The non-registration of a will raises a suspicion as to its genuineness and the evidence of the attestors is not sufficient to prove the genuineness of a will if there are suspicious circumstances surrounding its execution.

1. Defendants 1 to 3 and 5 in O.S. No. 183 of 1976, on the file of District Munsif, Kallakurichi, are the appellants.

2. The relevant facts of the case may be summarised thus: —

“The plaint ‘A’ schedule property originally belonged to the deceased 1st plaintiffs mother Mulhammal. It is their case that under the original of Ex.A-1 dated 11.7.1932, 1st plaintiffs father Muthu Udayar purchased ‘A’ Schedule property in the name of Muthammal who died eight years prior to the institution of the suit. The deceased 1st plaintiff was the only daughter and she had a brother, by name Narayana Udayar. On the death of Muthammal, her right over the ‘A’ Schedule property devolved on her and h er brother Narayana Udayar in equal share. Narayana Udayar died and his half share devolved on his widow, the 1st defendant and his daughters-defendants 2 and 3. The 1st plaintiff claimed half right in ‘A’ Schedule property. In regard to ‘B’ Schedule property, it originally belonged to her father Muthu Udayar. After his death, his right over the property devolved on his widow and his only son Narayana Udayar. On the death of Muthammal, her right over the property devolved on her son and the daughter the 1st plaintiff. Thus the 1st plaintiff is entitled to 1/4th share in ‘B’ Schedule properties and defendants 1 to 3 are entitled to the remaining 3/4th share. A notice was issued seeking partition, for which a reply was sent repudiating the claim of the 1st plaintiff. The suit was therefore, filed for partition.”

3. In the written statement filed by the defendants it is stated that the sale deed-Ex. A-1 is a sham and nominal. Muthammal never enjoyed the property. Regarding ‘B’ Schedule properties also, it is stated that the plaintiffs are not entitled to any share. Muthammal had executed a will on 10.3.1965, bequeathing all her rights in the properties to the 1st defendant. They also put forward a plea of adverse possession and limitation.

4. The trial court as per Judgment dated 29.11.1980, passed a preliminary decree as prayed for. While passing the decree, the trial court came to the conclusion that the contention that Ex.A-1 is sham and nominal is not substantiated. It was further found that there is no necessity for the deceased Muthu Udayar to execute a sham document in favour of his wife and the circumstances pleaded by the defendants cannot be believed. It was also found that the will-Ex.B-8 is not a will, but a document created a right in presenti and the same is invalid being an unregistered one. Apart from the same, the evidence of the attestors was also considered and it came to the conclusion that it is not executed by late Muthammal.

5. Against the preliminary decree granted by the trial court, an appeal was filed by the defendants as A.S. No. 201 of 1981, on the file of Sub-Court, Vridhachalam. The lower Appellate Court also confirmed all the findings of the trial court and dismissed the appeal. The concurrent judgment is assailed on the following substantial questions of law: —

“1 Whether the finding of the lower appellate court on the non-registration of the will is not correct in law.

2. Can the genuineness of a will be decided by considering the circumstances only, without considering the oral evidence especially the evidence of the scribe and the attestors to the will?

3. Whether the courts below are not correct in their finding on Ex.A-1s benami character?”

6. Question No. 3 was not seriously pursued by the appellants counsel. Under Ex.A-1, the property stands in the name of late Muthammal. It is the case of the plaintiffs that the document is executed by Muthu Udayar in favour of his wife and she is the owner. As against the said contention, it was alleged by the appellants that such a document was necessitated due to the then prevailing circumstances. According to them, that they were apprehending some maintenance suit from the sister-in-law of late Muthu Udayar, and to over-come the same such a document was executed by him.