JUDGMENT
G. Yethirajulu, J.
1. This second appeal is preferred by second defendant in O.S. No. 538 of 1974 on the file of the Principal District Munsif, Bapatla. The plaintiff filed the suit for perpetual injunction by contending that she is in possession and enjoyment of the suit schedule property. The trial Court, after considering the evidence adduced by both the parties held that the plaintiff failed to prove the possession as on the date of the suit and dismissed the suit. When an appeal is preferred, the plaintiff amended the plaint by converting the suit for possession and in pursuance of the same, the appellate Court remitted the matter to the trial Court for fresh disposal. After fresh evidence, the trial Court held that the plaintiff failed to prove prima facie title and possession as on the date of filing of the suit. Therefore, the suit was dismissed. Being aggrieved by the judgment of the trial Court, the plaintiff preferred A.S. No. 41 of 1988 on the file of the Subordinate Judge, Bapatla. The appellate Court reversed the appeal by granting the decree as prayed for. Therefore, the second defendant preferred the present second appeal by raising the following substantial questions of law:
(i) Whether the Appellate Court decreed the suit on the ground that in the presence of natural heir, the property would not have been conveyed to the brother’s son and the Will executed by the original owner-the mother of the plaintiff is suspicious?
(ii) Whether second defendant perfected title by adverse possession on account of enjoying the property for more than 20 years by claiming title over the property?
2. In the trial Court, the second defendant pleaded that the mother of the plaintiff after the death of her husband came to the house of her brother along with plaintiff and lived there for a considerable time and during that period, the plaintiff’s mother developed affection towards the second defendant, who is none other than her brother’s son and she executed a Will bequeathing the suit property in his name. The second defendant, during the trial of the suit, filed an unregistered Will covered by Ex.B1 and proved the same by examining the attestors and scribe’s son to establish that the mother of the plaintiff executed the said Will in a sound state of mind and voluntarily bequeathing the suit property in his favour. The trial Court also observed that the second defendant established that he was in possession and enjoyment of the property from the date of the Will and he also preferred title by adverse possession.
3. The plaintiff contended that as her mother died about 20 years prior to the suit, she has been in possession and enjoyment of the property as legal heir. As the trial Court did not accept her contention that she is in possession and enjoyment of the property as on the date of filing of the suit, she converted the suit into one of recovery of possession and requested the Court to grant a decree. Before the trial Court, the plaintiff filed certain documents to show that the property was granted by way of D-form patta by the Government in favour of her mother and all the documents reflect that the property stood in the name of her mother. But the plaintiff did not file any document to show whether the patta was transferred in her name, whether she was in possession and enjoyment of the property at any time. In the absence of such material, the documents filed by the second defendant were considered, which reflects that he has been in possession and enjoyment of the property since long time and there are entries in the Revenue Records also to that effect. The trial Court dismissed the suit by accepting the Will that the second defendant became the absolute owner of the property and he was in possession and enjoyment of the same.
4. The appellate Court entertained a doubt that whenever a mother possesses any property, the natural conduct would be to execute any document in favour of the natural heir. When the plaintiff is the natural heir, her mother would not have preferred to bequeath the property in favour of the second defendant and there are some discrepancies in the evidence of the attestors, as one of the attestors stated that it was on a stamp paper and another stated that it was on a plain paper. By taking into consideration those discrepancies, the appellate Court held that in the absence of the Will, the plaintiff is entitled to the property as a natural heir, therefore, she is entitled for recovery of the possession of the property. Accordingly, the appeal was allowed as prayed for in favour of the plaintiff by setting aside the judgment and decree of the trial Court.
5. The learned Counsel for the appellant submitted that though there was some discrepancy in describing the paper used for the Will, the contents have been effectively proved by examining all the attestors and son of the scribe. The said Will was executed out of love and affection towards the second defendant by the mother of the plaintiff as the second defendant’s father gave them shelter and brought them up by providing food and clothing for a considerable period and another interesting feature is that the plaintiff attested the said document as one of the attesters by affixing her thumb impression. The plaintiff did not dispute the thumb impression and took a plea that even if the thumb impression is obtained on the Will, she was a minor by the date of the execution of the Will, therefore, it has no effect. But on record, it came to light that the plaintiff was a major by the date of the execution of the Will and she never disputed the attestation of the Will, though she disputed bequeathing of property in favour of the second defendant. There is also supporting material to show that the second defendant is enjoying the property since more than 20 years by the date of filing of the suit and the exhibits marked on his behalf would also reflect that he was in possession and enjoyment of the property. Had there not been any Will executed by the mother of the plaintiff, the plaintiff would have been in possession of the property as a natural heir or she would have taken, such steps immediately after the death of her mother to recover the possession of the property or to protect the property being the legal heir of the mother.
6. The appellate Court, without taking into consideration the surrounding circumstances and the other material placed by the second defendant in proof of his title and possession, observed that as the execution of the Will is doubtful, no title was conveyed to the second defendant and therefore, the plaintiff is entitled for recovery of possession of the property. But by taking into account the consideration the totality of the circumstances, I am of the view that the appellate Court erred in allowing the appeal without taking into consideration the findings given by the trial Court that the second defendant was in possession and enjoyment of the property, I find some perversity in the finding of the appellate Court in failing to properly pursue the evidence placed by both parties.
7. The learned Counsel for the appellant submitted that there is no independent proof that the plaintiff affixed the thumb impression on Ex.B1-Will as an attester. The trial Court based solely on the opinion of the expert that the admitted thumb impression of the plaintiff tallied with the thumb impression affixed on Ex.B1-Will. He further submitted that the evidence of an expert is only an opinion and it cannot be treated as a conclusive proof. In the absence of independent evidence to prove the said thumb impression, the decision cannot be made solely on the opinion of the expert. In support of his contention he relied on a decision in Mrs. Murial Hyden v. Mrs. Dulcie M. Robb and Ors. 1991 (1) An.WR (NOC) 23, wherein a Single Judge of this Court while dealing with Section 45 of the Evidence Act, held that the evidence of expert is only an opinion and it is relevant and admissible in evidence under Section 45 of the Act. The evidence of expert expressing his categorical opinion about the genuineness of the signature contained in the Will can safely be used to corroborate the statement of propounder of the Will that the Will contains the handwriting and signature of her brother. Section 69 of the Act comes into operation when the attesting witnesses could not be found. The evidence of expert can be used to corroborate the statement of propounder of the Will.
8. The learned Counsel for the appellant further submitted that in order to prove the Will, certain conditions have to be fulfilled. In the absence of those conditions, the Will cannot be treated as a valid one and no reliance can be placed on its contents. In support of his contention he relied on a decision in Chilamakuri Chinna Pullappa v. Guruka Chinna Bayanna and Ors. 1961 (2) An.WR 162, wherein a Division Bench of this Court while dealing with Section 63 of the Indian Succession Act, considered the scope of valid testamentary disposition and held that the first condition requisite to render valid any testamentary disposition is that such disposition should be ‘in writing’ though no particular form is required. The next condition prescribed for the validity of a Will is that it should be duly signed by the testator. The third statutory requisite is that it should be attested by at least two witnesses. Under Section 63, the testator must sign or affix his mark to the Will, or it must be signed by some other person in his presence and by his direction. When some other person signs for the testator by writing out the testator’s name in his presence and by his direction, it would amount to due execution within the purview of Section 63 of the Act.
9. In the present case, the attesters were examined and the Will was proved through those attesters, therefore, the decision has no bearing on the facts of the present case.
10. The learned Counsel for the appellant further submitted that under the natural circumstances, the plaintiff, being the legal heir, shall inherit the suit property, but the execution of Will by the mother to the brother’s son ignoring the natural daughter is leading to a suspicion whether the Will is genuine or not. But the defendants placed sufficient evidence to establish that the Will is true and the trial Court accepted the said Will as true. When once the Will is accepted, the question of the natural heir getting the rights over the property does not arise. In support of his contention that the purpose of Will is to deviate the natural succession and vests the rights over the property to a third party on whom the testator has love and affection, the learned Counsel for the appellant relied on a decision in Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by Legal representatives and Ors. 1995 (2) APLJ 86 (SC), wherein the Supreme Court while considering the scope of Section 63 of Succession Act held that deprivation of the natural heirs by the testatrix should not raise any suspicion, because the whole idea behind execution of Will is to interfere with the normal line of succession. Natural heirs would be debarred in every case of Will; of course, it may be that in some cases they are fully debarred and in other cases partially.
11. The learned Counsel for the appellant further submitted that under Section 68 of the Indian Evidence Act one of the attesting witnesses has to be examined to prove the contents of the documents and as there are many discrepancies in the evidence of witnesses examined by the defendants, no reliance can be placed on their evidence. In support of his contention, he relied on a decision in Yarlagadda Venkakka Choudary and Anr. v. Daggubati Lakshminarayana and Ors. , wherein a learned Single Judge of this Court held that Section 68 of the Indian Evidence Act mandates the examination of one of the attesting witnesses for the purpose of proof of a document where the execution of the document is denied by the person by whom it purports to have been executed.
12. In the present case, the trial Court categorically observed that though there are minor discrepancies in the evidence of attesters due to long lapse of time from the date of execution, their evidence repose confidence to establish that the document is a genuine one. Therefore, the decision has no application to the facts of the present case.
13. The learned Counsel for the appellant further submitted that under Section 63 of the Indian Succession Act the onus must be on the propounder and in the absence of suspicious circumstances surrounding the execution of Will, the Will can be accepted. In support of his contention, he relied on a decision of the Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. 1959 SC Reports Supp. 426, wherein it is held that the mode of proving a Will does not ordinarily 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. The onus must be on the propounder and in absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus.
14. In the present case, the respondent is able to establish that the testator executed the Will in a sound state of mind and it was duly proved through the attesting witnesses. As the propounder knew the same, the question of examining the propounder or the brother who fell sick does not arise.
15. Sri N. Sree Rama Murthy, learned Counsel for the respondent cited some judgments to impress upon this Court about the scope of Section 100 C.P.C. He submitted that as there was a specific finding of fact by the appellate Court, this Court shall not again consider the question of fact unless there is a substantial question of law to be considered by the Court. In support of his contention, he relied on the following judgments:
In V. Ramachandra Ayyar and Anr. v. Ramalingam Chettiar and Anr. , the Supreme Court while dealing with Section 100 C.P.C. held that the High Court is not entitled to interfere merely because the judgment of the lower appellate Court is not elaborate as that of the trial Court or that some of the reasons given by the trial Court are not expressly reversed. In hearing a second appeal, if the High Court is satisfied that the decision is contrary to law or some usage having the force of law, or that the decision has failed to determine some material issue of law or usage having the force of law, or if there is a substantial error or defect in the procedure provided by the code, or by any other law for the time being in force, which may have produced error or defect in the decision of the case upon the merits, it can interfere with the conclusions of the lower appellate Court.
In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor , the Supreme Court while dealing with Section 100 C.P.C, held that the High Court can exercise its jurisdiction under Section 100 C.P.C. only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. The impugned judgment shows that no such procedure was followed by the High Court. Thus, the judgment rendered by the High Court under Section 100 C.P.C, without following the aforesaid procedure cannot be sustained.
In Arumugham v. Sundarambal , the Supreme Court held that the second appellate Court cannot interfere with the judgment of the first appellate Court on the ground that the first appellate Court had not come to close grips with the reasoning of the trial Court. It is open to the first appellate Court to consider the evidence adduced by the parties and gives its own reasons for accepting the evidence on one side or rejecting the evidence on other side. It is not permissible for the second appellate Court to interfere with such findings of the first appellate Court only on the ground that the first appellate Court had not come to grips with the reasoning given by the appellate trial Court.
16. But, there are number of judgments of the Supreme Court to the effect that if there is any perversity in the judgments of the first appellate Court, High Courts can interfere and set right the injustice done to the party.
In Ishwar Dass Jain v. Sohan Lal , the Supreme Court held that:
Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate Court without doing so. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise.
Therefore, the second appeal is maintainable on the grounds mentioned in the above decision also.
17. The learned Counsel for the respondent further submitted that the father of the second appellant, who alleged to be present at the time of execution of Ex.B1-Will, who have managed the properties for several years, did not enter the witness box, therefore, an inference has to be drawn that what the defendants pleaded is not true.
18. But, on the other hand, the learned Counsel for the appellant submitted that the first defendant is no other than the father of the second defendant. The second defendant stated in his evidence that as his father became seriously ill and not in a position to move from the house, he could not enter the witness box and the first defendant is not the beneficiary under the Will. But, the material placed by the defendants is more than sufficient to establish the facts pleaded by them.
19. In the light of the above circumstances, I am inclined to set aside the judgment and decree of the appellate Court by confirming the judgment and decree of the trial Court.
20. In the result, the second appeal is allowed and the judgment and decree of the appellate Court in AS No. 41 of 1988 is set aside. The judgment and decree of the trial Court dated 13-10-1986 in OS No. 538 of 1974 is restored and confirmed. No order as to costs.
