The court affirmed that a Will can be validated under Section 69 of the Indian Evidence Act when attestors are deceased, shifting the burden of proof to the opposing party.

JUDGMENT :

Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 31.08.2005 in A.S.No.27 of 2005 passed by the learned Principal Subordinate Judge, Coimbatore, reversing the judgment and decree dated 18.10.2004 in O.S.No.258 of 2003 passed by the learned I Additional District Munsif, Coimbatore.

The plaintiff is the appellant herein. The sole defendant was arrayed as the respondent. After his demise, his legal heirs were impleaded as the respondents 2 to 4.

2. For the sake of convenience, the parties will be referred to according to their litigative status as before the Trial Court.

The brief facts, which give rise to the instant Second Appeal, are as follows:

3. The suit property is the absolute property of one Rangasamy Naidu. The said Rangasamy Naidu has three children, viz., the plaintiff, the defendant and one Govindaraj. The suit property was purchased by the plaintiff's father by virtue of the sale deed dated 10.10.1934. The house property was purchased by the plaintiff's father by his own earnings on 06.04.1984. As the defendant was in need of a house, the plaintiff's father rented out a portion of the house to the defendant and was collecting rent. In the year 1984, when there was a dispute between the plaintiff's father and the defendant, the plaintiff's father filed a suit in O.S.No.895 of 1984 for delivery of vacant possession and for rent. However, after the demise of their father on 10.01.1988, since the defendant agreed to pay the rent, the suit was allowed to be dismissed for default.

4. During the lifetime of the plaintiff's father, he executed a registered Will dated 30.09.1985, in which, A schedule to the Will was bequeathed to Govindarajan, who is one of the brothers of the plaintiff, and B schedule to the Will was bequeathed to the share of the plaintiff. In the said Will, no bequeath was made to the defendant. The plaintiff further submit that she has been in possession and enjoyment of the suit property ever since the date, the Will came into force. In the month of March 2000, the defendant suddenly stop paying rent of Rs.500/- p.m., which was agreed by him in panchayath held, as early as in the year 1992. In spite of repeated demands, the defendant did not care to pay the rent and suddenly made clandestine attempts to sell away the suit property. Hence, the plaintiff issued lawyer notice. After received, the defendant gave untenable reply. Since the defendant interfered with the possession of the plaintiff and also attempted to sell the property, the plaintiff has come forward with the present suit for permanent injunction not to alienate or encumber the suit property, and also restraining the defendant, his men and agents from interfering with the peaceful possession and enjoyment of the suit property by the plaintiff.

5. The said suit was resisted by the defendant by contending that the suit property is ancestral in character. Therefore, his father has no right to execute the Will in respect of the entire property. The further pleading was that the disposal of O.S.No.895 of 1984 is res judicata to the instant suit. This defendant has specifically denied the execution of the Will dated 30.09.1985 and it is also the case of the defendant that his father has no right to execute the Will and that the Will must be a forged and fabricated one.

6. It is the further submission of the defendant that he has been in possession of the house property in his own right, and not as a member of the Hindu joint family or as a tenant. It is the submission of the defendant that, through mediators, there was a division among the family members and the suit property was allotted to the defendant as early as on 14.09.1983 and Since then, he has been in possession and enjoyment of the suit property. Hence, it is the submission of the defendant that the suit is not maintainable and liable to be dismissed.

7. Before the Trial Court, the plaintiff was examined as P.W.1 and one mo