The due execution and attestation of a will, once proven, cannot be nullified by mere suspicion unless substantial evidence of invalidity is presented.

JUDGMENT :

A.D. MARIA CLETE, J.

1. Heard.

2. This Second Appeal is directed against the judgment and decree dated 01.10.2013 made in A.S.No.33 of 2013 on the file of the learned Principal District Judge, Erode, reversing the well-considered judgment and decree dated 17.01.2013 passed in O.S.No.198 of 2010 by the learned II Additional Subordinate Judge, Erode.

3.The appellant is the defendant and the respondent is the plaintiff before the trial court. For the sake of convenience parties to be referred to as per their ranks before the trial court.

4.Case in Brief: The plaintiff and defendant are daughter and son of one late Papathi. The suit properties originally belonged to the said Papathi under a registered partition deed dated 13.09.1990. On her death on 22.12.2002, the plaintiff claimed half share by succession, while the defendant resisted the claim relying on an unregistered Will dated 15.12.2002, said to have been executed by the deceased mother in his favour.

5.The Trial Court, on appreciation of oral and documentary evidence, found the Will genuine, valid and duly executed, and accordingly dismissed the plaintiff’s suit for partition. On appeal, the First Appellate Court reversed the decree, holding the Will suspicious and declaring intestate succession. Hence, this Second Appeal.

6.This Court, while admitting the appeal on 10.03.2014, framed the following substantial questions of law, which are reproduced verbatim below:

“1.The defendant having prove the Will in accordance with Sec.68 of the Evidence Act and Sec.63 (c) of the Indian Succession Act , 1925 by examining the witness, still is the learned Principal District Judge right in holding that the Will in question was not proved?

2.When it is well settled in law that if the Will is proved to the satisfaction of the Court as per Mandatory requirement under the Evidence Act and the Indian Succession Act , the question of suspicious circumstances automatically stood removed, still is the learned Principal District Judge right in ignoring the said principle while allowing the Appeal?

3.When the plaintiff having taken a mutual destructive plea, namely denying the signature of the mother in the Will under the same time raising the plea of execution of Will under suspicious circumstances, is the learned Principal District Judge right in allowing the appeal, when it is open to the plaintiff to question the execution of Will shrouded with suspicious circumstances though she had specifically pleaded that the Will was not executed at all?

4.Whether the relief of permanent injunction sought for in the plaint is maintainable in partition suits?”

7.The defendant examined both attesting witnesses (D.W.2 and D.W.3) and the scribe (D.W.4). The plaintiff contends that there are inconsistencies in the depositions of the attesting witnesses regarding the circumstances under which the Will was executed. D.W.2, one of the attesting witnesses, deposed that when the Will was being prepared by the scribe (D.W.4), the testatrix was lying on a cot in the kitchen and thereafter came out to the thinnai to execute the Will. He further stated that at that time, the testatrix was wearing a ring on her hand. On the other hand, D.W.3, the other attesting witness, deposed that the testatrix was sitting on a chair and never returned to the kitchen, and that she was not wearing any ornaments.

8.Based on these variations, it was contended on behalf of the plaintiff that the testatrix, being a widow, would not have worn any ornament as per the customary practice prevailing in her community, and therefore, the testimony of