Will validly proved by attesting witnesses; non-examination of scribe not fatal absent suspicious circumstances disproving execution.

JUDGMENT :

A.D. MARIA CLETE, J.

This Second Appeal arises out of the judgment and decree dated 17.12.2013 in A.S.No.12 of 2010 on the file of the District Judge, Nilgiris at Udhagamandalam, whereby the judgment and preliminary decree dated 31.08.2010 in O.S.No.11 of 2006 on the file of the Subordinate Judge, Nilgiris at Udhagamandalam, were reversed and the suit for partition was dismissed.

2. For convenience, the parties are referred to as they were arrayed before the trial Court.

3. The plaintiff’s case, in substance, as follows. She is one of the daughters of late K. Lakshmanan. The 1st defendant/ L. Sathyamoorthy and the 3rd defendant/A. Thamayanthi are her siblings. One Subburaj, since deceased, was another son of Lakshmanan; the 2nd defendant/Narayani is Subburaj’s widow and defendants 4 and 5 are his daughters. According to the plaintiff, the suit schedule properties originally belonged to Lakshmanan. Item No.2, namely 2.50 acres of tea garden, had been settled by Lakshmanan in favour of his wife Amirthavalli. Sl.No.6 of Item No.1 stood in the name of Subburaj, but the plaintiff treated it as part of the common pool left by Lakshmanan. She further alleged that cash, jewellery, ornaments and deposits left by Lakshmanan had been taken away by defendants 1 and 2 and Subburaj, while reserving liberty to pursue movables separately.

4. Her central case was that Lakshmanan died intestate , but that the alleged Will propounded by the defendants was the product of manipulation during his illness. She pleaded that Lakshmanan was suffering from diabetes, hypertension and renal complications; that he was treated at GEM Hospital, Coimbatore, and later admitted to S.M. Hospital, Udhagamandalam; and that during this period the 1st defendant and Subburaj, who were residing with him, took advantage of his condition, procured his signatures on papers and brought into existence a self-serving document. She also pleaded that Lakshmanan complained to her in hospital that his sons had taken his signatures on papers, wanted to make proper provision for his daughters, and asked her to bring a lawyer. According to her, Senior Counsel N. Krishnamoorthy met Lakshmanan in hospital on 11.11.2005, and Lakshmanan stated that he had not signed papers voluntarily and wanted to set matters right after discharge; however, he died on 30.11.2005 before any fresh document could be executed.

5. The plaintiff further pleaded that, after Lakshmanan’s death and then Subburaj’s death on 28.12.2005, she went to the family house on 22.01.2006 for discussion of partition, but was induced, while still in mourning, to sign papers under the pretext that they related to partition. Later, she discovered that those signatures were being used as though she had accepted a Will and a Panchayat Muchalika. She therefore treated Ex.B1 Will and Ex.B2 Muchalika as products of fraud, coercion, undue influence and deception, issued legal notice demanding partition, and instituted the suit claiming 1/4th share.

6. The 1st defendant, whose written statement was adopted by defendants 2, 4 and 5, admitted the relationship but denied all allegations of manipulation and misappropriation. Their case was that Lakshmanan executed his last Will and testament on 01.11.2005 in a sound and disposing state of mind; that the Will was duly attested by M. Kumar and K. Sagadevan; and that Lakshmanan made what the defendants described as an equitable distribution of his properties. The defendants also pleaded that, although Lakshmanan had earlier gifted Item No.2 to Amirthavalli, he had thereafter got back that property and was competent to bequeath it under Ex.B1. They further relied on a Panchayat Muchalika dated 22.01.2006 said to have been executed in the village in implementation of the Will, and asserted that the plaintiff and her husband had signed it and were bound by it. In addition, they specifically pleaded that Sl.No.6 of Item No.1 was the self-acquired property of Subburaj and not divisible am