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Judgment
K. Chandru, J.—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.
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. V.R. Senthilnathan Chettiar
No. 26847 Sq.ft
2 744 Ward A. Block T.S. No. 4 to an Jameendar Junior Ramanathan
extent of 15 A 2918 Chettiar and V.R. Senthinathan
Sq.ft Chettiar (joint patta)
3 758 Ward A Block 17 T.S. No. 76-1A, V.R. Arunachallam Chettiar
99 cent. Ward A. Block 18
T.S. No. 1
Ward A Block 16
T.S. No. 3
5 A 14 cent
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.
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.
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.
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.
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.
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.
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:
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.
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?
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?
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.
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.
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 u/s 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, , wherein she referred the following
passage found in para:10 of that judgment, which reads as follows:
...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.
Further, she also placed reliance upon a judgment of the Supreme Court in Sridevi and Others Vs. Jayaraja Shetty and Others, 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.
Further, she placed reliance upon a judgment of the Supreme Court reported in Pentakota Satyanarayana and Others Vs. Pentakota
Seetharatnam and Others, 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.
Further reliance was placed on a judgment of the Supreme Court in Daulat Ram and Ors. v. Sodha and Ors. reported in AIR 2005 SC 233.
Reference was made to the following passage found in para 10 of the judgment, which reads as follows:
... 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.
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,
(ii) In Beni Chand (since dead) now by L.Rs v. Smt. Kamla Kunwar and Ors. reported in AIR 1997 SC 63.
(iii) In N. Kamalam (Dead) and Another Vs. Ayyasamy and Another, .
(iv) In S. Sundaresa Pai and Others Vs. Sumangala T. Pai and Another, .
(v) In Madhukar D. Shende Vs. Tarabai Aba Shedage, .
(vi) In Ramabai Padmakar Patil (D) through LRs. and Others Vs. Rukminibai Vishnu Vekhande and Others, .
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, 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:
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.
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. Smt. Radha Devi and Others, .
ii) In Gendalal and Anr. v. Raghunath (Dead) and Ors reported in 2007 2 CCC 485 (M.P.)
iii) In Smt. Ganga Bai Vs. Vijay Kumar and Others, .
iv) In Corporation of Madras Vs. P.R. Ramachandriah and Others, .
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 Mrs. Gokila Vs. R. Kannaian and Others, .
(ii) In Thayyullathil Kunhikannan and Others Vs. Thayyullathil Kalliani and Others, .
(iii) In S. Kaliyammal and Others Vs. K. Palaniammal and Others, .
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 v. Pabai and Ors. 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 Lrs. Vs. Musa Dadabhai
Ummer and Others, .
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 v. 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.
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 v. Kartar Kaur, (1994) 5
SCC 135 . He also relied upon a judgment of the Supreme Court in Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others, and emphasised the
following passage found in para:9 of the said judgment:
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.
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.
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.
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.