BEFORE THE MADRUAI BENCH OF MADRAS HIGH COURT DATED: 22/09/2008 CORAM THE HONOURABLE MR.JUSTICE.K.CHANDRU W.P.No. 10472 of 1996 and W.M.P.No.13874 of 1996 and M.P.(MD).No.1 of 2008 and S.A.No. 1824 of 2000 and C.M.P.Nos. 21168 to 21170 of 2001 W.P.No. 10472 of 1996 Ramanathan alias Arunachalam ...Petitioner Vs 1.The District Revenue Officer, Office of the District Collector, Sivaganga, Pasumpon Muthuramaling Thevar District. 2.The Revenue Divisional Officer Devakkottai. 3.The Tahsildar, Devakkottai Taluk, Pasumpon Muthuramaling Thevar District. 4.V.R.sebtgukbatgab Chettiar ...Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India for issuance of a writ of certiorari to call for the records of the first respondent in Pa.Mu.(P1) 20389/96 dated Nil (7/1996) and singed on 11.07.1996, directing the change of patta in the name the 4th respondent and others in respect of the properties to an extent of 13 acres and 65 cents in i)A Ward, Block 17, TS.No.76 ii) A Ward, Block 16, TS No.3 iii)Award Block 18 TS No.1 iv)A Ward, Block 15, TS.No.10 and V)A ward, Block 15, TS No.4 and quash the same. S.A.No. 1824 of 2000 #Ramanathan alias Arunachalam ...Appellant Vs $1.V.R.Arunachalam 2.Vr.Senthilnathan 3.N.Ramanathan 4.Sr.Peria Karuppan Ambalam ...Respondents PRAYER This Appeal is against the judgment and decree dated 29.09.1999 and made in A.S.No.160 of 1998 on the file of Addl. District Judge-cum-Chief Judicial Magistrate, Sivagangai, confirming the judgment and decree dated 29.06.1998 and made in O.S.No.48 of 1996 on the file of Sub-Court, Devakottai. !For Petitioner ...Mrs.N.Krishnaveni for M/s.T.R.Rajaraman ^For R.1 to R.3 ... Mr.D.Sasikumar Govt.Advocate For R.1 ... Mr.R.Sundarsrinivasan (S.A.No.1824/2000) For R2& R4 ...Mr.M.V.Krishnan (S.A.No.1824/2000) For R3 ... Mr.S.Srinivasaraghavan (S.A.No.1824/2000) :COMMON ORDER ******
The writ petitioner is also the appellant in the Second Appeal. The
writ petition which was pending before the Prinipal Bench was directed to be
transferred to be heard along with the Second Appeal by the orders of the
Hon’ble Chief Justice dated 18.06.2007. Accordingly, they were heard together
and a common order is being passed.
2. In W.P.No.10472 of 1996, the writ petition is directed against the
order of the District Revenue Officer, Sivagangai District dated Nil,
July,1996, wherein by which the DRO, directed pattas to be transferred in the
following manner:-
Sl.No Patta No Survey No Patta Transferred in the name of
1 1029 Ward A Blok 15, T.S.No.26847 V.R.Senthilnathan Chettiar
Sq.ft
2 744 Ward A.Block Jameendar Junior
T.S.No.4 to an extent of 15 A Ramanathan Chettiar and
2918 Sq.ft V.R.Senthinathan Chettiar
(joint patta)
3 758 Ward A Block 17 T.S.No.76-1A, V.R.Arunachallam
99 cent. Chettiar
Ward A.Block 18 5 A 14 cent
T.S.No.1
Ward A Block 16
T.S.No.3
3. It is against this order, the petitioner has filed the writ petition
and it was admitted on 25.07.1996. The following interim order was granted in
WMP.No.13874 of 1996:-
“There will be an interim stay only in reference to grant of patta. This roder
cannot be taken as an order relating to possession of the properties, which can
be agitated only in Civil Court . Notice.”
4. In the mean while, even when the writ petition was pending, the
petitioner filed a suit against the respondents in O.S.No.48 of 1996 before the
Sub-court, Devakottai, seeking for a declaration that that the suit property
belonged to the plaintiff exclusively and for a consequential injunction that
any one claiming that in their names should not interfere with the plaintiff’s
possession and enjoyment of the suit property as described in the schedule to
the plaint. The schedule to the plaint described the following properties:-
“1) T.S.No.A15/4 in which western portion out of three portion from east to
west; measuring 5 acres 90 cents lying on ground as a single land (Punja land)
2)T.S.No.416/3/3 having an extent of 65 acres 3 cents consisting of 2(tw)
portions from east to west in which in the eastern portion, the eastern most
portion having an extent of 1 acre 81 cents (Punja).
3)T.S.No.A17/1 having an extent of 1 acre 99 cents (Punja land)
4)T.S.No.A18/1 in entirety having an extent of 3 acres 33.7 cents.(punja land)
5)Vacant house site bearing T.S.No.A15/10 having an extent of 62 cents.”
5. The case of the petitioner in the suit was that the suit property
belong to his maternal grand father AL.VR.ST.Veerappa Chettiar. The said
Veerappa Chettiar was in exclusive possession of the suit property and he had
executed a Will dated 18.01.1885 in favour of the plaintiff. He died on
06.02.1985. Even during the life of Veerappa Chettiar, the petitioner had
enjoyed the properties and patta was transferred in his name.
6. The defendants in the suit (respondents in present writ petition)
filed a written statement contesting that the Will produced by the plaintiff was
a forged one and an impersonated document. The respondents 1 and 2 were the
sons of late Veerappa Chettiar. The said Veerappa Chettiar had registered a Will
dated 22.01.1981 executed in favour of respondents 1 and 2 and they were in
joint possession and enjoyment of the suit property and paying taxes and kists.
7. The trial Court after a protracted trial, by judgment and decree
dated 29.06.1998, dismissed the suit. In respect of the contention between
parties, the trial Court framed seven issues. The first issue related to the
genuineness of the Will dated 18.01.1985 produced by the petitioner / plaintiff
(marked as Ex.A.1). The second issue related to the claim of the defendants /
respondents that the properties belong to them pursuant to the Will dated
22.01.1981 (marked as B2) left by the late Veerapa Chettiar. In respect of these
two issues, the trial Court rendered a finding that the Will produced by the
petitioner / plaintiff was suspicious and the circumstances prove that it would
not have been written by the late Veerappa Chettiar. The evidence tendered by a
Notary Public by name Mahesh (P.W.5) cannot be believed, as the document was not
recorded in the register maintained by him and the Will was not approved in the
Court in a manner known to law.
8. It held that the evidence of P.W.2 and 3 cannot be believed, since
the Will was not a genuine document and properties being in enjoyment of the D.1
and D.2 which was sold to D.3 and D.4 is acceptable. The Will dated 22.01.1981
produced by the defendants was genuine and the properties correctly passed on to
the defendants which was in turn alienated to the defendants 3 and 4. As
against the said judgment and decree, the petitioner preferred an appeal to the
Additional District Court cum Chief Judicial Magistrate Court in
A.S.No.160/1990. The lower appellate Court also framed the very same issues as
issue Nos.1 and 2 and confirmed the findings rendered by the trial Court in
respect of first issue namely the genuineness of the Will produced of the
petitioner / plaintiff. (Ex.A.1) and held it was not genuine. With reference to
the second issue regarding the Will produced by the defendants 1 and 2,(Ex.B.2)
cannot be accepted as the document was not proved in a manner known to law.
Though it was claimed that the properties were vested on them, the Will in
Ex.B.2 was not proved in terms of Section 68 of the Indian Evidence Act.
9. Having lost in these two Courts, the petitioner moved this Court
with his Second Appeal. At the time of admission, the following issues were
framed by this Court:-
“1.When the plaintiff has proved the Will dated 18.01.1985 Ex.A2 in
accordance with Section 68 of Indian Evidence Act, is the learned Additional
District Judge right in dismissing the suit only because there was a discrepancy
in Ex.A.2.
2.When the plaintiff filed an application in I.A.27/99 to compare the
signature in the Will with the admitted signature of the testator by an expert
opinion, is the learned Additional District Judge correct in rejecting the same
and comparing the signatures on his own?
3.Is the learned Additional District Judge correct in rejecting the
application in I.A.No.34/99 for receiving additional evidence without assigning
any reason when the documents sought to be marked as additional evidence will
clearly prove the case of the plaintiff?
10. Subsequently, a status quo order was given by this Court on
15.10.2001 restraining the respondents from putting up any construction in the
subject matter of suit. However, after a counter was filed, this Court vacated
the staus quo granted by this Court by an order dated 20.10.2001.
11. It is stated by both sides that the outcome of the Second Appeal
will decide the destiny of the writ petition. Therefore, the Court must take up
the Second Appeal first.
12. Mrs.N.Krishnaveni, learned counsel appearing for Mr.T.R.Rajaraman,
learned counsel for the petitioner submitted that the requirement of the
attestation of two or more witnesses is mandatory and it has to be proved in
terms of Section 63(C) of the Succession Act. If one attesting witness is able
to prove the execution i.e.if he satisfies the requirement of the Will by other
witness also, examination of other witnesses can be dispensed with. What is
envisaged under Section 63 is that one attesting witness examined should be in a
position to prove the execution of the Will. She relied upon the judgment of
the Supreme Court in Janki Narayan Bhoir Vs Narayan Namdeo Kadam reported in AIR
2003 Supreme Court 761, wherein she referred the following passage found in
para:10 of that judgment, which reads as follows:-
“10….The one attesting witness examined, in his evidence has to satisfy the
attestation of a Will by him and the other attesting witness in order to prove
there was due execution of the Will.”
13. Further, she also placed reliance upon a judgment of the Supreme
Court in Sridevi and others V.Jayaraja Shetty and others reported in AIR 2005
Supreme Court 780 for the proposition that merely because the testator is an old
person or that he died within 15 days after execution of the Will, that cannot
be termed as an suspicious circumstance unless the same is proved by those who
are questioning the Will.
14. Further, she placed reliance upon a judgment of the Supreme Court
reported in Pentakota Satyanarayana and others V. Pentakotal Seetharatnam and
others reported in AIR 2005 Supreme Court 4362 and submitted that if all the
witnesses depose that they had signed as identifying witnesses and that the
testator was sound in disposition of mind and the document was also contained
signatures of the attesting witnesses and the scribe, then the burden of proof
in rejecting the Will will be shifted to the respondents.
15. Further reliance was placed on a judgment of the Supreme Court in
Daulat Ram and others Vs. Sodha and others reported in AIR 2005 Supreme Court
233. Reference was made to the following passage found in para 10 of the
judgment, which reads as follows:-
“10…. In order to assess as to whether the Will has been validly executed and
is a genuine document, the propounder has to show that the Will was signed by
the testator and that he had put his signatures to the testament of his own free
will; that he was at the relevant time in a sound disposing state of mind and
understood the nature and effect of the dispositions and that the testator had
signed it in the presence of two witnesses who attested it in his presence and
in the presence of each other. Once these elements are established, the onus
which rests on the propounder is discharged. But where there are suspicious
circumstances, the onus is on the propounder to remove the suspicion by leading
appropriate evidence. The burden to prove that the Will was forged or that it
was obtained under undue influence or coercion or by playing a fraud is on the
person who alleges it to be so.”
16. The learned counsel also placed reliance upon certain other
judgments which are noted below for the purpose of establishing as to what are
the circumstances under which the Court cannot presume suspicion of a document,
the impermissibility of attacking a document after a long delay and other
circumstances under which a Will can be stated to have been proved.
(i) In H.Venkatachala Iyengar Vs B.N.Thimmajamma and others
reported in AIR 1959 Supreme Court 443
(ii) In Beni Chand (since dead) now by L.Rs Vs. Smt.Kamla Kunwar
and others reported in AIR 1997 Supreme Court 63.
(iii) In N.Kamalam (dead) and another Vs. Ayyasamy and another reported in
2001 (7) SCC 503.
(iv) In S.Sundaresa Pai and others Vs. Mrs.Sumangala T.Pai and
another reported in AIR 2002 Supreme Court 317.
(v) In Madhukar D.Shende Vs. Tarabai Aba Shedage reported in 2002
(2)SCC 85.
(vi) In Ramabai Padmakar Patil (dead) by Lrs and others
Vs.Rukminibai Vishnu Vekhande and others reported in AIR 2003 Supreme Court
3109.
17. She also submitted that in so far as R.1 and R.2 had not filed any
cross objections they cannot re-argue the issue in the Second Appeal and
therefore, pleaded that no finding should be rendered in respect of the
Will,(Ex.B.2) by which R.1 and R.2 were claiming ownership of the property. In
this context, she relied upon a judgment of the Supreme Court in Choudhary Sahu
(dead) by Lrs vs. State of Bihar reported 1982 (1) SCC 232 found in para:1 of
the said judgment:-
“1)The first part of Rule 22 only authorities the respondent to support
the decree. If he wants to challenge the decree, he has to take recourse to the
second part, that is, he has to filed a cross-objection if he has not already
filed an appeal against the decree. But the respondent State had neither filed
any appeal nor cross-objection. Therefore, on the strength of the first part of
Rule 22(1) of Order 41 the respondent State could only support the decree not
only on the grounds decided in its favour but also on the grounds decided
against it. But the Commissioner could not set aside the finding in favour of
the appellant on the strength of Order 41, Rule 22(1).”
However, in the same judgment the learned counsel failed to note the following
passage found in paras:12 & 13, which are as follows:-
“12. The object of this Rule is to avoid contradictory and inconsistent
decisions on the same questions in the same unit. As the power under this rule
is in derogation of the general principle that a party cannot avoid a decree
against him without filing an appeal or cross-objection, it must be exercised
with care and caution. The Rule does not confer an unrestricted right to re-
open decrees which have become final merely because the appellate court does not
agree with the opinion of the court appealed from.
13.Ordinarily, the power conferred by this Rule will be confined to those
cases where as a result of interference in favour of the appellant further
interference with the decree of the lower court is rendered necessary in order
to adjust the rights of the parties according to justice, equity and good
conscience. While exercising the power under this Rule the Court should not
lose sight of the other provisions of the Code itself nor the provisions of
other laws, viz., the law of limitation or the law of court fees etc.”
18. Per contra, the learned counsel for the first respondent Mr.R.Sundar
Srinivasan, submitted that when a suit is decreed the succeeding party cannot
file any appeal or cross-objection but can challenge the findings adverse to him
by supporting the decree. He also submitted that there can be no appeal against
the finding by the defendant, when a suit was ultimately dismissed and the
finding rendered in that suit cannot operate as a res judicata against the
defendant. He also submitted that the appeal will not lie against a mere
finding and the party who is not aggrieved by the decree cannot file any appeal.
He relied upon the following judgments;-
i)In Balkrishna Das Agarwal Vs. Radha Devi and others reported in AIR 1989
Allahabad 133.
ii)In Gendalal & another Vs. Raghunath (Dead) & Ors reported in 2007 (2) CCC 485
(M.P.)
iii)In Smt.Ganga Bai Vs. Vijay Kumar and others reported in AIR 1974 Supreme
Court 1126.
iv)In Corporation of Madras Vs. P.R.Ramachandriah and others reported in AIR
1977 madras 25.
19. He further submitted that the R.1 and R.2 need not have proved the
Will in the absence of any denial of execution of the Will and only when the
execution of the Will or attestation thereof, is disputed the requirement to
call the attesting witness will arise. If his execution is not denied, the
proof of the Will become unnecessary. Ex.B.2 Will is stated to have been
modified by Ex.A.2 Will, then Ex.A.2 will be in the nature of a codicil and
therefore, the genuineness of Ex.B2 Will cannot be questioned by appellant who
relies upon the Ex.A.2 Will.
20.In this context, he relied upon the following decisions:-
(i)In R.Vellingiri and another Vs. R.Kannaian and others reported in 2008(1) CTC
130.
(ii)In Thayyullathil Kunhikannan and others Vs. Thayyullathil Kalliani and
others reported in AIR 1990 Kerala 226.
(iii)In S.Kaliyammal and others Vs. K.Palaniammal and others reported in AIR
1999 Madras 40.
21.Finally, the learned counsel submitted that the burden of proof of a
Will clouded in a suspicious circumstance is set out in the decision of the
Supreme Court in Ramchandra Rambux Vs. Pabai and others reported in AIR 1965
Supreme Court 354. He also submitted that if an issue is framed and found
against the defendant is not enough to conclude that it constitutes res judicata
and the issue must have been directly put in issue and the decision of the
particular issue should be essential for disposal of the case. Other wise, it is
not res judicata. For this proposition, the learned counsel relied upon the
following the judgment of the Supreme Court in Sajjadanashin sayed Md.B.E.Edr
(D) by L.Rs V. Musa Dadabhai Ummer and others reported in AIR 2000 Supreme Court
1238.
22. Finally, the learned counsel submitted that the comparison of the
original Will does not require any expert opinion and this Court can itself can
compare the signatures with the admitted signatures in accordance with Section
73 of the Indian Evidence Act and placed reliance upon a judgment of this Court
in Dharmalingam Vs. Senthilkumar reported in 2008 (3) TLNJ 4 (Civil). He
therefore prayed for dismissing the second appeal at the same time reversing the
findings of the lower appellate Court and confirm the decree passed in the
original suit.
23. Mr.R.A.Mohanram, learned counsel for the fourth respondent submitted
that the High Court cannot interfere with the finding of fact arrived at by the
lower Courts and it should not be reversed by the High Court in the exercise of
the power under 100 of the C.P.C. Though it may not be a strictly a finding of
fact but an admixture of law. He relied upon a judgment of the Supreme Court in
Bhagwan Kaur Vs. Kartar Kaur and others reported in 1994 (5) SCC 135. He also
relied upon a judgment of the Supreme Court in Smt.Jaswant Kaur Vs. Smt.Amrit
Kaur and others reported in AIR 1977 Supreme Court 74 and emphasised the
following passage found in para:9 of the said judgment:-
“9. In cases where the execution of a Will is shrouded in suspicion, its
proof ceases to be a simple lis between the plaintiff and the defendant. What,
generally, is an adversary proceeding becomes in such cases a matter of the
Court’s conscience and then the true question which arises for consideration is
whether the evidence led by the propounder of the Will is such as to satisfy the
conscience of the Court that the Will was duly executed by the testator. It is
impossible to reach such satisfaction unless the party which sets up the Will
offers a cogent and convincing explanation of the suspicious circumstances
surrounding the making of the will.”
24. In the light of the above submissions and legal precedents, this
Court compared the original Wills produced before this Court in Ex.A.2
(18.01.1985) and Ex.B.2 (22.01.1981). It can be certainly seen in Ex.A.1 Will
that the signatures of late Veerapan Chettiar not only varies from page to page
but also in two pages the signature is put into two lines and not in a single
line. Apart from that, the trial Court had given cogent reasons for
disbelieving Ex.A.2 Will, which has also been affirmed by the lower appellate
Court. Therefore, in a Second Appeal the concurrent finding of the two courts
below cannot be lightly brushed aside. Therefore, the Second Appeal is liable
to be rejected.
25.At the same time, the arguments of R.1 and R.12 that the lower court’s
finding regarding Ex.B.2 Will is erroneous merits acceptance. As rightly
contented by the learned Counsel for the respondents that there is no necessity
to file any cross-objections as it is only a finding on a fact and that finding
can be assailed and the trial Court’s decree can be supported by the
respondents. The trial court in para:22 of the judgment had given elaborate
reasons for accepting Ex.B.2, Will whereas the lower appellate Court has
disbelieved if only on the ground that the attesting witnesses were not
examined. As rightly contended that Ex.A.2 Will can only be a codicil and if
that is sought to be relied on the existence of Ex.B.2, Will cannot be denied.
Further, no contentions were raised by the petitioner/plaintiff regarding the
genuineness of Ex.B.2, Will.
26. In the light of the above, the Second Appeal is dismissed with
costs. The findings of the Trial court with reference to Ex.B.2, Will is
restored and the lower appellate Court’s finding regarding Ex.B.2, Will is set
aside.
27. In the light of the disposal of the Second Appeal, the order passed
by the DRO cannot be found fault with. Since the writ petitioner is not the
real owner of the property and he having lost the Second Appeal, there is no
question of getting any patta in his favour to the said property.
28.In fine, the writ petition also stands dismissed and consequently,
connected M.Ps. are closed. No costs.
ssm
copy to:-
1.The District Revenue Officer,
Office of the District Collector,
Sivaganga,
Pasumpon Muthuramaling Thevar District.
2.The Revenue Divisional Officer
Devakkottai.
3.The Tahsildar,
Devakkottai Taluk,
Pasumpon Muthuramaling Thevar District.