IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14..07..2011 CORAM THE HON'BLE MR.JUSTICE S.NAGAMUTHU Second Appeal No. 378 of 1998 Murugayee [Dead] rep. by her LR Meenakshi * [* Legal Representative of the deceased sole plaintiff, who died subsequent to the decree and judgment in Appeal Suit. This second appeal is preferred by the LR of the deceased sole plaintiff. Cause title was accordingly accepted. The appellant is also recorded as one of the legal representative of the deceased 2nd respondent by order dated 18.07.2011 made in C.M.P.No.1732 of 2010] ... Appellant/LR of the Plaintiff -Versus- 1.Suguna Sambandam 2.Manickam Pillai [deceased] 3.Mrs.Andal 4.Mrs.Banumathi 5.Mrs.Annapoorani 6.Savithri 7.Minor Manimaran 8.Minor Mythili Respondents 7 & 8 are represented by their natural guardian and Mother, the 6th respondent herein [Respondents 3 to 8 were brought on record as legal representatives of the deceased 2nd respondent by order dated 18.07.2011 made in C.M.P.No.1733 of 2010] ... Respondents/Defendants 1 and 2 LR's of the Defendant No.2 This second appeal is filed under section 100 of C.P.C. against the judgment and decree dated 28.10.1996 made in A.S.No.56 of 1992 on the file of the Sub Judge, Ariyalur, reversing the judgment and decree dated 11.02.1992 made in O.S.No.90 of 1989 on the file of the District Munsif, Ariyalur. https://hcservices.ecourts.gov.in/hcservices/ For Appellant : Mr.S.Parthasarathy, Senior Counsel for M/s.Sarvabhauman Associates For Respondents : Mrs.R.Gouri for R1 No appearance for R2 JUDGMENT The legal representative of the deceased sole plaintiff is the appellant. The suit in O.S.90 of 1989 was filed before the District Munsif, Ariyalur, by one Murugayee against the 1st respondent – Mrs.Suguna Sambandam w/o Thirugnanam. During the pendency of the suit , on an interlocutory application filed by the 1st defendant, the 2nd defendant – Manickam Pillai was impleaded. The said suit was one for declaration of tile and for recovery of possession of the suit property. On 12.02.1992, the learned District Munsif, Ariyalur, decreed the suit as prayed for. Challenging the same, the 1st defendant preferred an appeal in A.S.No.56 of 1992 on the file of the learned Sub Judge, Ariyalur. By a decree and judgment dated 28.10.1996, the learned Sub Judge allowed the appeal thereby setting aside the decree and judgment of the trial court and dismissed the original suit. Even before the appeal could be preferred Mrs.Murugayee [the sole plaintiff] died. Therefore, her legal representative Mrs.Meenakshi has come up with this second appeal. The 2nd defendant - Manickkam Pillai remained ex parte before the trial court, first appellate court and also before this Court. 2. The case of the plaintiff as culled-out from the plaint is as follows:- The suit property was originally owned by one Chidambaram Pillai. The said Chidambaram Pillai had a daughter by name Manickathachi. Her husband was Kandasamy Pillai. Chidambaram Pillai had executed a registered will on 12.07.1927 thereby bequeathing the suit property in favour of Manickathachi and Kandasamy Pillai. By virtue of the said will, after the demise of Chidambaram Pillai, Manickathachi and her husband Kandasamy Pillai became absolute owners and they were enjoying the suit property. They died intestate. Their daughter is Murugayee, the plaintiff in the suit. After the demise of her parents Manickathachi as well as Kandasamy pillai, it is the case of the plaintiff that she inherited the property and was in enjoyment of the same as absolute owner. 3. The 2nd defendant – Mr.Mainickam Pillai, who remained ex parte throughout, is the husband of Murugayee, the sole plaintiff in the suit. Manickam Pillai and her sons entered into a registered partition under Ex.B.4 on 17.11.1956. In the said partition deed, the suit property has been shown as their joint family property and allotted to the share of 2nd defendant. Subsequently, the 2nd defendant sold away the suit property under Ex.B.2 registered sale https://hcservices.ecourts.gov.in/hcservices/ deed in favour of the 1st defendant on 22.03.1984. The sole plaintiff – Murugayee was one of the attestors to the signature of Manickam Pillai in the said document. According to the plaintiff, for various purposes Manickam pillai used to force her to affix her thumb impression in a number of documents. In such a way, she was made to affix her left thumb impression in Ex.B.2 also. It is her specific contention that though she was an attestor to the document, since she had no knowledge about the nature of the document and since the 2nd defendant had no independent title to convey, Ex.B.2 sale deed will not convey any title to the 1st defendant. However, the 1st defendant had started claiming title for the property. The 1st defendant has been in possession and enjoyment of the property and she has declined to vacate the suit property and to hand over the vacant possession to the plaintiff. With these contentions, the plaintiff filed the above suit for declaration of title and for recovery of possession. 4. The 1st defendant filed a written statement wherein it was contended that the Will dated 12.07.1927 is not a true and genuine one executed by Chidambaram Pillai. Therefore, the claim made by the plaintiff- Murugayee for title through the said Will is not at all sustainable. The plaintiff had no title for the property. Assuming that the plaintiff had title, since she had been an attestor to Ex.B.2 Sale Deed, consciously, she cannot claim title now for the property. It was also contended that suit property was the ancestral property of the 2nd defendant and his sons. In the partition deed dated 17.11.1956 under Ex.B.4, the suit property was allotted to the share of the 2nd defendant and by virtue of the same, the 2nd defendant was enjoying the property as its absolute owner. He thereafter sold away the same under Ex.B2 for a valuable consideration in favour of the 1st defendant. The plaintiff was an attesting witness to the sale deed and, therefore, she was fully conscious of the said sale transaction. Thus, according to the 1st defendant, she is the absolute owner of the property and her possession is also legal. Therefore, according to the 1st defendant, the suit is liable to be dismissed. 5. Based on the above pleadings, appropriate issues were framed by the trial court. During trial, on the side of the plaintiff, she was examined as P.W.1 and one Mr.Velu Pillai was examined as P.W.2 and as many as 7 documents were exhibited as Exs.A1 to A7. On the side of the defendants, 2 witnesses namely, Mr.Gnanananmani and Mr.Ganesan were examined as D.Ws.1 and 2 and as many as 9 documents were exhibited as Exs.D1 to D.10. Having considered the above, the trial court decreed the suit as prayed for. But, on appeal by the 1st defendnt, the first appellate court reversed the decree of the trial court. That is how, the legal representative of the deceased sole plaintiff is, now, before this court with this second appeal. 6. When this appeal was admitted, this court framed the following substantial question of law:- https://hcservices.ecourts.gov.in/hcservices/ Whether the lower appellate court is right in not drawing adverse inference against the 1st defendant for her non-examination under Section 114 of the Evidence Act? 7. I have heard the learned counsel on either side and also perused the records carefully. 8. As I have already narrated , it is the positive case of the plaintiff that the suit property was originally owned by Chidambaram Pillai, whereas it is the specific case of the 1st defendant that it was originally owned by the 2nd defendant and his sons. According to the 1st defendant, it is the ancestral property of the 2nd defendant. But, the revenue records produced in this case under Ex.A.7 namely , the resettlement register of Thelur Village would go to show that the property was owned only by Chidambaram Pillai. Though it is claimed by the 1st defendant that the suit property was the ancestral property of the 2nd defendant, there is no document , such as, any title deed or revenue record, produced by the 1st defendant to prove the said fact. There is also no evidence at all which could dislodge Ex.A.7. Therefore, I have no hesitation to hold that the suit property was originally owned only by Chidambaram Pillai. 9. The next question is , as to whether the Will [Ex.A.1] dated 12.07.1927 said to have been executed by Chidambaram Pillai is true and genuine and on the demise of the testator title had passed on to Manickathachi and Kandasamy Pillai. Of course, on the side of the plaintiff, the attestors of the said will have not been examined as required under Sections 68 and 90 of the Evidence Act. 10. It is not in controversy that the attestor to Ex.A.1 Will are no more. Similarly, in order to prove the Will by examining the persons, who were well acquainted with the signatures of the attesting witnesses, they were also not available. Therefore, Section 69 of the Evidence Act also could not be complied with by the plaintiff. Thus, the Will has not been proved by examining either one of the attesting witnesses to the Will or any of the persons who were well acquainted with the signature of the attestors. In those circumstances, the next question which crops up for consideration is, whether a presumption regarding due execution and attestation as provided in Section 90 of the Evidence Act could be invoked in this case in favour of the plaintiff. 11. The learned counsel appearing for the 1st respondent/1st defendant would submit that such presumption cannot be raised at all because there are lot of suspicions in respect of the execution of the Will. But, there is a vast difference between drawing a presumption and rebutting such presumption. In order to draw a presumption under Section 90 of the Evidence Act, it is suffice for https://hcservices.ecourts.gov.in/hcservices/ the plaintiff to satisfy the requirements of Section 90 of the Evidence Act. Section 90 states that if the document is 30 years or more old, there may be a presumption in respect of due execution and attestation, provided the document has all along been in the proper custody. In the case on hand, the Will was in the custody of the plaintiff and before that it was in the hands of her parents namely, Kandasamy Pillai and Manickathachi, who were beneficiaries of the Will. Since these two conditions, namely, the age of the document and the proper custody have been proved by the plaintiff, I hold that the requirements of Section 90 of the Evidence Act have been complied with by the plaintiff and so it is absolutely necessary for this Court to raise the presumption of due execution and attestation as provided in Section 90 of the Evidence Act in favour of the plaintiff. 12. Of course, the said presumption is rebuttable. Rebuttal of such legal presumption can be had either by letting in positive evidence or by bringing on record, the circumstances to create suspicion regarding the due execution and attestation of the Will. When a specific query was posed to the learned counsel appearing for the 1st respondent as to whether there is any circumstance brought on record so as to create suspicion regarding the due execution and attestation, the learned counsel appearing for the 1st respondent/1st defendant is not in a position to say anything. I have perused the materials such as the oral as well as documentary evidences in this case which do not indicate any suspicion regarding the due execution and attestation of Ex.A.1 Will dated 12.07.1927. Thus, I find no difficulty in holding that the presumption drawn under Section 90 of the Evidence Act in respect of due execution and attestation of the Will has not been rebutted and, therefore, by virtue of the said presumption, the plaintiff has proved that the said Will Ex.A.1 is true and genuine. 13. If once I come to such a conclusion that the Will is true and genuine, there can be no difficulty in holding further that on account of the said will, Manickathachi and Kandasamy pillai became the absolute owners on the demise of Chidambaram Pillai and thereafter, the plaintiff – Murugayee had become the absolute owner by virtue of inheritance from them on their demise. Thus, the plaintiff has proved that she was the original owner of the property and she had a valid title to convey. 14. The contention of the 1st defendant that the suit property was the ancestral property of the 2nd defendant and his sons has not been established and so the claim for title under Exs.B2 and B4 by the 1st defendant cannot be sustained. But, at the same time, the question as to whether the plaintiff is estopped from claiming title by applying the doctrine of acquiescence needs to be considered. For this purpose, the learned counsel appearing for the 1st defendant would submit that the plaintiff Murugayee was one of the attestors of https://hcservices.ecourts.gov.in/hcservices/ Ex.B2 Sale Deed in favour of the 1st defendant. She would further point out that she was all along living only with her husband, the 2nd defendant and the 2nd defendant was taking care of her and looking after all her affairs. The learned counsel would further point out that the plaintiff was aware of the partition deed under Ex.B4, dated 17.11.1956 entered into between the 2nd defendant and his sons. She would also point out that the 2nd defendant along with the plaintiff mortgaged the property in a bank and secured loan under Ex.B.7. Thus, according to the learned counsel , the plaintiff was fully aware of the sale made by her husband [the 2nd defendant] under Ex.B.2 in favour of the 1st defendant to which she was also a party and therefore, she is estopped from claiming title by applying the doctrine of acquiescence. 15. But, the learned senior counsel appearing for the appellant/plaintiff would submit that the plaintiff is an illiterate woman and she was aged 75 years at the relevant point of time. Without knowing the contents of the document under Ex.B.2 she signed the same at the request of her husband [the 2nd defendant] and, therefore, it cannot be said that she had knowledge about the contents of the document. The learned senior counsel, for this purpose, would rely on a judgement of this Court in Tmt. Sinnammal and antoher v. Muthuramalingam and 3 others, 100 L.W. 688 and yet another judgement of this Court in K.Nagarathinam and antoher v. K.Rajammal, 100 L.W. 363 wherein this court has held that mere singing or affixing the thumb impression as an attestor to the document without knowing the nature of the transaction covered in the document will not divest the said signatory to the document of the title for the property. Thus, according to the learned senior counsel appearing for the appellant/plaintiff, the so called title claimed by the 1st defendant is not sustainable and to the contrary, the plaintiff has proved her title and so the first appellate court was not right in reversing the judgement of the trial court. 16. I have given my anxious consideration to the aforesaid contentions of the respective counsel. 17. In Chinnammal's case cited supra, this Court has held as follows:- "Though there are cases which lay down that it is the commonest thing in this country for attestation to be obtained from persons having a possible interest in the property with the object of binding them later on, still in the present case, in the absence of any issue as such on this question, I do not think it possible to accept the respondent's submission that the 1st defendant must be taken as bound by her attestation. In fact, if there was such an issue, then there would have https://hcservices.ecourts.gov.in/hcservices/ been some scope for leading evidence on this point. Though she has declared that she knew what the document was, I do not think that she gave up her right in the property merely by making the attestation in a document. A release or abandonment would have to be a conscious act, and cannot be readily inferred especially in the case of an uneducated lady who had no means of independent advice. Her own latter conduct shows that she did not give up any right by attesting Ex.B.1. The above decision clearly establishes that the abandonment of the right must be a conscious act and, therefore, that attestation could not constitute an estoppel in this case. ......" 17. In K. Nagarathinam's case cited supra, this Court has held as follows:- "6. ...... Learned Counsel was fair enough to say that some of the decisions referred to by him were against him; but he had referred to them in order to give a complete list of the authorities up to date, though the number of decisions cited is somewhat large, the principle laid down in all the decisions is the same. After analyzing all those decisions, I find that they lay down the proposition that if it is shown to the court that an attesting witness was a consenting party to a particular transaction, he would be estopped from questioning the effectiveness of the said transaction, on a later occasion on the ground that he was not a party thereto, though some of the decisions proceed on the footing that there is a sort of usage in this part of the country to obtain the signature of a party as an attesting witness whenever his consent is required for the said transaction. In all these cases, an inference has been drawn from all the facts and circumstances of the cases that the attesting witnesses therein were really consenting to the transaction in question. ... ... ... ... ... ... ... 10. In my view, the correct position of law is stated by a Division Bench of the Kerala High Court in Govindan v. Chellamma, AIR 1959 Kerala 237. Their Lordships held that there can be no doubt that an attesting witness can be shown to have fully understood the particular transaction so that his attestation may support the inference that he was a consenting party. It was also observed by https://hcservices.ecourts.gov.in/hcservices/ their Lordships that the question, is really one of fact and should be determined with reference to the circumstances. ........" 18. A perusal of the aforesaid judgments would make the law on this subject very clear that an attestor to a document, who subscribes to the document or Will without knowing the nature of the transaction covered under the document, shall not lose his title for the property. There can be no controversy at all regarding the said legal position. But , in the instant case, the question is as to whether the plaintiff was a party to Ex.B.2 Sale Deed without knowing the transaction covered under the document because her husband wanted to affix her left thumb impression or whether she made the 1st defendant to purchase the property under Ex.B.2 Sale Deed by making him to believe that her husband, the 2nd defendant had title for the property. It is in evidence of the plaintiff that all through she was living along with her husband and children. To a specific question made during her cross examination, she has stated that she does not know anything about the facts of this case and everything is known only to her husband. This will surely go to indicate that her husband, the 2nd defendant was the one who had engineered her to file the present suit and he was taking care of the entire case. In the suit, as it was originally filed, the husband of the plaintiff namely, the 2nd defendant was not added as a party. This was a wanton omission made by the plaintiff. It was only at the instance of the 1st defendant, the 2nd defendant was impleaded as a party. Even after such impleadment, he remained ex parte before the trial court, first appellate court and also before this Court. This conduct of the husband of the plaintiff namely, the 2nd defendant cannot be brushed aside simply. The evidence of the plaintiff that the 2nd defendant was looking after all her affairs including the conduct of the present proceedings and in the light of the fact that the 2nd defendant had remained set ex parte would all go to show that the plaintiff and the 2nd defendant have colluded to file the suit and the actual brain behind the suit is only the 2nd defendant. The partition deed under Ex.B.4 between the 2nd defendant and his sons was executed on 17.11.1956. It is not as though the plaintiff was living elsewhere without having knowledge of the said document. During the course of cross examination , she has stated that she was not aware of the execution of the same. But , it is too difficult to believe the same for the simple reason that after Ex.B.4, parties, namely, the 2nd defendant and his sons had started enjoying the properties covered under the partition deed separately in terms of the partition deed. Therefore, she cannot now say that she was not aware of the said partition and the enjoyment of the respective property by the sharers separately. Therefore, there is every reason for this court to conclude that the plaintiff was aware of the partition deed under Ex.B.4 executed on 17.11.1956 and also the fact that subsequently the suit property was dealt with by the 2nd defendant all through as https://hcservices.ecourts.gov.in/hcservices/ though he was the owner. It is also in evidence that at one point of time, the plaintiff and the 2nd defendant secured loan from a bank by jointly executing a deed of mortgage by mortgaging the suit property. During the course of cross examination, the plaintiff disowned the knowledge of the same. This is obviously a false evidence. Having been a party to the said loan transaction, it is not open for the plaintiff now to disown knowledge of the same. Thus, it is crystal clear that the plaintiff acted along with her husband, namely Manickam Pillai, the 2nd defendant to make others to believe that under the partition deed Ex.B.4, the 2nd defendant became the owner and he had title to convey. 19. Lastly, regarding the execution of Ex.B.2, the plaintiff disowns knowledge. According to the plaint, she affixed her left hand thumb impression on Ex.B.2 as an attestor because her husband wanted her to do so in usual course as he was doing previously on many occasions. But, in evidence, she has stated that her husband did not want her to affix her left thumb impression but, somebody wanted her to affix her left thumb impression. This would only go to show that on an important aspect she is falsely deposing before the court. 20. The possession was all along with the 1st defendant after the execution of Ex.B.2. Had it been true that the plaintiff had no knowledge of execution of Ex.B.2, by all means, she would have protested for the possession being taken by the 2nd defendant. But, this suit came to be filed only in the year 1989. At this juncture, it would be appropriate for this Court to refer to a positive admission made by the plaintiff during her cross examination that it is only her husband [the 2nd defendant] who knows about the facts of the present case. It is also in evidence that even after filing of the suit she was living only with her husband. All these circumstances would only go to show that she was a party to Ex.B.2 consciously knowing the nature of the transaction covered under Ex.B2. 21. Under Section 115 of the Evidence Act, since the plaintiff made the 1st defendant to believe that the 2nd defendant had title to convey by virtue of Ex.B.4 partition deed and on that score allowed him to purchase the property under Ex.B.2 from the 2nd defendant and having remained as an attestor to the said document, in my considered opinion, she is estopped from claiming title