The burden of proof is on the propounder to establish the validity of a will and to remove any suspicious circumstances surrounding its execution. Undue influence and coercion can impact the validity of a will and the propounder's burden of proof.

G.M. AKBAR ALI, J.,

1. The appeal filed against the order dismissing the suit in TOS No.40 of 1993. The plaintiff, who filed a petition under Sections 222, 255 and 276 of the Indian Succession Act, 1925 to grant probate, which was converted into testamentary original suit, is the appellant before this Court.

2. The appellant claims that she is 2nd wife of one K. Jagam who died on 212. 1982. The 2nd respondent is the first wife and the respondents 1 and 3 are her children. The appellant has a son named K. Deepak through the said Jegam. According to her, while the said K. Jagam, was taking treatment in the General Ward of the Government General Hospital, Chennai, executed his last Will and Testimony dated 112. 1982 in the presence of two attesting witnesses, bequeathing the suit property in favour of her son K. Deepak. The appellant attempted to obtain Letter of Probate and since the respondents filed caveat, the original petition was converted into Testamentary Original Suit. The respondents resisted the claim of the appellant by stating that the said Jagam never executed a Will. They have also pleaded undue influence and coercion. However, they denied the relationship of the appellant with the deceased.

3. On the above averments, the learned single Judge framed issues for determination and on the basis of oral and documentary evidences found that the Will sought to be proved by the executrix is shrouded with suspicious circumstances. Further found that undue influence has also been brought on the testator to script the Will. Therefore, held "though the subject Will was executed by K. Jagam on 112. 1982 in a sound and disposing state of mind, it had been executed in a suspicious circumstance with full participation of the propounder who had brought on undue influence on the testator to execute the Will "

4. Aggrieved by the finding of the learned single Judge, the appellant has preferred the present appeal on various grounds and more particularly, on the ground that the active participation of the propounder is not a ground to disbelieve the Will. It is also contended that having found that the said Jegam had executed the Will on 112. 1982, in a sound and disposing state of mind, the Learned Single Judge ought not to have dissmised the Testamentary Suit.

.5. Mr.P.B. Balaji, learned counsel for the appellant submitted that the Will was duly proved by the attesting witness as required under law. The learned counsel further contended that the respondents have not challenged the Will on the ground of forgery or fabrication, but have contended that it was executed on undue influence and coercion and therefore, the burden is upon the person who alleges to prove undue influence and coercion.

6. The learned counsel pointed out that the active or full participation of the propounder is not a ground to disbelieve the Will and relied on various judgments.

.7. The learned counsel for the appellant relied on a decision reported in AIR 1974 SC 1999 (Surendra Pal and others vs Dr.(Mrs.) Saraswati Arora and other), wherein the Apex Court has held as follows:

."15. The case before us could certainly not fall within Section 111 of the Evidence Act. There is no presumption of law or fact in this country that a woman to whom a man is engaged to be married is in a position to dominate his Will so as to override his own real intentions. It is not mere influence, but undue influence, which has to be proved by the party which sets up such a case. We think that a plea of undue influence, where set up, is a special plea, Section 103 of the Evidence Act places the burden of substantiating such a plea on the party which set it up."

.8. Thelearned counsel also submitted that failure to produce Will for probate immediately after demise of testator is not a ground to disbelieve the Will and relied on 2001 (3) CTC 283 (Corra Vedachalam Chetty vs G. Janakiraman), wherein this Court has held as follows:

."28. The fact that the Will was not p