IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 01.12.2025

PRONOUNCED ON : 08 .12.2025

CORAM:

THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN

AND

THE HONOURABLE MR. JUSTICE K.KUMARESH BABU

A.S.No. 521 of 2011

1. Paneerselvam @ Nellappan (died)

S/o. Subramaniya Mudaliyar

2. Murugavel

S/o. Subramaniya Mudaliyar

3. Thillaiyammal

W/o. Paneerselvam

4. Subhashini

W/o. Balamurugan

5. Anand

S/o. Pannerselvam

6. Suganya

W/o. Prabhu

... Defendants/Appellants

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Vs

1. Amsavalli

W/o. V.Subramanian

2. Rajeshwari

W/o. Ganavel ... Plaintiffs/Respondents

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

C.P.C., against the Judgment and Decree dated 27.04.2011 made in O.S.No.

149 of 2008 by the learned Additional District Judge, (FTC-2), Cuddalore.

***

For Appellants : Mr. T.S.Baskaran

For Respondents : Mr. D.Baskar

for Mr.R.Gururaj

JUDGMENT

(Order of the Court was made by C.V.KARTHIKEYAN, J.)

The defendants in O.S.No. 149 of 2008 on the file of the

Additional District Court / Fast Track Court No.II at Cuddalore are the

appellants herein.

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2. During the pendency of the Appeal, the first appellant died and

his legal representatives have been brought on record as third to sixth

appellants. It is to be noted that the first and second appellants are the

brothers of the first and second respondents.

3. The first and second respondents had filed O.S.No. 149 of

2008 seeking partition and separate possession of their ½ share in the suit

schedule property. The suit schedule property was land and building

measuring 3150 square feet at Door No. 5-B/245 at Gangaikondan,

Vridhachalam Taluk, Cuddalore. By Judgment dated 27.04.2011, a

preliminary decree was passed granting partition of the suit schedule

properties. Questioning that Judgment and Preliminary decree, the

defendants had filed the present appeal.

O.S.No. 149 of 2008 – Additional District Court/Fast Track Court -II,

Cuddalore:

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4. The plaintiffs, who are sisters of the defendants claimed that

the suit schedule property belonged to their father, Subramania Mudaliar.

After the death of the father intestate, it was claimed that the plaintiffs and

the defendants were each entitled to an undivided 1/4

th

share in the suit

schedule property. It had been claimed that the defendants denied the right

of the plaintiffs to seek partition and under that circumstance filed the suit

seeking partition and separate possession of their ½ share in the suit

schedule property.

5. In the written statement filed, the relationship among the

parties was admitted. It was contended that the plaintiffs were leading a

comfortable life after marriage. It was further contended that the father had

executed a Will on 08.05.2003 duly executed and attested bequeathing the

property to the defendants. The reason why such bequeath was made was

also stated in the Will. It was claimed that the defendants were therefore in

lawful possession of the suit schedule property.

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6. A reply statement had been filed by the plaintiffs stating that

the Will was not genuine and was forged. They denied the execution and

valid attestation of the Will. It was stated that the Will was concocted. The

relief of partition was again sought.

7. On the basis of the above pleadings, the following issues were

framed for trial:-

“(i) Whether the plaintiffs were entitled to an

undivided 1/4

th

share each in the suit schedule

property?;

(ii) Whether the claim of the defendants that their

father Subramania Mudaliar had executed a Will

dated 06.05.2003 and therefore, the property

stood vested with the defendants was correct?;

(iii) Whether the plaintiffs are entitled to a

preliminary decree is claimed in the plaint?; and

(iv) To what other reliefs are the parties entitled

to.”

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8. During trial, the first plaintiff was examined herself as PW-1

and marked Exs. A-1 to A-6. Ex.A-6 was a copy of a Will dated 03.06.1997

executed by Subramania Mudaliar. On the side of the defendants, the first

defendant examined himself as DW-1 and also examined three other

witnesses as DW-2, DW-3 and DW-4. One document, Ex.D-1, the original

of the Will dated 08.05.2003 was marked.

9. The learned trial Judge on appreciation of the evidence

adduced had stated that the Will marked as Ex.D-1 dated 08.05.2003 had

not been proved in manner known to law and therefore granted preliminary

decree of partition and separate possession as prayed for by the plaintiffs.

10. Challenging that Judgment and Preliminary Decree, the

defendants have filed the present Appeal.

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A.S.No. 521 of 2011:

11. It had been contended by the learned counsel for the

appellants that Ex.B-1 the Will dated 08.05.2003 had been proved in

manner known to law and that the Judgment suffers from improper

appreciation of the evidence. The learned counsel contended that to prove

the Will, the appellants had examined both the attesting witnesses as DW-2

and DW-3 and the scribe as DW-4. It was contended that during the cross

examination of DW-1, on the side of the respondents, Ex.A-6 was marked

which was claimed to be an earlier Will executed by Subramania Mudaliar

dated 03.06.1997. The signatures of the testator in each of the pages of

Ex.A-6 were marked as Ex.A-3, A-4 and A-5. It was contended that during

cross examination of the defendants witnesses both the Wills were

interchangeably showed thereby creating confusion in the minds of the

witnesses. The learned counsel pointed out that on an over all appreciation

of the evidence adduced, the Court should have held that the Will had been

proved in manner known to law and executed in accordance with law. He

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also pointed out that the Will was registered which could lead to a

presumption of genuinety. The learned counsel insisted that the Will in

Ex.D-1 had been proved as required under law and therefore, urged that the

Appeal should be allowed and the suit should be dismissed.

12. The learned counsel for the respondents however disputed

these contentions. The learned counsel stated that mere registration of the

Will would not indicate proof of the Will. The learned counsel pointed out

that the Will should be proved in accordance with the requirements under

Section 68 of the Indian Evidence Act, 1872 / 69 of BSA 2003 and in

accordance with Section 63(c) of the Indian Succession Act 1925. The

learned counsel contented that the witnesses for the appellants had

miserably failed in establishing the proof of the Will and had contradicted

themselves during their evidence. He therefore stated that the Appeal

should be dismissed and the Will in Ex.B-1 should be declared as not

having been proved and that therefore the preliminary decree should be

upheld.

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13. We have carefully considered the arguments advanced and

perused the materials available on record.

14. This is a suit filed by two sisters against their two brothers

seeking partition and separate possession of one property left behind by

their father and claiming an undivided 1/4

th

share each in the said property.

The said property is a residential house. They claimed that their father died

intestate.

15. In the written statement, the appellants however projected a

registered Will said to have been executed by their father dated 08.05.2003

by which the property was bequeathed by two separate shares to the two

appellants/defendants. The respondents however denied the genuinity of

the said Will and claimed that it was forged.

16. The original of the Will dated 08.05.2003 had been marked as

Ex.B-1 during the chief examination of DW-1. A perusal of the same shows

that it had been registered and was also attested by two witnesses S.Rajaram

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and S.Elangovan. S.Rajaram had examined been as DW-2 and

S.Elangovan had been examined as DW-3. The scribe of the Will was

S.Selvam and he was examined as DW-4. It is thus evident that the

appellants had marshalled the required witness to speak about the Will dated

08.05.2003 marked as Ex.B-1. In his chief examination, DW-2 identified

the Will and stated that he had signed as first witness. He also gave the

name of the second witness to the Will. He also gave the name of the scribe

of the Will. During his cross examination, he stated that he was running a

medical shop and that the testator Subramania Mudaliar would come to the

shop often and that therefore, he came to know him. He however stated that

he did not know, who was the other person, who signed as witness to the

Will and that he was not present at that time. He stated that he affixed the

signature and went away. He also stated that he did not know whether the

Will was registered or not. He was also not definite whether the signature in

Ex.A-6 was the signature of Subramania Mudaliar. He however denied that

the signature in Ex.B-1 was not that of Subramania Mudaliar.

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17. It is to be noted that during his cross examination, both the

Wills, Ex.A-6 and Ex.B-1 were shown alternatively and questions were put

to him.

18. DW-2, the other attesting witness S.Elangovan in his cross

examination stated that he came to know Subramania Mudaliar through real

estate business. He also stated that he also went over to the shop of

Subramania Mudaliar often. He identified his signature in Ex.B-1. He was

however shown Ex.A-6, the Will dated 03.06.1997 and asked to identify the

signatures of the testator. He identified those signatures. He also identified

his signature in Ex.B-1. He denied that Subramania Mudaliar had not signed

Ex.B-1 Will.

19. The scribe of the Will, S.Selvam, was examined as DW-4. He

stated that he prepared Ex.B-1 Will under instructions of Subramania

Mudaliar. He stated that when Ex.B-1 was prepared both DW-2 and DW-3

were present. He was also alternatively shown both Ex.A-6 and Ex.B-1

Wills. He stated that Subramania Mudaliar was in a sound state of mind. He

knew Subramania Mudaliar for nearly 15 years.

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20. The point which arises for consideration is whether Ex.B-1,

Will had been proved in manner known to law?.

21. It is to be noted that Ex.B-1 had been marked during the chief

examination of DW1. The earlier Will, about which there was no mention

in the plaint and dated 03.06.1997 was shown to DW1 during cross

examination and that Will was marked as Ex.A-6. During the cross

examination of DW2, DW3 and DW4, both the documents were

interchangeably shown and the signatures were asked to be identified. DW-

2 was not so firm in his evidence. But however, DW-3 and DW-4 withstood

this type of cross examination. All the three witnesses however denied the

suggestion that Subramania Mudaliar had not signed Ex.B-1. They

identified their signatures. DW-2 alone stated that he had affixed signature

and thereafter left the place. It must also be pointed out that though Ex.B-1

was dated 08.05.2003, DW-2 was cross examined on 06.04.2011 nearly 8

years after the date of execution of the Will. DW-3 was cross examined on

07.04.2011 and DW-4 was cross examined on 19.04.2011.

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22. The learned counsel for the respondents had placed reliance

on the Judgment of the Hon'ble Supreme Court in Civil Appeal No. 6377 of

2012 [ Ramesh Chand (D) through LRS., Vs. Suresh Chand and another].

Specific reference had been placed on the observations in paragraph No.27

wherein it had been observed that the Will whose validity was put to

challenge before the Hon'ble Supreme Court had been upheld by the trial

Court without any discussion as contemplated under Section 63 of the

Indian Succession Act 1925 and Section 68 of the Indian Evidence Act

1872. The Hon'ble Supreme Court had laid stress on the fact that the

stipulations in the above two provisions should have been followed during

the execution of the Will and during the proof of the Will.

23. The learned counsel for the respondent also placed on the

Judgment of the Hon'ble Supreme Court in Civil Appeal No.3351 of 2014

[Meena Pradhan and Others Vs. Kamla Pradhan and another], wherein

the Hon'ble Supreme Court had laid down the principles required for

proving the validity and the execution of the Will. They were as follows:-

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“i. The court has to consider two

aspects: firstly, that the Will is executed by the

testator, and secondly, that it was the last Will

executed by him;

ii. It is not required to be proved with

mathematical accuracy, but the test of satisfaction

of the prudent mind has to be applied.

iii. A Will is required to fulfil all the

formalities required under Section 63 of the

Succession Act, that is to say:

(a) 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 the

said signature or affixation shall show that it was

intended to give effect to the writing as a Will;

(b) It is mandatory to get it attested by

two or more witnesses, though no particular form

of attestation is necessary;

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(c) Each of the attesting witnesses must

have seen the testator sign or affix his mark to the

Will or has seen some other person sign the Will, in

the presence and by the direction of the testator, or

has received from the testator a personal

acknowledgment of such signatures;

(d) Each of the attesting witnesses shall

sign the Will in the presence of the testator,

however, the presence of all witnesses at the same

time is not required;

iv. For the purpose of proving the

execution of the Will, at least one of the attesting

witnesses, who is alive, subject to the process of

court, and capable of giving evidence, shall be

examined;

v. The attesting witness should speak not

only about the testator’s signatures but also that

each of the witnesses had signed the will in the

presence of the testator;

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vi. If one attesting witness can prove the

execution of the Will, the examination of other

attesting witnesses can be dispensed with;

vii. Where one attesting witness

examined to prove the Will fails to prove its due

execution, then the other available attesting

witness has to be called to supplement his

evidence;

viii. Whenever there exists any suspicion

as to the execution of the Will, it is the

responsibility of the propounder to remove all

legitimate suspicions before it can be accepted as

the testator's last Will. In such cases, the initial

onus on the propounder becomes heavier. ix. The

test of judicial conscience has been evolved for

dealing with those cases where the execution of the

Will is surrounded by suspicious circumstances. It

requires to consider factors such as awareness of

the testator as to the content as well as the

consequences, nature and effect of the dispositions

in the Will; sound, certain and disposing state of

mind and memory of the testator at the time of

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execution; testator executed the Will while acting

on his own free Will;

ix. One who alleges fraud, fabrication,

undue influence et cetera has to prove the same.

However, even in the absence of such allegations,

if there are circumstances giving rise to doubt,

then it becomes the duty of the propounder to

dispel such suspicious circumstances by giving a

cogent and convincing explanation.

xi. Suspicious circumstances must be

‘real, germane and valid’ and not merely ‘the

fantasy of the doubting mind’ 1. Whether a

particular feature would qualify as ‘suspicious’

would depend on the facts and circumstances of

each case. Any circumstance raising suspicion

legitimate in nature would qualify as a suspicious

circumstance for example, a shaky signature, a

feeble mind, an unfair and unjust disposition of

property, the propounder himself taking a leading

part in the making of the Will under which he

receives a substantial benefit, etc. ”

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24. It was thereafter held in paragraph No. 11 as follows:-

“11. In short, apart from statutory compliance,

broadly it has to be proved that

(a) the testator signed the Will out of his own free

Will,

(b) at the time of execution he had a sound state of

mind,

(c) he was aware of the nature and effect thereof

and

(d) the Will was not executed under any suspicious

circumstances.”

25. The Hon'ble Supreme Court had held that a Will is required

to be in compliance of all the formalities required under Section 63 of the

Indian Succession Act 1925 and to prove the execution atleast one of the

attesting witness should be examined, who should speak about the

signatures of the testator but also about the other witness to the Will. It had

been also held that even if one witness speaks to the proper attestation and

execution of the Will, such evidence would be sufficient. It had been

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further held that the testator should have signed the Will out of his own free

Will and when he was on a sound state of mind and was aware of the nature

of the Will and it should be proved that it was not executed under any

suspicious circumstance.

26. Section 63(c) of the Indian Succession Act 1925 is as

follows:-

“63. Execution of unprivileged Wills.—

(c) The Will shall be attested by two or more

witnesses, each of whom has seen the testator sign

or affix his mark to the Will or has seen some other

person sign the Will, in the presence and by the

direction of the testator, or has received from the

testator a personal acknowledgement of his

signature or mark, or the signature of such other

person; and each of the witnesses shall sign the

Will in the presence of the testator, but it shall not

be necessary that more than one witness be present

at the same time, and no particular form of

attestation shall be necessary. ”

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27. The directions of the Hon'ble Supreme Court and also the

provision under Section 63(c) of the Indian Succession Act 1925, make

clear that one of the attesting witness should speak about the execution of

the Will.

28. In the instant case, though the evidence of DW-2 cannot be

said to inspire confidence to the fullest extent, still the witness had denied

the suggestion that the signature in Ex.B-1 was not that of Subramania

Mudaliar. It must again be kept in mind that during the cross examination,

two separate Wills namely Ex.A-1 and Ex.B-1 executed by Subramania

Mudaliar were shown to the witness and they were asked to identify the

signatures alternatively in both the Wills. Moreover nearly 8 years and

above have crossed by the time, the witnesses were cross examined. Some

leverage should therefore be granted to the witnesses for not remembering

minute details surrounding the execution of the Will. DW-3 had also

spoken about the execution of the Will. DW-4 had very specifically stated

that he had prepared the Will under the directions of Subramania Mudaliar.

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Both DW-2 and DW-3 also stated that they had affixed the signatures under

the instructions of the testator. We therefore hold that there has been

compliance of the stipulations required under Section 63(c) of the Act. The

witnesses had also spoken about the execution of the Will.

29. The additional factor to be considered is that the Will, Ex.B-1

is a registered Will. Even though registration of a Will cannot be considered

as proof of the Will, still a presumption could be drawn about the genuinity

of the Will.

30. In Metpalli Lasum Bai (since dead) and Others Vs.

Metapalli Muthaih(D) by Lrs., in Civil Appeal No. 5921 of 2015, the

Hon'ble Supreme Court while examining the effect of the registration of the

Will had held that when the Will is a registered document, it creates a

presumption regarding genuineness thereof. It had been also held that “as

the Will is a registered document, the burden would lie on the party, who

disputed its existence, to establish that, it was not executed in the manner

as alleged or that there were suspicious circumstances which made the

same doubtful.”

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31. In the instant case, except for stating that there was an earlier

Will in the year 1997 about which there was no mention in the plaint and

which will the plaintiffs had not also marked during their evidence, no other

suspicious circumstances had been raised by the respondents. They claimed

that they have been disinherited by Ex.B-1 but a reading of Ex.B-1 shows

that the testator had also stated that both the respondents are married and

provided for sufficiently and there was no reason to beaqueath any portion

of the property to them.

32. It is also to be noted that having filed a suit claiming their

father died intestate, and still producing Ex.A-6 Will claimed to have been

executed by the father would only show that the respondents/plaintiffs have

approached the Court with unclean hands, which also would non-suit them

for the relief sought for.

33. In view of the above reasons, we hold that the learned Trial

Judge had misdirected himself regarding the evidence adduced relating to

the proof of the Will and should have taken a considered view of the

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evidence adduced by DW-2, DW-3 and DW-4 and should not have rejected

Ex.B-1 as not having been proved in manner known to law.

34. The point framed for consideration is answered that the Will

under Ex. B-1 has been proved as required under law.

35. In view of the above reasons, the Appeal stands allowed. The

Judgment and Decree of the Trial Court is set aside. No order as to costs.

[C.V.K., J.] [K.B., J.]

08 .12.2025

Index: Yes/No

Internet:Yes/No

Neutral Citation: Yes/No

To:

1. Additional District Court, (FTC-2), Cuddalore.

2.The Section Officer,

VR Section,

Madras High Court, Chennai.

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C.V.KARTHIKEYAN, J.

AND

K.KUMARESH BABU, J.

vsg

Pre-Delivery Judgment made in

A.S.No. 521 of 2011

08.12.2025

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