The onus of the propounder to prove testamentary capacity and the signature of the testator, and to explain any suspicious circumstances to the satisfaction of the court.

JUDGMENT

(Prayer:- This Appeal Suit has been filed, under Order 41 Rule 1 read with Section 96 of CPC, against the judgement and decree, dated, 31.07.1989, made in OS.No.150 of 1986, by the Subordinate Judge, Udumalpet.)

1. This Appeal Suit has been filed, by the Plaintiff, against the Judgement and Decree, dated, 31.07.1989, made in O.S.No.150 of 1986, passed by the learned Subordinate Judge, Udumalpet.

2. The case of the Plaintiff, as set out, in the plaint is that the 1st defendant is the wife of P.K.Sethu Ramaswamy and the defendants 2 & 3 are their children. The 1st plaintiff is the kept mistress of P.K.Sethu Ramasamy. The 1st plaintiff was living with the said P.K.Sethu Ramaswamy ever since 1948 and the 2nd plaintiff born through the 1st plaintiff on 11.09.1964. On 27.03.1977, the said P.K.Sethu Ramasamy executed a Will and the same was kept in a sealed cover in the Sub-Registrar Office, Coimbatore in Cover No.8/1977. The Testator died on 13.03.1982. As per the terms of the Will, the "A" schedule property is to be enjoyed by the 1st plaintiff during her life time without the power of alienation. After her life time, the 2nd plaintiff has to take the property absolutely. The 1st plaintiff is to be the guardian for the 2nd plaintiff during her minority. If however, the 1st plaintiff predeceases, the 2nd plaintiff during her minority, four persons, namely, (1) S. Chinnathambi, B.A. BL., (2) S. Valliammal (1st defendant), (3) Balasubramanian (2nd defendant) and (4) Mylathal have been nominated in the Will to be the guardian for the 2nd plaintiff. The one among the said four persons, who expresses his or her consent, first would be the guardian for the 2nd plaintiff. If, however, the 2nd plaintiff dies without any heirs, the property would go to the defendants 2 and 3. The 2nd plaintiff is also not entitled to encumber the property till she begets legal heirs. The "B" Schedule property has to go to the grandson of late P.K.Sethu Ramaswamy by name Girinathan, who is the son of the 3rd defendant, who has to manage the property without encumbering the same till he attains majority. Since the defendants refused to handover the possession of the suit properties, the plaintiffs have sent a legal notice dated 16.08.1983 and a reply notice dated 02.09.1983 was received. Again on 23.09.1983, the defendants sent a second reply. The plaintiffs issued another notice dated 11.10.1983. Thereafter, on 11.11.1983, the defendants issued a notice to the plaintiffs. The defendants denied the fact that the 2nd plaintiff was not born to .P.K.Sethu Ramaswamy. In such circumstances, the suit has been filed for declaration of title, recovery of possession and for damages in the "A" schedule property.

3. The case of the defendants is that the 1st plaintiff is not the kept mistress of the P.K.Sethu Ramaswamy and she was having illicit intimacy only and the 2nd plaintiff was not born to them. P.K.Sethu Ramaswamy did not execute any Will. The alleged Will is not a genuine one. The attestors to the document are strangers to the family. There was no necessity to exclude the defendants. The recitals in the Will are unnatural and improbable. The defendants are not aware of the Will. The plaintiffs are not the owners of the A-Schedule properties. The plaintiffs have to prove the Will. The defendants are not liable to pay damages and they are not in illegal use and occupation of the suit properties. There is no cause of action. The plaintiffs are not entitled to any of the reliefs. Hence, the suit is liable to be dismissed.

4. On the pleadings of the parties, the following issues were framed by the trial court:-

1. Whether the alleged Will is true and valid?

2. Whether the plaintiffs are entitled for declaration and possession as prayed for?

3. Whether the plaintiff's are entitled for loss of income?

4. To what other relief the plaintiffs are entitled?

5. Before the Trial Court, on the side of the Plaintiffs, Ex.A1 to Ex.A13 were marked and PW.1