The duty of the propounder to dispel suspicion surrounding the execution of a Will and the requirement to remove all legitimate suspicions before accepting the Will as the last will of the testator.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree, dated 28.02.2017, passed in A.S.No.8 of 2016, on the file of the District Judge, Sivagangai, confirming the decree and judgment, dated 10.03.2016, passed in O.S.No.143 of 2010 on the file of the Sub Court, Sivagangai.)

1. The appellant is the appellant /defendant, the first respondent is the respondent / plaintiff before the Court below. the respondents 2 to 5 herein are the Legal Heirs of the deceased first respondent/plaintiff.

2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

3. The plaint in brief is as follows:

The suit property originally belongs to one Pala.Karuppiah Servai. The said Pala.Karuppiah Servai had 6 sons and 2 daughters. The plaintiff is the elder son, the defendant is the youngest son. The plaintiff submits that the said Pala.Karuppiah Servai has executed a registered Will under document No.18/2005, dated 13.04.2005 in respect of the suit property. As per the Will, the plaintiff is entitled to get eastern ½ share of the suit properties. The plaintiff also submits that his father Pala.Karuppiah Servai, though executed a previous Will, dated 30.06.1999, the same was cancelled in the Will, dated 13.04.2005. After the demise of Pala.Karuppiah Servai, on 25.05.2009, the Will came into effect. The house tax receipts were also changed in the name of the plaintiff and the defendant. Since the defendant has been residing in the village and taking advantage of the cancelled Will, dated 30.06.1999, he claims full ownership over the suit property. The plaintiff further submits that there were exchanges of notices in respect of division of property. However, the defendant did not come forward to divide the property. Hence, the plaintiff come forward with the suit for partition and for other reliefs.

4. The written statement in brief is as follows:

This defendant stoutly dispute the alleged Will, dated 13.04.2005. This defendant submits that the suit property was originally Gramanatham. Since the property was in the possession and enjoyment of his father -Pala.Karuppiah Servai, he prescribed title over the same. During his life time, he gave properties to the plaintiff as well as the 4 sons to put up house there on. This defendant would further submit that the plaintiff never took care of his father and mother and he evinced interest only in his family. This defendant submits that the said Pala.Karuppiah Servai was in care and protection of the defendant. While being so, during the life time of Pala.Karuppiah Servai, he executed a Will in favour of the defendant with sound disposing state of mind. Though he executed a Will in favour of the defendant, he has handed over the possession and enjoyment of the suit property, and that the Kist and Tax receipt as well as the Electricity connection were transferred in the name of the defendant. According to this defendant, the alleged Will dated 13.04.2005 is a rank one forgery and has been fabricated by the plaintiff with the aid of their brother – one Mr.Ravi. This defendant submits that during 2005, his father was not hale and healthy and was not in sound disposing state of mind. It is also the submission of the defendant that, in respect of the second schedule property, since he has been in continuous possession for more than a statutory period, he has perfected title by way of adverse possession over the same. Therefore, this defendant submits that the very suit is liable to be dismissed.

Brief statement in respect of findings of the Trial Court and First Appellate Court:-

5. Before the Court below, the plaintiff has examined 4 witnesses as P.W.1 to P.W.4 and has marked 15 documents as Ex.P1 to Ex.P15. On behalf of the defendant, 3 witnesses were examined as D.W.1 to D.W.3 and 7 documents were marked as Ex.B1 to Ex.B7. As a third party document, one document has been marked Ex.X1.

6. Aft