Muthuramalingam represented by his Power Agent, Bharathavalli vs Priya and Others

V. Kanagaraj, J.—This Second Appeal is directed against the judgment and decree dated 17.1.1997 made in A.S.No. 139 of 1996 by the

Court of Principal District Judge, Sivaganga, thereby confirming the judgment and decree dated 17.10.1995 made in O.S.No. 649 of 1989 by the

Court of District Munsif, Manamadurai.

The deceased plaintiff, viz., Sethuraman has filed a suit before the trial court in O.S.No. 649 of 1989 praying for a relief of declaration to the

effect that he is entitled to the suit properties and for permanent injunction restraining the defendants from in any manner interfering with his peaceful

possession and enjoyment of the suit properties and for costs.

Regarding the plaint averments, the plaintiff would allege that the suit properties, falling under items No. 1 to 5 have been purchased by the

plaintiff respectively under sale deeds dated 1.12.1950, 9.6.1959, 7.9.1962, 8.9.1962 and 10.9.1962; that the plaintiff obtaining patta in his name

and paying the kists himself, was enjoying the same keeping in his possession; that in the year 1974, all his original documents and kist receipts

have been stolen away in the robbery that took place in the village; that the defendants are only the sons of the plaintiff, but they have absolutely no

right in the suit properties; that in the Update Registry, for some of the suit properties, pattas had been granted wrongly in the name of the

defendants, taking advantage of which, the defendants have started giving troubles to the plaintiff''s enjoyment of the suit properties, and hence, the

suit for declaration and permanent injunction.

In the written statement filed by the first defendant, he would admit that the suit properties are the self acquired properties of the deceased

plaintiff; that the deceased plaintiff, by a Will dated 25.5.1990, had bequeathed items No. 1 to 3 and 5 of the suit properties in favour of the

second plaintiff; that there had been no family arrangement as it is falsely adduced on the part of defendants 2 to 4. Hence, this defendant would

pray for a decree to be made, to the pleadings, in favour of the second plaintiff.

In the written statement filed on behalf of the second defendant which has been adopted by defendants Nos. 3 and 4, they would allege that the

first plaintiff was their father; that under a Will said to have been executed by the deceased first plaintiff, the second plaintiff has come to be

impleaded that there is no averment to the effect that she has right in all the suit properties; that the first defendant is the daughter of the deceased

first plaintiff, through his first wife that the fourth defendant is the second wife of the deceased first plaintiff; that in fact, the deceased plaintiff had

filed the very suit only at the instigations of the first defendant; that it is false to allege that the deceased first plaintiff executed a Will on 25.5.1990,

according to which, items No. 1, 3 and 5 of the suit properties have been bequeathed in favour of the second plaintiff; that the first item of the suit

properties had been given in favour of the third defendant as ''stridhana''.

Likewise, the second item got divided into two as Eastern and Western portions and each portion containing of 20 cents have been given away

respectively in favour of the second defendant and is in possession of this defendant and items No. 3 and 4 have also been segregated for being

allotted to the second defendant; that from the year 1977, defendants No. 1 and 2 have been in physical possession and enjoyment of the portions

allotted in their favour; that defendants No. 2 to 4 are also by virtue of being in long possession and enjoyment, entitled to the suit properties by

adverse possession; that likewise, in the first item of the suit property, such an entitlement by adverse possession has been built in favour of the

third defendant; that the plaintiffs, on the date of suit, were not either entitled to or in possession of any of the suit properties. On such grounds,

defendants 2 to 4 would pray for dismissing the suit with costs.

Based on these pleadings, the trial court would frame five main issues and one additional issue for determination of the dispute in the suit

pertaining to the prayers thereon, would conduct the trial, in which, on the part of the plaintiffs, two witnesses have been examined as P.Ws.1 and

2 and 8 documents have been marked as Exs.A-1 to A-8. On the contrary, on the part of the defendants, 4 witnesses would be examined as

D.Ws.1 to 4 and 8 documents have been marked as Exs.B-1 to B-8. The trial court, in consideration of these evidence placed on record in the

context of the facts and circumstances of the case, would ultimately arrive at the conclusion to pass a decree declaring that the second plaintiff is

entitled to items No. 2, 3 and 5 of the suit properties and dismissing the same so far as it related to items No. 1 and 4 are concerned and without

costs.

Aggrieved, the second defendant to the suit, represented by his Power Agent, Bharathavalli, preferred an appeal in A.S.No. 139 of 1996 on the

file of the Court of Principal District Judge, Sivaganga against the second plaintiff and the other defendants and the first appellate court having

framed 4 points for consideration, viz., (i) whether the suit properties are the self- acquired properties of the deceased first plaintiff? (ii) whether the

suit properties are the properties of the undivided Hindu joint family consisting of the deceased first plaintiff and the defendants? (iii) whether the

Will executed in favour of the second plaintiff is true and binding? and (iv) what reliefs, if any, is the plaintiff entitled to? and having discussed the

merit of the case in the context of the evidence placed on record answering the points that are framed, would concur with the findings of the lower

court thereby dismissing the appeal and confirming the judgment and decree of the court below without costs.

It is only challenging the concurrent findings rendered by the trial court and the first appellate court as well, the second defendant to the suit and

the appellant before the first appellate court has come forward to prefer the above second appeal on grounds as brought forth in the memorandum

of grounds of second appeal.

During arguments, the learned Counsel appearing on behalf of the appellant would submit that the second defendant in the suit is the appellant

herein; that since the first plaintiff died during the pendency of the suit, the second plaintiff, who is none other than the daughter of the first

defendant got impleaded as the legal representative of the deceased first plaintiff, based on Ex.A-8 Will wherein she is the beneficiary; that the first

defendant is the son of the deceased first plaintiff through the first wife; that the fourth defendant is the second wife of the first plaintiff and

defendants 2 and 3 are the son and daughter through the second wife; that the deceased Sethuraman purchased 5 items of the suit properties under

Exs.A-1 to A-5. The claim of the second plaintiff is under Ex.A-8 Will dated 25.5.1990 whereunder, three items of the suit properties, viz., items

No. 2, 3 and 5 have been bequeathed to the second plaintiff. But the case of defendants 2 to 4 is that the deceased first plaintiff purchased the said

properties from out of the income of the joint family properties, and hence, the deceased had no right to execute the Will regarding items No. 2, 3

and 5 of the suit properties in favour of the second plaintiff at all; that the Will was not executed by the deceased in a sound disposing state of

mind.

The further arguments of the appellant that in the year 1977, there was a oral partition of the suit properties in all the items No. 1 to 5 wherein

they were allotted to defendants No. 1 to 4; that the trial court decreed the suit in respect of items No. 2, 3 and 5 and dismissed the same in

respect of items No. 1 and 4; that the appellant preferred A.S.No. 139 of 1996 and the same got dismissed; that the second plaintiff, on her part,

did not prefer any appeal at all; that the second defendant alone has now preferred this second appeal; that so far as the plea that the suit property

was purchased from the income of the joint family is concerned, both the courts below have concurrently held that the defendants have not let in

any evidence much less the documentary evidence; that the appellant has not at all challenged the said finding; that in the oral partition in the year

1977, items No. 2, 3 and 4 fell to the share of the first defendant and in proof of this allotment, he has filed Ex.B-2 patta issued in his favour and

the kists paid by him under Exs.B-3 and B-8; that even if the suit properties are taken as the self- acquired properties of the deceased plaintiff

since they got allotted in the partition in his favour, he becomes entitled to the same.

Regarding the execution of the Will in favour of the plaintiff is concerned, even the second plaintiff in whose favour the Will is said to have been

executed, has not been examined in the box. Only one of the attesting witnesses has been examined as P.W.2; that in the Will, it is specifically

mentioned that the suit properties have been excluded in the oral partition. On such arguments, the learned Counsel would pray to allow the appeal

setting aside the findings of the lower courts.

In reply, the learned Counsel appearing on behalf of the first respondent/plaintiff would submit that it was the deceased first plaintiff

Sethuraman who purchased the suit properties from out of his independent income, out of which, he bequeathed items No. 2, 3 and 5 in favour of

this respondent; that the suit was instituted in the year 1989 by her father, the deceased first plaintiff Sethuraman himself for all the 5 items of the

suit properties; that they have been purchased by him under Exs.A-1 to A-5; that pending suit, he died and the second plaintiff got impleaded as

the legal representative; that these items No. 2, 3 and 5 have been bequeathed under Ex.A-8 Will in her favour; that Ex.A-6 is the patta and Ex.A-

7 is the kist receipt; that the kist receipts filed by the defendants have been obtained after the institution of the suit; that as against the strong case

put up on the part of the deceased Sethuraman himself, during his lifetime with proper proof, the defendants have put up a false case claiming share

under the pretext that the suit properties were purchased from out of the funds of the joint family properties; that absolutely, there is no case for the

appellant and would pray for dismissing the appeal.

On the above pleadings, the appellant has come forward to prefer this second appeal for determination of the following substantial questions of

law, viz., (i) whether the courts below have not committed an error of law in holding that the Will dated 25.5.1990, viz:, Ex.A-8 is true and genuine

when the same was not proved in accordance with law? and (ii) whether the courts below have not committed an error of law in holding that the

suit properties are the self acquired properties of late Sethuraman?

In short, both the substantial questions of law raised as above could be dealt with together in the sense that only when it comes to be

established that the suit properties have been purchased under Exs.A-1 to A-5 from out of the personal funds of the deceased Sethuraman from

his independent source, he would become entitled to execute Ex.A-8 Will dated 25.5.1990 and subsequently, it would follow whether the said

Will has been validly executed or not?

On evidence, it comes to be known under Ex.A-1 to A-5 that items No. 1 to 5 of the suit properties have been purchased on different dates in

the year 1950, 1959 and 1962 by the deceased Sethuraman in his name under different registered sale deeds; that patta had also been issued in

favour, at the later point of time; that it is only based on these documents, the deceased first plaintiff Sethuraman himself had come forward to file

the suit originally for declaration of his title and permanent injunction restraining the defendants from in any manner interfering with his peaceful

possession and enjoyment of the suit properties; that since Sethuraman had passed away during the pendency of the suit, the second plaintiff who

is the daughter of the first defendant came to be impleaded as the legal representative of the deceased Sethuraman since under Ex.A-8 Will

wherein items No. 2, 3 and 5 of the suit properties have been bequeathed in her favour, by the deceased Sethuraman.

The trial court having framed definite issues and appreciating the evidence placed on record, would first arrive at the conclusion that the suit

properties were the self-acquired properties of the deceased first plaintiff Sethuraman; that on the part of the defendants, a plea has been taken to

the effect of that it was the first defendant who was taking care of the first plaintiff during his last period of life and he was acting under her strong

influence and instigations; that for this point, though the trial court found that the first plaintiff was under the protection of the first defendant, it has

also remarked that there was no denying of the fact that there had been possibilities for the Will to be executed in the circumstances of the case in

favour of the second plaintiff since the execution of the Will and the contents of the same have been witnessed by P.W.2 who is an attesting

witness to Ex.A-8 Will. Hence, the lower court would decide the execution of the Will to the contents noted therein to be true and binding, thus

answering the second issue pertaining to the same in favour of the plaintiff.

The lower court would also discard the story of the defendants regarding the earlier partition of the suit properties, their divisions and their

separate possession and enjoyment etc., since all these go bereft of sufficient proof; that the documents submitted on the part of the defendants in

Ex.B-6 series were all later documents to the suit and that there had been chances for them to have been made up as a result of afterthought and

on such remarks the lower court would reject the contentions of the defendants outright and would ultimately arrive at the conclusion to grant the

reliefs of declaration and possession in favour of the second plaintiff regarding items No. 2, 3 and 5 of the suit properties thus decreeing the suit as

prayed for and dismissing the same regarding items No. 1 and 4 of the suit properties.

On appeal, the first appellate court also having dealt with the subject elaborately on the grounds of appeal and framing 4 points for

determination and on elaborate discussions, would agree with all the conclusions arrived at by the trial court and would ultimately dismiss the

appeal preferred by the second defendant to the suit without costs.

From the above findings rendered by both the courts below in the concurrent manner pertaining to the points on which the substantial questions

of law have been raised on the part of the second appellant herein, elaborate discussions have been held by the trial court and thereafter, by the

first appellate court, based on facts and evidence, and hence, the substantial questions of law could be decided only against the appellant herein

confirming what has already been decided by both the courts below. The lower courts, following all the procedures, have perfectly dealt with the

subject in the manner it has to be dealt with under law, purely based on evidence and properly granting the relief in favour of the second plaintiff

thereby treating items No. 1 to 5 of the suit properties, as the self acquired properties of the deceased first plaintiff and declaring the Will to be

valid and binding and further declaring the title of the second plaintiff to items No. 2, 3 and 5 of the suit properties and further restraining the

defendants from interfering with the plaintiffs rights in any manner.

In the recent judgment of the Apex Court rendered in a civil appeal arising out of SLP (Civil) dated 16.4.1999 delivered in the case of

Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, , it is categorically held in the following manner:

The right of appeal is neither natural nor an inherent right attached to the litigation. Being a substantial 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.

Following the above propositions propounded by the Apex Court if the above second appeal has to be decided, it must be mentioned that no

valid or tangible reasons exist to interfere with the said concurrent findings rendered by both the courts below in an acceptable manner. No legal

infirmity or inconsistency worth mentioning have been brought forth nor established on the part of the defendants. Nor any patent errors of law nor

perversity in approach have also crept into the judgments and decrees passed by the trial court and the first appellate court as well, so as to call for

interference by this Court as prayed for in the above second appeal. Hence, this Court is left with no option but to say that the interference that is

sought to be made into the judgments of the courts below by the appellant herein, is unnecessary and unwarranted as well.

In result, the above second appeal fails and the same is dismissed with proportionate costs. The judgment and decree dated 17.1.1997 made

in A.S.No. 139 of 1996 by the Court of Principal District Judge, Sivaganga, thereby confirming the judgment and decree dated 17.10.1995 made

in O.S.No. 649 of 1989 by the Court of District Munsif, Manamadurai, is upheld.