IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED.: 30.11.2009 CORAM: THE HONOURABLE MR. JUSTICE M.JEYAPAUL SECOND APPEAL NO.948 OF 1995 1. Mariammal 2. Sakthivel .. Appellants -Vs- 1. P.Indirani 2. P.Velumyle 3. P.Manomani 4. P.Bhuvaneswari 5. Vijayalakshmi 6. The Manager, Bank of Baroda, State Bank of Road, Coimbatore-18. .. Respondents APPEAL filed under Section 100 of Code of Civil Procedure against the judgment and decree, dated 21.11.1994 made in A.S.No.234 of 1993 on the file of the District Judge, Coimbatore, reversing the judgment and decree dated 7.9.1993 made in O.S.No.299 of 1993 on the file of the Subordinate Court, Tiruppur. For Appellants : Mrs.Pushpa Sathyanarayanan for T.R.Rajaraman For 1st Respondent : Mr.S.Parthasarathy, Senior Counsel for M/s.Sarvabhauman Associates For respondents 2 to 7 : No appearance. J U D G M E N T The 1st and 2nd defendants have preferred the present appeal. The 1st defendant had passed away. Her legal heirs are already on record. 2. The suit is filed for partition and separate possession of 1/7th share in 'A' and 'B' Schedule properties and also for rendition of accounts by the defendants 1 to 3. https://hcservices.ecourts.gov.in/hcservices/ 3. The plaintiffs and defendants 3 to 6 are the daughters and the 2nd defendant is the son of the 1st defendant Mariyammal and late P.P.Palanisamy Nadar. 4. The Plaintiff would contend that P.P.Palanisamy Nadar died intestate on 26.1.1986 at Coimbatore Medical College Hospital, Coimbatore. The properties described in 'A' and 'B' Schedules were self-acquired properties of the deceased P.P.Palanisamy Nadar. The plaintiff and the defendants 1 to 6 are in the joint possession of the same. Each of them is entitled to 1/7th share therein. The defendants 1 to 3 are in management of the suit properties for and on behalf of the defendants 1 to 6 and the plaintiff. The 'B' schedule property is the amount in Savings Bank Account in the name of P.P.Palanisamy Nadar lying in Bank of Baroda, Coimbatore who has been shown as 7th defendant. The plaintiff has claimed 1/7th share in the 'A' and 'B' Schedule properties. 5. The 1st and 2nd defendants filed written statements. The defendants 3 to 6 adopted the written statement of the 1st defendant. They have contended in their written statements that though the properties are separate and self-acquired properties of P.P.Palanisamy Nadar, he executed a Will dated 23.5.1983 bequeathing the life estate in favour of the 1st defendant and absolute ownership in favour of the 2nd defendant. The 2nd defendant was let in possession of the suit property as per the lease arrangement he had with his father P.P.Palanisamy Nadar. The plaintiff and her husband were fully aware of the execution of the Will. Suppressing the lease in favour of the 2nd defendant and the Will in existence, the present suit has been filed. As far as the 'B' schedule deposit is concerned, it was absolutely given to the 1st defendant with a direction to perform the marriage of the 6th defendant. Alleging that the plaintiff is not entitled to 1/7th share as claimed, the defendants 1 to 6 pray for dismissal of the suit. 6. In the reply statement filed by the plaintiff, it has been contended that the 2nd defendant was not a cultivating tenant of the suit properties and that the Will alleged to have been executed by P.P.Palanisamy Nadar was a forged and a fabricated one. 7. The trial court having adverted to the evidence on record arrived at a decision that the Will Ex.B.6 was validly executed by P.P.Palanisamy Nadar, bequeathing the life estate in favour of the 1st defendant and the absolute ownership in favour of the 2nd defendant. The trial court also held that as per the lease arrangement between the 2nd defendant and his father P.P.Palanisamy Nadar, the 2nd defendant was inducted into the possession of the 'A' schedule property. Therefore, the trial court was pleased to dismiss the suit with respect to the 'A' schedule property and granted relief with respect to 'B' schedule property. https://hcservices.ecourts.gov.in/hcservices/ 8. Neither the 1st defendant nor the 2nd defendant took up the matter in appeal aggrieved by the share allotted to the plaintiff and the defendants 1 to 6 with respect to the 'B' schedule property. 9. Aggrieved by the dismissal of the suit with respect to the 'A' schedule property, the plaintiff took up the matter in First Appeal. The First Appellate Court observed that the suspicious circumstances surrounding the Will Ex.B.6 were not properly explained by the 1st and the 2nd defendants. It also observed that the allegation of forgery and fabrication made by the plaintiff was not established by the defendants 1 and 2. The testators would have preferred execution of a deed of settlement instead of execution of a Will inasmuch as the 2nd defendant was already inducted into possession of the 'A' schedule property as a lessee. The relationship of landlord and tenant set up by the 2nd defendant with his father appears to be quite unnatural and improbable. The First Appellate Court having compared the signature of the testators found in Ex.B.5 with that of Ex.B.3 and Ex.B.4 arrived at a decision that the testators signature found in Ex.B.5 did not tally with the signatures of the testators found in Ex.B.3 and Ex.B.4. P.P.Palanisamy Nadar, who had already engaged an Advocate to give a legal notice in the year 1967 would have definitely gone in for the registration of the Will if at all he had executed any Will. Referring to the evidence of the attesters D.W.4 to D.W.6, the First Appellate Court observed that D.W.4 and D.W.5 were close relatives of the 1st defendant and D.W.6 was a close friend of P.P.Palanisamy Nadar. The participation of the 2nd defendant in the execution of Will gives rise to suspicion, it has been observed. The 1st Appellate Court having commented that the trial court had chosen to give importance to the quantity of evidence rather than the quality of evidence disbelieved the execution of the Will Ex.B.6. 10. While admitting the Second Appeal, the following substantial question of law was formulated by this Court: "Whether the judgment of the lower Appellate Court is vitiated by its failure to consider the entire evidence on record and to apply the correct principles of law." 11. The learned counsel appearing for the 2nd defendant would submit that the lower Appellate Court having found that cogent evidence was let in through D.W.1 and D.W.4 to D.W.6 with respect to the execution of the Will has disbelieved the Will executed by P.P.Palanisamy Nadar. No motive was attributed either to D.W.4, the brother-in-law of the testators or D.W.5, the son-in-law of the family. The integrity of D.W.6, the family friend of P.P.Palanisamy Nadar was not under challenge. There was no reason for the defendants 3 to 6 to support the case of the Defendants 1 and 2 if at all there was no execution of Will by P.P.Palanisamy Nadar. It is https://hcservices.ecourts.gov.in/hcservices/ her further submission that in all Wills there would be disinheritance. As the 2nd defendant was the only son of the testator, the latter had chosen to bequeath the property in favour of his son disinheriting his daughters. It is her further submission that there is virtually no suspicious circumstance surrounding the execution of the Will. Therefore, she would submit that the judgment of the First Appellate Court calls for interference. 12. Learned counsel appearing for the respondent/plaintiff would submit that the findings factually rendered by the first appellate court cannot be upset by this court unless it is found to be perverse. Inasmuch as the first appellate court has given cogent reasons for setting aside the findings of the Trial Court, this court should be hesitant to interfere with the judgment of the first appellate court. The evidence on record would go to show that the Will, Ex.B6 is not the last Will inasmuch as the witnesses have spoken to the fact that the testator was toying with an idea to give the houses in the name of his wife, who is the first defendant herein, to his five daughters. No strong reason was given in the Will to disinherit the natural heirs. The second defendant, who was a college student during 1980-83, has come out with a plea that he was inducted as a lessee to the suit property by his father in order to give a colour of reality to the Will, Ex.B6. The second defendant has come out with a plea that he was already inducted in his capacity as a lessee by his father. DW1 has categorically stated that her husband tilled the lands and did direct cultivation till his death. DW1 and DW2 have come out with a different story from that of the content of the Will that the Testator proposed to allot the houses of the first defendant to his daughters. DW1 speaks about a Will which contains a clause that the Testator proposed to give the property of the first defendant to his daughters, but, not the subject Will, Ex.B6 projected by the second defendant. DW2 has admitted that a road is running in between the property measuring 5 acres dividing the property equally. Therefore, division of the property would not be difficult as recited in the Will. The court will have to hold that the second defendant participated in the execution of the Will inasmuch as he speaks about the intention of the Testator at the time of execution of the Will. The very fact that the second defendant failed to produce the Will alongwith the written statement would go to show that the unregistered Will was fabricated and long subsequent to the filing of the suit, the same was registered to suit the convenience of the second defendant. It is his last submission that the first appellate court has rightly applied the principles of law governing the attestation and execution of the Will. There is no necessity to interfere with the well considered judgment of the first appellate court, he would submit. 13. The second appellate court will not normally interfere with the findings of the courts below on facts if it is not found to be perverse. Only in cases where the courts below failed to appreciate https://hcservices.ecourts.gov.in/hcservices/ the evidence on record, or the correct principles of law have not been properly applied, the second appellate court would definitely interfere with the findings of the courts below and render justice. 14. Learned Senior Counsel appearing for the plaintiff referred to the decision in CHACKO v. MAHADEVAN ((2007) 7 SCC 363) wherein it has been held as follows:- "6. It may be mentioned that in a first appeal filed under Section 96 CPC, the appellate court can go into questions of fact, whereas in a second appeal filed under Section 100 CPC the High Court cannot interfere with the findings of fact of the first appellate court, and it is confined only to questions of law. Hence, we have to see the judgment of the first appellate court and its findings of fact. 7. A perusal of the judgment of the first appellate court dated 29.6.1998, copy of which is Annexure P-2 to this appeal, shows that it has been recorded therein that Chacko was not having sound mind when he executed Ext.A-3, which is established from Ext.A-4 which is the medical certificate. He was alcoholic psychosis. This is a finding of fact which could not have been interfered with by the High Court in second appeal." 15. That was a case where the dispute as to whether a person was mentally sound or not was decided by the first appellate court based on the medical evidence available on record. Such a concrete finding rendered by the first appellate Court backed by the medical evidence cannot be disturbed by the High Court in the second appeal, it has been observed therein. As already pointed out by this court if there is a perverse approach to the evidence on record which resulted in injustice, the second appellate court has every authority to interfere with the findings of the Trial Court or the first appellate court to set right the wrong. Therefore, the general observation made in the aforesaid decision of the Supreme Court will not apply to the facts and circumstances of this case where the evidence on record which was properly weighed by the Trial Court was simply upset by the first appellate court giving flimsy reasons. 16. The learned counsel appearing for the plaintiff also cited another decision in NARAYANAN RAJENDRAN & ANOTHER v. LEKSHMY SAROJINI & OTHERS (2009-4-LW 125) wherein it has been held as follows:- "39. In Thiagarajan v. Sri Venugopalaswamy B.Koil [(2004) 5 SCC 762 = 2004-3-LW 452], this court has held that the High Court in its jurisdiction under Section 100 C.P.C. was not justified in interfering with the findings of fact. The court observed that to say the least the approach of the High Court was not proper. It is the obligation of the courts of law to https://hcservices.ecourts.gov.in/hcservices/ further the clear intendment of the legislature and not frustrate it by excluding the same. This court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible. 40. In the same case, this court observed that in a case where special leave petition was filed against a judgment of the High Court interfering with findings of fact of the lower appellate court. This court observed that to say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This court further observed that the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible." 17. Of course, the second appellate court cannot substitute its view on the ground that another view was possible on reappreciation of evidence on record. As already pointed out by this court, where there was no appreciation of evidence on record which resulted in perverse finding, the second appellate court cannot shut its eyes and meekly accept the wrong finding rendered by the first appellate court. 18. In G.SEKAR v. GEETHA ((2009) 6 SCC 99) it has been held as follows:- " 56. The question as to whether the Will was validly executed or not is essentially a question of fact. Both the learned Single Judge as also the Division Bench pointed out a large number of prevailing suspicious circumstances to opine that the same had not been validly executed. Let us now briefly consider the question as to whether the execution of the Will has duly been proved. .... .... .... 63. Both the courts below have considered all the essential ingredients of proof of Will viz., preparation of the Will, attestation thereof as also suspicious circumstances surrounding the same. They have arrived at a concurrent finding that the Will was not validly proved. We do not find any reason to differ therewith." https://hcservices.ecourts.gov.in/hcservices/ 19. That was a case where a concurrent finding was returned both by the Single Judge and by the Division Bench of the High Court with respect to the existence of suspicious circumstances surrounding the subject Will. Therefore, such a concurrent verdict of the Single Judge and the Division Bench was confirmed by the Supreme Court. Here in this case, the Trial Court, weighing the evidence of material attesting witnesses, had returned a finding that the Will was validly executed by the Testator who was in a sound disposing state of mind. But, unfortunately, the said verdict was upset by the first appellate court giving flimsy reasons. Therefore, the aforesaid observation made by the Supreme Court in the said case also would not apply to the facts and circumstances of this case. 20. DW4 is the brother of the first defendant. DW5 is the husband of the fourth defendant. DW6 is a friend of the family of the Testator. They have spoken in one voice without any material contradiction in a very natural way that the Testator first asked the scribe to draft the Will in a white paper and thereafter, having been satisfied with the content of the Will drafted by the scribe in accordance with the instructions given by the Testator, directed the scribe to take a fair copy of the content of the Will. He, having perused the content of the Will, subscribed his signature in the presence of DW4 to DW6 and DW4 to DW6 also subscribed their signature in the presence of the Testator. In other words, the attesting witnesses witnessed the signature put by the Testator having understood the tenor of the Will and the Testator also witnessed the attesting witnesses subscribing their signature to the Will, Ex.B6. 21. The learned Senior Counsel appearing for the plaintiff would attack their evidence on the ground that they have come out with a parrot-like version which is found to be totally unnatural. Such a submission of the learned Senior Counsel appearing for the plaintiff does not persuade this court. 22. As rightly pointed out by the learned counsel appearing for the second defendant, even the first appellate court had made an observation that DW4, DW5 and DW6 have consistently spoken to not only the attestation of the document but also the execution of the same by the testator in a sound disposing state of mind. Having thus observed, the first appellate court, it appears, chose to reject the evidence of D.Ws.4 and 5 as they were related to the first and second defendant and DW6 was a family friend of the first and second defendant. 23. DW4 is related not only to the second defendant, but also to defendants 3 to 6. DW5 is none other than the husband of the fourth defendant. He, being cited as one of the attesting witnesses to Ex.B6 Will, has spoken to the attestation made by the attesting witnesses including himself and the execution made by the Testator in https://hcservices.ecourts.gov.in/hcservices/ a sound disposing state of mind. If the Will is accepted, the fourth defendant does not get any share in the B schedule property. If at all the Will was fabricated as alleged by the plaintiff, the fourth defendant would not have accepted the plea of the first and second defendant that her father, in fact, executed the Will disinheriting all the daughters including herself. DW5, the husband of the fourth defendant and son-in-law of the family also would not have spoken about his attestation of the Will, Ex.B6 if no such Will was executed by the Testator. Further, as rightly pointed out by the learned Senior Counsel appearing for the second defendant, no enmity was attributed to DW4 or DW5. 24. The evidence of DW6, a family friend of the Testator was not under challenge. The rigorous cross-examination done by the plaintiff could not dilute the evidence given by DW3 with respect to the attestation of the Will and execution thereof by the Testator in a sound disposing state of mind. The evidence of DW6, an independent witness, cannot be simply ignored. As there is no material contradiction in the evidence of DW4, DW5 and DW6, the court of law cannot throw away their evidence on the ground that they have come out with a parrot-like version which is quite natural. 25. The first appellate court embarked upon the exercise of comparing the signature of the Testator found in Exs.B5 to B7 with the signature of the Testator found in Ex.B4. The first appellate court, in fact, has wrongly observed that the signature of the Testator is found in Ex.B3, which is a sale deed in the name of the Testator. It is to be noted that in those days the signature of the purchaser was not obtained in the sale deed. When Ex.B3 does not bear the signature of the Testator, the first appellate court has made an observation as though Ex.B3 bears the signature of the Testator. Therefore, Ex.B3 could not have been compared with Ex.B5 to analyse the admitted signature with that of the disputed signature of the Testator. Though the name of the Testator is found in Ex.B4, there is an observation in Ex.B4 itself that the father P.P. Palanisamy Nadar was not present at the time when the document was taken up for consideration again by the Sub Registrar. Firstly, it has not been established that P.P.Palanisamy Nadar was present and subscribed his signature in Ex.B4. Secondly, the court should be reluctant to compare the disputed signature with that of the admitted signature in the absence of an expert's evidence. Inspite of the fact that the courts are empowered under section 73 of the Indian Evidence Act to independently compare the signature with that of the admitted signature in the face of voluminous evidence available on record to establish the attestation of the document and the execution thereof by the Testator, in a sound disposing state of mind, the first appellate court should not have embarked upon exercise of comparing the disputed signature with that of the admitted signature in the absence of Handwriting Expert's opinion. https://hcservices.ecourts.gov.in/hcservices/ 26. Ex.B5 is found to be the lease deed executed by the Testator in the year 1980 in favour of his son, the second defendant herein. There is no reason to project the release deed if at all such lease deed was not in existence as the first and second defendant after all trace their title to the Will Ex.B6. It is true that the first defendant has deposed that her husband tilled the land and personally cultivated the same till his death. In the same breadth, she would also state before the court that the suit property was in fact leased out to the second defendant by her husband and her husband did not cultivate the same. Quite probably, the husband would have contributed his labour in order to assist his son. 27. It has been established before the court that the second defendant completed Pre-University Course in the year 1976 and having stopped his studies, he again continued his collegiate education in the year 1980. It is found that the lease deed, Ex.B5 has come into existence a few days prior to the admission of the second defendant to a college in the year 1980. DW2 has categorically deposed that he had an idea to go out of the family in order to lead a separate life. As he is the only son in the family, his father had thought it fit to lease out the suit property to the second defendant in order to retain him in the family. It is quite natural for a person, who stopped his educational career in the year 1976, to get a property on lease before he commenced his college education. There is also nothing wrong for a student to take property on lease as he would have leisure time to manage the properties got on lease. As already pointed out, there is no reason to falsely project the release deed, Ex.B5 by the second defendant if at all there was no lease deed executed by his father. There is nothing unnatural for a father to let out the property to his son for cultivation. No law prohibits father to lease out the agricultural property to his son under the lease arrangement. 28. It is true that P.P.Palanisamy Nadar chose to engage an Advocate to give legal notice in the year 1967. He might have been wordlywise as observed by the first appellate court. But, when the Will is not required by law to be registered, even a wise man would think that it is unnecessary to register a Will as it