Mohammed Mohideen vs Muthukumara Thevar and Another

S. Jagadeesan, J.—The second plaintiff in O.S.No. 552 of 1990 on the file of the District Munsif court, Pattukottai is the appellant herein.

The second respondent herein filed the said suit for declaration of his title and for consequential injunction restraining the appellant herein as well as

the second respondent herein, from interfering with their peaceful possession. The trial Court by its judgment and decree dated 21.3.1991 has

dismissed the suit. As against this decree, the appellant as well as the second respondent herein filed the appeal in A.S.No. 41 of 1991 on the file

of the Sub-court, Pattukottai. The Lower Appellate Court also concurred with the findings of the Trial Court and dismissed the appeal. Aggrieved

by the same the present second appeal has been filed by the appellant herein. Before the Lower appellate court the only issue argued seems to be

with regard to the genuineness of the will Ex. B.4 . It is the contention of the learned counsel appearing for the appellant that when both the

attestors have died, the will can be proved only by letting in evidence to prove the hand writing of the testator. In this case, the defendant has Act

let in any evidence with regard to the attestation of the will by examining any one who is familiar with the signature or the handwriting of the

attesting witnesses. Section 69 of the Evidence Act has laid down the procedure to prove the will when the attesting witnesses are not available. It

clearly states that the will can be proved by examining one of the attesting witnesses atleast and if none of the attesting witnesses are available to

speak about the signature of the person executing, the person has to establish that the signature of the person executing the document is in the

handwriting of that person. In this case, the defendant had examined DW 2 one Soundararajan, who has categorically stated that he is the scribe of

the will and after he wrote the will, in his presence the testator had read the will and thereafter signed the same and the attesting witnesses have also

signed the same. This evidence has been accepted by both the courts below to find the genuineness of the will.

Section 69 of the Evidence Act requires the person to prove that the signature of the executor is in his handwriting and the defendant has let in

evidence by examining DW 2 that the executor has signed the will in his presence and the attesting witnesses have also signed in his presence. This

evidence has not been challenged in the cross-examination and as such the courts below have accepted this evidence and found that the will is

genuine. I do not find any irregularity in the finding of both the courts below with regard to the genuineness of the will.

Though the learned counsel appearing for the appellant contended that the appellant has established his possession and as such the courts below

ought to have granted a decree for injunction so far as this plea is concerned, this has not been raised before the lower appellate court. As stated

already before the Lower Appellate court the only question that seems to have been argued is genuineness of the will. Hence, it is not open to the

appellant to raise a new plea in the second appeal which has not been raised before the lower appellate court. The second Appeal is dismissed.