(Common Prayer in O.S.A. Nos.102 of 2017, 62 of 2018 and 281 of 2018: Original Side Appeals filed under Order XXXVI Rule 9 of O.S. Rules Read With Clause 15 of the Letters Patent, praying to set aside the judgment and decree dated 04/03/2016 passed in TR.CS.No. 889 of 2009 on the file of the original side of this Honourable Court.

In O.S.A. No.260 of 2017: Original Side Appeal filed under Order XXXVI Rule 9 of O.S. Rules Read With Clause 15 of the Letters Patent, praying to set aside the judgment and decree dated 04/03/2016 passed in TR.CS.No. 888 of 2009 on the file of the original side of this Honourable Court.

In O.S.A. No.245 of 2017: Original Side Appeal filed under Order XXXVI Rule 9 of O.S. Rules Read With Clause 15 of the Letters Patent, praying to set aside the judgment and decree dated 04/03/2016 made in T.O.S. No.38 of 2008.)

Common Judgment:

K. Govindarajan Thilakavadi J.

1. The above Original Side Appeals have been filed challenging the Common Judgment dated 04.03.2016 made in T.O.S. No.38 of 2008 and Tr.C.S. Nos 888 and 889 of 2009.

2. T.O.S.No.38 of 2008 is numbered on conversion of O.P.No.387 of 2008, praying that Letters of Administration with a Will annexed, may be granted to the plaintiff as the legatee under the Will of the deceased R.Gopal, having effect limited to the State of Tamil Nadu and limited to the properties mentioned in the affidavit of assets.

                   2.1. Tr.C.S.No.888 of 2009 numbered on transfer of O.S.No.4197 of 2008 from the file of the City Civil Court, Chennai, praying for permanent injunction restraining the defendant herein, her men, agents, servants or any other person or persons claiming through them from interfering with the plaintiffs' peaceful possession and enjoyment of the suit property, especially smooth running of the School, right to use the pathway (marked yellow in the sketch) and to pay the costs of the suit.

                   2.2. Tr.C.S.No.889 of 2009 numbered on transfer of O.S.No.1435 of 2003 from the file of the City Civil Court, Chennai, praying for declaration declaring that the alleged Will dated 29.07.1999 is null and void; for permanent injunction restraining the defendants their men, agents, servants or any other person or persons claiming through them from interfering with the plaintiff's peaceful possession, occupation and enjoyment of the suit properties, more-fully described in the schedule to the plaint; for permanent injunction restraining the defendants their men, agents, servants or any other person or persons claiming through them from selling or encumbering with the suit properties, more-fully described in the schedule to the plaint and for costs of the suit.

3. Averments in TOS No.38 of 2008 (O.P. No.387/2008)

                   3.1. Sarasamma/petitioner is relative of Gopal naidu, who is the owner of property by self acquisition. The said Gopal had two daughters, Rukmani and Saroja, and a son, G.Pandurangan/defendant in T.O.S. No.38 of 2008. According to Sarasamma, Pandurangan subjected his parents and sisters to cruelty, forcibly dispossessed them from their property, and attempted to acquire his father's properties through litigation. Consequently, R. Gopal and his daughters were taken care by Sarasamma and her husband, T.G. Srinivasalu, at Arakonam.

                   3.2. Gopal Naidu executed a Will on 23.06.1999 in favour of Sarasamma and her husband T.G. Srinivasalu and the same was registered on 29.07.1999. Srinivasalu filed O.P. Sr. No.25236/2005 as executor and the same was returned and not represented. T.G. Srinivasalu died on 14.03.2007. Due to illiteracy, there was delay in filing the OP.

                   3.3. Rukmani, one of the daughters of R. Gopal Naidu, is missing since 2005 and a complaint was given by Sarasamma in this regard and the same was registered as FIR No.401/2007. Saroja, another daughter of R. Gopal died on 21.04.2002.

                   3.4. Since the testator's parents had predeceased him and Sarasamma and her husband were the sole beneficiaries under the Will, Sarasamma sought Letters of Administration with the Will annexed in respect of the properties situated within the jurisdiction of the Court (Items 4 to 7 of the Will). Accordingly, prayed for the grant of Letters of Administration in T.O.S. No. 38 of 2008.

4. Pandurangan/ defendant in T.O.S. No.38 of 2008 filed written statement, stating as follows:

                   4.1. There is a delay of 8 years after the death of testator on 06.12.2001. Out of 7 items in the alleged Will only item 4 to 7 are added in OP. It is further stated that Sarasamma and T.G. Srinivasalu are not the relatives but were engaged as servants and that R. Gopal Naidu has no right to execute Ex.P18 Will, since the properties were purchased out of proceeds of ancestral properties. Pandurangan married one Ambika and a male child by name Dheerajmal was born to them. The defendant further sated that the Will was not executed with the consent of the testator and that the same was forcibly registered when the testator was 83 years. There are several suspicious circumstances surrounding the execution of the Will, namely: (i) the testator was aged 83 years at the time of its execution; (ii) the beneficiaries had no children; (iii) no provision was made for the testator's son, Pandurangan; and (iv) the Will was executed on 23.06.1999, shortly after the death of the testator's wife, Kousalya, on 08.01.1999. Saroja, the daughter of the testator, who was a cancer patient was forcefully sent to Pandurangan’s house and died on 2002 at Kolathur.

                   4.2. The defendant was forcibly detained, coerced into signing a memorandum of understanding prepared by one Dhanajeyan regarding division of properties, and a case was registered in Crime No.285/2005 in this regard. Item No.6 of the Will is the property of Pandurangan got by settlement deed from his mother.

                   4.3. In the additional written statement, it is contended that the inclusion of the Guduvancherry property in the Will itself exposes the fraud, as that property had already been settled in his favour under a settlement deed dated 08.12.1994, and therefore could not have been validly bequeathed by the deceased under the alleged Will. . The alleged Will dated 23.06.1999 is no longer valid as it was revoked by a registered deed of revocation dated 30.06.1999. He therefore submitted that the testamentary suit is not maintainable, as no operative Will exists. Hence, he sought for dismissal of the suit with exemplary costs.

5. Averments in Tr.C.S. No.889 of 2009 (O.S.No.1435 of 2003) filed by Pandurangan, son of Gopal,

                   5.1. The suit properties were acquired by R.Gopal, the father of Pandurangal/ plaintiff, from the proceeds of ancestral properties and that, upon the deaths of his parents and sister Saroja, he and his sister Rukmani became the surviving legal heirs entitled to succeed to the estate. He has been managing the family properties, constructing buildings thereon, paying taxes and charges, and protecting the properties through various legal proceedings. His father has no right to execute the Will. The defendants, Sarasamma and Srinivasan, who were employed by his father, conspired to grab the properties by separating his parents from the family, and that his mother's subsequent death under suspicious circumstances warrants investigation.

                   5.2. The plaintiff first became aware of the alleged Will when he received a legal notice from the defendants in May 2002 claiming that his father had bequeathed all the suit properties to the defendants T.G.Srinivasalu and Sarasamma and demanding him to vacate from the properties.

                   5.3. As the sole son and legal heir, the plaintiff has been managing and enjoying the properties both during and after his father's lifetime. On the strength of the disputed Will, the defendants began interfering with his possession of the properties Hence, he was compelled to file the suit seeking protection of his rights and possession.

6. The defendants 1 and 2, namely T.G. Srinivasalu Naidu and sarasamma filed Written statement, which was adopted by the third respondent, narrating the same facts in T.O.S. No. 38 of 2008 and further stating as follows:

                   6.1. The Will was genuine, validly executed by Late Gopal Naidu in a sound state of mind, and that probate proceedings have been initiated. The plaintiff had no right over the properties, that he was not caring for Gopal Naidu and his family, and that the testator bequeathed his self-acquired properties to them out of affection and gratitude. Guduvancheri property had already been entrusted to the third defendant through a registered power of attorney. Portions of the properties had already been sold to defendants 4 to 6 and another purchaser through registered sale deeds, The suit suffers from non-joinder of a necessary party, namely Rukmani, another surviving legal heir of Late R.Gopal Naidu. The defendants contend that the Will validly vested title in them, that the plaintiff has not approached the Court with clean hands, and that the burden lies upon the plaintiff to establish that the Will is invalid.

                   6.2. The defendants 1 and 2 contend that they have already initiated probate proceedings for the Will and that the plaintiff has failed to produce any document establishing his right or title to the suit properties. They maintain that the plaintiff has no entitlement to seek an injunction and that the suit is devoid of merit.

7. Ambika (wife of Pandurangan), daughter in law of Late.Gopal, filed a suit in O.S. No.4197 of 2008 on the file of the City Civil Court, Chennai, which was numbered on transfer as Tr.C.S. No.888 of 2009 before this Court praying for permanent injunction restraining the defendant/Sarasamma, her men, agents, servants or any other person or persons claiming through them from interfering with the plaintiffs' peaceful possession and enjoyment of the suit property, especially smooth running of the School, right to use the pathway (marked yellow in the sketch) and to pay the costs of the suit. The pleadings in Tr.C.S. No.889 of 2009 (Pandurangan suit) are reproduced in the present suit.

8. The written statement in Tr.C.S. No.888 of 2009 is, in sum and substance, identical to the written statement filed in Pandurangan's suit.

9. The learned Single Judge, by order dated 06.07.2009, framed the following issues for trial in T.O.S.No.38 of 2008:

                   "(i) Whether the suit properties are the self-acquired properties of the testator R.Gopal or not ?

                   (ii) Whether the Will dated 23.06.1999 executed by the father of the defendant in favour of the plaintiff and her deceased husband Srinivasan is true, valid and binding ?

                   (iii) Whether the testator was unduly influenced by the plaintiff and her husband to execute the Will by their importunity ?

                   (iv) Is not the exclusion of the defendant proper in the last Will of R.Gopal, dated 23.06.1999 ?

                   (v) Whether the plaintiff in T.O.S.No.38 of 2008 is entitled to get Letters of Administration ?

                   (vi) Whether the grant of probate claimed by the plaintiff shall have effect over all the properties and estate, movable and immovable ?

                   (vii) Whether the testamentary suit is maintainable, in view of the long delay in filing the suit ?

                   (viii) Whether the plaintiff is legally justified in effecting sale of the properties or estates of the testator without probating the Will vis-a-vis Section 273 of the Indian Succession Act ? and

                   (ix) To what other relief/s the plaintiff is entitled to ?"

                   9.1. The City Civil Court, Chennai, by order dated 19.11.2008 in O.S.No.4197 of 2008 (since transferred and numbered as Tr.C.S.No.888 of 2009 before this Court), framed the following issues for consideration:

                   "(i) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? and

                   (ii) To what other relief the plaintiff is entitled ?"

                   9.2. The City Civil Court, Chennai, by order dated 16.12.2005, in O.S.No.1435 of 2003 (since transferred and numbered as Tr.C.S.No.889 of 2009 before this Court), framed the following issues for consideration:

                   "(i) Whether the Court fee paid by the plaintiff is correct ?

                   (ii) Whether the plaintiff is entitled for declaration as prayed for ?

                   (iii) Whether the plaintiff is entitled for permanent injunction (with the plaintiff's peaceful possession, occupation and enjoyment of the suit properties) as prayed for ? and

                   (iv) Whether the plaintiff is entitled for permanent injunction against the defendants should not from selling or encumbering with the suit properties as prayed for ?

                   (v) To what relief the plaintiff is entitled ?"

                   9.3. The learned Single Judege, by order dated 26.04.2010, in T.O.S.No.38 of 2008 and Tr.C.S.Nos.888 and 889 of 2009 framed the following additional issues on the pleadings submitted in the additional written statement :

                   "(i) Whether the revocation deed, dated 30.06.1999 in Document No.19 of 1999 registered at Joint Sub-Registrar of Arakkonam is a genuine, true and valid document, executed by the deceased father of the defendant in the presence of the witnesses ?

                   (ii) Whether the settlement deed, dated 08.12.1994 bearing Document No.317 of 1994 registered with Sub-Registrar of Guduvancherry, is a genuine, true and valid document and had come into effect ? and

                   (iii) Whether the suit is not maintainable ?"

                   9.4. The learned Single Judge, by order dated 09.11.2010, framed the following additional issue in Tr.C.S.No.889 of 2009:

                   "Whether the seventh defendant is the bona-fide purchaser for value of item No.8 of the property mentioned in the plaint or not ?"

                   9.5. The learned single judge, by order dated 16.09.2011 in Tr.C.S.No.888 of 2009, framed the following additional issues based on the additional written statement:

                   "(i) Whether the second plaintiff is not the legally wedded husband of the deceased first plaintiff ? and

                   (ii) Whether the third plaintiff is not the son of the deceased first plaintiff and the second plaintiff ? "

10. The learned Single Judge, after analysing the oral and documentary evidence, dismissed T.O.S.No.38 of 2008 and decreed Tr.C.S.Nos.888 and 889 of 2009 as prayed for by holding that since the alleged Will produced on the side of the plaintiff-Sarasamma in T.O.S.No.38 of 2008 is not proved, it follows that the plaintiff-Pandurangan in Tr.C.S.No.889 of 2009 is entitled to the prayer of declaration and to permanent injunctions as prayed for in Tr.C.S.No.889 of 2009, and the plaintiff-Pandurangan in Tr.C.S.No.889 of 2009, i.e. the defendant in T.O.S.No.38 of 2008 alone is the surviving legal heir in respect of the suit properties in all the three suits, i.e. T.O.S.No.38 of 2008 and Tr.C.S.Nos.888 and 889 of 2009.

11. Assailing the same, Sarasamma (2nd defendant in Tr.C.S.No.889/2009 / plaintiff in T.O.S. No.38/2008 and defendant in Tr.C.S.No.888/2000) has filed O.S.A. Nos. 62 of 2018, 245 of 2017 and 260 of 2017, Rajendran and Kuppabai (defendants 4 & 5 in Tr.C.S. No.889 of 2009) has filed O.S.A. No.102 of 2017 and J. Mohan (6th defendant in Tr.C.S. No.889 of 2009) has filed O.S.A. No.281 0f 2018.

12. The plaintiff in T.O.S. No.38 of 2008 as appellant has filed this appeal assailing the common judgment and decree passed by this Court T.O.S. No.,38 of 2008 and Tr.C.S.Nos.888 and 889 of 2009. By the impugned judgment, this Court has dismissed T.O.S.No.38 of 2008 and decreed Tr.C.S.Nos.888 and 889 of 2009 as prayed for.

13. Counsel for the parties advanced arguments on the issue, which is to the following effect.

                   “Whether the Will dated 29.07.1999 executed by Late.R. Gopal Naidu set up by the appellant is true and valid and executed by Late R. Gopal Naidu in sound and disposing state of mind.”

14. Mr. S. Thankasivam, learned counsel appearing for Mr.A.R. Inba Kumar learned counsel for the appellant strenuously contended that the Will propounded by the appellant was a duly executed Will. The learned counsel would contend that the due execution of the Will had been proved by the testimony of the attesting witnesses coupled with the testimony of the Joint Sub Registrar, Arakkonam. That the attesting witnesses have categorically stated that the Will had been executed in their presence and the testator signed the same while in sound disposing mind and in possession of full physical and mental faculties. According to him, there were no suspicious circumstances attending the due execution of the Will and even there were any such circumstances, the same had been dispelled by the appellant by leading cogent evidence. Further he would contend that, the circumstances pointed out in the present case, held, not suspicious and relied upon the judgment reported in (1982) 1 SCC 20.

                   14.1.The learned counsel would further contend that, the witnesses were deposing long after the execution of the Will. It will be difficult for any witness after such a long lapse of time to give evidence with regard to the execution of the Will. Referring to the judgment reported in (2023) 9 SCC 734, the learned counsel would submit that it is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. The learned counsel would further submit that, since the respondent has admitted the execution of the Will by stating that the same has been revoked by the testator, there is no need to prove it while taking judicial notice and for this proposition he has relied upon the judgment reported in (2022) 1 SCC 115. Further the learned counsel would submit that, the learned Single Judge erred in dismissing T.O.S. No.38 of 2008 by holding that it is not maintainable since there is a delay in filing the petition for grant of Letters of Administration. Placing reliance to the judgment reported in 2016 SCC OnLIne Mad 53, the learned counsel would submit that Article 137 of the Limitation Act, is not applicable to probate proceedings. Hence, prayed for setting aside the judgment of the learned Single Judge.

15. Mr.P. Dinesh Kumar, learned counsel appearing for the respondent would contend that the Will propounded by the appellant was not a duly executed Will. According to him, the burden to prove the due execution of the Will was on the propounder of the Will, which the appellant failed to discharge. That the Will was surrounded by suspicious circumstances. The burden to remove the suspicion on the due execution of the Will was also on the propounder. According to him, the daughters were excluded in the Will and that the beneficiary has taken a prominent role in preparation of the Will are the suspicious circumstances existing and the same is not removed by the appellant by satisfactory evidence. Hence, the judgment passed by the learned Single Judge, warrants any interference.

16. Heard on both sides. Records perused.

17. It is well settled proposition of law that mode of proving the Will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act, 1925. The onus to prove the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the Court, before the Will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. As to what are suspicious circumstances has to be judged in the facts and circumstances of each particular case.

                   17.1. In the light of this settled position of law, we have to examine as to whether the Will under consideration had been duly executed and the propounder of the Will had dispelled the suspicious circumstances surrounding the Will.

                   17.2. As pointed above, a Will is to be attested by two witnesses in terms of Section 63 (1)(c) of the Succession Act, 1925. Indisputably, the requirement of Section 68 of the Evidence Act, 1872, is required to be complied with for proving a Will. Section 63 (1)(c) of the Succession Act mandates attestation by two witnesses. Thus, not only must the execution of Will be proved, but actual execution must also be attested by atleast two witnesses. In terms of Section 68 of the Evidence Act, although it is not necessary to call more than one attesting witness to prove due execution of a Will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all. Section 68 lays down the mode of proof. It envisages the necessity of more evidence than mere attestation, as the words 'at least' have been used therein.

                   17.3. When a genuineness of Well is question, apart from execution and attestation of Will, it is also the duty of a person seeking declaration about the validity of the Will to dispel the surrounding circumstances existing, if any. Thus, in addition to proving the execution of the Will by examining the attesting witnesses, the propounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any. Proof of execution of the Will would, inter alia, depend there upon.

                   17.4. The Court, while granting probate of the Will, must take into consideration all relevant factors. It must be found that the Will was product of a free Will. The testator must have full knowledge and understanding as regards the contents thereof. For the said purpose, the background facts may also be taken note of. Where, however, a plea of undue influence was taken, the onus thereof would be on the objector and not on the propounder. Therefore, a Will ordinarily must be proved keeping in view the provisions of Section 63 of Succession Act and Section 68 of the Indian Evidence Act, in the event the ingredients thereof, are brought on record, strict proof of execution and attestation stands relaxed.

                   17.5. On perusal of the order impugned, it is seen that the learned Single Judge, in fact, has gone into all these aspects extensively and it would be appropriate to extract the relevant portions of the impugned order in this regard.

                   “48. On a reading of the entire Will, it is clear that the Will is dated in the first paragraph only as "23.06.1999". But, in the last paragraph of the Will, the date is left blank and shown as "...on this the .... day of July 1999..." Hence, if the Will is prepared on 23.06.1999, the last paragraph also should contain the same date as 23.06.1999. There is no reason to indicate the blank date by specifically stating as ".... on this the ....day of July 1999 ....". Therefore, this Court is of the considered view that the Will was not prepared on 23.06.1999, but it was only prepared during the month of July 1999 without mentioning the date of the month of July 1999. Therefore, the argument of the learned Senior Counsel appearing for the plaintiff that the evidence of P.Ws.1 to 3 and their proof affidavits show that the Will was executed and signed on 23.06.1999 by the deceased R.Gopal in the presence of the attesting witnesses, is not sustainable, as it is unbelievable that the Will was executed on 23.06.1999.

                   ….

                   52. This Court has already held that on 23.06.1999, the alleged Will Ex.P-18 was not at all executed. But contrary to that, P.W.3 Anandharaman stated that he signed the Will only on 23.06.1999 and Gopal Naidu signed the Will on 23.06.1999 in the presence of Sub-Registrar. This is contrary to the entire case of the plaintiff and therefore, the evidence of P.W.3 Anandharaman has to be discarded as false evidence.

                   53. Further, P.Ws.1 and 2 stated in proof affidavits that the Will was executed on 23.06.1999, but contrary to the same, in their cross-examination, they have stated that only on 29.07.1999, they have signed in the Will before the Sub-Registrar, Arakkonam. The interesting case is that, on a reading of the entire Will, it is seen that the Will was dated in the first paragraph as 23.06.1999, but in the last paragraph of the Will, it is shown as only "July 1999" without mentioning the date. The alleged Will was presented before the Joint Sub-Registrar-I, Arakkonam on 28.07.1999 between 11 and 12 hours and the executant Gopal and all the attesting witnesses executed and signed by the Joint Sub-Registrar. The execution of the Will was completed only on 28.07.1999 as signed by the Joint Sub-Registrar-I, by registering the document and assigning the document number as 19 of 1999 on 29.07.1999, as seen from the original document Ex.P-18-Will. Thus, it is clear that the Will was registered only on 29.07.1999 as Document No.19 of 1999 in Book (22) III Volume 16 pages 5 to 8. Therefore, on a reading of the entire original Will (Ex.P-18), it is clear that the Will was executed before the Sub-Registrar on 28.07.1999 itself, for which, the Sub-Registrar also signed on 28.07.1999, but the Will was registered only on 29.07.1999 by assigning the document number and there was no execution of the Will on 29.07.1999 and it was only official administrative act of assigning the document number as 19 of 1999 on 29.07.1999 and no witness appeared before the Sub-Registrar on 29.07.1999 for execution of the Will and there is no necessity for any witness or the executant Gopal to be present before the Sub-Registrar on 29.07.1999. Hence, the evidence of P.Ws.1 to 3 that they have appeared before the Sub- Registrar on 29.07.1999 and they have signed in the Will before the Sub-Registrar on that day, is totally unbelievable and their evidence has to be thrown out as false evidence.

                   54. In this case, since the plaintiff has filed the Original Petition in O.P.No.387 of 2008, which was subsequently converted as T.O.S.No.38 of 2008 and she has relied upon Ex.P-18 Will, it is for the plaintiff to prove the Will before this Court by examining the attesting witnesses and adduce cogent and convincing evidence before this Court. But, in this case, the evidence of the attesting witnesses (P.Ws.2 and 3) and the plaintiff (P.W.1), is contrary to each other regarding the date of execution and registration of the Will and their evidence is contrary to their proof affidavits and hence, the evidence of P.Ws.1 to 3 has to be rejected, as the same is not trustworthy.

                   55. The burden of proving the Will executed by Gopal Naidu either on 23.06.1999 or on 29.07.1999, as claimed by the plaintiff in her pleadings and evidence, is on the plaintiff and she has to discharge the burden of proving the Will. From the above facts and circumstances, it has to be held that the plaintiff in T.O.S.No.38 of 2008 has failed to prove Ex.P-18 Will as per law. Therefore, this Court is of the considered view that the alleged Will as executed by R.Gopal Naidu is not proved before this Court.”

                   Therefore, the discrepancies in respect of the two different dates mentioned in the Will as 23.06.1999 on the head and July 1999 in the foot, causes serious suspicion. If the Will was executed on 23.06.1999, as contained in the top, there is no necessity to mention as July 1999 in the foot of the Will. If the execution and registration had happened on the same day, as spoken by P.W.2 on 29.07.1999, there is no necessity for mentioning the date of execution as 23.06.1999. The different dates mentioned in the Will cannot be taken as simple discrepancy. Further, mentioning of different dates has not been explained by any of the witnesses. The evidence of P.W.2 and P.W.3 in respect of execution does not appear trustworthy, natural, cogent and believable. The cumulative reading of evidence of P.W.1 to P.W.3 would suggest that there does not appear to be execution of the Will on 23.06.1999. Mere registration of the Will does not obviate or dispense with the burden to prove the execution of the Will by the propounder of the Will (Ref:Moturu Nalini Kanth Vs. Gainedi Kaliprasad reported in 2023 INSC 1004).

                   17.6. Coming to the suspicious circumstances surrounding the Will, it may be stated that although the daughters of the testator were very much alive and living along with the testator, were excluded in the Will, for which no satisfactory reason is attributed by the appellant. Even assuming that there was dispute between the father and the son, the propounder of the Will must satisfactorily explain for excluding the daughters. Hence, the learned Single Judge rightly concluded that the Will has not been proved by the appellant and that the Son Pandurangan alone is entitled to succeed to the properties of deceased R. Gopal.

                   17.7. Since the execution of the Will dated 23.06.1999 is disbelieved by this Court, the said Pandurangan will succeed to the estate of R.Gopal and family under Section 8 of the Hindu Succession Act. By order dated 12.01.2026, this Court was pleased to appoint an Amicus Curiae in O.S.A. Nos. 102, 245, 260, of 2017 and 62 and 281 of 2018. The learned Amicus Curiae in his report dated 07.06.2026 would submit that,the evidence of P.W.1 and Ex.P15 indicates that one Ramya was born to Pandurangan through Nagarathinam, however, there is a cloud over her status. He would further submit that the said Pandurangan did not reveal or recognise the said Ramya during the entire proceedings as his daughter. The said Pandurangan died on 02.02.2022 and his wife Ambika predeceased him on 18.04.2011. The learned Amicus Curiae submitted that Pandurangan's son Dheerajmal was under the care and custody of one Shanthi claiming to be foster mother and relative of Ambika. The said Shanthi filed HCP No.728 of 2022 before this Court against Ramya, S. Babu and against one Sri Muruga for abduction and illegal custody of Dheerajmal. This Court having found various foul play directed registration of FIR and handed over the custody of Dheerajmal to Shanthi. Subsequently, Dheerajmal died when he was under the custody of Shanthi, under suspicious circumstances. This Court directed registration of FIR in respect of the same and the petitioner in HCP No.728 of 2022 is accused of committing murder of Dheerajmal. He would further submit that there are no recognised class-I legal heirs to succeed the estate of R.Gopal and since there is no clue about the class- II legal heirs of Pandurangan, the properties of R.Gopal may be vested under the control of the AG&OT of this Court in the interest of justice. He would further submit that, except three items of the properties, which are the subject matter of sale in favour of third parties, the Official Trustee has taken charge of the other properties of Late R.Gopal and therefore, prayed for suitable directions from this Court for identifying and taking charge of the rest of the properties. The learned Amicus Curiae relying upon the judgment of the Hon'ble Supreme Court in the case of Bai Avabai Hormusji Tata Trust vs. Shernaz Faroukh Lawyer & Ors in 2026 INSC 540, in which it is held that the primary function of a Probate Court is to adjudicate upon the due execution and genuineness of a Will, while doing so, if glaring irregularities or elements of mischief is noticed, the High Court, cannot be a silent spectator and will have to exercise its plenary and constitutional power to check the mischief so as to protect the property, prayed for vesting the properties of deceased Pandurangan under the control of AG&OT of this Court.

                   17.8. Admittedly Pandurangan, son of late R. Gopal Naidu, died and his wife Ambika also predeceased him. According to Sarasamma, the said Pandurangan left no Class-I heir under the Hindu Succession Act, 1956 and that Sarasamma alone is left as Class-II heirs of the deceased Pandurangan. On the other hand, one Ramya claims right over the properties of late Pandurangan, asserting herself to be the daughter of the deceased Pandurangan. Since there are rival claims, the properties cannot be handed over to either of rival claimants until a final determination of succession rights. Until then, the Court should maintain the property in Custodia legis and protect the estate. Therefore, to safeguard the properties and preserve it for the lawful heir, the estate shall remain under the custody of the Official Trustee until final determination of succession rights. Any income derived from the property shall be accounted for and deposited subject to further orders of the Court.

                   17.9. Before parting with this appeal, we place on record our appreciation for the valuable assistance rendered by the learned Amicus Curiae.

18. In the result,

i.All the Original Side Appeals are dismissed. No costs. Consequently connected miscellaneous petitions are closed.

ii.The Official Trustee shall identify and take charge of the rest of the properties of late R.Gopal, which are the subject matter of sale in favour of third parties, in accordance with law.

iii.The estate of deceased Pandurangan shall remain under the custody of the Administrative General and Official Trustee of Tamil Nadu until final determination of succession rights. Any income derived from the property shall be accounted for and deposited subject to further orders of the Court.