The burden of proof for a Will lies with the propounder, requiring clear evidence against suspicious circumstances surrounding its creation.

JUDGMENT

The grand children of Chinnapillai S/o.Chinnathambi have preferred this second appeal against the Judgment and Decree dated 10.08.2012 passed in A.S.No.46 of 2011 by the Subordinate Court, Kallakurichi. 2. The parties are indicated herein to as per their litigative status and ranking made before the Trial Court.

3. According to the plaintiffs, the suit property originally belonged to one Chinnnapillai, S/o.Chinnathambi, the maternal grand-father of the plaintiffs herein. The aforesaid person, Chinnathambi, had executed a Will in favour of the plaintiffs on 23.08.1988. After the execution of the Will, the said Chinnapillai died in the year 1989 and it is the last Will of the said Chinnapillai. After the death of the said Chinnapillai, the suit property was devolved on the plaintiff. At the time of the execution of the Will, all the plaintiffs were minors and the plaintiffs’ mother Kolanjiammal has got no right to sell the property and there was also no necessity to sell the suit property. Even, if there is any necessity, the plaintiffs' mother should have obtained permission from the District Court to sell the suit property. She sold the suit property on 11.08.1997 to the defendant and the sale transaction is a void one. Hence, it is not binding on the plaintiffs. The plaintiffs came to know about this illegal sale transaction in the first week of January, 2005 and approached the defendant for handing over the possession of the suit property to the plaintiffs. As the defendant refused to part with the suit property, suit was laid for the relief of declaration of title and for recovery of possession of the suit property.

4. Contending contra, the sole defendant would state that the suit property does not belong to the plaintiffs and the plaintiffs did not have any right or title over the suit property. It is an admitted fact that the suit property belonged to Chinnapillai. The fact that Chinnapillai had executed the Will in favour of the plaintiffs on 23.08.1988 totally denied as false. The suit property belonged to Chinnapillai by virtue of a Sale Deed dated 11.08.1983 executed by Ramsamy and Seenuvasan. The said Chinnapillai died intestate leaving behind his only daughter namely Kolanjiammal as his legal heir. The said Kolanjiammal was in possession and enjoyment of the suit property. After the death of her father, she sold the suit property to the defendant under the Sale Deed dated 11.08.1997 for valuable consideration and since then defendant has been in possession and enjoyment of the suit property. The Will is a forged document created by the plaintiffs in order to file this vexatious suit. There is no cause of action for the suit.

5. Based on the rival pleadings, the trial Court framed the following issues:

i) Whether the suit property belonged to the plaintiffs?

ii)Whether the suit property belonged to the defendant as per the sale deed dated 11.08.1997?

iii) Whether the plaintiffs are entitled for recovery of possession of the suit property?

iv) To what relief, the plaintiffs are entitled to?

6. At trial, to substantiate the plaint details, on the plaintiffs’ side four witnesses were examined and five documents were marked. Ex.A1 – dated 23.08.1988 is the Will executed by Chinnapillai in favour of the plaintiffs and copy of the same was also marked as Ex.B2 on the side of the defendant. Ex.A2 dated 11.08.1997 is the Sale Deed executed by Kolanjiammal in favour of the defendant in respect of the suit property. Ex.A5 dated 12.08.2005 is the patta bearing patta No.585 standing in the name of the defendant namely, Pitchai Sowri. The first plaintiff was examined as P.W.1. The two attestors to the Will (Ex.A1) are P.W.2 and P.W.3 and P.W.4, Kannan is the scribe of Ex.A1. On the side of the defendant, three witnesses were examined and five documents were marked. Ex.B1 dated 26.07.1988 is the Mortgage Deed executed by Chinnapillai in favour of one Isac. E