Proof of genuineness of a Will under Section 63 requires conclusive evidence; expert handwriting analysis disproving the signature renders the Will forged and invalid, negating any claim based on it.

JUDGMENT

This Second Appeal has been filed against the Judgment and Decree dated 30.09.2005 and made in A.S.No.45 of 2004 on the file of Subordinate Judge, Pattukottai, reversing the Judgment and Decree dated 09.07.2004 and made in O.S.No.71 of 2000 on the file of District Munsif Court, Pattukottai.

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

3.The defendants in a suit in O.S.No.71 of 2000 on the file of the District Munsif Court, Pattukottai, are the appellants herein.

4.The plaint averments in brief are as follows:-

The case of the plaintiff is that the plaint schedule properties are originally owned by one Chidambara Thevar. The plaintiff and the second and third defendant are the daughters of the Chidambara Thevar. The first defendant is the wife of the Chidambara Thevar. The Chidambara Thevar, six months before his death, had executed a Will, dated 23.06.1997 in the presence of witnesses without any influence to the plaintiff and the third defendant. The Chidambara Thevar has died on 25.12.1997. Therefore, the Will came into existence. Since the defendant interfered into the plaintiff's enjoyment, he has filed a suit for declaration of title over the plaint schedule property and to consequential injunction against the defendants.

5.The defendants filed the written statement and contested the suit in which, they denied the alleged Will, dated 23.06.1997 is the false forged one. Chidambara Thevar had executed a Will on 22.10.1991 and prepared the property to his grandchildren through the third defendant. Thereafter, he died. In pursuance of that Will, the property goes to the grandson of the third defendant and the grandchildren of Chidambaram Thevar. Therefore, the plaintiff is entitled for declaration and for injunction and thus, pleaded to dismiss the suit.

6.Upon pleadings, the trial Court has framed the following issues:-

“1.Whether the will dated 23.6.1997, which is said to have been made by the plaintiff, valid and enforceable?

2.As per the will dated 23.6.1997, the plaintiff is entitled to the property in this case, the property?

3.Whether is it considered that the plaintiff has settled all the debts purchased from Chidambaram?

4.Whether the plaintiff entitled to the judgment as claimed in the plaint?”

7.Before the trial Court, on the side of the plaintiffs, 3 witnesses were examined as P.W.1 to P.W.3 and 21 documents were marked as Ex.A1 to Ex.A21 and on the side of the defendants, the first and the third defendant were examined as D.W.1 and D.W.2 and 17 documents were marked as Ex.B1 to Ex.B.17.

8.The trial Court after considering the submissions of the Counsel for the parties and the evidence on record found that the Will is untrue and based upon the Will, the plaintiff is not entitled to get declaration over the plaint schedule property and dismissed the suit without costs. Aggrieved by this, the plaintiff filed an appeal in A.S.No.45 of 2004 on the file of the Sub Court, Pattukottai. The first appellate Court upon considering the evidence on record, set aside the judgment and decree of the trial Court, dated 09.07.2004 and allowed the appeal by its judgment and decree, dated 30.09.2005. Aggrieved by this, the defendants have preferred the Second Appeal before this Court.

9.This Court while admitting the Second Appeal has framed the following substantial questions of law:-

a)Whether the first appellate Court was right in holding that Ex.A.21 Will has been proved in accordance with Section 63 of Indian Evidence A