The duty of the propounder to prove the execution of the will beyond doubt, especially in cases where suspicious circumstances surround the execution.

T.O.S.NO.18 OF 1988

The original plaintiff had filed a petition under Sections 222 and 276 of the Indian Succession Act, 1995 for issuance of probate with respect to the last will and testament of J.Kannabiran, dated 09.03.1982. The said will is an unregistered one. The testator died on 05.05.1982 at Chennai. The will is said to have been executed by J.Kannabiran in the presence of witnesses, namely S.M.Murugesan and P.Periaswamy. The original plaintiff is the mother of the testator. The defendants 1 to 3 are the children of the testator J.Kannabiran, born through Kamala, who is the sixth defendant. The fifth defendant is the first wife of the testator J.Kannabiran. The fourth defendant is the brother of the testator.

2. According to the original plaintiff, the testator, who was her son, was married to one Ramanamma. There was no issues out of the said marriage. She lived with him for three years and later, the said Ramanamma deserted him. The deceased left behind him his mother the original plaintiff and the defendants 1, 2, 3 and 6. The sixth defendant was said to have been living with him and through her, he begot three children, namely, defendants 1 to 3. According to the original plaintiff, the testator had executed the unregistered will dated 09.03.1982, bequeathing all the rights in property under the will and appointed the original plaintiff as executor of the same. Hence, the suit is filed for issuance of probate of the will.

3. Caveat petition was filed by the defendants 1 to 3 originally, based on which, the suit was converted into the present Testamentary Original Suit.

4. The defendants 1 to 3 have filed their written statement denying and disputing the genuineness of the will dated 09.03.1982. The deceased plaintiff namely Padmavathy Ammal, being a propounder of the will is put to strict proof of the execution of the will.

5. According to the defendants, the deceased J.Kannabiran had legally married the sixth defendant Kamala, in accordance with Hindu Rites and Customs, in the presence of his parents and relatives. They were living as husband and wife and the defendants 1 to 3 were born to them out of the wedlock. In fact, the sixth defendant had also filed O.P.No.94 of 1978 on the file of the VI Assistant Judge, City Civil Court, Chennai, for divorce against the deceased J.Kannabiran and obtained a decree for divorce. As the status of the sixth defendant as wife was recognized, the defendants 1 to 3 cannot be termed as illegitimate children. The defendants further contended that the testator was an alcoholic and due to the same, he did not have his mental balance, memory and thinking power. The first defendant also filed a suit in O.S.No.6466 of 1982 for partition. Though the will is said to have been executed on 09.03.1982 and the testator died on 05.05.1982, the Original Petition for probate was filed in the year 1988. The reason for the delay is not explained, which leads to suspicion. Hence, prayed for dismissal of the testamentary original suit.

6. The fifth defendant, who is said to be the first wife of the testator also had filed a written statement contending that she is the lawfully wedded wife of said J.Kannabiran, who died leaving behind him the fifth defendant as his widow and the mother Padmavathy Ammal, as legal heirs. Hence, the will dated 09.03.1982 alleged to have been executed by the testator is false. Even according to the fifth defendant, the will is not true as the same is forged and fabricated.

7. Based on the above pleadings, the following issues were framed by this Court on 07.02.1997.

(1) Whether the will dated 09.03.1982 is true, valid and was executed in a sound and disposing state of mind ? and

(2) to what relief ?

8. The following additional issue was framed by this Court on 02.09.2010.

(1) Whether the will dated 09.03.1982 was executed by the testator J.Kannabiran in the presence of two or more attesting witnesses in a sound and disposing state of mind ?

9. The unregistered will of