A propounder of a Will carries the absolute onus to prove its valid execution, complying with S.63 of the Indian Succession Act and S.68 of the Evidence Act. Material discrepancies in testimony and evidence of the testator's ill health create suspicious circumstances, invalidating the document.

COMMON JUDGMENT

The appeal suits had been filed by the respective parties as being aggrieved against the common judgment and decree passed in O.S. Nos.164 of 1992 and 160 of 1992 on the file of the Principal Sub Court, Erode, dated 29.10.1992.

2. The parties to the lis are brothers and sister, and the dispute relates to the properties owned by their father, namely Chinnathambi Gounder.

3. The suit in O.S. No.160 of 1992 was instituted by the younger son of Chinnathambi Gounder, seeking relief of declaration of title of the suit properties and for a permanent injunction as against his elder brother and sister from interfering with his possession of the property. The cause of action for the suit was that the joint family properties that have been inherited by his father had been bequeathed upon him by a registered Will executed on 03.01.1992, and since his father died on 08.01.1992, he had claimed title over the property on the strength of the said Will. The said suit was resisted by the defendants, challenging the Will upon which the plaintiff had claimed title, and they had independently instituted a suit in O.S. No.164 of 1992. The elder son, namely Sengottian, instituted the said suit, arraying the younger son and the daughter as parties, seeking for partition of the suit properties into three equal shares and allotment of one such share to himself. The said suit was resisted to by the younger son on the strength of the Will. The daughter had also resisted the suit filed by the younger son and supported the claim for partition made by the elder son. Based upon the pleadings in the respective suits, the following issues were framed:

O.S.No.160 of 1992:

1.Whether the Will dated 03.01.1992 is genuine and valid? Whether the allegation that the said Will was fraudulently brought into existence is true?

2. Whether Chinnathambi had no authority to bequeath the entirety of the 1st item of the suit property under the said Will?

3. Whether the plaintiff is entitled to the relief of declaration in respect of the suit properties?

4. Whether the plaintiff is entitled to the relief of permanent injunction in respect of the suit properties?

5.To what other reliefs, if any, are the parties entitled?

O.S.No.164 of 1992:

1. Whether the Will dated 03.01.1992 is genuine and valid? Whether the allegation that the said Will was fraudulently brought into existence is true?

2. Whether Chinnathambi had no authority to bequeath the entirety of the 1st item of the suit property under the said Will?

3. Whether the plaintiff has a share in the suit properties? Whether the suit properties are liable to be partitioned? If so, what is the share to which the plaintiff is entitled?

4. Whether the plaintiff is entitled to the relief of permanent injunction in respect of the suit properties?

5. To what other reliefs, if any, are the parties entitled?

4. The suits were jointly tried and the younger son, who had filed the earlier suit, had examined himself and six other witnesses as PW1 to 7 and had marked various exhibits as Exs.A1 to A38. The defendants had examined two witnesses, namely DW1 and DW2, and had marked Exs. B1 to B21. Exs.C1 to C8 were marked through PW3, 4 and 7.

5. On consideration of the various issues in conjunction with the deposition of the witnesses and the documents marked, the trial Court had come to the conclusion that the Will had been executed in a suspicious circumstances and therefore did not disbelieve the Will a