V. Kanagaraj, J.
1. This second appeal is directed against the judgment and decree dated 29.11.1996 made in A.S.No. 22 of 1996 by the Court of Subordinate Judge, Devakottai thereby confirming the judgment and decree dated 29.2.1996 made in O.S.No. 92 of 1995 by the Court of District Munsif, Devakottai.
2. In fact, the respondent herein has filed the suit in O.S.No. 92 of 1995 on the file of the Court of District Munsif, Devakottai pleading that the suit properties are situate at Eluvankottai in Devakottai Taluk; that the plaintiff went to Singapore in 1937 and used to earn his money and come back home; that he purchased the suit properties from out of his self-earning and through registered sale deeds, Item No. 1 by the deed dated 12.9.1949 and Items No. 2 and 3 under the deed dated 29.6.1959; that during his absence in India, his co-brother one Alagesh looked after the lands cultivating the same on his behalf; that the plaintiff thus has been in possession and enjoyment of the suit properties from the date of purchase till the date of suit; that the sale deeds, pattas and kist receipts were in the custody of the plaintiff’s brother Kalimuthu who was the husband of the 4th defendant and father of defendants 1 and 3 and father-in-law of second defendant, who is the wife of the first defendant; that the said Kalimuthu died in January, 1994; that the plaintiff ultimately came to India on 24.9.1994 and demanded the original sale deeds, pattas and kist receipts from the defendants but they refused to give the same; that on the contrary, they challenged his life; that the pattas stood in his name in patta No. 388; that through the said Alagesh, who cultivated the lands in the last fasli, the defendants openly challenged not only the plaintiff’s possession of the suit properties but also his life and since the plaintiff had to leave India urgently, he appointed one Kaliammal, daughter- in-law of Karuppiah, another brother of the plaintiff, as his power of Attorney Agent leaving instructions to file the suit against the defendants further entrusting possession of the suit properties; that the defendants denied title of the plaintiff to the suit properties and threatened the physical possession of the same and hence the suit for declaration of the title of the plaintiff to the suit properties and for permanent injunction restraining the defendants from in any manner interfering with the plaintiff’s peaceful possession and enjoyment of the suit properties and for costs.
3. In the written statement filed by the first defendant, besides generally denying the plaint averments, he would also specifically state that the settlement dated 13.3.1980, said to have been executed by the plaintiff Mayazhagu is contrary to truth; that regarding the suit properties the Inam settlement deed was executed by his father- in-law Kalimuthu alias Kaliyan in favour of defendants 1 and 2 wherein the plaintiff Mayazhagu is an attestor and the partition that took place among the family members just prior to the Inam Settlement have been suppressed in the plaint since it is against the case of the plaintiff.
4. The defendants would further contend in the written statement that Karuppiah Kalimuthu alias Kaliyan and Mayazhagu are brothers of whom Karuppiah is dead; that the Karuppiah’s son is one Subbaiah, whose wife is the Power of Attorney Agent of the plaintiff Kaliyammal; that the said Kalimuthu is the father of defendants 1 and 3 and husband of the 4th defendant and father-in-law of the second defendant; that the plaintiff Mayazhagu is at Singapore and was in the habit of paying visit to India; that the joint family was managed only by Kalimuthu alias Kaliyan; that the suit properties and yet another property were purchased in the name of Mayazhagu by Kalimuthu for the benefit of the family and from out of the income derived from the undivided Hindu joint family and those properties were considered to be the properties of joint family only; that since the son of the deceased Karuppiah started agitating, a partition had been held in the family wherein the suit properties purchased in the name of the plaintiff were also subjected to partition wherein the plaintiff was also a party; that in the said partition, Kaliappan was allotted southern portion in S.No. 148/3-B and Northern portion was allotted to Subbaiah, likewise in S.No. 147/10A2, Kaliappan was allotted the Eastern portion and Subbaiah the Western portion; that S.Nos. 163/ 20 and 174/1 have been kept apart; that since Kaliappan was managing the joint family, he was allotted a major share in the partition and the divisions effected in the partition had been observed by parties throughout including Subbaiah, the husband of the Power Agent and the plaintiff; that Subbaiah sold his share allotted in the partition in favour of one Kanthi, wife of Solaimuthu and hence sub divisions were effected in the above Survey Numbers and new numbers were allocated and hence purposely the boundaries were not given to the suit properties; that this defendant, as the son-in-law of Kalimuthu, is staying at his residence and managing the properties that fell to the share of plaintiff; that regarding the properties which fell to the share of plaintiff in S.No. 132/121, a registered Inam Settlement Deed was executed in favour of defendants 1 and 2; that on the same day, the said Kalimuthu also gave Settlement Deed in favour of this defendent and the second defendent; that knowing the contents of these documents the plaintiff also signed the deeds and hence he is estopped from denying the recitals of the documents and that though for the item Nos. l to 3 of the suit properties, the patta stood in the name of plaintiff, the tax was remitted only in the name of Kalimuthu and regarding the 4th item, the patta stood in the name of Kalimuthu only and on the death of Kalimuthu, without any intimation or enquiry to these defendants, the patta had been transferred. On such averments and further stating that the suit is false and the plaintiff is not entitled to the reliefs sought for, the first defendant would pray to dismiss the suit with costs.
5. On the above pleadings by parties, the trial Court has framed four issues, viz.,
1. Whether the plaintiff is entitled to the suit properties and whether he is in possession and enjoyment of the suit properties?
2. Whether the properties purchased in the name of the plaintiff were treated as joint family properties and subjected to partition?
3. Whether the suit properties are belonging to defendants 1 and 2 and are in their possession? and
4. Whether the plaintiff is entitled to the reliefs prayed for in the suit?
For determination of the above issues, the trial Court has conducted a thorough trial in which the plaintiff besides examining himself as P.W.1 would also examine one Subbaiah as P.W.2 and on the part of the defendants, the first defendant besides examining himself as D.W.1 would also examine two more witnesses, Karuppiah and Solai, as D.Ws.2 and 3 respectively and one Ramasamy would be examined as Court witness as C.W.1. So far as the documentary evidence is Concerned, six documents would be marked on the part of the plaintiff as Exs.A-1 to A-6. Exs.A-1 to A-3 being the sale deeds standing in the name of the plaintiff respectively dated 29.6.1959 10.3.1961 and 12.9.1949. Ex.A-4 being the Jamabandi chitta extract standing in the name of the plaintiff. Ex.A-5 being the Inam Settlement Deed dated 13.3.1980 executed by the plaintiff and Ex. A-6 being the partition deed dated 9.11.1976. Likewise, on the part of the defendants, 14 documents would be marked as Exs.B-1 to B-14. Ex.B-1 being the signature of the plaintiff in the Inam Settlement Deed executed by Kalimuthu, dated 13.3.1980 Exs.B-2 and B-3 being the Inam Settlement Deeds executed by Kalimuthu in favour of defendants 1 and 2 both dated 13.3.1980; Ex.B-4 being the Will executed by Kalimuthu dated 6.7.1977, Ex.B-5 a notice; Exs.B-6 and B-7 being the Jamabandi Chitta extracts; Exs.B-8 to B-12 are the kist receipts in the name of Kaliappan; Ex.B-13-being the letter dated 30.8.1988 addressed by Subbaiah; and Ex.B-14 being the sale deed dated 27.9.1979 executed by Subbaiah.
6. Having regard to the above materials placed on record as evidence, the trial Court would remark that the sale deeds in Exs.A-1 to A-3 are well founded; that there had been no partition in the name of family properties; that the defendants 1 and 2 are in no manner entitled to the suit properties nor are they in possession and enjoyment of the suit properties and would ultimately decree the suit as prayed for thus granting the reliefs of declaration and injunction in favour of the plaintiffs.
7. Aggrieved the defendants preferred an appeal before the Court of Subordinate Judge, Devakottai and the said first appellate Court also having framed four points viz
1. Whether the suit properties have been purchased from out of the income of the joint family consisting of the plaintiff and his brothers?
2. Whether there had been a partition between the plaintiff and his brothers?
3. Whether the suit schedule properties are belonging to the plaintiff? and
4. Whether the judgment and decree as passed by the lower Court is sustainable in law?
and focussing its attention regarding the attestation of the plaintiff in Ex.B-2, dated 13.3.1980 would remark that on the part of the defendants, it was not at all proved that the plaintiff attested the said instrument knowing the contents of the document, which is the burden cast on the defendants; that even D.W.1 in his evidence has stated that he did not go to the Sub Registrar’s Office at the time of execution of Ex.B-2 and hence it cannot be said that knowing the contents of Exs.B-1 and B-2, the plaintiff had attested them and hence this snag is cast off; that there is absolutely no hindrance to decree the suit as prayed for since all the other pleadings putforth on the part of the defendants stood without being substantiated in evidence and would dismiss the appeal with costs thus confirming the judgment and decree of the trial Court.
8. While such being the manner in which both the Courts below have concurrently arrived at, the defendants have come forward to prefer the above second appeal for determination of certain substantial questions of law raised on their part of which the following are relevant for consideration:
1. Whether the Courts below are right in their failure to hold that the plaintiff is estopped from challenging the family arrangement after he had attested Ex.B-1 ?and
2. Whether the Courts below are right in appreciation of the fact and should they not have held that the family arrangement had been effected especially when P. W.2 had sold the property which is the subject matter of the suit to one Kandimathi vide Ex.B-14?
9. During arguments, the learned Counsel appearing on behalf of the appellants, having apprised the Court of the facts and circumstances involved ,in the case and the relationship of parties, would argue that the case of the plaintiff is that under Exs.A-1 to A-3 sale deeds, he purchased the suit properties and they stand in his name; that besides examining himself as P.W.1. he had also examined his brother’s son as P.W.2; that the case of the defendants is that the first defendant’s father and second defendant’s father-in-law Kalimuthu executed the Settlement Deed in their favour under Exs.B-1 and B-2 and the plaintiff attested the same; that these documents admittedly contain two survey numbers connecting Item Nos. 1 and 2 of the suit properties; that the signature of the plaintiff in Ex.B-2 settlement deed has been marked as Ex.B-1; that the plaintiff also attested the Will of Kalimuthu dated 6.7.1977; that Ex.B-12 is the letter written by Subbaiah to Kalimuthu which speaks of the partition in the year 1976 under Ex.A-6; that the plaintiff has suppressed the fact of signing the document Ex.B-2 as an attestor; that Ex. A-5 has been executed by the plaintiff in favour of defendants 1 and 2; that after the death of Kalimuthu in 1991, a suit had been filed; that nothing is set out in the plaint regarding earlier transactions and the plaintiff’s case is not supported by documents and that those documents filed would not answer very many questions including the supply of money for the purchase of the properties in the name of plaintiff under Exs.A-1 to A-3 sale deeds.
10. The learned Counsel, citing from the pleadings and evidence of various instances would ultimately focus the attention of the Court to the substantial questions of law taken up for consideration and also would cite the judgment reported in Brahmdeo Chowdhary v. Rishikesh Prasad Jaiswal (1997)2 L. W. 266, for the principle of estoppel relating to the attestation of the document by the plaintiff.
11. The learned Counsel for the appellants would cite yet another judgment reported in Khaji Muhammad Hussain Sahib v. Mastiday Mahmood Jamait (1940)2 M.L.J. 436 and for attesting the document with the consenting mind, he would cite another judgment of this Court delivered in K. Nagarathinam and Anr. v. K. Rajammal 100 L. W. 3.63, wherein it is held:
If it is shown to the Court that an attesting witness was a consenting party to a particular transaction, he would be estopped from questioning the effectiveness of the said transaction, on a latter occasion on the ground that he was not a party thereto, though some of the decisions proceed on the footing that there is a sort of usage in this part of the country to obtain the signature of a party as an attesting witness whenever his consent is required for the said transaction. In all these cases, an inference has been drawn from all the facts and circumstances of the case that the attesting witnesses therein were really consenting to the transaction in question.
….It is true that an attesting witness can be shown to have fully understood the particular transaction so that his attestation may support the inference that he was a consenting party. The question is really one of fact and should be determined with reference to the circumstances.
The learned Counsel for the appellants would cite another judgment delivered in Abbasali Shah v. Mohammad Shah and Ors. A.I.R. 1951 M.P. 92, wherein it has been held:
Attestation of a deed by itself estopes a man from denying nothing whatever excepting that he has witnessed the execution of the deed. But the fact of the attestation taken in conjunction with other circumstances and other connected events may justify an inference that the attesting witness had knowledge of the contents of the document and had agreed to them.
The learned Counsel would end up his argument contending that the big question that is to be answered is whether the plaintiff had knowledge of the transactions held under Exs.B-1 and B-2; that taking advantage of Kalimuthu, he filed the suit immediately thereafter on facts contrary to truth and would pray for allowing the second appeal.
12. In reply, the learned Counsel for the respondent would submit that the suit had been filed relating to four items of the agricultural lands extending to 10 acres; that the admitted case is that these properties were purchased under three sale deeds viz., Exs.A-1 to A-3 respectively dated 29.6.1959, 10.3.1961 and 12.9.1949 and they stand in the name of the plaintiff; that working at Singapore and earning money, the plaintiff sent the same for the purchase of these properties and was managing the properties entrusting the same with his co-brother; that the documents of title deeds were entrusted with the custody of Kalimuthu, his brother, but after his death, when he demanded the title deeds from the defendants, they refused to give the same contending that the properties were purchased out of the family funds and Kalimuthu had settled the properties in their names and that they were entitled to the suit properties and hence the suit for declaration and permanent injunction; that in the defence, the said Kalimuthu had been depicted as the Manager of a joint Hindu family managing the whole show regarding the suit properties and some other properties and that there was an oral partition, in which the suit properties were allotted to the share of Kalimuthu; that suit items Nos. l to 3 were settled in favour of defendants 1 and 2 and in that settlement deed, the plaintiff has signed as an attesting witness and therefore the plaintiff is estopped from claiming title to the suit properties; that two questions were taken up uppermost by the trial Court viz., (1) Whether the suit properties were joint family properties or subjected to the family arrangement as pleaded by the defendants? and (2) whether the plaintiff is estopped in view of the attestation of the documents? that the Courts below have arrived at the easy conclusion for these questions since Exs.A-1 to A-3 sale deeds clearly show that the suit properties have been purchased by the plaintiff in his own name from out of his personal funds; that so far as the estoppel is concerned, there was no iota of evidence placed to the effect that the plaintiff attested the document knowing the contents of the same; that no proper evidence was let in on the part of the defendants in proof of this question also and hence the Courts below, on evidence, arrived at the conclusion that mere attestation of the document itself does not amount to knowledge of the contents of the document and that only without knowing the contents, the plaintiff had attested the document and hence there is no question of estoppel to arise. The learned Counsel would end up his argument stating that both the Courts have applied the correct law to the facts and circumstances of the case and have concurrently held to decree the suit as prayed for and would ultimately pray to dismiss the above appeal with costs.
13. As pointed out on the part of the learned Counsel for the respondent and as raised in the substantial questions of law too on the part of the appellant, dealing with both the substantial questions of law and with the entire case concerned with the above second appeal, if the two questions viz., the existence of the joint family and the purchase of the suit properties from the joint family funds and secondly the principle of estoppel to be applied to the plaintiff from denying the recitals of the document in Ex.B-1 and Ex.B-2 since being an attestor, are to be answered; for the first question above, it is the settled law that to brand the suit properties to have been purchased for the benefit of the joint family consisting of the plaintiff and his brothers and utilising the funds belonging to the joint family, the existence of the joint family and the further existence of the joint family nucleus and the purchase- money having been spent from out of the joint family funds, for the purchase of the properties under Exs.A-1 to A-3 for the benefit of the joint family have to be strictly proved. It is to be noted that all the above three documents have been registered in the name of the plaintiff being the purchaser and having supplied the purchase money by himself. So far as these documents are concerned, basically it should be taken that the plaintiff had purchased these properties from out of his personal funds and for his own benefit since there is no other indication to the effect of the joint family there. Therefore, since prima facie proof of the purchase of the suit properties is in favour of the plaintiff now, it is the turn of the defendants to come out with the proof of their version of the suit properties having been purchased from out of the joint family funds and for the benefit of the joint family establishing the existence of the joint family nucleus and with reasons as to why the same should have been purchased by all the Exs.A-1 to A-3 in the name of the plaintiff. In their attempt in proof of these facts, from the oral and documentary evidence, it should be mentioned that the defendants have not placed satisfactory evidence in a trustworthy manner and hence the Courts below have every reason to arrive at the conclusion that the case of the plaintiff so far as this question is concerned, is well founded based on documents of sale deeds wherein the purchase of the suit properties have been effected in the name of the plaintiff for proper consideration and decide the issue in favour of the plaintiff.
14. Coming to the next question of estoppel, it is the settled law that attestation of an instrument by a party cannot import knowledge of the contents of the same by the attesting party unless it is established on the part of the defendants that the attestor attested the said document knowing the contents of the same or the contents had been made known to him. Neither of these two, as per the wide discussions held by the Courts below, had been proved on the part of the defendants thus importing knowledge of the recitals or contents of the document to the plaintiff. Unless the knowledge is proved, the plea of estoppel should fail. In all probabilities and based on the evidence and the appreciation of the same by both the Courts below, even in the light of decided cases, this aspect of knowledge of the recitals of the document had not been proved on the part of the defendants and hence both the lower Courts have been left with no option but to arrive at the only conclusion that there was no question of estoppel to be applied to the case of the plaintiff.
15. On evidence and on facts established in trial factually and applying the norms of law since both the Courts below have arrived at the conclusion that the factum of existence of the Hindu joint family and the purchase of the property for the benefit of the Hindu Joint family under Exs.A-1 to A-3 from out of the joint family funds has not been proved and established as pleaded on the part of the defendants and further the other question of estoppel also having come to be not established in proof of the plaintiff having signed Exs.B-1 and B-2 knowing the contents of the documents since no strong evidence has been made available contra to the case of the plaintiff basically coming to be established on oral and documentary evidence, this Court is ultimately left with no option but to answer both the substantial questions of law against the defendants stating that they have already been tried and decided in evidence and with the position of law and ultimately decided by both the Courts in a concurrent manner in favour of the plaintiff and against the defendants, the appellants herein and the same has to be approved by this Court also.
16. No new facts or circumstances having come to be established more than what had been already done in both the Courts below, the interference sought for to be made by this Court into the judgments delivered by the Courts below is uncalled for. There is no patent errors of law or perversity in approach in so far as the conclusions arrived at by both the Courts below in a concurrent manner are concerned. The questions raised on the part of the defendants based on the evidence placed by them, have been considered and answered in negative by both Courts below in a concurrent manner and therefore, when such a concurrent findings are rendered by both the Courts below on the factual position of the case, this Court has no reason to interfere with.
17. Moreover, in the recent judgment of the Apex Court rendered in a civil appeal arising out of S.L.P. (Civil) dated 16.4.1999 delivered in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar , it is categorically held in the following manner:
The right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no Court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section. The substantial question of law has to be distinguished from a substantial question of fact.
It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference, in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.
In result, the above second appeal fails and the same is dismissed.
18. The judgment and decree dated 29.11.1996 made in A.S.No. 22 of 1996 by the Court of Subordinate Judge, Devakottai thereby confirming the judgment and decree dated 29.2.1996 made in O.S.No. 92 of 1995 by the Court of District Munsif, Devakottai is hereby confirmed.
19. However, in the circumstances of the case, there shall be no order as to costs.
Consequently, C.M.P.No. 7613 of 1993 is also dismissed.