2026:MHC:1374A.S. NO.674 OF 2016

IN THE HIGH COURT OF JUDICATURE AT MADRAS

JUDGMENT RESERVED ON : 05 / 08 / 2025

JUDGMENT PRONOUNCED ON : 07 / 04 / 2026

CORAM :

THE HONOURABLE MR. JUSTICE R.SAKTHIVEL

APPEAL SUIT NO.674 OF 2016

AND

CIVIL MISCELLANEOUS PETITION NO.20593 OF 2016

J.Naveen ... Appellant /

3

rd

Defendant

Vs.

1.B.Sasikala ...1

st

Respondent /

Plaintiff

2.Lalitha

3.S.V.Jayaprakash ...Respondents 2&3 /

Defendants 1&2

PRAYER: First Appeal filed under Section 96 read with Order XLI Rule 1

of the Code of Civil Procedure, 1908 praying to set aside the Judgment and

Decree dated April 29, 2016 passed in O.S. No.81 of 2005 by the II

Additional District and Sessions Court, Salem.

For Appellant : Mr.L.Mouli

For Respondent-1 : Ms.V.Srimathi

For Respondent-2 : Mr.R.Krishnaswamy

For Respondent-3 : Ms.Zeenath Begum

* * *

Page No.1 of 28

https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

J U D G M E N T

Feeling aggrieved by the Judgment and Decree dated April 29, 2016

passed in O.S. No.81 of 2005 by 'the II Additional District and Sessions

Court, Salem' ['Trial Court' for brevity], the third defendant therein has

filed this Appeal Suit under Section 96 read with Order XLI Rule 1 of 'the

Code of Civil Procedure, 1908' ['CPC' for short].

2. For the sake of convenience, hereinafter, the parties will be

referred to as per their array in the Original Suit.

PLAINTIFF'S CASE

3. The Suit Properties originally belonged to V.Leela wife of

M.Vaiyapuri by virtue of Sale Deeds dated November 29, 1971 and

October 31, 1994. She passed away intestate on January 12, 2005 leaving

behind her two daughters and one son who are the plaintiff and the

defendants 1 and 2, as her legal heirs. Her husband - M.Vaiyapuri pre-

deceased her on July 16, 1996. As such, the plaintiff and the defendants 1

and 2 have succeeded to her estate and each are entitled to 1/3 share in the

Suit Properties. The plaintiff is in joint possession of the Suit Properties

along with the defendants. The second defendant leased out the Suit

Properties for commercial purpose and received rents from the tenants. The

Page No.2 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

plaintiff is entitled to 1/3 share in the rent amount received from the

tenants as well. The plaintiff reserves her right to take steps against the

tenants separately. As such, the plaintiff demanded defendants 1 and 2 for

partition through mediators and allot her 1/3 share. The demands were last

made on April 20, 2005 and on April 25, 2005. The defendants 1 and 2

were not inclined to partition the suit properties and made attempts to

create encumbrance over the suit properties with a view to defeat and

defraud the legitimate share of the plaintiff. Hence, the Suit for partition

and separate possession.

SECOND DEFENDANT'S CASE

4. The second defendant filed written statement in September 2005

denying the allegations made by the plaintiff in the plaint. According to the

second defendant, the plaintiff is not entitled to 1/3 share in the Suit

Properties and the rent amount as alleged.

4.1. According to the second defendant, at the time of the plaintiff's

marriage, movable properties, jewels and cash worth Rs.14,94,000/- were

given to the plaintiff by M.Vaiyapuri and V.Leela. Similarly, the first

defendant was given cash and jewels to the value of Rs.16,35,000/-. Since

the plaintiff and the first defendant have received cash, jewels and

Page No.3 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

properties as stated above, M.Vaiyapuri and V.Leela were willing to settle

the Suit Properties in favour of the second defendant and hence, the mother

of second defendant -V.Leela executed Will dated December 23, 2004 in

favour of second defendant's son / her grandson - minor Naveen and

appointed second defendant's wife - Mekala as Guardian for minor

Naveen. In the said Will, V.Leela bequeathed her entire properties in

favour of minor Naveen, which is her last will. The Will has been acted

upon and Mekala took possession of the suit properties after the demise of

V.Leela. Hence, neither the plaintiff nor the defendants are entitled to any

share in the suit properties. Further, the suit properties are dwelling houses.

Hence, the Suit is barred under Section 23 of the Hindu Succession Act,

1956. Thus, the second defendant sought to dismiss the Suit.

FIRST DEFENDANT'S CASE

5. The first defendant filed written statement in November 2006

denying the allegations made in the plaint by the plaintiff. The first

defendant admitted the averment that the suit properties belonged to their

mother - V.Leela by virtue of two Sale Deeds as stated in the plaint. The

first defendant denied that the suit properties were leased out for rent. The

first defendant further averred that the second defendant is not a necessary

Page No.4 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

party to the Suit. It is true that M.Vaiyapuri and V.Leela are the biological

parents of the second defendant. However, at the age of 7 months, second

defendant was adopted by one Sithayammal and her husband

-Venkatachalam as their son. Since then, he has been living with his

adopted parents. Hence, the second defendant has no interest or title over

the Suit Properties. The second defendant intentionally suppressed the

factum of adoption in his written statement. As such the plaintiff and the

first defendant alone have succeeded to the estate of V.Leela and each is

entitled to common ½ share in the suit properties. The Will alleged to have

been executed by V.Leela is a false and fabricated one created collusively

with the plaintiff to defeat and defraud the rights of the first defendant.

Accordingly, the first defendant sought to dismiss the Suit.

THIRD DEFENDANT'S CASE

6. Initially, the third defendant, who is the second defendant’s son

represented by his mother filed a written statement in November 2007 and

thereafter, filed another written statement in November 2011 upon

attaining the age of majority. He also filed an additional written statement

in March 2015. He reiterated the averments made by second defendant in

Page No.5 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

respect of Will and the bar under Section 23 of the Hindu Succession Act,

1956. Hence, there is no need to repeat the same.

TRIAL COURT

7. Based on the above pleadings, the Trial Court framed the

following issues:

'(i)Whether the Will dated December 23, 2004 is true and

valid?

(ii)Whether the plaintiff is entitled to the relief as prayed

for in the plaint ?

(iii)To what other relief?'

7.1. On December 28, 2007 the Trial Court framed the following

additional issues:

'(i)Whether Tmt.Leela executed the Will dated

December 23, 2004 in favour of the third defendant?

(ii)Whether the said Will is acted upon?'

7.2. Subsequently, on January 12, 2016, the Trial Court framed the

following issue as additional issue:

'(i)Whether the Suit is not maintainable in view of Section

23 of Hindu Succession Act?'

Page No.6 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

8. At trial, on the side of the plaintiff, the plaintiff was examined as

P.W.1 and Ex-A.1 to Ex-A.10 were marked. On the side of the defendants,

the defendants 1 to 3 were examined as D.W.1, D.W.5 and D.W.4

respectively and two independent witnesses were examined as D.W.2 and

D.W.3 and Ex-B.1 to Ex-B.12 were marked.

9. After full-fledged trial, the Trial Court came to the conclusion that

the alleged Will dated December 23, 2004 is surrounded by suspicious

circumstances. The propounder of the Will has not proved the Will after

removing the suspicious circumstances. Accordingly, the Trial Court

concluded that the Will is not proved, decreed the Suit as prayed for by

granting 1/3 share in the Suit Properties to the plaintiff and accordingly,

passed a Preliminary Decree in favour of the plaintiff.

10. Feeling aggrieved, the third defendant has preferred this First

Appeal under Section 96 read with Order XLI Rule 1 of the CPC.

ARGUMENTS

11. Heard Mr.L.Mouli, learned Counsel appearing for the appellant /

third defendant; Ms.V.Srimathi, learned Counsel appearing for the first

respondent / plaintiff; Mr.R.Krishnaswamy, learned Counsel appearing for

Page No.7 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

the second respondent / first defendant; and Ms.Zeenath Begum, learned

Counsel appearing for the third respondent / second defendant.

12. Mr.L.Mouli, learned Counsel appearing for the appellant/third

defendant submitted that V.Leela had executed a Will dated December 23,

2004 in favour of her grandson- Naveen / third defendant, who was then a

minor. The third defendant, being the beneficiary under the said Will,

examined two attesting witnesses, among whom one was also the scribe of

Ex-B.6 - Will, to substantiate its execution. Learned counsel contended that

the evidence of the attesting witnesses are cogent, consistent and

trustworthy. They categorically deposed that at the time of execution of

Ex-B.6 - Will, the testatrix was hale, healthy and in a sound and disposing

state of mind. Despite being subjected to cross-examination, nothing

material could be elicited to discredit their testimony. It was further

submitted that, one of the attesting witnesses was residing at a distance of

7 kilometres from the residence of the testatrix, which mere fact alone

cannot be construed as a suspicious circumstance surrounding the

execution of the Will. According to the learned Counsel, the Trial Court

failed to properly appreciate the oral and documentary evidence adduced

on behalf of the third defendant. The Trial Court ought to have held that

Page No.8 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

the Will dated December 23, 2004 had been duly proved in accordance

with law. Accordingly, he prayed to allow the Appeal Suit and set aside the

Judgment and Decree of the Trial Court.

13. Per contra, Ms.V.Srimathi, learned Counsel appearing for the

first respondent / plaintiff submitted that the second defendant had been

given in adoption to Venkatachalam and Sithayammal. In this regard, she

pointed out that the second defendant himself had instituted an Original

Suit in O.S. No.390 of 2001 (Ex-A.1) on the file of the Additional Sub

Court, Salem, seeking a declaration that he is the adopted son of

Venkatachalam and Sithayammal. Learned counsel further submitted that

the newspaper publication (Ex-A.7) issued by the second defendant also

clearly states that he had been given in adoption to the said Venkatachalam

and Sithayammal. Further, the Family Card (Ex-A.8) would reveal that the

name of the second defendant is reflected in the Family Card of

Venkatachalam and Sithayammal, thereby corroborating the factum of

adoption. She also drew the attention of this Court to Ex-A.10, the medical

records, which disclose that the testatrix - V.Leela was admitted in the

hospital on December 8, 2004 for treatment relating to diabetes and heart

disease and discharged only after 8 days on December 16, 2004. It was

Page No.9 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

further submitted that Leela passed away on January 12, 2005 while

proceeding to Bangalore. During the relevant period, she was under the

care and custody of the plaintiff, which fact has also been admitted by the

second defendant. In the above circumstances, learned Counsel contended

that the alleged Suit Will is a fabricated document. According to her, the

defendants have failed to dispel the suspicious circumstances surrounding

the execution of the Will and have not proved the Will in the manner

known to law. The Trial Court, upon proper appreciation of the entire facts

and evidence on record, had rightly disbelieved the Will. There is no

infirmity or illegality in the findings so rendered warranting interference

by this Court. Accordingly, she prayed for dismissal of the Appeal Suit and

sustain the Judgment and Decree passed by the Trial Court.

14. Mr.R.Krishnaswamy, learned Counsel appearing for the second

respondent / first defendant submitted that the second defendant had been

given in adoption to Venkatachalam and Sithayammal. Upon adoption, he

is uprooted from the family of M.Vaiyapuri and V.Leela and becomes a

legal heir of Venkatachalam and Sithayammal. Learned counsel further

contended that the alleged Will is a fabricated document, created solely for

the purpose of the Suit. According to him, in view of the adoption of the

Page No.10 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

second defendant, only the plaintiff and the first defendant are entitled to

succeed to the suit properties as legal heirs of the deceased -V.Leela.

Accordingly, he prayed to dismiss the Appeal Suit and modify the decree

of the Trial Court by enhancing the share of first defendant from 1/3 to 1/2.

15. Ms.Zeenath Begum, learned Counsel appearing for the third

respondent/second defendant, adopted the submissions advanced by the

learned counsel for the appellant/third defendant. She supported the case of

the appellant and prayed that the Appeal Suit be allowed and the Judgment

and Decree of the Trial Court be set aside.

POINTS FOR CONSIDERATION

16. This Court has considered the submissions made on either side

and perused the materials available on record. The points that arises for

consideration in this Appeal Suit are as follows:

(i)Whether the second defendant was given in adoption to

Venkatachalam and Sithayammal when he was 7 months old as

alleged ?

Page No.11 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

(ii)Whether Ex-B.6 - Will dated December 23, 2004 is true, valid and

genuine and whether it is proved as per law?

(iii)Whether the Judgment and Decree is liable to be interfered with?

DISCUSSION AND DECISION

Point No.(i): Whether the second defendant was given in adoption to

Venkatachalam and Sithayammal when he was 7 months old as alleged ?

17. According to the plaintiff and first defendant, their biological

brother - second defendant had been given in adoption to Venkatachalam

and Sithayammal. In support of the said contention, reliance was placed

upon Ex-A.1 which is the plaint in O.S. No.390 of 2001 filed by the

second defendant before the Sub Court, Salem, wherein he sought for a

declaration that he is the adopted son of deceased Venkatachalam and

deceased Sithayammal. On the strength of the said pleading, it was

contended that the second defendant is estopped from taking a

contradictory stand. Reliance was also placed on Ex-A.7 - Newspaper

Publication given by second defendant that he is the adopted son of

Venkatachalam and Sithayammal as well as on Ex-A.8 - Family Card of

Venkatachalam and Sithayammal wherein second defendant is shown as a

Page No.12 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

member. To be noted, Sithayammal is none other than the sister of

M.Vaiyapuri (father of plaintiff and defendants 1 and 2) i.e., Sithayammal

is first defendant's aunt. The second defendant in his cross-examination

admitted Ex-A.1 -Plaint, Ex-A.7 - Newspaper Publication and Ex-A.8 -

Family Card, and went on to explain that he was the foster son of

Venkatachalam and Sithayammal and not their adopted son. The relevant

portion of his evidence (D.W.5) reads thus:

‘. . . KjyhtJ TLjy; rhh;g[ ePjpkd;wj;jpy; jhf;fy;

bra;ag;gl;l O.S.No.390/2001 tHf;fpy;/ vd;Dila

tHf;fwpOh; bgah; jpU.T.Kj;JfpU#;zd; Mthh;. ,e;j

tHf;fpy; ehd; thjp. ,e;j tHf;if/ nfhghy; kw;Wk; 15

egh;fs; kPJ jhf;fy; bra;Js;nsd;. ,e;j tHf;fpy;/ ehd;

bt';flh$yk; vd;gthpd; Rtpfhu kfd; vd;W tpsk;g[if

bra;a ntz;Lk; vd;W ghpfhuk; nfl;Ls;nsd;.

O.S.No.390/2001 tHf;fpy; fz;l midj;J ghpfhu';fisa[k;

ehd;jhd; nfl;Ls;nsd;. ehd;/ bt';flh$yk; FLk;gj;jpw;F

Rtpfhukhf brd;wJ/ vd; jhahh; brhy;ypjhd;/ 2001-Mk;

tUlk; vdf;F bjhpa[k;. bt';flh$yj;jpd; kidtp bgah;

rpj;jhap. ,th;/ vd;Dila je;ijapd; mf;fh Mthh;.

bt';flh$yk;/ rpj;jhap Mfpnahh;fspd; FLk;g ml;ilapy;

vd;Dila bgah; cs;sJ. ,e;j tptuk;/ 2001-Mk; tUlk;

O.S.No.390/2001 tHf;F jhf;fy; bra;a[k; nghJjhd; vdf;F

bjhpa[k;. mJjhd; ,e;j FLk;g ml;il/ me;j FLk;g

ml;il Vw;fdnt Ex.A.8 Mf FwpaPL bra;ag;gl;Ls;sJ.

bt';flh$yj;jpd; tsh;g;g[ kfd; vd;w

mog;gilapy;jhd;/ bghJ mwptpg;g[ bfhLj;Js;nsd;.

Page No.13 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

me;j mwptpg;g[ Vw;fdnt Ex-A7 Mf FwpaPL

bra;ag;gl;Ls;sJ. ehd;/ vd; FLk;gj;ij tpl;L/

bt';flh$yk;/ rpj;jhap FLk;gj;jpw;F Rtpfhu kfdhf

brd;Wtpl;nld; vd;W brhd;dhy; rhpay;y. . . .’

18. In this regard, it is apposite to mention that an admission made

by a party in pleadings is a judicial admission admissible in evidence under

Section 17 read with Section 58 of the Indian Evidence Act, 1872. O.S.

No.390 of 2001 which is the Suit instituted by the second defendant

claiming to be the adopted son of Venkatachalam and Sithayammal (Ex-

A.1 - Plaint) was dismissed for default and non-prosecution on July 4,

2018. In the present Suit, as stated supra, the second defendant has

explained that he is the foster son of Venkatachalam and Sithayammal and

only on that capacity he filed the Suit in O.S. No.390 of 2001. The

admission made in Ex-A.1 - Plaint being a judicial admission is indeed

admissible in evidence and is of utmost relevance. However, the same

cannot be taken as conclusive evidence when the plaintiff and the first

defendant are not parties thereto and when the second defendant has

assigned an explanation as stated above. Further, though in the said Suit

the second defendant had sought a declaration regarding his status as the

adopted son of Venkatachalam and Sithayammal, no adjudication on merits

Page No.14 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

had taken place. Therefore, mere filing of such a Suit which ended in

dismissal for default, would not by itself conclusively establish the factum

of adoption. In this regard, reference may be made to the Judgment of

Hon'ble Supreme Court in Basant Singh -vs- Janki Singh, reported in

AIR 1967 SC 341. Relevant portion from the Judgment thereof reads thus:

"5.The High Court also observed that an admission in a

pleading can be used only for the purpose of the suit in which

the pleading was filed. The observations of Beaumont, C.J. in

Ramabai Shriniwas v. Bombay Government lend some

countenance to this view. But those observations were

commented upon and explained by the Bombay High Court in

D.S. Mohlte v. S.I. Mohile. An admission by a party in a plaint

signed and verified by him in a prior suit is an admission within

the meaning of Section 17 of the Indian Evidence Act, 1872,

and may be proved against him in other litigations. The High

Court also relied on the English law of evidence. In Phipson on

Evidence, 10th Edn, Article 741, the English law is thus

summarised:

“Pleadings, although admissible in other actions, to

show the institution of the suit and the nature of the

case put forward, are regarded merely as the

suggestion of counsel, and are not receivable against

a party as admissions, unless sworn, signed, or

otherwise adopted by the party himself.”

Thus, even under the English law, a statement in a

pleading sworn, signed or otherwise adopted by a party is

admissible against him in other actions. In Marianski v. Cairns

Page No.15 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

the House of Lords decided that an admission in a pleading

signed by a party was evidence against him in another suit not

only with regard to a different subject-matter but also against a

different opponent. Moreover, we are not concerned with the

technicalities of the English law. Section 17 of the Indian

Evidence Act, 1872 makes no distinction between an admission

made by a party in a pleading and other admissions. Under the

Indian law, an admission made by a party in a plaint signed

and verified by him may be used as evidence against him in

other suits. In other suits, this admission cannot be regarded as

conclusive, and it is open to the party to show that it is not

true."

[Emphasis supplied by this Court]

19. Moreover, the plaintiff has filed the death certificates of

M.Vaiyapuri (Ex-A.4) and V.Leela (Ex-A.5) as well as legal heir certificate

of V.Leela dated February 28, 2005 (Ex-A.6). In Ex-A.6 - Legal Heir

Certificate, second defendant along with the plaintiff and first defendant

has been shown as the children of V.Leela. The defendants' side has

marked the legal heir certificate of father - M.Vaiyapuri dated July 31,

1996, as Ex-B.1. It shows the second defendant as the deceased's son;

plaintiff and first defendant are shown as daughters and V.Leela is shown

as wife. Further, the second defendant's marriage invitation card has been

marked as Ex-B.2. The date of marriage is June 3, 1991. In Ex-B.2, second

defendant has been described as the son of the couple - M.Vaiyapuri and

Page No.16 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

V.Leela. Further, Ex-B.5 is a mortgage deed dated May 17, 1995 whereby

V.Leela, M.Vaiyapuri, defendant Nos.1 and 2 and plaintiff jointly

mortgaged Suit 'B' schedule property. The recitals in Ex-B.5 describes the

plaintiff and defendants 1 and 2 as the children of M.Vaiyapuri and V.Leela

[...1/2 ,yf;fkpl;lth;fspd; kf;fshfpa Rkhh; 32 taJs;stUk;

‘

nkw;go r';fj;jpd; 1088 ,iz cWg;gpdUkhd yypjh (3)/

i# r ';fj;jpd; 1089 be. ,iz cWg;gpdUkhd

S.V.b$ag;gpufh#;(4) . . .

‘

] Further, Ex-B.9 is another mortgage deed. It

was executed jointly by V.Leela and the second defendant on April 17,

2002 in respect of Suit 'A' schedule property. In Ex-B.9, V.Leela has been

described as the wife and the second defendant has been described as the

son, of M.Vaiyapuri. In view of these documents, the admissions made in

Ex-A.1 - Plaint and Ex-A.7 - Newspaper Publication, and the entry in Ex-

A.8 - Family Card cannot be considered as conclusive proof of adoption.

20. The burden squarely lies upon the plaintiff and the first

defendant to prove that the second defendant had been validly given in

adoption to Venkatachalam and Sithayammal. In the present case, there is

no satisfactory or legally acceptable evidence on record to substantiate

such adoption. D.W.5 / second defendant has deposed in his evidence that

Page No.17 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

Sithayammal is the sister of his father and she is his aunt. Hence, it is

highly probable that the second defendant was brought up by

Venkatachalam and Sithayammal. The same could be the reason behind the

entry in Ex-A.8 - Family Card showing second defendant as a member of

Venkatachalam and Sithayammal's family. However, mere upbringing or

association would not constitute a valid adoption in the eye of law.

Accordingly, this Court is of the view that the plaintiff and the first

defendant have failed to establish that the second defendant was given in

adoption to Venkatachalam and Sithayammal. The Trial Court observed

that the issue of adoption has to be decided in the (then) pending Suit in

O.S. No.390 of 2001 and thus, did not deal with the question of adoption.

Such a course is not correct, as the plaintiff and the first defendant were

not parties to the Suit in O.S. No.390 of 2001. Further, the adoption being

a disputed fact and there being pleadings and evidence in this regard, the

Trial Court ought to have framed issue(s) in this regard and should have

decided the same. Point No.(i) is answered accordingly in favour of

second defendant and against the plaintiff and the first defendant.

Point No.(ii): Whether Ex-B.6 - Will dated December 23, 2004 is true,

valid and genuine and whether it is proved as per law ?

Page No.18 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

21. At the outset, this Court deems fit to cite hereunder the Judgment

of Hon'ble Supreme Court in H.Venkatachala Iyengar -vs- B.N.

Thimmajamma, reported in 1958 SCC OnLine SC 31, which is considered

as locus classicus when it comes to law regarding proof of Will:

"18.What is the true legal position in the matter of proof

of wills? It is well-known that the proof of wills presents a

recurring topic for decision in courts and there are a large

number of judicial pronouncements on the subject. The party

propounding a will or otherwise making a claim under a will is

no doubt seeking to prove a document and, in deciding how it is

to be proved, we must inevitably refer to the statutory

provisions which govern the proof of documents. Sections 67

and 68 of the Evidence Act are relevant for this purpose. Under

Section 67, if a document is alleged to be signed by any person,

the signature of the said person must be proved to be in his

handwriting, and for proving such a handwriting under

Sections 45 and 47 of the Act the opinions of experts and of

persons acquainted with the handwriting of the person

concerned are made relevant. Section 68 deals with the proof of

the execution of the document required by law to be attested;

and it provides that such a document shall not be used as

evidence until one attesting witness at least has been called for

the purpose of proving its execution. These provisions prescribe

the requirements and the nature of proof which must be

satisfied by the party who relies on a document in a court of

law. Similarly, Sections 59 and 63 of the Indian Succession Act

are also relevant. Section 59 provides that every person of

sound mind, not being a minor, may dispose of his property by

will and the three illustrations to this section indicate what is

Page No.19 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

meant by the expression “a person of sound mind” in the

context. Section 63 requires that the testator shall sign or affix

his mark to the will or it shall be signed by some other person

in his presence and by his direction and that the signature or

mark shall be so made that it shall appear that it was intended

thereby to give effect to the writing as a will. This section also

requires that the will shall be attested by two or more witnesses

as prescribed. Thus the question as to whether the will set up by

the propounder is proved to be the last will of the testator has

to be decided in the light of these provisions. Has the testator

signed the will? Did he understand the nature and effect of the

dispositions in the will? Did he put his signature to the will

knowing what it contained? Stated broadly it is the decision of

these questions which determines the nature of the finding on

the question of the proof of wills. It would prima facie be true to

say that the will has to be proved like any other document

except as to the special requirements of attestation prescribed

by Section 63 of the Indian Succession Act. As in the case of

proof of other documents so in the case of proof of wills it

would be idle to expect proof with mathematical certainty. The

test to be applied would be the usual test of the satisfaction of

the prudent mind in such matters.

19.However, there is one important feature which

distinguishes wills from other documents. Unlike other

documents the will speaks from the death of the testator, and so,

when it is propounded or produced before a court, the testator

who has already departed the world cannot say whether it is his

will or not; and this aspect naturally introduces an element of

solemnity in the decision of the question as to whether the

document propounded is proved to be the last will and

testament of the departed testator. Even so, in dealing with the

Page No.20 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

proof of wills the court will start on the same enquiry as in the

case of the proof of documents. The propounder would be

called upon to show by satisfactory evidence that the will was

signed by the testator, that the testator at the relevant time was

in a sound and disposing state of mind, that he understood the

nature and effect of the dispositions and put his signature to the

document of his own free will. Ordinarily when the evidence

adduced in support of the will is disinterested, satisfactory and

sufficient to prove the sound and disposing state of the

testator's mind and his signature as required by law, courts

would be justified in making a finding in favour of the

propounder. In other words, the onus on the propounder can be

taken to be discharged on proof of the essential facts just

indicated.

20.There may, however, be cases in which the execution of

the will may be surrounded by suspicious circumstances. The

alleged signature of the testator may be very shaky and

doubtful and evidence in support of the propounder's case that

the signature, in question is the signature of the testator may

not remove the doubt created by the appearance of the

signature; the condition of the testator's mind may appear to be

very feeble and debilitated; and evidence adduced may not

succeed in removing the legitimate doubt as to the mental

capacity of the testator; the dispositions made in the will may

appear to be unnatural, improbable or unfair in the light of

relevant circumstances; or, the will may otherwise indicate that

the said dispositions may not be the result of the testator's free

will and mind. In such cases the court would naturally expect

that all legitimate suspicions should be completely removed

before the document is accepted as the last will of the testator.

The presence of such suspicious circumstances naturally tends

Page No.21 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

to make the initial onus very heavy; and, unless it is

satisfactorily discharged, courts would be reluctant to treat the

document as the last will of the testator. It is true that, if a

caveat is filed alleging the exercise of undue influence, fraud or

coercion in respect of the execution of the will propounded,

such pleas may have to be proved by the caveators; but, even

without such pleas circumstances may raise a doubt as to

whether the testator was acting of his own free will in executing

the will, and in such circumstances, it would be a part of the

initial onus to remove any such legitimate doubts in the matter."

22. The testatrix - V.Leela was 63 years old at the time of her

demise. Ex-A.10 - Discharge Summary would show that she was suffering

from Diabetes Mellitus and some heart diseases. On December 8, 2004,

she was admitted in a private hospital for complaints of chest pain, severe

sweating and giddiness. She was then discharged on December 16, 2004.

The doctor prescribed a review with some test reports after seven days of

discharge. Ex-B.6 - Will is dated December 23, 2004 i.e., six days after the

discharge, and it is an un-registered one. It is stated that V.Leela passed

away on her way to Bangalore. Her date of demise is January 12, 2005.

She has passed away shortly after the discharge, about one month later.

23. On the side of the defendants, the attesting witnesses of Ex-B.6 -

Will were examined as D.W.2 and D.W.3. One of them viz., D.W.3, is also

the scribe to Ex-B.6 - Will. D.W.2 when questioned about the testatrix's

Page No.22 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

medical condition and her being admitted in hospital for treatment, he

answered that he is not aware of the same. Further, while the first

defendant deposed that she passed away. Interestingly, first defendant

examined herself as D.W.1 on March 1, 2016 and D.W.2 was examined on

March 9, 2016 i.e., eight days later. He further deposed that he does not

know the scribe of Ex-B.6 - Will and the other attesting witness thereto. He

also deposed that he does not know the plaintiff and that he is not related to

the testatrix. Coming to D.W.3 who is the scribe-cum-attestor, he has

deposed that at the time of him reciting the contents of Ex-B.6 - Will to the

testatrix, no one else other than the testatrix was present. D.W.3 also

deposed that he does not know about the medical conditions, treatment and

partially bed-ridden state of the testatrix. D.W.5 / second defendant has

deposed that one Tahsildhar by name Ahmadullah informed him that the

plaintiff and the first defendant took the testatrix to Bangalore from Salem

Hospital in an Ambulance and that the testatrix passed away on the way.

He further deposed that he does not know in which hospital the testatrix

was admitted for treatment, as well as about her earlier treatments as an in-

patient. However, he deposed that the testatrix was obtaining treatment

(out-patient) for Diabetes Mellitus and admits the medical records found in

Ex-A.10 series. When questioned about the testatrix's coronary diseases, he

Page No.23 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

deposed that she might have been suffering from them. Admittedly, he was

not residing along with the testatrix during the relevant period. What could

be understood from the evidence of D.W.5 / second defendant is that it is

only the plaintiff and the first defendant who took care of the testatrix

during her final phase of life and that the D.W.5 / second defendant did not

play much of a role. By applying the arm-chair rule, this Court wonders

whether the testatrix would have excluded the plaintiff and the first

defendant who took care of her in the last phase of her life and bequeathed

her properties in favour of her son - first defendant who never even visited

her when she was admitted in the Hospital in December 2004 in a serious

condition. When it is the plaintiff and the first defendant took care of the

testatrix during the final phase of her life and the second defendant was

least involved, it is unnatural that the testatrix bequeathed her properties in

favour of the second defendant's minor (then) son - Naveen.

24. Yet another reason that creates suspicion around the execution of

Ex-B.6 - Will is her medical condition at the material point of time. On the

side of the plaintiff, it has been established through documentary evidence

that the testatrix was admitted in the hospital from December 8, 2004 to

December 16, 2004 for treatment relating to heart disease and other

ailments. Shortly thereafter, she passed away on January 12, 2005. The

Page No.24 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

proximity between the alleged execution of the Will and her deteriorating

health condition assumes significance. In such circumstances, the burden

lie heavily upon the propounder to establish that V.Leela had executed the

Will while she was in a sound and disposing state of mind. In view of the

aforesaid circumstances, particularly the serious ailments of the testatrix

shortly prior to the execution of Ex-B.6 - Will and her demise shortly

thereafter, this Court is of the view that the propounder of the Will has

failed to prove that the testatrix was in a sound and disposing state of mind

at the time of execution of Ex-B.6 - Will.

25. In view of the surrounding suspicious circumstances, this Court

is of the considered opinion that the execution of Ex-B.6 - Will

(un-registered) has not been proved in the manner known to law, after

dispelling all suspicious circumstances surrounding the same.

26. The Trial Court, upon a thorough consideration of the oral and

documentary evidence available on record, has rightly concluded that Ex-

B.6 - Will has not been proved in the manner known to law and that the

suspicious circumstances surrounding its execution have not been

satisfactorily dispelled. Hence, there is no need to interfere with the

Page No.25 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

findings of the Trial Court in this regard. Point Nos.(ii) is answered

accordingly.

Point No.(iii): Whether the Judgment and Decree is liable to be interfered

with?

27. Admittedly, Suit 'A' and 'B' schedule properties are house

properties. Section 23 of the Hindu Succession Act, 1956 was omitted by

the Hindu Succession (Amendment) Act, 2005 (Act No.39 of 2005).

Hence, there is no bar against female members claiming partition of

dwelling houses. The Trial Court rightly held so. As stated supra, there is

no reason to interfere with the findings of the Trial Court qua proof of

Will. This Court does not find any perversity, illegality, or infirmity in the

appreciation of evidence by the Trial Court warranting interference. The

findings rendered are based on proper evaluation of the materials placed

before it. Having regard to the facts and circumstances of the case, this

Court is of the considered view that there is no reason to take a view

different from that of the Trial Court. Accordingly, there is no necessity to

interfere with the Judgment and Decree passed by the Trial Court. Point

Nos (iii) is answered accordingly.

Page No.26 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

CONCLUSION:

28. In view of the discussions and reasons assigned hereinabove, this

Court finds no merit in the Appeal Suit and the same is liable to be

dismissed. Accordingly, the Appeal Suit is dismissed and the Judgment and

Decree passed by the Trial Court are hereby confirmed. In the facts and

circumstances of the case, there shall be no order as to costs. Consequently,

connected Civil Miscellaneous Petition is closed.

07 / 04 / 2026

Index : Yes

Speaking Order : Yes

Neutral Citation : Yes

TK

To

The II Additional District and Sessions Court

Salem.

Page No.27 of 28 https://www.mhc.tn.gov.in/judis

A.S. NO.674 OF 2016

R.SAKTHIVEL, J.

TK

PRE-DELIVERY JUDGMENT MADE IN

APPEAL SUIT NO.674 OF 2016

07 / 04 / 2026

Page No.28 of 28 https://www.mhc.tn.gov.in/judis