Person relying upon will, need not let in evidence to prove execution.

The plaintiffs in O.S. No. 325/81 of the file of Sub-Court, Coimbatore are the appellants herein. They filed the said suit for declaration that the will executed by one Nanjammal dated 12-9-65 is not valid and it will not affect the rights of the plaintiffs over the suit property and for partition of the suit properties into five equal shares and to allot one such share to them. Their case is that the suit property originally belonged to one Nanjammal, wife of Ponniah Gounder. Sami Gounder is her son. The first plaintiff is the wife of the said Sami Gounder. The plaintiffs 2 to 4 are the sons. Sami Gounder died in the year 1966. The defendants 1 and 2 are also the sons of the said Nanjammal and the defendants 3 and 4 are her daughters. The defendants 3 and 4 both married one Ponnay Gounder. Nanjammal died in the year 1974. Though she was living with her sons, occasionally she stayed with her daughters, the defendants 3 and 4 and on one such occasion the defendants got the thumb impression of their mother Nanjammal in a blank paper and thereafter prepared a will, bequeathing all the properties in favour of the defendants 3 and 4. The will is not valid and the plaintiffs are entitled for their respective shares.

2. The defendants 3 and 4 filed the written statement which was adopted by the defendants 1 and 2. In the written statement the defendants contended that the will had been executed by their mother Nanjammal in favour of the defendants 3 and 4 on her own accord and there was no undue influence or coercion on the part of the defendants 3 and 4. Pursuant to the will, after the death of Nanjammal the defendants 3 and 4 put forth their claim and the patta has been changed in their name. The defendants 3 and 4 are in possession and enjoyment of the suit property.

3. On the above pleadings, the parties have examined the second plaintiff as P.W. 1 and marked Exs. A-1 to A-14. On behalf of the defendants 3 and 4 their husband had been examined as D.W. 1 and through him, the documents Exs. B-1 to B-26 were marked. After elaborately discussing the evidence in detail, the trial Court had decreed the suit by its judgment and decree dated 11-11-82. The defendants took up the matter on appeal in A.S. 65/83 on the file of the District Court, Coimbatore. The District Judge, after considering the evidence came to a different conclusion and allowed the appeal, thereby dismissing the suit filed by the plaintiffs. The lower appellate Court has found that the will executed by Nanjammal in favour of the defendants 3 and 4 is true and valid. Aggrieved by the same, the present second appeal has been filed by the plaintiffs.

4. On behalf of the appellants it was contended that the execution of the will has not been proved by examining the attesting witnesses. Since the will has not been proved legally, the lower appellate Court ought to have accepted the findings of the trial Court and dismissed the appeal. Apart from this, even if the explanation of the defendants is to be accepted that the attesting witnesses are no more, it is for the defendants to establish the same by producing some material evidence to that effect i.e., some independent evidence ought to have been examined of at least the death certificate in respect of the attesting witnesses ought to have been filed. Even otherwise in case of the death of the attestors, somebody who is familiar with the signature of the attesting witnesses and the testator ought to have been examined. In the absence of any evidence, the lower appellate Court is not correct in finding that the will is valid. Further when there are three sons and two daughters, there is absolutely no explanation for the testator to execute the will bequeathing the property in favour of her daughters alone.

5. On the contrary, on behalf of the respondents, it has been contended that in the plaint as well as in the evidence, the plaintiffs have admitted the execution of the will be the testator Nanjammal. When once th