ORDER
Pratap Singh, J.
1. This civil revision petition is directed against the order passed in I.A. No. 365 of 1987 in O.S. No. 169 of 1983 on the file of Principal Subordinate Judge, Madurai.
2. Short facts are : T.V. Seshaiyar had filed the suit against the first revision petitioner, now dead and Jawaharlal, the second revision petitioner on the foot of a mortgage and obtained preliminary decree. Then he filed application for passing of final decree. During the pendency of the final decree proceedings, T.V. Seshaiyar died. S.T. Subramanian, the respondent herein filed application for impleading himself as legal representative of deceased T.V. Seshaiyaron the ground that as per the will executed by T.V. Seshaiyar, he is entitled to collect the suit amount. This claim was resisted by the revision petitioners herein. After enquiry the learned Subordinate Judge had found that the disputed will was validly executed will, left by T.V. Seshaiyar and had impleaded the respondent herein as legal representative of T.V. Seshaiyar. The learned Subordinate Judge had also held that the objections taken by the revision petitioners herein are vexatious and had applied Section 35-A of Code of Civil Procedure and awarded exemplary costs of Rs. 2,000. Aggrieved by the-said order, the respondents in the court below have come forward with this revision petition.
3. Mr. R. Srinivasan, the learned Counsel appearing for the revision petitioners, would submit that the revision petitioners attack the Will on the following grounds:
1. The original Will was not produced and only certified copy of the will was produced.
2. The Will was not signed by the testator; but only his thumb impression was found in it and which gave rise to a bona fide suspicion with regard to the validity of the Will.
3. Only one attestor was examined.
4. The Will was registered at a place which is situated about 20 kilometres from the place of testator; where itself there is Registrar’s office.
On those grounds, the objections taken by the revision petitioners are bona fide. The learned Counsel would further submit that while so, the court below was wrong in concluding that the objections taken are vexatious and in awarding the exemplary costs. Per contra, Mr. P. Ananthakrishnan Nair the learned Counsel appearing for the respondents, would submit that all the four grounds urged on behalf of the revision petitioners have been squarely met by the respondent herein and his objections for impleading the respondent as legal representative of deceased T.V. Seshaiyar are all vexatious and the court below was correct in ordering exemplary costs.
4. I have carefully considered the submissions made by the learned Counsels. I shall first consider the objections taken by the revision petitioners in respect of the genuineness of the will. Regarding non-production of the original Will, Mr. Ananthakrishnan Nair would reply it by pointing out that evidence has been let in to the effect that original was produced in some other proceedings and steps were taken and in the other suit the court refused to return the original Will and that was why, the original Will could not be produced in this proceedings and there is valid explanation for the non-production. Regarding the attack that the testator had not signed, though he was a signatory, it has been pointed out that even in the will itself, he has stated that at that juncture he was unable to sign and affix his thumb impression. Thus, here again there is a valid and acceptable explanation. Regarding their objection that only one attestor was examined, as has been rightly pointed by Mr. Ananthakrishnan Nair, that for a Will it would suffice if one attestor is examined. There is no legal infirmity. Regarding the fourth objection that the Will was executed in Sub-Registrar’s Office, which is situated about 20 Km. from the residence of the testator, it has been pointed that one of the properties is situated within the jurisdiction of the Sub-Registrar in whose office it was registered. In these circumstances, the objections taken cannot be sustained. But yet, it cannot be characterised as vexatious or false. They are presentable objections. So I am unable to construe them as false or vexatious defence taken by the revision petitioners in the court below.
5. In the impugned order, the learned subordinate judge has stated that the close relatives of the testator have not raised a little finger about the validity and genuineness of the Will; whereas, the revision petitioners, who are strangers to the family have raised these objections and these objections were taken only to deprive the estate of T.V. Seshaiyar from getting the benefits of the decree and they are false. Though the revision petitioners are not members of the family of the decreased, yet being the judgment debtors, they have got the right to attack the genuineness of the Will. Simply because they happened to be strangers to the family, their defence cannot be characterised as vexatious.
6. Section 35-A of Civil Procedure Code reads as follows:
35-A Compensatory costs in respect of false or vexatious claims or defence : (1) If in any suit or other proceedings including an execution proceeding but excluding an appeal or a revision, any party objects to the claim of defence on the ground that the claim or defence or any part of it is as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the court if it so thinks fit, may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defence has been put forward, or costs by way of compensation.
(2) No court shall make any such order for the payment of an amount exceeding three thousand rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less: Provided that where the pecuniary limits of the jurisdiction of any court exercising the jurisdiction of a Court of Small Causes under the Provincial Small Causes Court Act, 1887 or under a corresponding law in force in any part of India to which the said Act does not extend and not being a court constituted under such Act or law are less than two hundred and fifty rupees, the High Court may empower such Court to award as costs under this section may amount not exceeding two hundred and fifty rupees and not exceeding those limits by more than one hundred rupees:
Provided further, that the High Court may limit the amount which any court or class of Court is empowered to award as costs under this section.
(3) No person against whom an order has been made under this section shall, by reason thereof, be exempted from any criminal liability in respect of any claim or defence made by him.
(4) The amount of any compensation awarded under this section in respect of a false or vexatious claim or defence shall be taken into account in any subsequent suit for damages or compensation in respect of such claim or defence.
The prime requirements for applying Section 35-A, C.P.C. and awarding exemplary costs is that the objection taken must be false or vexatious to the knowledge of the party by whom it has been put forward. In the instant case, as much as the revision petitioners are not relatives of the testator, the defence put forward by them cannot be characterised as vexatious to the knowledge of them. Since the prime requirement is not proved to be in existence, the award of exemplary costs is clearly wrong and is liable to be set aside. To that extent this civil revision petition is allowed and in other respect, it has to be dismissed. 7. In the result the civil revision is allowed in part and the order of the court below in I.A. No. 365 of 1987 in O.S. No. 169 of 1983 on the file of Principal Subordinate Judge at Madurai is modified to the extent of deleting the exemplary costs alone and in other respects, the order shall be saved and normal cost alone shall be paid.