the said document came