The main legal point established in the judgment is the requirement of due execution and attestation of a Will as per the provisions of the Indian Succession Act, 1925 and the Indian Evidence Act, 1872.

A. SELVAM, J.

1. This Original Side Appeal has been directed against the Judgment and Decree dated 2.9.2009 passed in Transfer Original Suit No. 35 of 2004 by the learned Single Judge of this Court.

2. The deceased appellant herein, as plaintiff, has instituted T.O.S. No. 35 of 2004 on the file of this Court, praying to give Letters of Administration in respect of the Will dated 24.5.1990, wherein the present respondents have been shown as defendants.

3. In the plaint, it is averred that the property in question is the absolute property of one Annammal, wife of Seetharama Naicker and she passed away on 25.7.1991. Before her demise, she has voluntarily executed a Will dated 24.5.1990 in favour of the plaintiff. Since the executant has passed away on 25.7.1991, the Will have come into effect. Under such circumstances, the present suit has been filed for getting the relief sought therein.

4. In the written statement filed on the side of the first defendant, it is averred that the first defendant has denied the execution as well as attestation of the Will mentioned in the plaint. The defendants 1 to 3 are the brothers of the plaintiff. The plaintiff is nothing but an elder brother. The property mentioned in the plaint is the absolute property of Annammal and she purchased the same by using family income. She has not executed any Will during her life time much less on 24.5.1990 and there is no merit in the suit and the same deserves to be dismissed.

5. On the basis of the rival pleadings raised on either side, necessary issues have been framed and after considering the available evidence on record, the learned Single Judge has dismissed the suit. The judgment and decree passed by the learned Single Judge are being challenged in the present Original Side Appeal.

6. Before contemplating the rival submissions made on either side, the Court has to narrate the following admitted facts:-

It is an admitted fact that the property in question is the absolute property of Annammal, who is none other than the elder sister of the mother of plaintiff and defendants and she passed away on 25.7.1991.

7. The consistent case put forth on the side of the plaintiff is that before her demise, she voluntarily and also in a sound and disposing state of mind, has executed a Will dated 24.5.1990.

8. The defence put forth on the side of the defendants is that the said Annammal has not executed any Will much less on 24.5.1990 and she passed away at the age of 90 and therefore, the Will in question is nothing but a concoction.

9. Since such kind of defence has been taken on the side of the defendants, the entire burden lies upon the plaintiff to prove that the Will in question has been duly executed and attested as per law.

10. The learned counsel appearing for the appellants/plaintiff has contended to the effect that the original owner of the property mentioned in the plaint has voluntarily and also in a sound and disposing state of mind has executed a Will dated 24.5.1990 and the same has been attested by two attesting witnesses, namely Ganesan and Ravi. The said Ganesan has been examined as P.W.2 and his specific evidence is that the deceased Annammal has voluntarily executed the Will dated 24.5.1990 and the same has been attested by him and one more attesting witness, by name Ravi and the learned Single Judge, without considering the overall evidence adduced by P.W.2, has erroneously dismissed the suit and therefore, the judgment and decree passed by the learned Single Judge are liable to be set aside.

11. Per contra, the learned counsel appearing for the respondents/defendants has contended that in the instant case, the legal aspects of execution as well as attestation have not been proved on the side of the plaintiff and the learned Single Judge, after considering the vital infirmities found on the side of the plaintiff, has rightly dismissed the suit and therefore, the judgment and decree passed by the learned Single Judge are not liable to be interfered