MADURAI BENCH OF MADRAS HIGH COURT Reserved on 30.07.2025 Pronounced on 10.11.2025 CORAM: THEHON’BLE MR.JUSTICE K.K.RAMAKRISHNAN A.S(MD) No.156 of 2020 1.Subbulakshmi 2. Prabhakaran 3. Subhakaran — Appellants –Vs– 1. Ponnuthai

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 30.07.2025
Pronounced on 10.11.2025
CORAM:
THEHON’BLE MR.JUSTICE K.K.RAMAKRISHNAN
A.S(MD) No.156 of 2020
1.Subbulakshmi
2. Prabhakaran
3. Subhakaran — Appellants
–Vs–
1. Ponnuthai
2. Indirani
3. Anitha
4. Geetha
(3rd Respondent mentally retarded plaintiff represented through her Mother 2nd respondent)
5. Ramayee Ammal (Died)
Memo dated 12.06.2025 presented before the court on 12.06.2025, is recorded as R5 died, and R6 to R9, appellants and R10 who are already on record are recorded as LRs of the deceased R5, vide dated 15.07.2025 in A.S.(MD) No.156 of 2020 by KKRKJ.
6. Aruna
7. Pavithra
8. Sharmila
9. Devaraj @ Devasenan
10. Subbulakshmi — Respondents
Prayer : This Appeal Suit has been filed under Section 96 of C.P.C., to reverse and set aside the judgment and decree dated 14.10.2019 made in O.S.No.45 of 2012 on the file of Learned Principal District Court, Dindigul and dismiss the suit with cost by allowing the appeal.
For Appellant : Mr. S. Pon Senthil Kumaran
For Respondents : R-1, R-4, R-5, R-10 No appearance
Mr.H.Lakshmi Shankar for R1 to R4
Mr.V.M.Rajendran for R6 to R9
JUDGMENT
This appeal has been filed to set aside the judgment and decree passed by Learned Principal District Court, Dindigul in O.S.No.45 of
2012 dated 14.10.2019
2.Defendants 7 to 9 in O.S No. 45 of 2012 on the file of Principal District Judge Dindigul have filed this appeal challenging the judgment and preliminary decree for partition granted in favour of plaintiffs and other defendants in respect of suit schedule properties Item.No.3 (Survey No.159) and Sub Item No.3 of the 4th scheduled property (Survey No. 118/1) alone vide impugned judgment in O.S No. 45 of 2012 dated
04-12-2012.

3. Respondents 1 to 4 in this appeal are plaintiff in OS No. 45 of 2012 and the respondents 5 to 10 are the defendants 1to 6 in the suit. Appellants are 7th to 9th defendants. For the sake of convenience,the parties are referred to as per their ranking in the trial court.
4. Brief facts of the plaintiffs case:
4.1. The plaintiff filed a suit for partition of 2/6 share in the suit schedule properties stating that Ramasamy gounder had two wives, namely Subbammal and Ramayeeammal. Subbammal died in the year 1976, leaving Ponnuthai (P1), Selvaraj and Anbalagan as legal heirs.
Ramasamy gounder also married the first defendant. In the said wedlock, Mathialagan, Subulakshmi and Bhaskaran were born to them. Anbalagan died on 16-3-1988 and selvaraj died on 8-7- 1990 leaving the second plaintiff who is the wife, third and fourth plaintiffs who are the daughters. Mathialagan died on 24-8-2003 leaving the defendants 2 to 5 as legal heirs. First defendant’s son Baskaran died on 17/05/2008, leaving the seventh defendant and his minor children namely defendant 8 and 9 as legal heirs. During the life time of Ramaswamy gounder, he and his sons Selvaraj Anbalagan, Matthiyalagan, Baskaran and Ramyeeammal entered into partition on 7-2-1983 . In the said partition, Ramaswamy gounder was allotted A scheduled property. Selvaraj was allotted B scheduled property. Mathialagan was allotted C scheduled property. Anbalagan was allotted D scheduled property. Baskaran was allotted E scheduled property. Ramaswamy gounder sold some of the properties and purchased number of properties in his name. Anbalagan died unmarried and hence his properties devolved upon the Ramaswamy gounder as he was the sole legal heir. Ramasamy gounder and Baskaran made exchange of properties vide exchange deed dated 17/11/1989.
Ramayee ammal also executed settlement deed in favour of Ramaswamy Gounder on 11/5/1998. Thus, Ramaswamy gounder was in possession of the properties covered under the partition, exchange deed and settlement deed executed by the Ramayeeammal. He died on 5/12/2010. Hence, the plaintiff issued notice dated 5/11/2011 demanding partition from the defendants. Defendants issued a reply notice dated 30-5-2011.
Thereafter, they filed suit stating that properties are liable for partition and they are entitled for 2/6 shares and sought decree for partition in all suit scheduled properties.

4.2. The first defendant, second defendant, third defendant filed the written settlement supporting the case of the plaintiff and also paid Court fee to grant preliminary decree in favour of them also.
5.Brief facts of the Defendant Nos.7 to 9 case:
The Defendant Nos.7 to 9 have filed a written statement admitting the relationship among the parties and the partition that was effected on 07.02.1983, followed by separate enjoyment of the respective shares. It is further admitted that the deceased Baskaran executed an exchange deed on 17.11.1989, and the first defendant executed a settlement deed in favour of her husband, the deceased Ramaswamy Gounder. The
defendants also admitted the death of the parties as stated in the plaint. They have put forth a specific case that the deceased Ramaswamy
Gounder, who had served as the Chairman of the Attur Panchayat Union and President of the Central Co-op Bank (local branch), had made family arrangements in the presence of the parties to the present suit and other close associates but due to the refusal of the first plaintiff, the same could not be put in black and white. Under this arrangement, the properties mentioned in the first schedule of the plaint were allotted to the first plaintiff; the third and fourth plaintiffs were allotted properties situated in Survey No. 118 measuring 1.58 cents, Survey No. 159 measuring 1 acre, and Survey No. 388 measuring 2.24 cents, totally 2 acres and 87 cents. The 7th to 9th defendant was allotted properties in Survey No. 118 measuring 1.220 cents and Survey No. 159 measuring 2 acres and 71 cents. Defendants 2 to 5 were allotted properties measuring 3 acres and 29 cents situated in Seval Saragu Village. The first plaintiff is therefore entitled only to the property allotted as per the said arrangement.
5.2. However, the first plaintiff refused to participate or execute written form of the said arrangement.
5. 3.Ramaswamy Gounder executed a Will on 09.09.2010 in favour the minor 8th and 9th defendants and bequeathed the Item No.3 (Survey
No.159) and sub item No.3 of 4th suit schedule property (Survey No. 118/1). The Will was executed while he was in a sound and disposing state of mind and it was executed without any coercion or undue influence, and was duly notarized on 15.11.2010. The execution of the Will was witnessed by V.Krishnan, Ramalingam, and other close friends of Ramaswamy Gounder.
5.4. It is further stated that Ramaswamy Gounder had sold certain properties for a total consideration of Rs. 60 lakhs and deposited the said amount in the name of the fourth plaintiff considering her health condition. Subsequently, he met with an accident on 02.11.2010 and hence, he was admitted to the hospital, discharged, and later readmitted due to complications developed because of the accident. Thereafter, he passed away.
5.5. It is further submitted that several deposits were made by the deceased Ramaswamy Gounder in the names of the plaintiffs and other defendants. The plaintiffs have deliberately suppressed this material fact, and therefore, the present suit is liable to be dismissed for non-joinder of necessary parties, including the depositors. Therefore, the defendant has filed this written statement denying the plaintiffs’ entitlement to claim partition, in respect of the property covered under Will dated 09.09.2010 and they have no objection to grant partition to the remaining properties.
5. 6.After the filing of the written statement by the defendants, the plaintiffs filed an amendment petition along with a reply statement contending that plea of family arrangement and the execution of the Will, as pleaded by the 7th defendant, is not true. The plaintiffs further submitted that although Ramaswamy Gounder had sold certain properties and deposited the sale proceeds in the name of the fourth plaintiff, as well as made other deposits, and such transactions do not support the case of the 7th defendant. They specifically denied the allegation that they had illegally taken the deposit receipt when he was admitted in the hospital. They contended that the alleged recovery of deposit receipts from the bureau, as stated by the 7th defendant, was false. They further averred that the deposits were handed over to the plaintiffs only after the completion of the 16th-day memorial ceremony and that there was no truth in the allegations made in the written statement of the 7th defendant and maintained that the Will had not been proved in accordance with law.
6.Finding of trial court:
6. 1.Based on the above pleadings, the learned Trial Judge framed the necessary issues for consideration. To substantiate their case, the plaintiffs examined themselves as P.W.1 and P.W.2 and marked Exhibits A1 to A16. On the side of the defendants they examined D.W.1 to D.W. 3, and one of the defendants who supported the claim of the plaintiffs was examined as D.W.4.
6. 2.Upon a detailed consideration of the oral and documentary evidence, the learned Trial Judge disbelieved the case of the 7th defendant based on the will. Accordingly, the suit was decreed by the impugned judgment. Aggrieved by the said Judgment and decree, the present appeal has been filed.
7.Appellants submissions:
7. 1.Thiru. S.Pon Senthilkumar the learned counsel for the appellant submitted that the findings of the Trial Court regarding the genuineness and execution of the Will are erroneous, being contrary to the pleadings and unsupported by evidence. It is further argued that though a family arrangement had been made, the same was not reduced into writing since the first plaintiff did not agree to reduce into writing. However, the 7th defendant had accepted the said arrangement, and therefore, to protect the interest of the minor 8th and 9th defendants, the
deceased Ramaswamy Gounder executed the Will under those circumstances. In the said circumstances, the non-mentioning of the family arrangement in the will is not a material ground to disbelieve the evidence of D.W.2,3 and the case put forth by the 7th defendant. This is especially so when the husband of the 7th defendant had died leaving behind two minor children, and the property bequeathed under the Will is situated adjacent to the property of the deceased Baskaran. The said disposition was evidently made in the interest of the minor children, enabling them to enjoy the entire extent of land as one composite and contiguous field.
7. 2.Furthermore, the properties mentioned in the remaining schedule are of greater value than those covered under the Will. Therefore, the execution of the Will appears natural, and its genuineness has been duly proved through the testimony of D.W.2 and D.W.3. Hence, the learned Trial Judge committed an error in disbelieving the Will and in decreeing the suit in entirety. D.W.1, D.W.2 and D.W.3 cogently deposed about health condition of executant and his fit state of mind to execute the Will. There is no contra pleadings and evidence and hence, the learned trial Judge on surmise and conjuncture has rendered finding that he had imbalance mind due to nervous problem by assuming the health condition of him about his shaky limbs. Shaky limbs is not a ground to presume his mental state of mind. Therefore, he sought to set aside the findings and allow this appeal suit.
8.Respondents submissions:
8.1. The learned counsel “Thiru H.Lakshmi Shankar” has prepared a chart containing various discrepancies and contradictions between the defendants’ written statement, notice, and oral evidence, all of which are to be properly considered in this appeal and the said inconsistencies must necessarily be evaluated by this Court while examining the genuineness and due execution of the Will.
8. 2.He further made detailed argument and filed written argument stating the following suspicious circumstance:
1. Ramasamy Goundar has not signed in the will. He is said to be bedridden and his limbs are shaking and therefore he affixed only his thumb impression is the claim of defendants 7 to 9. But no evidence is adduced to prove on 09.09.2010 he was so afflicted and was not in a position to sign.
2. The witnesses DW2 and DW3 claimed that he was hale and healthy and he was walking around.
3. The evidence on record proves that Ramasamy Goundar was so hale and healthy that even in that age he was driving a two wheeler and met with an accident on 02.11.2010 which almost two months after the alleged date of the will. A person with shaky limbs and who was said to be bedridden at that age would not have able to ride a two wheeler.
4. Ramasamy Goundar would not have written a will ignoring his wife who was living with him and the 3rd plaintiff who is his granddaughter who is mentally ill by giving valuable properties only to the defendants 7 to 9.
5. There is a sub-registrar office at Athoor 5 Kms from Nadupatti and no reason to call a document writer from Chinnalapatti which is far and not to register that will.
6. 1st Defendant (2nd Wife) is not spoken to be present during the alleged execution and preparation of the will on 09.09.2010.
7. Ramasamy Goundar had no sons living at the point of time. So the reference to male heir in the will is unnatural and artificial.
8. The endorsement regarding his affixing thumb impression is not spoken to be written by anybody.
9. DW2 and DW3 during their cross examination and in fact DW3 in his chief examination does not support the 15.11.2010 visit to the notary public at Dindigul for
‘registering’ the will.
10. There is the evidence on record proves that he suffered head injury on 02.11.2010 and was treated in 3 hospitals intermittently and died on 05.12.2010. In between it is unnatural and abnormal that Ramasamy Goundar was in a position to go to Dindigul (14 Kms) to meet a notary public.
11. Notary Public was not examined.
12. Scribe was not examined.
13. If Ramasamy Goundar was in a position to move about and act independently on 15.11.2010 then the most probable and acceptable thing for him is to go to Athoor Sub
Registrar’s Office and register the will than go to Dindigul
14. Except the seal and sign the notary public has not made any endorsement whether the testator solemnly affirmed before him, confirmed the execution and his thumb impression in the will. So the seal and signature of the notary public has no value.
15. PW1 was not shown the will and she was not cross examined by confronting her with the particulars in the will and no question were put to her that Ramasamy Goundar was in a sound disposing state both on 09.09.2010 and on 15.11.2010. Equally such questions were not put to DW4 when she gave evidence.
8.3.Therefore, he prayed that the reasoning of the learned Trial Judge rejecting the 7th defendant’s case of “Will” need not be interfered with. The Will had not been duly proved and that there was no satisfactory evidence to establish that Ramaswamy Gounder was in a sound and disposing state of mind at the time of its execution and he sought to confirm the judgment of court below.
8. 4.The learned counsel for the appellant by way of reply stated that all the suspicious circumstance are stated for the first time before this court and he placed the reliance on various Hon’ble SC judgments and argued that without pleadings, the appellant has no opportunity to explain and dispel the same. Further he reiterated the argument that Ramasamy Gounder was in a fit state of mind and non examination of the scribe and notary public are not a ground to disbelieve the evidence of the cogent and trustworthy testimony of DW 2 and DW 3. He also made detailed submision about the Law of the land relating to the suspicious circumstances and placed number of precedents and prayed to allow this appeal.
9. 1.This Court has carefully considered the rival contentions and perused the materials and evidence available on record and impugned judgment.
9. 2.The point that arises for determination in this appeal is whether the Will dated 09.09.2010 has been proved in accordance with law.
10.Discussion on admitted facts:
10. 1.Following genealogy and the events was accepted by both
parties:
Ramasamy Gounder

Subbammal (I Wife) Ramayeeammal (II wife)

Mathiyalagan Subbulakshmi Baskaran

10.2.Thiru.Ramasamy Gounder was a close friend of late “Honourable Chief Minister MGR” and he was also holding the prime post in AIADMK when he was alive. He also was holding the posts of the “Charimanship of Athoor Panchayt Union” and also “President of the Central Co-operative Bank”. He had inherited lot of ancestral properties and also had purchased numerous properties on his own. He married Subbammal and through the marriage, first plaintiff, and two sons namely, Selvaraj and Anbalagan were born. The said Subbammal died on 1976. He also married Ramayeeammal and gave birth to three children, namely, Mathiyalagan, Subbulakshmi and Baskaran. His son Mathiyalagan married Aruna (D2) and gave birth to three children, namely, D3 to D5. Baskaran married D7 and gave birth to D8 and D9.
10.3.The said Ramasamy Gounder, during his life time entered into registered partition with his son Selvaraj, Anbalagan, Baskaran, Ramayeeammal on 07.02.1983. In the said partition deed the following schedule of properties were shared:
Name of the Party Schedule of property
Ramasamy Gounder “A” Scheduled property
Selvaraj “B” Scheduled property
Mathiyalagan “C” Scheduled Property
Anbalagan “D” Scheduled Property
Baskaran “E” Scheduled Property
10.4.Subsequent to the said registered partition, on 17.11.1989, Ramasamy Gounder and Baskaran entered exchange deed and exchanged the property vide registered exchange deed dated 17.11.1989. Selvaraj died on 08.07.1990 leaving behind his legal heirs namely, plaintiff Nos.2 to 4. Ramayeeammal also settled her purchased property in favour of Ramasamy Gounder through the registered settlement deed dated 11.05.1998. On 24.08.2003, Mathiyalagan Died. Since Anbalagan was unmarried, his property devolved upon the Ramasamy Gounder. Baskaran died on 17.05.2008 leaving behind his legal heirs, namely, defendant Nos.7, 8 and 9. Ramasamy Gounder met with an accident on
02.11.2010 and he was admitted in hospital and discharged on 11.11.2010 and again he was re-admitted on 26.11.2010 and a surgery was done on 27.11.2010 and he eventually died on 04.12.2010.
10.5.The case of the appellant, namely defendant Nos.7 to 9, namely, legal heirs of one of the sons of Ramasamy Gounder, namely, deceased Baskaran is that during his life time, he was very active and he was healthy and mentally fit. Considering the various circumstances, namely, Baskaran was managing and doing the agricultural activities before the partition, he was allotted the property situated next to the property mentioned in the will. The first plaintiff was a teacher and left the village after her marriage long back in the year 1969, Mathiyalagan was Veterinary Doctor and the deceased Baskaran only contributed his labour to look after the properties mentioned in the partition deed in the place of his father Ramasamy Gounder. Ramasamy Gounder, the first defendant and these appellants all lived in the house. Since Baskaran looked after the agricultural activities and the Mathiyalagan and the plaintiffs were educated and were working in the Government department, and died leaving two minor children and Baskaran also entered into exchange deed with Ramasamy Gounder, he executed a Will dated 09.09.2010 in favour of the appellant Nos.2 and 3 for their welfare. Ramasamy Gounder during his life time sold one major property and deposited the said amount in favour of the third and the fourth plaintiffs
and the same has also been withdrawn by them. In the said
circumstances, the appellants have no objection to grant partition except the Will covered properties.
10. 6.From the pleadings, it is seen that the plaintiffs and defendant Nos.2 to 6 are claiming partition in respect of the properties covered under the Will. On the side of the plaintiffs, first plaintiff was examined as P.W.1. Geetha/4th defendant was examined as P.W.2. On the side of the defendants, D.W.7/Subbulakshmi, wife of deceased Baskaran was examined as D.W.1, D.W.2 and D.W.3 were examined as attestors to the Will and the second defendant Aruna was examined as D.W.4.
11.Discussion on the execution of the disputed will:
11. 1.Since the entire case rests on the Will dated 09-09-2010, it is necessary to recapitulate the principles laid down by the Hon’ble
Supreme Court on the proof of a Will.

11. 2.The law is well-settled that the propounder must prove due execution and attestation in terms of Section 63 of the Indian Succession Act and Section 68 of Evidence Act, namely that the testator executed the Will voluntarily, in a sound and disposing state of mind, and that it was attested by two competent witnesses. Once these mandatory
requirements are satisfied, the burden shifts to the party challenging the Will to plead and establish specific suspicious circumstances. A mere denial of the Will, without pleading or proving any suspicious circumstance, is legally insufficient. The Supreme Court has consistently held that unless the caveator raises credible doubts such as coercion, impaired mental capacity, unnatural dispositions, or involvement of beneficiaries in the execution ,the Court must accept the Will as proved.
11.3. In the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, reported in AIR 1959 SC 443 the Hon’ble Supreme
Court has held as follows:
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 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.
11.4.In the case of Sridevi v. Jayaraja Shetty, reported in (2005) 2
SCC 784 it has been held as follows:
11 Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters.
11.5.In the case of Shivakumarv.Sharanabasappa(2021) 11 SCC 277] , Hon’ble Supreme Court after traversing through the relevant decisions, has summarised the principles governing the adjudicatory process concerning proof of a will as follows :
“12. …12.1. Ordinarily, a will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of will too, the proof with mathematical accuracy is not to be insisted upon.
12.2. Since as per Section 63 of the Succession Act, a will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.
12.3. The unique feature of a will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a will.
12.4. The case in which the execution of the will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
12.5. If a person challenging the will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may give rise to the doubt or as to whether the will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
12.6. A circumstance is “suspicious” when it is not normal or is ‘not normally expected in a normal situation or is not expected of a normal person’. As put by this Court, the suspicious features must be “real, germane and valid” and not merely the “fantasy of the doubting mind”.
12.7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances abovenoted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the will. On the other hand, any of the circumstances qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.
12.8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the will of the testator is surrounded by suspicious circumstance(s). While applying such test, the court would address itself to the solemn questions as to whether the testator had signed the will while being aware of its contents and after understanding the nature and effect of the dispositions in the will?
12.9. In the ultimate analysis, where the execution of a will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the court and the party which sets up the will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the will.”
12.Discussion on Credibility of D.W.2 and D.W.3:
When the evidence of attesting witnesses is trustworthy and proves the sound disposing state of mind of the testator and due attestation, the Court is justified in accepting the Will as genuine. In the case of H.
Venkatachala Iyengar v. B.N. Thimmajamma, reported in AIR 1959 SC 443 the Honble SC it has been held as follows:
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.

12.1.In the case of Ramchandra Rambux v. Champabai, reported in AIR 1965 SC 354, it has been held as follows:
… In order to judge the credibility of the witnesses, the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses but it is open to it to look into the surrounding circumstances as well as the probabilities so that it may be able to form a correct idea of the trustworthiness of the witnesses. This issue cannot be determined by considering the evidence adduced in the Court separately from the surrounding circumstances which have also been brought out in the evidence, or which appear from the nature and contents of the document itself. We do not understand the observations of Lord Watson to mean that the testimony as to the execution of the document has to be considered independently of the attendant circumstances. All that he says is that where there is a large and consistent body of testimony tending to show the execution of a will by the testator, that evidence should not be lightly set aside on the theory of improbability.
12.2.The said principle has been reiterated by the Hon’ble Supreme
Court on various occasions in different connotations.
12. 3.In the case of Indu Bala Bose v. Manindra Chandra Bose, reported in (1982) 1 SCC 20 has held as follows:
14…With regard to circumstance (x) that the scribe and the attesting witnesses were either employees, or friend or relation of the propounders’ group, the answer is simple. Nobody would normally invite a stranger or a foe to be a scribe or a witness of a document executed by or in his favour; normally a known and reliable person, a friend or a relation is called for the purpose….
12.4. In the case of Sridevi v. Jayaraja Shetty, reported in (2005) 2 SCC 784 : 2005 SCC OnLine SC 186 at page 789 has held as follows:
14….In cross-examination, the appellants failed to elicit anything which could persuade us to disbelieve their testimony. It has not been shown that they were in any way interested in the propounders of the Will or that on their asking they could have deposed falsely in court. Their testimony inspires confidence. …——

12.5. D.W.2 and D.W.3 were examined as attestor to the will. They have deposed that they had friendship with Ramasamy Gounder for more than 40 years. P.W.1 admitted that D.W.2 was well known person and close friend of Ramasamy Gounder. P.W.2 also admitted that D.W.2 was well known person. But they did not raise a doubt over their testimony. They also did not show partiality to favour of any of the parties. The evidence of P.W.1, P.W.2 and D.W.4 are as follows:
 
P.W.1 P.W.2 D.W.2 D.W.3
FUk;ggl; b nts;is
r;rhkp kfd; fpU\;z
d; njhpAk; mth; vd; jfg;gdh
hpd; ez;gh;. capypy; rhl;rp ifnaOj;J
Nghl;ljhf fhl;lg;gLk; fpU\;zd; njhpAk; Nyl;.K.S. uhkrhkp fTlh; mth;fs; vdf;F neUq;fpa ez;gh;> 40 Mz;LfSf;F Nkyhf vdf;F mtiu njhpAk;. Nyl;.K.S.
uhkrhkp fTlh; mth;fs; vdf;F
neUq;fpa
ez;gh;> 45 Mz;LfSf;F Nkyhf vdf;F mtiu njhpAk;.
From the above discussion, evidence of DW-2 and DW-3 is found to be disinterested, satisfactory and they have won the confidence of this Court as true witnesses and therefore,this Court finds no reason to doubt the credibility of the evidence of D.W.2 and D.W.3 and their evidence is sufficient to prove the sound disposing state of mind of the testator and the execution and attestation as required by law.
13.Discussion on the evidence of D.W.2 and D.W.3: D.W.2 and D.W.3 had deposed as hereunder:
Nkw;gb 9.9.2010k; Njjpapy; Nkw;gbahh; tPl;by; itj;J Nkw;gb capypy; Nkw;gb Nyl;.K.S. uhkrhkp fTlh; mth;fs; vq;fs; Kd;dpiyapy; mth; if eLf;fk; ,Ue;jjhy; ifNuif nra;jhh;. Mjd; gpd; Nkw;gb capypy; Nyl;.K.S. uhkrhkp fTlh; mth;fs; Kd;dpiyapy; ehDk;> Nkw;gb ehfuh]d;> ,Usg;gd;> uhkypq;fk; MfpNahUk; rhl;rpfshf ifnaOj;J nra;Njhk;. Nkw;gb capy; vOJk; rkak; if eLf;fk; ,Ug;gjhy; ifnaOj;J tof;fkhd Kiwapy; ifnaOj;J nra;a KbahJ vd if Nuif itj;jhh;.
uhkrhkp fTz;lh; ,wf;Fk;NghJ mtUf;F 80 taJ ,Uf;Fk;. mth; elkhl;lk; ,y;yhky; gLf;ifapy; ,Ue;jhh; vd;why; rhpay;y. ey;y elkhl;lj;Jld; ,Ue;jhh;. uhkrhkp fTz;lh; igf;fpy; nrd;wNghJ tpgj;J Vw;gl;L jiyapy; fhak; Vw;gl;lJ vd;why; rhpjhd;.
,e;epiyapy; fle;j 9.9.2010k; Njjp vd;idAk;> nfd;br;rk; gl;b ehfuh[d;> mth; neUq;fpa ez;guhd Nkl;Lg;gl;b ,Usg;gd;> uhkehjGuk; uhkypq;fk; kw;Wk; rpd;dhsgl;b gj;jpu vOj;jh; KUNfrd; mth;fisAk; Nkw;gbahh; tPl;bw;F mioj;jpUe;jhh;. md;iwa jpdk; ehq;fs; Nyl;.K.S. uhkrhkp fTlh; mth;fs; tPl;bw;F nrd;wjpy; mth; gh];fud; kf;fSf;F nfhLg;gjhf nrhd;d 2 Vf;fh; 91 epyj;ijAk;> gh];fud; kf;fSf;F ghj;jpagg;Lj;jp capy; vOjp itg;gjhfTk; mjpy; rhl;rp ifnaOj;jpLkhWk; Nfl;ljpy; mjw;F ehq;fs; xgG;f; nfhz;ljpy; capy; vOj Nyl;.K.S. uhkrhkp fTlh; mth;fs; tpguk; nrhy;y KUNfrd; vOjp nfhz;L> Nkw;gbahh; mYtyfj;jpy; ilg; nra;J te;jhh;. mjd; gpd; Nkw;gb capiy vq;fs; Kd;dpiyapy; gbj;J fhz;gpj;J Nkw;gb 9.9.2010k; Njjpapy; Nkw;gbahh; tPl;by; itj;J Nkw;gb capypy; Nkw;gb Nyl;.K.S. uhkrhkp fTlh; mth;fs; Kd;dpiyapy; ehDk;> Nkw;gb ehfuh[d;> ,Usg;gd;> uhkypq;fk; MfpNahUk; rhl;rpfshf ifnaOj;J nra;Njhk;. Nkw;gb capy; vOJk; rkak; if eLf;fk; ,Ug;gjhy; ifnaOj;J tof;fkhd Kiwapy; ifnaOj;J nra;a KbahJ vd if Nuif itj;jhh;.
13.1. D.W.2 and D.W. 3 were also respectable persons with high integrity and clearly deposed that they had more than 40 years of friendship with Ramasamy Gounder and asked to come over on 09.09.2010 and he expressed his willingness to execute the Will in favour of the appellant Nos.2 and 3 covering the properties mentioned in the Will. Both DW-2 and DW-3 further deposed that at the time of execution of the Will, Ramaswamy was in a sound and disposing state of mind, capable of understanding the nature and effect of his act. There is no contrary material placed by the plaintiff to dispute either the physical health or mental capacity of the testator.
13.2.They clearly deposed that the contents of the Will dated 09.09.2010 was read over to him in their presence and they had seen the said affixture of thumb impression due to the shaking of his hand and Ramasamy Gounder also seen the appending of the signature of D.W. 2 and D.W.3 in the will. They also deposed that the Ramasamy Gounder was hale and healthy and executed will in fit state of mind. The said evidence of D. W. 2 and D.W. 3 are cogent with out any infirmities to disbelieve their version. Therefore, the said witness are trustworthy. Nothing was elicited to discredit their evidence even though they were subjected to detailed cross-examination. The testimony of DW-2 and DW-3 is natural, consistent, and free from material contradiction. Their evidence is disinterested, satisfactory, and sufficient to establish the due execution of the Will. No circumstances are either available or proved to presume that they have deposed in bias manner in order to help the appellants. Apart from that the learned Judge accepted their evidence and gave a specific finding that appellants have duly proved the execution of the will on the basis of the evidence of D.W. 2 and D.W. 3. Therefore this Court holds that the testimonies of D.W.2 and D.W.3 satisfied the requirement of Section 63(c) of the Indian Succession Act and 68 of the Indian Evidence Act.
13.3.The evidence of P.W.1, P.W.2 and D.W.4, who disputed the Will as not true, never deposed that Ramasamy Gounder was not in a fit state of mind to execute the Will. Their implied case is that until the accident on 02.11.2010, Ramasamy Gounder had no health issues. In the reply statement dated 29.06.2015 also, they did not make any allegation regarding his mental fitness. They only referred to the accident and subsequent treatment, specifically stating that from 02.11.2010 to 04.12.2010 he was not in a fit state of mind, and the relevant evidence is as follows:
“02.11.2010 Kjy; 04.12.2010 tiu mth; rhpahd
kdepiyapy; ,y;iy vd;gNj cz;ik. ”
13.4.There is no evidence to show that Ramasamy Gounder suffered from any health condition that impaired his mental capacity on the date of execution of the Will. Moreover, the caveators are residing far away from the residence of the executant. On the other hand, the persons who had been living with him under the same roof (D.W.1) and those who had association with him for more than 40 years (D.W.2 and D.W.
3.) categorically deposed that he was hale, healthy, and in a fit state of mind. D.W.1 further explained that due to shaking of hands, he affixed his thumb impression, which cannot be a ground to disbelieve the case of the beneficiary that the Will was executed by him in a sound disposing state of mind in the presence of D.W.2 and D.W.3.
13.5.Even in the pleadings of the caveator, there is no specific denial regarding the health condition or loss of mental equilibrium of the executant. No evidence was adduced to show that he had lost mental equilibrium on the date of execution of the Will. On the contrary, the executant rode his two-wheeler on 02.11.2010, sustained a head injury, recovered, and was discharged on 11.11.2010. It is therefore legitimate to presume that he was hale and healthy on the date of execution of the Will and was capable of riding a two-wheeler even on 15.11.2010, which was much after the date of execution.
13.6.When the evidence of D.W.2 and D.W.3 clearly establishes the testamentary capacity of Ramasamy Gounder, and when P.W.1 even admitted that his ill-health began to deteriorate only after the accident— which occurred long after the execution of the Will—this Court is not persuaded by the general allegations regarding his health condition.
13.7. In the case of Sridevi v. Jayaraja Shetty, reported in (2005)
2 SCC 784 : 2005 SCC OnLine SC 186 at page 789 has held as follows:
15. Coming to the suspicious circumstances surrounding the Will, it may be stated that although the testator was 80 years of age at the time of the execution of the Will and he died after 15 days of the execution of the Will, the two attesting witnesses and the scribe have categorically stated that the testator was in sound state of health and possessed his full physical and mental faculties. Except that the deceased was 80 years of age and that he died within 15 days of the execution of the Will, nothing has been brought on record to show that the testator was not in good health or not possessed of his physical or mental faculties. From the cross-examination of the scribe and the two attesting witnesses, the appellants have failed to bring out anything which could have put a doubt regarding the physical or mental incapacity of the testator to execute the Will. ..
There are no suspicious circumstances relating to his health or mental condition that would impeach the execution of the Will. Therefore, the Will executed by Ramasamy Gounder in favour of his minor grandson, born to his deceased son Baskaran, stands duly proved.
14. Discussion on the natural disposition:
14.1 Upon careful consideration of principles laid down by the Honourable Supreme Court in the cases of H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, Rani Purnima Debi v. Kumar
Khagendra Narayan Deb, (1962) 3 SCR 195 Jaswant Kaur v. Amrit
Kaur, (1977) 1 SCC 369, Kavita Kanwar v. Pamela Mehta, 2021 (11)
SCC209, Ramabai Padmakar Patil v. Rukminibai Vishnu
Vekhande [(2003) 8 SCC 537] Sridevi v. Jayaraja Shetty, reported in (2005) 2 SCC 784 it is no longer res integra that a Will is a solemn document intended to alter or depart from the natural line of testamentary succession. Deviation from natural succession is inherent in the very nature of a Will. Therefore, the mere deprivation of a legal heir from his or her due share cannot, in isolation, be treated as a suspicious circumstance. It is the duty of the Court, as a Court of conscience, to scrutinize the Will by adopting a rational and holistic approach, keeping in view the background facts and surrounding circumstances of the case.
14.2.
Ramabai
Padmakar Patil v.
Rukminibai
Vishnu Vekhande, reported in (2003)
8 SCC 537 8.A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring. ..
Shashi Kumar
Banerjeev.Subodh Kumar
Banerjee,reported in AIR 1964 SC
529] But the fact that natural heirs have either been excluded or a lesser
share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring.
Mukherjee v. Pan chanan Banerjee, reported in (1995)
4 SCC 459] “4. As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially.
Savithri v. Karthy
ayani Amma reported in
[(2007) 11 SCC
621 Deprivation of a due share to the natural heirs itself is not a factor
which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a will in their favour, no exception thereto can be taken. Even then, something was left for the appellant.”
14.3.In the case at hand, the principal contention raised by learned counsel for the plaintiff before this court first time is that the testator, by excluding other legal heirs, had executed the Will under suspicious circumstances and there is no special arrangement made for the third plaintiff. This Court is unable to accept such a contention.
14.4.The plaintiff and the defendant Nos.2 to 5 are well-educated, self-sufficient, and living away from the agricultural lands mentioned in the will and only Baskaran was doing the agricultural activities during his life time and thereafter, the appellants continued the said agricultural activities. Therefore, after the sudden demise of Baskaran, the testator as a grandfather of the minor children, namely, the appellant Nos.2 and 3 executed the Will bequeathing the Will mentioned property which is contiguous to the property of the Baskaran for the convenient enjoyment of the appellants as one field. The property covered under the Will is adjacent property to the properties allotted to the father of the appellant
Nos.2 and 3 namely, deceased Baskaran. P.W.1 also admitted the same. The testator had considered various factors including the above location of the properties, death of the appellant Nos.2 and 3’s father at their young age and they alone had taken care of him and he was under the care of the appellants in the house. Apart from that, P.W.1 admitted in cross examination, there was no good relationship between her and father after 1990. The first plaintiff is a teacher and she married in the year 1969 and as revealed from evidence that she had not even taken care of her father in view of the strained relationship after 1990. Except the appellants and the deceased Baskaran other members of the testators including the plaintiffs had settled elsewhere. The first appellant with her young children was staying in the portion of the house where the testator was residing and taking care of the will mentioned agricultural property along with other adjacent property which had already been in her occupation. The first defendant, namely, wife of the testator did not deny the execution of the Will. D.W.1 being a widow of late Baskaran had struggled for her day-to-day life and brought up her two minor children by doing agricultural work after sudden demise of her husband. Considering the impoverishment and to enable P.W.1 to expand her agricultural activities and to protect and safeguard the minors interest the testator bequeathed the Will property which situated contiguous to D.W. 1’s agricultural land. The property bequeathed is of lesser value compared to the remaining valuable properties left to the other heirs.Comparing the valuation mentioned in the plaint, the properties bequeathed is not much valuable property. It is another notable circumstance and the appellants case is not that the entire property of the Ramasamy Gounder was bequeathed and the valuable properties are not included and the valuable properties were kept open for partition and and only the contiguous property alone was bequeathed for the convenient enjoyment and therefore this court finds neither improbable nor unfair circumstances in the facts of the present case.

14.5.The testator also made separate provision for the mentallyretarded third plaintiff by selling another item of property and depositing the proceeds under guardianship .It is the specific case of the appellant in the notice and written statement that Ramasamy Gounder also taken into account of the fourth plaintiff’s health condition sold one of the valuable property and deposited the said sale consideration in the name of the fourth plaintiff in the bank by showing the second plaintiff as a nominee. The said deposit was admitted but they disputed only the quantum of amount. The said documents were taken illegally by the plaintiff and the other defendants when the appellant was in the hospital to take care of the Ramasamy Gounder due to the accidental injuries from the bureau of the Ramasamy Gounder in his last residence along with his wife and the appellants. But the case of the P.W.2 is that after the funeral of Ramasamy Gounder, the said deposit receipts were handed over to him by the well wishers. Dehors the said dispute of the possession of the said obtainment of the deposit receipts in the name of the grandchildren, the fact remains that the deposits were made by the Ramasamy Gounder without any disparity. P.W.1 and D.W.4 did not dispute the deposits in the name of the 4th plaintiff. He had taken into account the welfare of the 4th plaintiff and also considered the welfare of the minor sons of the deceased Baskaran and executed the will bequeathing the property contiguous to the property of Baskaran to make the enjoyment as one and whole field. Pw1 in her cross examination feigned ignorance about the pleadings of the appellants and the relevant evidence are as follows:
vd; jfg;gdhh; tq;fpapy; gzl; Nghl;bUe;j tptuKk; mth; ,we;j gpwF fPjh gzj;ij vLj;Jf;nfhz;l tptuKk; vdf;F njhpahJ vt;tsT gzk; Nghl;bUe;jhh; fPjh vt;tsT gzj;ij
vLj;jhh; vd;w tptuk; vdf;F njhpahJ.
But, Geetha P.W.2, deposed that Ramasamy deposited the amount in the name of his children by nominating her and her evidence is as follows:
2009 y; uhkrhkp vd;id ehkpdpahf fhl;b &.5 yl;rk; kw;Wk;
&.2 yl;rk; itg;gPL nra;J ,Ue;jhh;.
When these circumstances are viewed from the testator’s standpoint, the disposition made under the Will appears thoroughly natural, reasonable, and consistent with his obligations and affection. Hence, no inference of suspicious circumstances can arise. It is well settled principle that Court has duty to sit in the arm chair of the testator and assess. The Hon’ble Supreme Court in the case of Venkatachala Iyengar v. B.N. Thimmajamma, reported in AIR 1959 SC 443, has reiterated that, while examining the validity and naturalness of a testamentary disposition, the Court must place itself in the “armchair of the testator” and consider the surrounding circumstances as they would have appeared to the executant. Applying these settled principles, This Court considered the above circumstances sitting in the testator’s arm chair and holds that the case of the appellant Nos 2 and 3 that the testator had considered the death of their father at the young age after contributing his entire life to the development of the agricultural properties from his tender age as admitted by P.W.1 to be true and also the cogent evidence about the case of the appellants that the deceased Ramasamy Gounder sold the valuable property and the said
consideration was appropriated by the third plaintiff. this Court is required to adopt the viewpoint of the executant, Ramaswamy gounder, and examine the circumstances prevailing at the time of execution of the Will. The evidence demonstrates that his son Bhaskaran had died young, leaving behind two minor children who were residing with the testator and dependent upon him. The bequeathed property is adjacent to the land earlier cultivated by Bhaskaran, making it suitable for continued enjoyment by his family. Applying above settled principles, this Court finds that the exclusion of the plaintiff, by itself, cannot give rise to any adverse inference and there was an apparent natural disposition in the Will and hence there is no ground to hold that unnatural disposition leads to suspicious circumstances. The bequest is natural, reasonable and consistent with the testator’s life circumstances, as he intended to secure the interest of the minor children of deceased Bhaskaran, whose lands are adjacent to the suit property. In view of the above discussion, it is clear that Will was natural and the execution in the fit state of mind was proved with proper explanation of alleged suspicious circumstances .

15.Discussion on the finding of the Learned trial judge about the suspicious circumstance:
15.1.So far as the extraordinary suspicious circumstances, surrounding the Will is concerned, the Hon’ble Supreme Court Derek A.C. Lobo and Ors. vs. Ulric Ma Lobo (Dead) by LRs and others reported in 2023 SCC ONLINE SC 1893 reiterated the principle that suspicious circumstances is required to lay a foundation in the pleadings itself and thereafter, lead material evidence to prove the same. The other party who has propounded the Will cannot be taken by surprise at a later stage and even when such circumstances are not specifically pleaded, the Court retains its duty to evaluate the totality of facts and satisfy its conscience before upholding the validity of a Will, particularly where the circumstances surrounding its execution raise reasonable doubts.
15. 2.The one of the circumstance presumed by the learned trial judge is that the deceased Ramasamy Gounder was suffereing from the nervous problem from the contents of the Will that due to his age factor and his hands were shaking and he put the thumb impression instead of subscribing his signature in this case, this Court is unable to find from the records on what basis the learned Judge gave a finding that the executant had an imbalanced mind and he was not in sound state of mind and he did not know the consequence of the alleged Will. Therefore, the finding on assumption about the imbalance of mind is perverse. The said circumstance also is a adding factor to substantiate the case of the appellant that he was in fit state of mind at the time of the execution of the Will.
15.3. From their evidence, it is seem that Ramasamy Gounder was in fit state of mind to execute the Will. The admitted case of the parties to the proceedings is that the executant drove the two wheeler and met with an accident on 02.11.2010 after the execution of the Will. Once, the learned Judge gave a finding that D.W.1 proved the execution of the Will on the basis of the evidence of D.W.2 and D.W.3, the learned Judge has committed error in holding that Ramasamy Gounder had been suffering from neurological disorder, which would have caused imbalanced mind and therefore, Ramasamy Gounder was not in sound state of mind and he did not know the consequence of the alleged Will. The said finding is without pleadings and evidence. In the deposition of the plaintiffs, they admitted that the deceased Ramasamy Gounder was hale and healthy till the date of the accident. They did not specifically either raise or proved through the circumstances, that the Ramasamy Gounder was not in a fit state of mind on the date of the execution of the Will. Normally, the beneficiary of the Will has to prove the fact that executant executed the Will in fit state of mind without any case of undue influence. In this case, there is no pleading of undue influence and also there is no pleadings about the health condition. It is never pleaded that Ramasamy Gounder was suffering from the neurological disorder which would imbalance his mind. There is no dispute over the thumb impression of the executant and there was no specific denial of the executant’s thumb impression. Quite contrary, P.W.1 in his chief examination stated that executant was not in good mental condition after the date of accident till his date of death ie., from 02.11.2010 to 04.12.2010. P.W.1 in her cross examination also never raised any dispute over the health condition of the Ramasamy Gounder and not even raised any suggestion about the neurological disorder which would have caused imbalanced mind. Therefore, from the mere customary words used by the scribe in the will about the age factor is not a ground to disbelieve the evidence of the D.W.2 and D.W.3 and other material witness regarding the health condition of the executant. Rhythmic tremors in the fingers, particularly while holding slender objects such as pens, are common among elderly persons, often resulting in distorted or illegible handwriting. Consequently, in order to avoid such illegibility, aged individuals customarily affix their thumb impression on documents. However, such tremors have no bearing on their ability to operate a two-wheeler, as they can firmly grip on the handlebar without any shaking or shivering. In this aspect also it is relevant to extract the following portion of the judgment of this Court in the case M.B. Subramaniam v. A. Ramasamy Gounder, reported in
2009(3) CTC 59
56. It is a common or garden principle in geriatrics and also it is a sheer common sense that aged people, on certain days, would be in a position to put their signatures and when there is slight ill-health on their part or set back in their health, they would not be able to sign.
15.4. The Testator was not a ordinary man and he was the exchairman of Land development bank and union counsellor and holding the prominent post in the then ruling party AIADMK and close friend of the former Hon’ble chief minister of Tamil Nadu Dr. M.G.R and hence, the testator was a person of social prominence, not one incapable of understanding the consequences of a Will. This Court perused evidence of D.W.2 and D.W.3 and they have clearly deposed about three events, namely, that the testator put his Thumb impression in the disputed Will and they subscribed their signature in the said Will and the testators also ewas in fit state of mind to execute the Will. The respondent before this Court did not bring any contra evidence from the records to disbelieve their evidence. Hence,there was due compliance of Section 63 (C) of the Indian Succession Act, and Section 68 of the Indian Evidence Act. The learned trial Judge, has also held that D.W.2 and D.W.3 have clearly deposed about the affixure of the Thumb impression in the disputed Will and they had subscribed their signature in the Will by seeing the affixure of the Thumb impression of the executant and the appellants duly proved the execution of the Will. Having found that the appellants duly proved the execution of will,in the considered opinion of court, the learned Judge has committed error in rendering finding that the executant had an imbalanced mind and he was not in a sound state of mind and he did not know the consequences of the alleged will. Therefore, he said finding is on assumption and perverse.
15.5. To consider other ground of the non-mentioning of thefamily arrangement in the Will casts doubt on the validity of the Will, this Court has carefully examined the pleadings and evidence relating to the alleged family arrangement. The appellants have pleaded that during the lifetime of the testator, Ramaswamy Gounder, there were discussions within the family regarding distribution of various properties and that the testator intended to give the more valuable properties, including Item No. 1, to the first plaintiff and other valuable properties to the remaining plaintiffs and defendants. The properties covered under the Will are comparatively small in extent and lie adjacent to the property earlier enjoyed by the deceased Bhaskaran. The alleged arrangement, however, was never reduced into writing nor accepted by all parties, as the first plaintiff persistently refused to agree since 2009. Consequently, the arrangement never materialised and was never acted upon. More over, D.W.1 pleaded the family arrangement and stated that the same was not reduced in writing due to the non-cooperation of P.W.1. Further, D.W.2 and D.W.3 are more respectable persons and have had relationship with the testator for more than 40 years and they clearly deposed about the family arrangement. P.W.1 in her evidence feigned ignorance about the said family arrangement in her evidence which reads as follows:
mk;ghj;Jiu fpuhkj;jpy; cs;s r.vz;.119/4y; cs;s iu];kpy;iy 17.10.2009 FLk;g Vw;ghl;bd;gb vdJ jfgg; dhh; vdf;F nfhLj;jhh; vd;why; njhpahJ. 2 Vf;fh; 87 nrz;il vd; jfg;gdhh; fpiuak; nra;J 2 Kjy; 4 thjpfSf;F gzj;ij nfhLj;Jtpl;lhh; vd;why; njhpahJ. 3 Kjy; 5 gpujpthjpfSf;F FLk;g Vw;ghl;bd;gb kzw;fhL vd;w 3 Vf;fh; 29 nrd;l; epyj;ij nfhLj;Jtpl;lhh; vd;why; njhpahJ. 1k; gpujpthjp uhkhak;khSf;Fk; mth; kfs; 6k; gpujpthjpf;Fk; gr;rkiyahd;Nfhl;il nrhj;ij FLk;g Vw;ghLgb nfhLj;Jtpl;lhh; vd;why; njhpahJ. 7 Kjy; 9 gpujpthjpfSf;F r.vz;.118/1y; fPo; Gwk; 20 nrz;Lk; 159y; 2 Vf;fh; 71 nrz;l; Mf 2 Vf;fh; 91 nrz;il nfhLj;Jtpl;lhh; vd;why; njhpahJ. mJ njhlh;ghf gh];fud; gps;isfSf;F vd; jfg;gdhh; capy; vOjp itj;Jcs;shh; vd;why; njhpahJ. 9.9.2010k; Njjp capy; vOjp itj;Js;shh; vd;why; njhpahJ. jw;NghJ vjph;tof;Fiu jhf;fy; nra;j NghJjhd; ghh;j;Njd;. me;j capy; nrhj;J gh];fud; tPl;Lf;F gf;fj;jpNyNa cs;sJ. FLk;g Vw;ghl;Lgg; b nfhLj;j nrhj;Jf;fisj; jtpu kPjp nrhj;Jf;fisg; nghWj;J 1/6 gq;F ngw vt;tpj Ml;NrgizAk; ,y;iy vdW; nrhd;dhy; rhpay;y. ehd; me;j FLk;g Vw;ghl;il jw;NghJ VwW; f;nfhs;shky; fPjhTld; Nrh;e;J nfhzL; jtwhf tof;F jhf;fy; nra;Js;Nsd; vd;why;
rhpay;y.
15.6.From the above, this Court prima facie finds sufficient materials to substantiate the plea of the family arrangement and the same has not been reduced in writing due to the non-cooperation of P.W.1.

15. 7.Therefore, the family arrangement being neither written nor came into operation does not restrict the testator’s right to execute a Will. Testamentary disposition is a unilateral act of the testator, and he is under no legal obligation to incorporate an incomplete or disputed family proposal into his Will. The testator was free to determine how best to distribute the properties, and the bequest of small adjacent properties to Bhaskaran’s minor children appears both logical and natural in the context of their continued enjoyment of the adjacent land and their dependence on the testator. The other, more valuable properties remained un-disposed, consistent with the testator’s earlier discussions. Therefore, the non-mentioning of the un-materialised family arrangement is not a suspicious circumstance and does not undermine the genuineness or validity of the Will. This Issue is answered in favour of the propounder.
16.Other suspicious circumstances put forth before this Court first time by the learned counsel appearing for the respondent: Every circumstance is not a suspicious circumstance and the same depends upon the facts of each case.
Privy Council in the case of Harmes v. Hinkson, reported in AIR 1946 PC
156 “where a Will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth.”
Indu Bala Bose v. Manindra Chandra Bose reported 1982(1)SCC 20 (Para8) Needless to say that any and every circumstance is not a “suspicious” circumstance. A circumstance would be “suspicious” when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.
Derek A.C. Lobo and Ors. vs. Ulric Ma Lobo (Dead) by LRs and others reported in 2023 SCC ONLINE SC 1893 – 2024 (15) SCC 202 the contestant opposing Will has to raise surrounding suspicious circumstances specifically and not vaguely or in a general manner.
[P.P.K. Gopalan
Nambiar v. P.P.K.
Balakrishnan Nambiar,
1995 Supp (2) SCC 664] , it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features
and not fantasy of the doubting mind.

Leela Rajagopal v. Kamala Menon
Cocharan, (2014) 15 SCC
570 The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution or registration.
Sridevi v. Jayaraja Shetty, reported in (2005) 2 SCC 784 As to what are suspicious circumstances has to be judged in the facts and circumstances of each particular case.(10)
Madhukar D. Shende v. Tarabai Aba Shedage, reported in (2002) 2 SCC
85 The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the jury in R. v. Hodge [(1838) 2 Lewis CC 227] may be apposite to some extent:
“The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.”
. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict — positive or negative.
Dhanpat v. Sheo Ram, reported in (2020) 16 SCC
209 : 2020 34. … the cumulative effect of the unusual features and circumstances surrounding the will, would weigh upon the court in the determination required to be made by it. The judicial verdict will be based on the consideration of all the unusual features and suspicious circumstances put together and not upon the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution
16. 1.The learned counsel for the respondent/plaintiff is entitled to make all submissions, but such submissions must be based on the pleadings and the evidence on record. The plaintiff never disputed the executant’s mental condition up to 02.11.2025, nor pleaded the existence of any suspicious circumstances. A mere denial of the will is not sufficient. Even during the chief-examination and cross-examination of
DW-1, the plaintiff did not dispute the health condition of Muthuswamy. Further, in neither the chief-examination nor the cross-examination anything was deposed regarding the circumstances now set out in the written arguments, which according to the learned counsel for the appellant, constitute fifteen suspicious circumstances.
16.2.It is a well-settled principle that without proper pleadings, no such evidence can be looked into. In a case relating to a will, not only pleadings are necessary, but evidence must also support the pleadings. In the present case, the disputed will was marked through DW-1, and during his cross-examination, not even a suggestion was put to him regarding the fifteen suspicious circumstances alleged in the written arguments. One of the defendants who supported the plaintiff was examined DW-4, but even in that evidence nothing was stated about any suspicious circumstances. Every circumstance cannot automatically be labelled as a suspicious circumstance. This Court has carefully gone through the fifteen circumstances raised in the written arguments.
16.3.Regarding the alleged suspicious circumstance of the testator Ramaswamy’s health condition, the written argument states that the records show he was in good health and was even driving a two-wheeler and met with an accident on 02.11.2020 almost two months after the alleged execution of the will. According to the learned counsel, this shows there was no reason for him to affix his thumb impression. This contention is not correct. The case of the beneficiary is that the testator affixed his thumb impression due to a shaking of his hand. This does not, by itself, prove that the testator lacked sound physical or mental health. DW-2, DW-3, and other witnesses have spoken consistently about the testator’s good health and sound mental condition. The contemporaneous evidence in the present case is wholly in favour of the testator’s capacity. DW-2 and DW-3 (the attesting witnesses), together with PW-1, PW-2 and DW-4, have uniformly and unequivocally deposed that Ramaswamy was hale, healthy, and mentally alert up to the date of the accident on 02-11-2010. No witness suggested impaired understanding, inability to comprehend the disposition, or lack of volition. Importantly, the plaintiff never pleaded mental incapacity, and no medical evidence or other convincing material was produced. Hence, this Court does not accept the argument made by the learned counsel for the respondent regarding any doubt over the testator’s mental condition.
16.4.Registration of a will is not mandatory, and when the attesting witnesses’ evidence is clear, cogent, and trustworthy, the will cannot be rejected merely for non-registration. The non-registration of the will is also not a circumstance to discard the evidence of DW-2 and DW-3 or any other evidence on record.
16.5.The other suspicious circumstance newly put forth before this Court by the learned counsel for the plaintiff is that non examination of the notary public and the scribe. When the execution of the will was proved through the evidence of DW 2 &3 and the learned trial Judge has believed the evidence of DW2 &3 and this Court also finds no material circumstances to disbelieve their evidence and nothing was elicited during the cross examination to disbelieve their evidence this Court is not inclined to accept the argument of the learned counsel for the plaintiff to take adverse inference on the ground of the non examination of the notary public and the scribe. Further more, it is not necessary to examine every witnesses to prove the will unless a specific suspicious circumstances had been pleaded and proved to explain the same on the part of the beneficiary of the will. The next objection relates to the nonexamination of the notary public. This is not a material omission, especially when no dispute was raised regarding the attestation by notary public at any stage. Further ,no question was put to the witnesses, particularly the beneficiary, challenging their signatures or the execution of the will. DW-2 and DW-3 clearly deposed about the execution of the will, and the learned trial Judge also accepted their evidence.and therefore, the non-examination the non-examination of an additional witness namely the notary public or the scribe was not material and cannot be used as a ground to reject the will.
16.6.Another argument raised is that testator’s alleged visit to the notary’s office for endorsement, without registering the document, is an unnatural circumstance. This submission cannot be accepted. It is entirely within the discretion of the testator to either register a will or obtain a notarial endorsement.
16.7.When PW-1 clearly stated in cross-examination that the will is not true, there was no necessity to confront her with the will during cross-examination. The will was already marked and DW-1 was
examined regarding it. Therefore, the absence of further confrontation is not a material defect.
16.8.There was also no specific pleading challenging the thumb impression. Hence, a later argument regarding the affixing of the thumb impression is unsustainable. DW-2 and DW-3 have clearly spoken about the testator affixing his thumb impression.
16. 9.The learned counsel for the respondent argued that Ramaswamy was a better writer on 09.09.2010, the date of execution of the will. However, there is no evidence to prove this fact. No contrary evidence was adduced, whereas DW-2 and DW-3 consistently deposed about his physical and mental condition.
17. The act of the improper endorsement of the notary public in the will subsequent to the execution of the will only affirmed the fact that endorsement has no value but in this case there is no pleadings to explain the same and examining the notary public. Executant of the Will was not in fit state of mind on the date of the notarization made on 15.11.2010 was not pleaded and consequently the appellant had no opportunity to rebut the same. The evidence on record is otherwise that the executant met with an accident on 02.11.2010 and he was discharged on 11.11.2010 and he suddenly fell ill and readmitted only on 26.11.2010 and died on 04.12.2010. There was no evidence available on record to show that the act of notarization could not be made on 15.11.2010.
Considering the execution of Will on 09.09.2010 has been duly proved through the evidence and there was no contra evidence adduced on the side of the contesting respondent that executant was on unconscious state of mind on 15.11.2010, this Court is not inclined to accept the argument of the learned counsel for the plaintiff in this aspect.
18.The learned counsel for the plaintiff made the detailed argument on the basis of the contradiction between the evidence by extracting the relevant portion of the evidence of D.W.1 to D.W.3. Since the learned Judge gave a finding that D.W.1 proved the will through examination of D.W.2 and D.W.3, this Court holds that the said discrepancy and the contradiction are not material to go to the root of the case of the appellant about the execution of the Will. In this context, it is also relevant to extract the following para of P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar reported in 1995 Supp (2) SCC 664] , it is the duty of the propounder of the will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind AND the will in question cannot be viewed with suspicion only because only because there is some discrepancy in the oral evidence led by the appellant .It is also well settled principle that where the discrepancy and the contradictions are material and affects the core of the case, the same can be considered.
In the case of Indu Bala Bose v. Manindra Chandra Bose, reported in (1982) 1 SCC 20 has held and emphasized that circumstance must be suspicious circumstance surrounding the execution of the Will and not
as normal in para 17 .
19.Therefore, all the grounds and circumstances raised by the learned counsel for the respondent for the first time during the first appeal are without material, misconceived, and unsupported by pleadings or evidence. This Court is not inclined to accept them, and accordingly, they stand rejected.
20. Discussion on the precedents relied on side of respondent :
The learned counsel for the plaintiff placed reliance on the precedents of this Court reported in 2007 (4) CTC 672, 2008 15 SCC 365, AIR 1959 SC 443, 1997 3 LW 673, 1998 (4) SCC 384 and the said precedents are not applicable to the present case for the following reasons:
20. 1.In the case of 1998 (4) SCC 384, the scribe of the disputed Will in the said case specifically said that he did not know the executant.
The other reason in the said case is that some of the natural heirs were disinherited in the Will without any valid reason. In this case, the executant executed only the property adjacent to the property allotted to the deceased Baskaran, who is father of the minor sons, namely appellant Nos.2 and 3 and also the remaining properties were left by him, which according to the defendants he made arrangement in the panchayat held before the execution of Will. In view of the availability of number of properties there is no disparity in distributing the Will mentioned property in favour of the sons of the deceased Baskaran on the account of his contribution to the family properties during the life span of Ramasamy Gounder.
20.2. Further, in the said cases, the learned Judge held admission of the execution of the Will was not sufficient to dispel the suspicion regarding the execution and attestation of the Will. In this case, D.W.2, D.W.3 cogently deposed about the health condition and the fit state of mind of the executant. The contesting parties had not even raised any doubt about the credibility of the evidence. On the other hand, they admitted that they were the friends of their father. No other
circumstances were either elicited or proved to disbelieve their evidence.
The learned Judge also accepted their evidence about the execution.
20.3.Similarly, other precedents relied upon by the contesting parties is that 2008 (15) SCC 365 is also not applicable to this case wherein that case the evidence of the attesting witnesses was vague, doubtful and conflicting and the Court collectively considered the suspicious character about their testimony. In this case, the learned Judge accepted the evidence of D.W.2 and D.W.3 about the execution and this Court also finds no reason to disbelieve their evidence for any other special reason. In the case of 2009 4 SCC 780, original will was not produced and evidence was adduced to prove that beneficiary was in a position to dominate the executant’s mental process. Further, number of contradictions inconsistencies, interpolation and variance were in the Xerox copy of the Will. There are no such circumstances available in this case. In the judgment of the Venkatachala Iyangar reported in AIR 1959 SC 443, the Hon’ble Supreme Court issued detailed guidelines to appreciate the evidence in the case of the Will about the execution and proof of Will. This Court as well as the trial Court have believed the evidence of D.W.2 and D.W.3 about the execution and therefore, the
Will was proved in accordance with law.
20. 4.The Hon’ble Division Bench Judgment of this Court reported in 2007 (4) CTC 672 also is not applicable where it has been specifically denied the act of notarization in the disputed Will. Here there was no pleadings and also there was no single statement about the denial of the notarization in the chief examination of the contesting parties. Therefore, there was no necessity to go into the notarization. Hence, in all aspects, this Court holds that the execution of Will has been duly proved and the plaintiff are not entitled to the partition in respect of the properties covered under the Will and they are entitled to the preliminary decree in respect of the remaining vast valuable extent of the land mentioned in the suit scheduled property.
21.Conclusion:
21. 1.The learned Trial Judge, upon appreciation of the evidence, had observed that there were two suspicious circumstances surrounding the execution of the Will. However, such a finding is unsupported by any material and therefore, this court has to analyze the evidence. The learned Judge had discussed about the suspicious circumstances without pleadings and the evidence. There was a clear pleadings about the execution of the Will and D.W.2 and D.W.3 clearly deposed about the metal condition and execution of the Will. The learned Judge also accepted their evidence and gave a finding that D.W.1 duly proved the execution of the Will. Having found that Dw1 proved execution of will by accepting D.W.2 and 3, the learned trial judge without pleading and evidence, about testator’s imbalanced mind due to nervous problem on assumption and surmise erroneously held that testator had imbalanced mind which leads to interference with impugned judgment by this court under section 96 of C.P.C., as final court on fact and law. Mere use of a thumb impression cannot infer lack of mental capacity. suspicion cannot substitute proof as held by the Hon’ble Supreme Court in the following paragraph in the case of Madhukar D. Shende v. Tarabai Aba Shedage, reported in (2002) 2 SCC 85:
In short, the courts below have allowed their findings to be influenced by such suspicion and conjectures as have no foundation in the evidence and have no relevance in the facts and circumstances of the case and unwittingly allowed their process of judicial thinking to be vitiated by irrelevant reasonings and considerations.
21. 2.Thus, the testator possessed full testamentary competence.
Hence, the plaintiffs’ challenge fails. The plaintiffs neither resided near the suit property nor were they engaged in cultivation of the said property at any point of time. The evidence on record indicates that the testator, a political personality and administrator executed the Will with the conscious mind of conserving the agricultural property as a single coercive unit for the welfare of his minor grand children. The property measures only about two acres and any action to partition the property would lead to impracticable fragmentation and dimish the value of the property and eventually make the property incapable of fruitfully enjoying the property. The concern is particularly relevant as Baskaran was already owning and cultivating the adjacent lands and any division of the property would jeopardize the peaceful enjoyment of the property. The second defendant and the second plaintiff themselves are widows and they should be conscious about the plight, hardship insecurity and emotional vulnerability experienced by mother of two young children. Despite, knowing all the practical difficulties and hardships faced by the widowed mother of two minor children, the plaintiffs have chosen to initiate the present proceedings without any legal foundation. Their conduct in the considered opinion of this Court appears to be notified by personal animosity and ego rather then a bonafide assertion of rights and their act is like a “dog in the manger” intending to deprive the peaceful enjoyment of the property by the minor children. This Court likes to remind the plaintiffs of the saying of our father of Nation “There is enough for everybody’s need and not for everybody’s greed”.
21.3. On a cumulative consideration pleadings, evidence, and binding Supreme Court precedents, this Court holds that the Will dated 09.09.2010 is genuine, valid, voluntarily executed and legally enforceable. The appellant Nos.2 and 3 are entitled to their absolute right over the properties covered under the Will dated 09.09.2010 and the same are not liable to be partitioned. The parties are entitled to decree for partition in the remaining properties other than the properties covered under the Will as prayed in the suit in O.S.No.45 of 2012 on the file of the learned Principal District Judge, Dindigul. Therefore, this Court is inclined to set aside the finding of the learned trial Judge that the Will is not true and valid. This issue is answered against the plaintiff. This issue is answered in favour of the defendants.
22.Accordingly, this appeal is partly allowed in the following
terms:
22. 1.The judgment and decree of the learned trial Judge in O.S.No. 45 of 2012 on the file of the learned Principal Sessions Judge, Dindigul, is hereby set aside covering the properties mentioned in the Will dated 09.09.2010, namely, Item.No.3 (Survey No.159) and Sub Item No.3 of the 4th scheduled property (Survey No.118/1) of the suit scheduled property and decree for partition for remaining scheduled property are hereby confirmed.
22.2.There shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
10.11.2025
NCC : Yes/No
Index : Yes/No Internet : Yes/No sbn
To:
1. The Learned Principal District Court, Dindigul.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court, Madurai.
K.K.RAMAKRISHNAN,J.
sbn
A.S(MD) No.156 of 2020
10.11.2025