Madras High Court
A. Devaraj vs Vasanthi on 17 October, 2025
S.A.No.251 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 08.09.2025
PRONOUNCED ON : 17.10.2025
CORAM:
THE HONOURABLE DR. JUSTICE A.D. MARIA CLETE
S.A. No. 251 of 2014
and
M.P. No. 1 of 2014
A. Devaraj
S/o. Late Arumugam,
D.No.284, Railway Quarters,
Backside of Officers Rest House,
Coimbatore. ...Defendant/Respondent/Appellant
Versus
Vasanthi
W/o. Deivasigamani,
D.N.19, E.B. Colony,
Trichy 23. ...Plaintiff/Appellant/Respondent
PRAYER in S.A.:
Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree dated 01.10.2013 in AS No.33 of
2013 on the file of the Principal District Court, Erode, reversing the
judgment and decree dated 17.01.2013 in O.S. No.198 of 2010 on the file
of the II Additional Subordinate Court, Erode.
1/26
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S.A.No.251 of 2014
PRAYER IN M.P.:
To stay the passing of final decree proceedings in OS No.198 of
2010 on the file of II Additional Sub Court, Erode, pending the disposal
of the above Appeal.
APPEARANCE OF PARTIES:
For Appellant : Mr.N.Manoharan
for M/s. P. Veena,
Mr.D.Chitra Maragatham, Advocates.
For Respondent : Mr. Naveen Kumar Murthi, Advocate.
JUDGMENT
Heard.
2.This Second Appeal is directed against the judgment and decree
dated 01.10.2013 made in A.S.No.33 of 2013 on the file of the learned
Principal District Judge, Erode, reversing the well-considered judgment
and decree dated 17.01.2013 passed in O.S.No.198 of 2010 by the
learned II Additional Subordinate Judge, Erode.
3.The appellant is the defendant and the respondent is the plaintiff
before the trial court. For the sake of convenience parties to be referred
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to as per their ranks before the trial court.
4.Case in Brief: The plaintiff and defendant are daughter and son
of one late Papathi. The suit properties originally belonged to the said
Papathi under a registered partition deed dated 13.09.1990. On her death
on 22.12.2002, the plaintiff claimed half share by succession, while the
defendant resisted the claim relying on an unregistered Will dated
15.12.2002, said to have been executed by the deceased mother in his
favour.
5.The Trial Court, on appreciation of oral and documentary
evidence, found the Will genuine, valid and duly executed, and
accordingly dismissed the plaintiff’s suit for partition. On appeal, the
First Appellate Court reversed the decree, holding the Will suspicious
and declaring intestate succession. Hence, this Second Appeal.
6.This Court, while admitting the appeal on 10.03.2014, framed
the following substantial questions of law, which are reproduced
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verbatim below:
“1.The defendant having prove the Will in accordance with
Sec.68 of the Evidence Act and Sec.63 (c) of the Indian
Succession Act, 1925 by examining the witness, still is the
learned Principal District Judge right in holding that the
Will in question was not proved?
2.When it is well settled in law that if the Will is proved to
the satisfaction of the Court as per Mandatory requirement
under the Evidence Act and the Indian Succession Act, the
question of suspicious circumstances automatically stood
removed, still is the learned Principal District Judge right
in ignoring the said principle while allowing the Appeal?
3.When the plaintiff having taken a mutual destructive
plea, namely denying the signature of the mother in the
Will under the same time raising the plea of execution of
Will under suspicious circumstances, is the learned
Principal District Judge right in allowing the appeal, when
it is open to the plaintiff to question the execution of Will
shrouded with suspicious circumstances though she had
specifically pleaded that the Will was not executed at all?
4.Whether the relief of permanent injunction sought for in
the plaint is maintainable in partition suits?”
7.The defendant examined both attesting witnesses (D.W.2 and
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D.W.3) and the scribe (D.W.4). The plaintiff contends that there are
inconsistencies in the depositions of the attesting witnesses regarding the
circumstances under which the Will was executed. D.W.2, one of the
attesting witnesses, deposed that when the Will was being prepared by
the scribe (D.W.4), the testatrix was lying on a cot in the kitchen and
thereafter came out to the thinnai to execute the Will. He further stated
that at that time, the testatrix was wearing a ring on her hand. On the
other hand, D.W.3, the other attesting witness, deposed that the testatrix
was sitting on a chair and never returned to the kitchen, and that she was
not wearing any ornaments.
8.Based on these variations, it was contended on behalf of the
plaintiff that the testatrix, being a widow, would not have worn any
ornament as per the customary practice prevailing in her community, and
therefore, the testimony of the attesting witnesses should be viewed with
suspicion. This is accepted by first appellate court, even though trial
court considered it as insignificant.
9.This contention, however, does not merit acceptance. The
witnesses were examined in court nearly eight years after the execution
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of the Will. Minor variations or inconsistencies as to peripheral details—
such as whether the testatrix was sitting on a chair or lying on a cot, or
whether she was wearing a ring— are inconsequential and do not strike
at the root of the matter. These are natural lapses after a long lapse of
time and do not create any legal infirmity.
10.The practice of widows refraining from wearing ornaments,
even if prevalent in the past, cannot be treated as a rigid or invariable
custom in present times. Social practices have undergone substantial
change, and the wearing of a simple ring by a widow cannot be viewed
as so improbable as to render the witnesses’ testimony untrustworthy.
11.On the core fact of execution of the Will, both witnesses have
consistently and unequivocally deposed that the testatrix executed the
Will in their presence and that they attested the same in her presence as
well as in the presence of each other, thereby satisfying the mandatory
requirements under Section 63(c) of the Indian Succession Act, 1925,
and Section 68 of the Indian Evidence Act, 1872.
12.It is a settled principle of evidence that the testimony of
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witnesses must be read as a whole and harmoniously construed; the court
should not pick isolated sentences or minor contradictions to discredit
otherwise cogent and consistent evidence. Minor discrepancies in
narration are natural and often lend credibility rather than suspicion,
since witnesses are not expected to reproduce events in a parrot-like
manner after a long lapse of time.
13.Therefore, on a cumulative reading of the depositions of both
the attesting witnesses and the scribe, it is evident that their evidence
substantially corroborates each other on the material aspects of the
execution and attestation of the will. The minor inconsistencies pointed
out by the defendant do not in any manner affect the genuineness or
validity of the testamentary instrument. Hence, this objection also
deserves to be rejected.
14.On the plaintiff’s side, the genuineness of the Will was
disputed, and it was specifically contended that the signature appearing
on the testament was not that of the executrix. Pursuant to the request
made by the plaintiff, the original Will was referred to the Forensic
Science Department for expert opinion, along with the admitted
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signatures of the executrix available in the earlier partition deed and the
compromise decree.
15.The Forensic Department, after preliminary examination,
returned the documents with a requisition seeking additional admitted
signatures of the deceased for a more conclusive comparison. However,
the plaintiff failed to furnish the required additional admitted documents
as sought by the expert. Consequently, the opinion could not be
furnished by the Forensic Department. In these circumstances, no
adverse inference can be drawn against the defendant, since the failure to
provide the requisite admitted documents was on the part of the plaintiff,
at whose instance the document was sent for expert examination.
16.Be that as it may, the defendant has duly discharged the legal
burden of proving the Will by examining both the attesting witnesses to
the testament. Their testimonies satisfy the mandatory requirements laid
down under Section 68 of the Indian Evidence Act, 1872, and Section
63(c) of the Indian Succession Act, 1925, which prescribe that a Will
must be attested by at least two witnesses, and that at least one attesting
witness must be examined to prove its execution.
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17.Accordingly, even in the absence of an expert’s opinion, the
due execution and attestation of the Will have been established through
direct evidence of the attesting witnesses, and the same cannot be
disbelieved merely on the speculative ground that the signature was not
subjected to forensic verification due to the plaintiff’s own default.
18.It is contended on the side of the respondent that the testatrix,
being under treatment for cancer at the time of execution of the will, was
not in a sound and disposing state of mind, and hence, incapable of
making a valid testamentary disposition. It is further alleged that the
death of the testatrix within a week from the execution of the Will
strengthens the suspicion regarding her mental fitness.
19.However, such an argument cannot be sustained merely on the
basis that the testatrix was undergoing medical treatment or suffering
from a terminal illness. The plea of incapacity due to illness is not
supported by medical or other evidence. Mere illness or proximity to
death does not, in law, amount to mental incapacity. The testatrix was
conscious and capable of understanding her act of disposition. The law is
well settled that mere illness, bodily weakness, or proximity to death
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does not, by itself, establish incapacity. What is material is whether, at
the time of execution, the testatrix possessed a sound and disposing state
of mind, understood the nature and effect of the testamentary act, and
executed the Will out of her free volition.
20.A person suffering from a serious ailment, such as cancer, may
still retain full mental alertness and comprehension. Unless cogent and
convincing medical evidence or reliable testimony is produced to show
that the disease had impaired her mental faculties, the mere fact of illness
cannot invalidate the Will. If the contention that a person under treatment
is incapable of executing a Will were to be accepted, the very concept of
a death-bed Will or Will executed in extremis would be rendered
nugatory. The law, on the contrary, recognises and upholds such Wills,
provided the essential requirements of testamentary capacity and
voluntariness are satisfied.
21.Therefore, the argument of incapacity based solely on the
ground of illness or hospitalization is legally untenable. The burden lies
heavily on the person who challenges the Will to establish that the
testatrix, at the relevant time, was not in a sound and disposing state of
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mind or that the Will was executed under suspicious circumstances
which remain unexplained.
22.On the plaintiff’s side, it was contended that the exclusion of
the plaintiff, being the daughter of the testatrix, from the bequest under
the Will constitutes a suspicious circumstance affecting its genuineness.
In reply, the defendant has explained that the plaintiff had earlier filed a
civil suit in O.S.No.380 of 1996 before the competent Civil Court against
this defendant and their deceased mother, seeking partition in respect of
the properties left behind by their late father.
23.The exclusion of the married daughter from the Will, after she
was already provided for in an earlier family arrangement and partition
(O.S.No.380 of 1996), is a plausible and reasonable circumstance, not a
suspicious one. The First Appellate Court’s inference that cordiality
between mother and daughter necessarily rules out exclusion is
speculative and contrary to settled principles governing testamentary
freedom.
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24.On the plaintiff’s side, it was stated that the said suit had
ultimately ended in a compromise, and that the suit itself was instituted
only to give legal effect to a family arrangement already arrived at
through mutual understanding. It was further contended that the suit was
filed on the legal advice of the counsel, who is incidentally the same
counsel now representing the present defendant, and that the filing of
such a suit was only to regularize the earlier family settlement and to
avoid the heavy expense of stamp duty on a formal partition deed. Hence,
according to the plaintiff, there was no reason for the testatrix to exclude
her from the Will.
25.However, on a close scrutiny of the evidence, it is seen that
even though the earlier suit had ended in a compromise, the plaintiff
herself has admitted in her cross-examination that there was a panchayat
in which the terms of compromise were arrived at between the family
members. This admission lends support to the defendant’s case that the
plaintiff had already demanded share in her father’s property against the
defendant and deceased mother this leads to convene panchayat in which
share has been been provided to the plaintiff towards her share or benefit
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in the earlier arrangement relating to the father’s property.
26.It is not uncommon in several families, particularly, that
daughters, after their marriage and having been suitably provided for, are
excluded from inheritance under a parent’s Will. In the present case, the
contention of the defendant that the plaintiff was given in marriage and
had already been provided a share in her father’s property appears
reasonable and probable. The exclusion of the plaintiff from the mother’s
Will, therefore, cannot by itself be treated as a suspicious circumstance.
27.The mere fact that the plaintiff maintained cordial relationship
with the deceased mother or had occasionally accompanied her to the
hospital does not in any way alter the testamentary intent of the
executant. The testatrix, being the absolute owner, was legally competent
to dispose of her property according to her own volition. Accordingly,
the attack made on the Will on the ground of exclusion of the plaintiff is
not convincing and does not constitute a valid ground to reject the
genuineness of the Will.
28.Further it is established principle that when there is possibility
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of two views the view arrived by the trial court should be accepted. Here
the trial court consider the wearing of ring by widow or not is
insignificant and exclusion of married daughter from providing any thing
in Will are accepted as prevailing practice among the community to
which the parties belongs, but the first appellate court rejected these
views of trial court and put forth its view it is not in accordance with
settled law.
29.The delay in mutation of patta or disclosure of the Will also
cannot invalidate a duly proved testamentary document, since mutation is
only for fiscal purposes and not determinative of title.
30.This contention of the plaintiff was denied by the defendant,
who has specifically pleaded that immediately after the demise of the
testatrix, his mother, he had disclosed and declared the existence of the
Will in question. In her evidence, the plaintiff, examined as P.W.1, has
stated that she was not in speaking terms with the respondent, he was not
invited to the marriage of her son as the defendant had “forged the
Will.” This admission, in fact, establishes that the plaintiff was aware of
the defendant’s claim under the Will from the very inception. Despite
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such knowledge, no steps were taken by her to challenge the said Will or
to institute appropriate proceedings for declaration of its invalidity for a
considerable period.
31.The conduct of the plaintiff, in remaining silent for a long
duration even after having knowledge of the existence of the Will,
clearly indicates acquiescence and undermines her present plea of
forgery or fabrication. Mere assertion, without any contemporaneous
action or corroborative evidence, cannot dislodge a duly executed and
attested testamentary document.
32.The defendant being the only son and natural heir of the
deceased testatrix was in possession and enjoyment of the suit property
in pursuance of the said Will. The mere fact that the revenue records or
patta were not mutated immediately in his name on the basis of the Will
does not, by itself, cast any doubt on its genuineness. Mutation of
revenue records is only an administrative act meant for fiscal purposes
and does not create, extinguish, or confer title. The genuineness or
validity of a Will has to be determined from the evidence relating to its
execution and attestation, and not from subsequent entries or omissions
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in revenue records.
33.Therefore, the absence of mutation in the name of the defendant
cannot be treated as a circumstance adverse to the validity of the Will,
particularly when its due execution and attestation have been
satisfactorily proved through cogent evidence. The surrounding
circumstances, including the conduct of the parties and the possession of
the defendant, fully support the genuineness of the testamentary
document.
34.On the plaintiff’s side, reliance was placed upon several
judgments to contend that the Will in question is surrounded by
suspicious circumstances.
35.In P. Jayajothi & Others v. J. Rajathi Ammal & Others,
(MANU/TN/1527/2019), this Court found that the attesting witnesses did
not depose satisfactorily as to the execution of the Will. They admitted
that they were unaware of where the Will had been prepared, and the
court was not convinced with their evidence. Further, the testator had
made no provision for his wife and his daughter, and the signatures
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found in the Will appeared shaky when compared with other registered
documents. In such circumstances, the Court held that the suspicious
circumstances were not dispelled and, consequently, the Will was not
proved.
36.In Lakshmi Devi Ammal & Others v. Ezhumalai & Others,
(MANU/TN/7655/2019), the propounder of the Will failed to disclose
the existence of the Will to his sister even after the demise of the testator.
Moreover, the propounder sold a portion of the property covered under
the Will jointly with his widowed sister, and the Will contained no
provision in favour of the widowed daughter. In those circumstances, the
Court held that non-disclosure of the existence of the Will till the filing
of the suit constituted a suspicious circumstance. However, the facts of
the said case are clearly distinguishable from the present case, since here,
the defendant—who is the propounder of the Will—has not dealt with or
alienated any portion of the property after the demise of his mother, the
testatrix.
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37.In Kavitha Kanwar v. Pamela Mehta & Others, [(2021) 11
SCC 209], the Supreme Court, in paragraph 24, observed that the
existence of suspicious circumstances must be assessed on a holistic
view of the entire matter, considering all unusual features collectively,
and not on the basis of any single circumstance in isolation. The same
principle is applied herein. On a holistic appreciation of the evidence and
the overall circumstances of this case, the alleged suspicious
circumstances projected by the plaintiff are not of such gravity as to
warrant rejection of the Will.
38.In K. Chellappan v. Pancharani & Others,
(MANU/TN/9232/2019), it was held in paragraph 19 that whether a
particular Will is surrounded by suspicious circumstances or not is
essentially a question of fact, depending on the facts and circumstances
of each case.
39.In Periyammal & Others v. Valli & Others,
(MANU/TN/1703/2024), the Court held that non-disclosure of the
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existence of the Will was a suspicious circumstance when the
propounder failed to mention it in the reply notice and disclosed it only
after the filing of the suit. However, the facts of the present case stand on
a different footing. Here, the defendant has not withheld or suppressed
the Will, and there is no conduct suggestive of concealment or mala fide
intention.
40.In Leela & Others v. Muruganantham & Others, (2025 SCC
OnLine SC 16), the Supreme Court reiterated the settled position that
mere proof of execution of a Will in accordance with Section 63 of the
Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act,
1872 would only establish that the Will was executed, but that alone does
not render the Will genuine or conclusive for acting upon unless the
surrounding circumstances inspire confidence.
41.In Gurdial Singh (deceased) through LRs v. Jagir Kaur
(deceased) & Another, (2025 INSC 866), the Apex Court held that the
exclusion of the wife in a Will constituted a suspicious circumstance that
was not adequately dispelled by the propounder.
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42.Similarly, in Lilian Coelho & Others v. Myra Philomena
Coalho, [(2025) 2 SCC 633], the Supreme Court reiterated that even if
the execution of the Will is technically proved, the court may still hold it
unworthy of acceptance if it is shrouded with suspicious circumstances
which the propounder has failed to satisfactorily explain.
43.Further, in Ramesh Chand (deceased) through LRs v. Suresh
Chand & Another, (2025 INSC 1059), the Supreme Court held that the
act of bequeathing the entire property by the father in favour of one child
to the exclusion of the other three was a suspicious circumstance which
was not satisfactorily removed.
44.However, on careful examination, it is evident that all the above
decisions are distinguishable on facts and do not advance the case of the
plaintiff. In the present case, the defendant has duly proved the due
execution and attestation of the Will, and no comparable suspicious
features exist. The conduct of the parties and the surrounding
circumstances in this case inspire confidence in the genuineness of the
testamentary document. Hence, the judgments cited on the side of the
plaintiff do not support her case.
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45.The First Appellate Court failed to properly appreciate the legal
effect of the attesting witnesses’ consistent and credible testimony and
has proceeded on mere conjecture. Once the propounder proves due
execution and attestation in the manner required by Section 63(c) of the
Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act,
1872, and when the attesting witnesses withstand cross-examination on
the material particulars, bare suspicion cannot override compliance with
law. The so-called “suspicious circumstances” identified by the first
appellate court are neither real nor substantial; they do not detract from
the core, proved facts of execution and attestation. By disregarding
material evidence and resting its conclusion on immaterial surmises, the
lower appellate court has returned findings that are perverse and contrary
to the evidence on record, warranting interference.
46.In respect of the first and second substantial questions of law, it
is answered that the compliance with the statutory requirements for
proving a Will, as contemplated under Section 68 of the Indian Evidence
Act, 1872 and Section 63(c) of the Indian Succession Act, 1925, does not
by itself automatically dispel all suspicious circumstances. However,
such suspicious circumstances must be real, substantial, and of such a
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nature as to genuinely shake the conscience of the Court. Only when the
surrounding circumstances create a serious doubt about the free and
conscious execution of the testament can the Court conclude that the will
has not been proved in the manner known to law.
47.In respect of the third substantial question of law, it is to be
noted that even though the propounder of the Will happens to be the
defendant in the present proceedings, since his entire claim and defence
rest upon the said Will, the burden squarely lies upon him to prove the
due execution and attestation of the Will in the manner required under
Section 63 of the Indian Succession Act, 1925, read with Section 68 of
the Indian Evidence Act, 1872.
48.At the same time, the person who challenges the will—though
occupying the position of a plaintiff—is entitled to take inconsistent
pleas questioning both the execution of the will and the existence of
suspicious circumstances surrounding it. The law permits a person
attacking a will to assail its genuineness on multiple grounds, including
want of testamentary capacity, improper attestation, or existence of
suspicious circumstances, even if such pleas appear alternative or
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overlapping in nature.
49.Accordingly, this substantial question of law is answered to the
effect that the burden of proving the Will lies on the propounder, and the
person disputing the Will is not precluded from questioning its execution
and surrounding circumstances, notwithstanding the position of parties in
the suit.
50.In respect of the fourth substantial question of law, it is seen
that the plaintiff, in the plaint, has sought a decree of injunction
restraining the defendants from alienating or encumbering the suit
properties, which are described with specific boundaries, until the
passing of the final decree.
51.It is true that, as a general principle, no injunction can
ordinarily be granted against a co-owner in respect of joint property,
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since each co-owner is entitled to enjoy and deal with the property in
accordance with law. However, there is no legal prohibition in
restraining any of the parties from creating third-party interests or
altering the nature of the property pending adjudication, particularly
when such restraint is necessary to preserve the subject-matter of the suit
and to ensure that the final decree, if passed, is not rendered infructuous.
52.Therefore, the relief of injunction prayed for in the suit cannot
be said to be unsustainable merely on the ground that the parties are co-
owners. The injunction, being in the nature of a protective or
preservative relief, is maintainable to the limited extent of maintaining
status quo and preventing alienation or encumbrance of the suit
properties till the disposal of the proceedings.
53.In the result, and in view of the findings rendered on the first
and second substantial questions of law, this Court holds that the
defendant/appellant has proved the Will in accordance with the statutory
requirements, and that the suspicious circumstances alleged by the
plaintiff are not of such a serious nature as to shake the conscience of the
Court, as discussed in the foregoing paragraphs.
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54.Accordingly, it is held that the Will stands duly proved.
Consequently, the the judgment and decree of the First Appellate Court
dated 01.10.2013 in A.S.No.33 of 2013 on the file of the learned
Principal District Judge, Erode, are set aside. The judgment and decree
dated 17.01.2013 passed in O.S.No.198 of 2010 by the learned II
Additional Subordinate Judge, Erode, are restored. The Second Appeal is
allowed . If any connected Civil Miscellaneous Petitions are pending, the
same shall stand closed. Considering the close and proximate
relationship between the parties, there shall be no order as to costs.
17.10.2025
ay
Index:Yes/No
Speaking Order /Non-speaking order
Neutral citation:Yes/No
To
1.The Principal District Court, Erode.
2.The II Additional Subordinate Court, Erode.
3. The Section Officer, V.R.Records, Madras High Court.
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DR. A.D. MARIA CLETE, J
ay
PRE DELIVERY JUDGMENT
and
17.10.2025
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