The appellant's failure to prove the Will in the manner known to law and remove the surrounding suspicious circumstances led to the dismissal of the appeal. The Court also applied the provisions of the Indian Succession Act to modify the shares of the respondents.

JUDGMENT

(Prayer in A.S(MD).No.94 of 2013: Appeal Suit filed under Section 96 of Civil Procedure Code, to set aside the judgment and decree dated 30.11.2012 made by the learned II Additional District Judge, Tuticorin in O.S.No.31 of 2011 and dismiss the suit.

In Cross Objection (MD) No.15 of 2013: Cross Objections filed under Order 41 Rule 22 of Civil Procedure Code, to set a side the decree and judgment dated 30.11.2012, rendered in O.S.No.31 of 2011, on the file of the second Additional District Judge, Thoothukudi, in so far it related to the dismissal of the suit as against the first Cross Objector/1st respondent is concerned, in the above appeal in A.S.No.94 of 2013, on the file of this Court, by allowing this Cross objections.)

Common Judgment:

1. This Appeal Suit has been preferred challenging the judgment and decree of the learned II Additional District Judge, Tuticorin dated 30.11.2012 made in O.S.No.31 of 2011. The respondents in the appeal have also filed Cross Objection against the findings that the first respondent is not entitled to any share.

2. The appellant is the defendant in O.S.No.31 of 2011, on the file of the learned II Additional District Judge, Tuticorin. The respondents are the plaintiffs in the said suit. The respondents/plaintiffs filed a suit against the appellant/defendant for partition. After trial, the trial Court decreed the suit and passed the preliminary decree. Challenging the said judgment and decree, the appellant/defendant filed the present appeal before this Court.

3. The averments made in the plaint, in brief, are as follows:-

3.1. One Fanny Wilson, had two daughters, namely, Mrs.Lucky Aaron and the defendant, Mrs.Celeste Jeyakar. The first plaintiff married the eldest daughter of late Mrs.Fanny Wilson, namely, Mrs.Lucy Aaron, who died on 29.11.1999 leaving behind her husband, who is the first plaintiff and her only son, who is the second plaintiff. Mrs.Fanny Wilson died on 05.12.2009 leaving behind the plaintiffs and the defendant as her legal heirs.

3.2. Mrs.Fanny Wilson, on 26.02.1997 executed her last Will and equally shared all the immovable properties to her two daughters. After the demise of her husband, she was residing alone at Tuticorin, till the year 2003. Due to her old age, she found it difficult to live alone at Tuticorin and manage her affairs and needed the help of someone. The defendant was employed in Kodaikanal International School and she took her mother to Kodaikanal in the year 2005. The defendant took advantage of the loss of memory power and her incapacity to manage her own affairs and on 11.08.2008, transferred all investments in fixed deposits in the joint names of late Mrs.Fanny Wilson and herself in the State Bank of India at Kodaikanal. The defendant maneuvered to get a Will fabricated and executed on 16.10.2008 and got it registered in the Office of the Sub-Registrar, Kodaikanal, as if she is the only legal heir to her mother. If Fanny Willson had sound disposing mind, memory power and mental capacity for due execution of a Will, she would not have revoked her earlier Will, dated 26.02.1997, under which, she bequeathed to both of her daughters all of her assets equally. If late Fanny Wilson had executed the Will in a sound and disposing mind, the defendant would have brought to the notice of the plaintiffs during the life time of her mother or at least soon after her demise, when particularly, she had the normal relationship with the plaintiffs. Therefore, the Will, dated 26.02.1997 is the true one and the last Will, dated 12.07.2008 is a fabricated one. The plaintiffs had issued two legal notices, dated 12.07.2010 and 09.05.2011 to the defendant stating that the Will dated 12.07.2008 is a fabricated one. The defendant has sent reply, dated 17.07.2010 denying the claim of the plaintiffs and asserting that the Will dated 12.07.2008 is the true and last Will of her mother. The plaintiffs have issued a rejoinder notice, dated 12.07.2011 to the defendant, stating that th