Burden of proving genuineness of is on Propounder of Will.

1. The plaintiff in O.S. No. 269 of 1983 on the file of District Munsif Court, Tirunelveli filed the second appeal. Pending second appeal, he died and his legal representatives have come on record as appellants 2 to 7 and respondents 7 and 8. The suit was filed for declaration of the plaintiff’s title to the plaint second schedule property and for permanent injunction restraining the defendants, who are respondents 1 to 6 herein from interfering with his possession and enjoyment of the second schedule property. His case was as follows:

The schedule properties along with other properties originally belonged to his mother one Arunachalathammal. Arunachalathammal executed a Will on 111. 1966 in respect of the plaint schedule properties and other properties. As per the terms of the Will the plaintiff was entitled to the first schedule property excluding the second schedule. Some time later, Arunachalathammal felt that no provision had been made for a house to the plaintiff and also no provision had been made for common enjoyment of the properties to the plaintiff’s brothers Venkatachalam Pillai and Sankaran Pillai. She cancelled the Will dated 111. 1966 and executed another Will on 1. 1967, as per the terms of which the plaintiff became entitled to the first schedule property including the second schedule. The attestors of both the Wills are the same. The Will dated 1. 1967 was the last Will of Arunachalathammal. She died in 1967. Though the Will had been executed on 1. 1967, the plaintiff came to know about it only in the third week of December, 1981. The heirs of the plaintiff’s brother Venkatachalam Pillai found out the Will dated 1. 1967 only in the third week of December, 1981 along with other documents and papers in the house. They gave them to the plaintiff. Immediately thereafter the plaintiff called the heirs of his brothers including the defendants, who are the sons of the plaintiff’s third brother Sudalai Adum Perumal Pillai. He showed the Will dated 1. 1967 and the allotment of properties therein. All the parties including the defendants agreed to act and enjoy the properties as per the terms of the Will dated 1. 1967. Even from 1966 the plaintiff had been in continuous possession and enjoyment of the second schedule property till the date of filing of the suit. He had been paying the tax for the schedule properties including the second schedule. On 30.6.1981 the plaintiff executed a gift deed in favour of his daughter in respect of 10 cubic feet on the southern side of the first schedule property. He also executed a mortgage deed on 6. 1982 in respect of the schedule properties in favour of Selvakamatchi, wife of one Sankaranarayanan. The Will came into force in the last week of December, 1981 and the parties also acted as per the terms of the same. However, the defendants wanted to give trouble to the plaintiff and on 22. 1983 the first and the 6th defendants came to the plaintiff’s house and tried to interfere with his peaceful possession and enjoyment of the second schedule property by denying his title to the same. The suit was therefore instituted for the reliefs already mentioned.

2. The 6th defendant filed a written statement and defendants 1, 3 and 5 adopted the same. Defendants 2 to 4 remained ex parte. The averments in the written statement of the 6th defendant are as follows:

There was no second Will dated 1. 1967. It was a cooked up document with the connivance of the same scribe and attestors of the Will dated 111. 1966. The plaintiff was claiming the plaint second schedule property belonging to the defendants. The defendants had learnt that the plaintiff had taken the thump impression of Arunachalathammal in her death bed, prepared a Will with the help and connivance of the scribe and attestors of the last Will dated 111. 1966 and was releasing now with ulterior motive s. The Will dated 1. 1967 was a fabricated and manipulated piece of paper which had no legal force or sanction. It was a spur