The main legal point established in the judgment is the testamentary capacity of the propounder, the need to prove the execution of the Will, and the absence of suspicious circumstances. The court emphasized the freedom of the testator to dispose of the property as desired and the absence of evidence to prove coercion or undue influence.

K. RAVIRAJA PANDIAN, J.

The Original Side Appeal is filed against the judgment and decree of a learned single Judge of this Court dated 23.01.2001 made in T.O.S No.16 of 1994.

2. O.P.No.343 of 1992 was filed under Sections 222, 237 and 276 of the Indian Succession Act, XXXIX of 1925 for issuance of the Probate in favour of the plaintiff – Mrs. Kamala Menon Cochran in respect of the Will of the deceased K.P.Janaki Amma executed and registered on 11.01.1982 and later it was converted as T.O.S.No.16 of 1994 as one of the brothers of the plaintiff K.P.Rajagopala Menon filed caveat and disputed the Will. Subsequently, the other brothers were joined as parties.

3. For the sake of convenience, the parties are referred to as arrayed in the suit. The precise case of the parties is as follows: One K.P.Janaki Amma died on 27.04.1991. She executed and registered a Will and testament on 11.01.1982 in the presence of witnesses, whose names appear at the foot thereof, in the office of Sub-Registrar, T. Nagar, Chennai. The Original Will was lost and therefore a certified copy of the registered Will has been filed. The plaintiff was appointed as executrix of the said Will. Prior to the instant Will, the testatrix executed a Will on 212. 1981, but cancelled the same by executing the instant Will. The deceased Janaki Amma left K.P.Balakrishnan, K.P.Chandrasekaran, K.P.Rajagopal, K.P.Ramachandran, the sons, Kamala Menon Cochran, the daughter and Geetha Sridhar, grand daughter, as her legal heirs. The said Geetha Sridhar filed an affidavit conveying her no objection for issuance of the probate of the Will dated 11.01.1982 to the plaintiff-executrix. The plaintiff sought for probate.

4. K.P.Rajagopal, (since deceased), the first defendant filed written statement contending that the testatrix Janaki Amma had no disposing right over the property as the property was purchased in the name of the testatrix by her husband in the year 1937. The testatrix was under the care and custody of the plaintiff and the other children of the testator were prevented from meeting her by the plaintiff. The plaintiff has tremendous influence on her mother, the testatrix and deceived her into making the Will. The earlier Will dated 212. 1981 was cancelled by the Will dated 11.01.1982. The contents of both the Wills are same. The only difference is that in the first Will, the witnesses are the neighbours of the testatrix and in the second Will the witnesses were the plaintiffs colleagues. By undue influence and coercion the plaintiff, made her mother to execute the first Will and later suspecting that her treachery might be exposed, the plaintiff managed to get the second Will made by her mother on the witnesses having allegiance to her. The two Wills made within the interval of fourteen days without any difference in the contents raised a doubt to the genuineness of the Will. At the time of execution of the Will, the testatrix had four sons and daughter-the plaintiff. It is impossible to believe that the testatrix would have disinherited her sons and bequeathed the entire property exclusively to the plaintiff and grand daughter born to the pre-deceased daughter. The alleged Will having been made nine years prior to the death of the testatrix, it is impossible to believe that the testatrix had not told any of her children about the Will. It is further averred that the first defendant filed a partition suit of all the properties left behind by his mother Janaki Amma and her husband Echunni Menon and the same is pending in O.S.No.49 of 1994 before the Sub-Court, Ottapalam, Kerala. The bequeathed property is also one among the properties of the partition suit.

5. The second defendant Ramachandra Menon filed written statement on 212. 1997 verbatim reproducing the averments contained in the written statement of the first defendant, but, filed additional written statement on 05.06.1999 wherein he denied the execution of the Will by the testatrix, with full knowledge