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4. The objections of the defendants raised in the written statement filed by them would be as follows:-

The suit property belonged to Rengasamy. After his death, the suit property devolved on his wife Valliammal and after Valliammal's death the suit property devolved on her three daughters and the three daughters partitioned the properties and each of them were enjoying their property separately. During partition, the suit property came to the hands of Manickathammal and there is no dispute in that regard. It is not correct to state that Manickathammal died intestate leaving the suit property. On 17.1.1989, Manickathammal executed an unregistered will in favour of the first defendant in respect of the suit property. Thus, the suit property will not go into the hands of heirs of Manickathammal's father. The 1st and 2nd plaintiff has no right in the suit property. The sale deed executed by the first defendant in favour of the 3rd defendant on 4.9.1992 in respect of 'B' schedule property is valid in law. At the same time, the gift deed executed by the first defendant in favour of the 2nd defendant in respect of the 'A' schedule property is also valid in law. From the date of execution of the sale deed and gift deed, the suit property was in enjoyment of the 2nd defendant's brother Nallathambi. The 3rd defendant is the daughter of Nallathambi. Both of them are living in the village where the suit property is situated. The defendants have sent reply to the notice sent by the plaintiffs' counsel. Hence, the suit may be dismissed.

9. The objections raised by the defendant in the written statement would be as follows:-

The plaintiff does not have any right in the suit property. The allegation that he was enjoying the property through his brother is also not true. It is not true to state that the defendant tried to cut the trees when the plaintiff was not in station. After the death of Manickathammal, the suit property devolved on the defendants family and Muthusamy family and they were enjoying the same. Since the plaintiff in this suit and her husband are interfering with the enjoyment of the suit property by Chinnammal and Muthusamy, the suit O.S.No.557/1997 has been filed. Since no declaration has been asked for in this suit, the suit filed by the plaintiff herein has to be rejected. The 'A' schedule property of the suit O.S.No.557 of 1993 is shown as the suit property in O.S.No.894 of 1994.

2. Whether the lower appellate court went wrong in rejecting the Will when there is abundant evidence available on record to prove the Will."

13. For convenience, the status of parties in O.S.No.557 of 1993 is being maintained, infra, as the evidence was recorded before the trial court in the said suit only.

14. Heard Mr.R.Selvakumar, learned counsel for the appellants/defendants and Mr.P.Valliappan, learned counsel for the respondents/plaintiffs.

15. The learned counsel for the appellants (defendants in O.S.No.557 of 1993) would submit in his argument that the 1st appellate court had interfered with the well considered judgment of the trial court without any sufficient reasons. He would also submit that the non-registration of the Will would not raise any suspicion over the genuineness of the Will. He would further submit that the non-inclusion of the entire properties of the testatrix would not also create any suspicion in the minds of the Court. However, the 1st appellate court had doubted the genuineness of the Will and had come to an erroneous conclusion. He would also submit that the irrevocability of the Will was not the intention of the testatrix and the mere reading of the Will would go to show the character of the Will that it is revocable or modifiable by the testatrix, she had expressed her intention not to revoke the said particular Will. He would further submit that merely because of expressing her intention in the Will itself, it would not restrain her from cancelling or revoking the Will since it was already stated in the Will. He would further submit in his argument that the evidence of PW1 and PW2 in respect of revocability of the Will, cannot be sustained. He would also submit that the Will produced in Ex.B2, cannot be treated as settlement deed merely because the intention of the testatrix has been expressed that she has no intention to revoke the said Will. He would further submit that the findings of the 1st appellate Court that the said Will Ex.B2 has to be treated as settlement deed and in the said circumstances, the said document ought to have been registered compulsorily and without such registration of the said document that could not be relied upon in evidence, cannot be sustained because, the intention of the testatrix cannot be mis-interpreted to the character of the document as the settlement deed. He would further submit that if the impugned Will Ex.B2 has been read in full, it would clearly show that it was only an expression of her will for not revoking the same and that would show that she has the power of revoking the Will at any time and to dispose the said property as per her wish. She would also submit that the 1st appellate court has passed its findings only on the said notion and if the Will Ex.B2 is considered out and out as a Will, the findings of the trial court ought to have been registered. He would also submit that when the Will is proved to be true and genuine, it will come into force on the death of the testatrix, Manikathammal and thus, the husband of the defendant Ponnusamy would get the entire property through the said Will. He would also submit that after the death of Ponnusamy, naturally, the defendant would get at the property as his legal heirs and the plaintiffs have no legs to stand for claiming the property. He would further submit that even though the Will Ex.B2 was not considered to be a true document, the properties belonged to Manikathammal would be inherited by her husband Ponnusamy as per the provisions of Section 15 of Hindu Succession Act. He would also submit that the said Ponnusamy being the husband of Manikathammal, is entitled to the separate properties of his wife as per Section 15 (1) (a) of the said Act. He would also submit that even though, the suit properties were originally belonged to the mother of Manikathammal, the said Manikathammal had got the properties by virtue of a partition had in between the daughters of her mother and therefore, the character of the property that she got it through mother would be lost and therefore, the proviso under Section 15 (2)(a) of the said Act would not apply to the present case and the provisions of Section 15(1)(a) would only come into operation. He would therefore, submit that even otherwise, the Will is not found to be true, the said Ponnusamy being the husband of Manikathammal would get at the properties and after his demise, it would devolve only upon the defendant. He would further submit that the defendants have preferred the Will by examining the attestors as DW2 and DW3 and the scribe as DW4 and they have clearly spoken about the execution of the Will by the said Manikathammal and there was no contradiction in the evidence regarding execution of the Will. He would also submit that the alleged contradiction found by the 1st appellate court are not in respect of the attestation and execution of the Will and therefore, their evidence should not be rejected by the 1st appellate court. He would also submit that the evidence of DW1 was also not properly appreciated by the 1st appellate court. He would further submit that the requirements of proof under Section 68 of the Indian Evidence Act have been complied with by examining DWs. 2 to 4 and therefore, there should not be any interference in the judgment of the trial court. He would further submit that the presence of the attestors as well as the scribe of Ex.B2 Will, were not questioned in their cross-examination and therefore, their evidence adduced towards the proof of Ex.B2 Will, cannot also be suspected. He would also submit that the evidence given by DW4 that the Will which cannot be revoked would be a settlement deed, cannot hold water, since he was not an authority to say so. He would also submit that the construction of the Will have been spoken by the scribe DW4, who is the best witness to explain the same, however, the 1st appellate court had shown the reasons for the gaps left in each of the pages would not be accepted. He would further submit that since Ex.B2 was the Will does not require compulsory registration and its genuineness is doubted merely because it was an unregistered document. He would also cite a judgment of the Hon'ble Apex Court reported in 2002 (1) MLJ 200 (SC) (Mauleshwar Mani and others v. Jagdish Prasad and others) for the principle that the entire construction of the Will has to be read for deciding the character of the said document as a Will.

17. The learned counsel for the respondents/plaintiffs would submit in his argument that admittedly, the suit properties in O.S.No.557 of 1993 devolve upon Manikathammal from her mother and apart from the said properties, she also got the properties purchased in her name by her husband but the properties derived by her from her mother were alone shown in the Will. He would further submit in his argument that the Will was an unregistered one. The Will said to have been executed by the testatrix Manikathammal on 17.01.1989 was stated to have come into force on the death of Manikathammal, in the year 1989. If really, the Will was a true document, the subsequent sale effected by her husband Ponnusamy to some other third party on 04.09.1992 by Ex.A19 equivalent to Ex.B10 would have a reference about the devolution of the said property through Ex.B2 Will. But the vendor Ponnusamy had referred the devolution of the property in his favour ancesterally. He would further submit that the said mention by the husband of Manikathammal in Ex.A19 as ancestral property would go to show that there was no existence of the Will at the time of Ex.A19. He would further submit in his argument that the non-registration of the Will would increase the gravity of the suspicious circumstances of the said Will. He would also submit that if really a Will was a true and genuine document, the derivation of the property by the vendor Ponnusamy ought to have been mentioned as he derived the said property through the Will executed by Manikathammal. He would further submit that the said suspicion would enlarge further on the contradictory evidence given by the attestor as well as the scribe while they were examined DW2 to DW4. He would also point out certain discrepancies in their evidence and had drawn the support from the judgment of the 1st appellate court in mentioning the said contradiction. He would also submit that the Will said to have been executed by Manikathammal could be a concocted one since the properties purchased in the name of Manikathammal were not included in the said Will. He would also submit that the evidence of DWs would go to show the right in the properties mentioned in the Will meant to have obtained by the beneficiary Ponnusamy on the date of execution of the Will itself and this would go to show that the said document Ex.B2 was not considered to be a Will since the right at presently were stated to have been created. He would also submit that the said Will was containing 5 pages in which the testatrix was stated to have put her thumb impression in all the pages but the evidence of DWs 2 to 4 are contradictory regarding the total pages of the Will and this would go to show that the Will was not a true and genuine document but was concocted by the defendant's husband and the witnesses. He would also submit that when the Will was not considered to be a true document, the properties belonging to Manikathammal should be distributed among her legal representatives under Section 15 of the Hindu Succession Act. The suit properties were admittedly belonged to the mother of Manikathammal and she derived from her mother only and therefore, it would not devolve upon the heirs mentioned under Section 15(1) of the Act since she had no children. He would also submit that the husband Ponnusamy was also excluded from inheriting the property from his wife. Since the properties were obtained by her from her mother,the devolution would be only upon the heirs of Manikathammal under Section 15(2) (a) of the Act, namely the heirs of the mother of Manikathammal. The plaintiffs who are the heirs of Manikathammal under Section 15(2)(a) of the Act would get at the properties in the absence of any testament validly executed by Manikathammal. He would draw the attention of the Court to various judgments of this Court, Karnataka High Court and Hon'ble Apex Court. He had cited a judgment of this Court reported in 1998 (2) LW 744 (Mookayi Ammal and 3 others v. Duraisamy Udayar and 2 others) for the principle that the Court had to consider the surrounding circumstances, while appraising the evidence of the attestors when the legal heirs of the testatrix through intestate succession were disinherited by virtue of the bequeaths made in the Will. He would also bring it to the notice of this Court to a judgment of the Hon'ble Apex Court reported in 1997 (2) LW 686 (Kartar Kaur and another v. Milkho and others) for the principle regarding the duty of the propounder to dispel the suspicious circumstances. He would also bring it to the notice of this Court in respect of a judgment of this Court reported in 1997 (3) LW 673 (Govindan Chettiar etc., v. Akilandam alias Seethalakshmi and 24 others) for the principle that the scribe would not be treated as an attesting witness to prove the said Will. He would also cite a judgment of Delhi High Court reported in AIR 1988 Delhi 273 (Dinesh Kumar v. Khazan Singh and others) for the principle that the propounder has to prove the genuineness and satisfy the conscience of the Court regarding the truth and genuineness of the Will. Yet another judgment of this Court reported in 2002 (3) MLJ 667 (T.N.Krishna Pillai v. K.Nallaperumal) was also relied upon by the counsel for the respondents for the principle that the last intention of the testator has to be considered for perceiving the testators intention. For relying upon the said principle, he would submit that the Ex.B3 would be considered as irrevocable document and it would not be a Will. He would also quote the judgment of this Court reported in 2002 (1) MLJ 116 (Gangammal and others v. Mari Moopan and others) for the principle that when any suspicious circumstances clouded the attestation and execution of the Will, the propounder of the Will has to dispel such suspicious circumstances. Relying upon the said principle, he would submit that the defendants have not cleared the suspicious circumstances cast upon the Will Ex.B2 in order to show that it is a genuine document. He would also rely upon a judgment of Karnataka High Court reported in AIR 1982 Karnataka 198 (T.M.Channabasamma dead by L.Rs., and others v. T.M.Rudriah, dead by L.Rs, and others) for the same principle. He would also submit in his argument that the Will could not be considered as a true and genuine document and if the Will is not found to be true, the plaintiffs would be the legal heirs of the deceased Manikathammal and the defendants would not get any property under the guise of the Will. He would also cite a judgment of the Hon'ble Apex Court reported in 2003 (4) CTC 122 (SC) (V.Dandapani Chettiar v. Balasubramanian Chettiar(dead) by LRs. and others) for the principle that the character of the property derived from the mother would not be changed merely because any partition has intervened in between the co-owners. He would also submit that the partition had by Manikathammal with her sister, after the death of her mother would not in any way change the character of the property that she had inherited from her mother and therefore, the suit properties which are admittedly the properties inherited by Manikathammal would devolve upon her mother's heirs namely the plaintiffs, since the Will said to have been executed by Manikathammal was not a true and genuine document. He would therefore, request the Court that the judgment and decree passed by the 1st appellate Court are in accordance with law and they are not liable to be interfered. He would also submit that the two appeals filed by the appellants have no legs to stand and therefore, may be dismissed with costs.