O R D E R

The unsuccessful petitioner in probate proceedings is the appellant herein.

2. For the sake of convenience, the parties are referred to as per their ranking in the Probate OP.

3. The petitioner filed Probate O.P No.196 of 2008 before the Principal District Court, Salem and subsequently made over to I Additional District Judge, (Fast Track Court), Mettur on administrative grounds.

4. The subject matter of the Will is alleged to have been executed by Kandasamy Gounder and appellant herein is the grand son through daughter. The contesting respondent is the son of Kandasamy Gounder and the second respondent is the son of the first respondent/grandson of the said Kandasamy Gounder through son.

5. The brief facts that are necessary for determination of the appeal are as under -

5(i) As per the petition, the schedule of property absolutely belongs to Kandasamy Gounder s/o Chinappa gounder who is the maternal grandfather of the petitioner and the said Kandasamy Gounder acquired the property by virtue of a Registered Partition Deed bearing No.5790 of 1973 that are described as 'A' schedule property in the said partition deed. It is alleged that on 13.08.2003, the said Kandasamy Gounder had executed a Will in favour of the Probate Petitioner in respect of the property which was attested by a notary public and executed in the presence of two witnesses namely Kandasamy and Ranganathan. Supporting affidavits were also filed. The said Kandasamy Gounder died on 07.10.2003 at Karuppa Reddiyur Kattu Valavu and the death certificate was also filed. During pendency of Probate Proceedings, some of the respondents have also died and hence their legalheirs were brought on record and some of the persons who agitated in the property were also added as parties. The main contestants are the respondents 1 & 2 before the Trial Court.

5(ii) It is the specific case of respondent herein that 'A' schedule property in the partition deed registered as Regn.No.5790 of 1973 and allotted to Kandasamy Gounder is admitted but it is denied that the Will was executed by Kandasamy Gounder in favour of the first respondent herein. Kandasamy Gounder is the father of the first respondent and grand father of the second respondent. Kandasamy Gounder had four brothers namely Rathinam, Subramaniam, Kuppusamy, Rasapan and two daughters namely Periya Pappa and Chinna Papa. The first respondent's father divided his property into six equal shares and allotted four shares to his sons and retained one such share for himself and the remaining one share was allotted to his wife Periyammal. Kandasamy Gounder divided his share into four equal shares and allotted to his sons in the year 2002 itself and therefore, pursuant to the oral allotment, they are in possession and enjoyment of the property and hence the alleged Will is ranked forgery. Kandasamy Gounder died on 07.10.2003 is admitted.

5(iii) It is the specific case of the first respondent that Kandasamy Gounder was bedridden from 2002 to till his death. He was unable to move anywhere and he was unconscious till his death and hence the alleged Will is forged and fraudulent one. The father of the Probate Petitioner was a Village Administrative Officer (VAO). Hence, in connivance with some unscrupulous persons, he has created the Will. The alleged Will was executed in a suspicious circumstances and the same was not registered. It was created by the Probate Petitioner for getting unlawful gain with the help of his close relative. Kandasamy Gounder usually puts his signature and his alleged thumb impression has created a suspicious circumstance. The other legalheirs of the Kandasamy Gounder were not impleaded as parties in the petition.

The other respondents also have taken a similar stand.

6. During the trial, the petitioner examined himself as PW1, one of the attestor of the alleged Will (Ex.P11) was examined as PW2. Ex.P1 is the death certificate of Kandasamy Gounder. Ex.P11 is the original Will (viz subject matter). Other documen