IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.07.2008 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.1421 of 1990 Muniammal .. Appellant /Plaintiff Vs. 1. Annadurai (Deceased) 2. Sugavanam 3. R.K.Gopalakrishnan 4. R.K.Bimaraja Gounder 5. Thangammal 6. B.Malliga 7. A.Vijayalakshmi 8. A.Gayathri .. Respondents/Defendants (R5 to R8 brought on record as L.Rs of the deceased R1 as per order of Court dated 15.06.1999 in CMP No.15009 of 1998) Appeal filed as against the judgment and decree dated 14.03.1990 passed in O.S.No.3 of 1983 on the file of the learned Subordinate Judge at Tirupathur. For Appellant : Mr.T.R.Rajagopal,Sr.Counsel for Mrs.Chitra Sampath For R2 to R4 : Mr.S.V.Jayaraman,Sr.Counsel for Mr.N.Manoharan For R5 and R8 : Mr.V.K.Sathyamurty This appeal is focussed as against the judgment and decree dated 14.03.1990 passed by the learned Subordinate Judge at Tirupathur in O.S.No.3 of 1983, which was filed by the plaintiff for declaration of her title to the suit properties and for recovery of possession of the same in addition to praying for other consequential and incidental reliefs. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 2. Tersely and briefly, niggard and bereft of details, the case of the plaintiff as stood exposited from the plaint could be portrayed thus: The plaintiff is the widow/ legal heir of P.R.Raja Gounder who died issueless on 21.03.1982. The defendants 3 and 4 are the said Raja Gounder's deceased two sisters' respective husbands. The defendants 1 and 2 are their respective sons. The defendants 3 and 4 dominated the mind of Raja Gounder during his life time and he was kept under their control for a long period of time. Raja Gounder was physically and mentally weak and he has lost his discretionary power. With a view to grab the suit properties belonging to Raja Gounder, the defendants brought about a Will as though executed by the said Raja Gounder in favour of D1 and D2. The death of Raja Gounder was not even informed to the plaintiff. After his death, the defendants started setting up untenable claim over it based on an alleged Will dated 20.04.1964 executed by Raja Gounder, who could not have executed such a Will ignoring his own brothers and their sons and there was no necessity for Raja Gounder to execute such an alleged Will. Hence the suit. 3. Per contra, denying and refuting, challenging and impugning, the allegations/averments in the plaint, the first defendant filed the written statement, the warp and woof of it, would run thus: The deceased Raja Gounder during his life time was hale and healthy and was in a sound state of mind; Out of his own free will, he voluntarily executed the registered Will dated 20.04.1964. The allegations to the contrary in the plaint are all false. The plaintiff and Raja Gounder were not in good terms; she caused lot of troubles to Raja Gounder by instituting vexatious litigations. She filed suit No.15/1943 claiming maintenance as against Raja Gounder and her entire claim was settled by paying a sum of Rs.500/-as per receipt No.61854. Even thereafter, she filed one other suit No.11/88 for maintenance and she got a decree for maintenance at Rs.75/- per month. She was in the habit of filing execution petition as against Raja Gounder. Since the defendants are legally bound to pay maintenance to the plaintiffs after the death of Raja Gounder, they called upon her to claim maintenance. But, she replied setting up untenable claims. Accordingly, he prayed for the dismissal of the suit. 4. D2 filed the written statement, more or less on the same lines as filed by D1 with the additional averments thus: As per the Will dated 20.04.1964 executed by Raja Gounder, the "A" Scheduled property was bequeathed to D1 and "B" scheduled https://hcservices.ecourts.gov.in/hcservices/ property was bequeathed to D2 and they respectively took possession of those properties. Raja Gounder, during his life time granted lease of land in Survey Nos.206/2A, 207 and 202/2 in favour of D4 as per registered Muchalika dated 03.03.1982. Hence D4 is in possession of those lands and cultivating the same. Accordingly, he prayed for the dismissal of the suit. 5. The trial court framed the relevant issues. During trial, on the side of the plaintiff P.Ws.1 and 2 were examined and Exs.A1 to Ex.A6 were marked. On the side of the respondents D.Ws.1 to 8 were examined and Exs.B1 to Ex.B7 were marked. Court documents Exs.C1 and C2 were marked. Ultimately, the trial Court dismissed the suit. 6. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court in dismissing the original suit of the plaintiff, the appellant/plaintiff has preferred on the following grounds among others: (i) The judgment and decree of the trial Court is against law, weight of evidence and all probabilities of the case. (ii) The trial Court erroneously held that the Will allegedly executed by Raja Gounder was valid. (iii) The Will was not proved before the trial Court, in the way known to law. (iv) The deposition of the witnesses examined on the side of the defendants militated as against each other, but that fact was not noticed by the trial Court. (v) The trial Court erroneously held that D4 was a cultivating tenant. The lease deed itself was in the name of the second defendant and hence D4 had no locus standi to claim that he was a lessee of the property. Accordingly, she prayed for setting aside the judgment and decree passed by the trial Court. 7. The points for consideration are as to:- (a) Whether the Will dated 20.04.1964 was executed by Raja Gounder out of his own free Will and volition? (b) Whether the said Will was proved in the way known to law before the trial Court https://hcservices.ecourts.gov.in/hcservices/ (c) Whether there is any infirmity in the judgment and decree of the trial Court ? 8. There arises a preliminary point which is relating to the fact as to whether this present appeal by the appellant/plaintiff Muniammal could be proceeded with by her by contending that the Will - Ex.B.1 is invalid in the wake of her one other appeal A.S.No.90 of 1990, which she filed in the Court of the learned Principal District Judge, Vellore as against the connected suit O.S.No.119 of 1986 filed by Beemaraj R4/D4 herein, having been dismissed by the learned District Judge concerned. 9. The learned Senior Counsel for the defendants would develop his argument by placing reliance on the following decisions: (i) An extract from the decision reported in AIR 1966 SC 1332 [Sheodan Singh vs. Daryao Kunwar] would run thus: "20. ... ... ... Where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation of default in printing with the result that the trial Court's decision stands confirmed, the decision of the appeal court will be res judicata and the appeal Court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal court is to confirm the decision of the trial Court given on merits, and if that is so the decision of the appeal court will be res judicata whatever may be the reason for the dismissal. ...." (ii) An extract from the decision reported in 2001(1)M.L.J. 212 [Renganayaki and another vs. K.R.Renganatha Mudaliar] would run thus: "11. ... ... .... it can safely be concluded that where two connected suits have been tried together and the findings recorded in one of the suits have become final, in the absence of an appeal, the appeal preferred against the findings recorded in the other suit would definitely be barred by the principles of res judicata." (iii) An extract from the decision reported in 2001(4)CTC 297 [K.A.Perumalsamy vs. A.Kandasamy and another] would run thus: "11. ... ... ... There is a clear finding against the appellant in respect of the other two suits also and when once the appellant failed to prefer any appeal https://hcservices.ecourts.gov.in/hcservices/ against the other two judgments, naturally the present appeal also would be barred on the principles of res judicata. In support of his contention, reliance is placed upon the decision reported in Premier Tyres Ltd., v. Kerala State Road Transport Corporation, 1993 Supp (2) SCC 146, wherein it was observed that where two connected suits tried together and finding recorded in one suit became final in absence of appeal, appeal preferred against the finding recorded in the other suit would be barred by res judicata. The same view has been reiterated in Lonankutty v. Thomman and another, AIR 1976 SC 1645, Sheodan Singh v. Daryao Kunwar AIR 1996 SC 1332 and Vediammal and others v. M.Kandasamy and others 1997 TI NJ 96. In view of the decisions, it is patently clear that the principle of res judicata is also applicable to the case on hand. The courts below have rightly appreciated the contentions raised by the appellant and there is no illegality or infirmity calling for any interference." 10. A perusal of those judgments and more specifically, the excerpts extracted supra would unambiguously highlight the point that out of two appeals filed, if one appeal for any reason was dismissed either on technical grounds or on merits, the same would constitute an embargo as Res judicata for the appellant in one other appeal involving the same issues to proceed further de hors the judgment in the earlier appeal. There is no quarrel over such a proposition. It has become a settled law. However, it has to be seen as to whether the previous judgment in A.S.No.98 of 1990 passed by the Principal District Judge, Vellore on 08.11.2007 would be an embargo for Muniammal herein to proceed with her appeal questioning the validity of the Will - Ex.B.1. 11. The perusal of the common judgment passed by the learned Sub Judge of Tiruppathur in O.S.No.3 of 1983 (relating to A.S.No.1421 of 1990) and O.S.No.119 of 1986 (relating to A.S.No.98 of 1990 concerning which the judgment was passed by the Principal District Judge, Vellore on 08.11.2002) paved the way for filing of the two appeals as set out supra. 12. The learned Senior Counsel for the plaintiff Muniammal would draw the attention of this Court to the judgment of the learned Principal District Judge in the appeal in A.S.No.98 of 1990 and develop his argument that the said judgment was passed subject to the decision that would be rendered by this Court in the present appeal and that Muniammal would not face any embargo in prosecuting her appeal touching upon all the issues. https://hcservices.ecourts.gov.in/hcservices/ 13. It is therefore just and necessary to look into the said judgment passed by the learned Principal District Judge in the appeal A.S.No.98 of 1990. Beemaraj, the plaintiff in O.S.No.119 of 1986 filed the suit for the purpose of getting injunction so as to safeguard his right as a tenant in the suit property and the trial Court granted injunction in his favour, as per the said common judgment referred to above, as against which only Muniammal filed the appeal A.S.No.98 of 1990 before the learned Principal District Judge, in view of the fact that relating to that appeal only the learned Principal District Judge had the first appellate jurisdiction. The District Court clearly and categorically spelt out that it confirmed the judgment and decree of the lower Court relating to the injunction suit in O.S.No.119 of 1986 in favour of Beemaraj, purely on the ground of Beemaraj's possession as a tenant in the suit property and the learned Principal District Judge made it clear that he had not decided anything finally and that he did not decide any issue relating to Will - Ex.B.1 herein. 14. Paragraph Nos.13 and 14 of the learned Principal District Judge's judgment in A.S.No.98 of 1990 is extracted hereunder for ready reference. "13. Now the point for consideration is whether the plaintiff in O.S.119/86 has been in possession of the property. To prove his possession, he relied on Ex.B3 and Ex.B6. Ex.B3 is the registered lease deed executed in favour of the first defendant. Ex.B3 has been registered on 3.3.82. Ex.B4 is the adangal. Ex.B4 has been produced to show that he has been in possession of the property. Ex.B5 is the order passed by the Tashildar. It has been produced to show that his name has been mentioned in the tenancy record. Therefore, from this it is very clear that the plaintiff has been in possession of the property from 1982. This aspect has been considered by the trial Court. Since comprehensive suit has been filed and pending before Honourable High Court, this court cannot consider other aspects advanced by the learned counsel appearing for the appellant. Therefore, in my view, the plaintiff has proved his possession of the property on the date of suit. It is also brought to the knowledge of this court, that the first appeal is pending before the Honourable High Court for appropriate relief. Both the suits have been jointly tried and disposed of by the trial court. Therefore, in my view until the finality is reached in O.S.3/83 the plaintiff is entitled to be in possession of the property. Therefore, there is no need to interfere into the decision taken by the learned Sub Judge, Tirupattur. https://hcservices.ecourts.gov.in/hcservices/ 14. In the result, this appeal is dismissed with costs holding that subject to the result of finality in O.S.3/83 the judgment and decree of the lower court is confirmed." (emphasis supplied) 15. It is therefore crystal clear that there is considerable force in the contention of the learned Senior Counsel for the plaintiff Muniammal that the said District Judge's judgment cannot be taken as an embargo or res judicata as against Muniammal in prosecuting the present appeal, challenging the genuineness of Ex.B.1 - Will. The learned Senior Counsel for the defendants would contend that whatever may be the adjudication by the learned District Judge, the appeal which emerged out of a part of the common judgment of the trial Court became final and it was against Muniammal and in such a case, Muniammal cannot prosecute this appeal. 16. The perusal of the common judgment would clearly indicate that in the common judgment it has been made clear that absolutely no common issues were framed by the trial Court in respect of both the suits. As many as 5 issues were framed in the main suit O.S.No.3 of 1983 filed by Muniammal for declaration of title and for recovery of possession together with incidental reliefs, whereas in the injunction suit O.S.No.119 of 1986 filed by Beemaraj, only two issues were framed, one relating to the fact as to whether the plaintiff Beemaraj was entitled to injunction and another one issue "To what relief? ". Only those two issues were decided in the injunction suit and not any issue relating to the Will. Hence it is quite obvious and beyond doubt that the judgment rendered by the learned District Judge in the said A.S.98 of 1990 would not operate as res judicata or in any way an embargo for Muniammal to prosecute her present appeal. Accordingly, this preliminary point is decided. POINTS NO.1 & 2: These points are taken together for discussion as they are interlinked and interwoven with each other. 17. The learned Senior Counsel for the plaintiff would contend that there are contradictions umpteen in number among the depositions of D.W.2 - the Scribe of Ex.B.1 Will, D.Ws.3, 4 and 5 - the attestors to Ex.B.1 Will; those contradictions are not insignificant or minor contradictions, but material contradictions cutting at the root of the very factum of the alleged execution of the Will by the deceased Raja Gounder, whereas the learned Senior Counsel for the defendants would advance his argument by highlighting the point that more than 22 to 23 years elapsed, ever since the date of execution of the Will till the witnesses deposed before the Court in support of the Will and that due allowances should be given in that regard. https://hcservices.ecourts.gov.in/hcservices/ 18. At this juncture, it is just and necessary to analyse the depositions of the witnesses concerned. In the written submission furnished on the side of the Muniammal it is set out that D.W.2, the Scribe stated as under: "ehd; Kjypy; Ex.B.-1 vGjpndd;/ mijg; goj;J fhl;o mry; vGjpndd;/ capYf;F thrf';fs; uh$hft[z;lh; brhd;dhh;/ mth; ,g;go ,g;go vGjDk; vd;whh;/ ehd; nghd nghJ I/o/ nfhtpe;j uh$;. bghd;Drhkp ,Ue;jhh;fs;/ Ch; Ml;fs; ntQqk; vd;W uh$hf; ft[z;lh; brhy;yp Ms; mDg;gpdhh;/ ghp!hh; ehuhaz Mr;rhhp. rPdpthr uht;. nklh fpUc;&z brl;o ,d;Dk; Ex.B.-1 y; rhl;rp nghl;lth;fs; te;jhh;fs;/ fhj;jhny 10 kzpf;F draft vGjpndd;. rhae;jpuk; 4 kzpf;F Ex.B.-1 vGjpndd;/ mij register bra;aDk; vd;wjw;F uh$hf;ft[z;lh; clk;g[ Rfkhf ,y;iy. 10. 15 ehs; fHpj;J nghfyhk; vd;whh;/ Ex.B.-1 vGjpaJk; mjpy; 5 gf;f';fspy; uh$hf; ft[z;lh; ifbaGj;Jg; nghl;lhh;. mg;nghJ ehd; ghh;j;njd;/ mg;nghJ 2. 3 rhl;rpfs; ,Ue;jhh;fs;. I/o nfhtpe;juh$;. Mh;/v/nfhtpe;juh$;. bghd;Drhkp ft[z;lh; mg;nghJ ifbaGj;J nghl;lhh;f;s;. mth;fs; ifbaGj;J nghLtij uh$hf; ft[z;lh; ghh;j;jhh;. mg;g[wk; rPdpthr uht;. ehuhaz Mrhhp. nklh fpUc&;zbrl;o ifbaGj;J nghl;lhh;fs;/ gpf;fyk; ehd; nghl;nld;. capy; fz;l rkhrhuk; uh$hf; ft[z;lUf;F bjhpahJ vd;why; rhpapy;iy/" 19. Similarly in the same written submission on Muniammal side, the defects in D.Ws. depositions were highlighted as under: D.W.3: "ehd; uh$h tPl;Lf;F nghdnghJ vd;ida[k;. uh$h ft[z;lh; jtpu ntW ahUk; ,y;iy. capypy; ifbaGj;J nghl;L tpl;L te;Jtpl;nld;/ kw;wth;fs; capypy; ifbaGj;J nghl;lij ehd; ghh;f;ftpy;iy/" D.W.4: "capy; vGjpa nghJ Kjypy; ,Ue;J filrp tiu ,Ue;njd;/ D.W.3 – A.nfhtpe;juh$;. ehd;. rPdpthruht;. ehuhaz Mr;rhhp. nklh fpUc;&z brl;oahh; vy;nyhUk; , Ue;njhk;/ vy;yhUk; rhl;rp nghl;lJ xnu rkaj;jpy;jhd;/ ......... ......... ....... kPjp rhl;rpfs; ifbaGj;J nghLk;nghJ ehd; gf;fj;jpy; ,Ue;J ghh;j;njd;/ " D.W.5: "Ex.B.1 - y; ehd; rhl;rp nghl;lnghJ vd;idj; jtpu ntW ahUk; Ex.B.1-y; ifbaGj;Jnghltpy;iy/ uh$h uht[k;. ft[z;lUk; ifbaGj;J nghlr;brhd;dhh;fs;/ uh$h ft[z;lh; Ex.B.1-y; ifbaGj;J nghl;lij ehd; ghh;f;ftpy;iy/" 20. The above extracts from the written submission of the plaintiff would no doubt highlight the contradictions among the witnesses relating to the presence of all the witnesses at the time of testator executing the Will. In fact, the learned Senior Counsel for the plaintiff would draw the attention of this Court to the fact that one A.Govindaraj was not examined before the trial Court as he died; he was purported to have attested the Will only on 04.11.1964, whereas the Will was alleged to have been written on 20.10.1964; and the witnesses as highlighted supra in the written submission, did give prevaricative and contradictory answers relating to the presence of the witnesses at the time of the testator allegedly signing the Will. No doubt, the said attesting witness A.Govindaraj was not https://hcservices.ecourts.gov.in/hcservices/ examined before the trial Court as he died, but he attested the Will by putting his signature in it and also mentioning the date as 04.11.1964. However, D.W.1 (D1) would depose that on 20.10.1964 the Will was scribed and it was signed by Raja Gounder after reading the Will and all the witnesses signed on the same day after seeing the testator signing the Will. D.W.2, the Scribe also would state that all the witnesses signed after seeing the testator having signed the Will on the same day, whereas D.W.3 I.D.Govindaraj one of the attested witnesses would depose otherwise that he did not see the testator signing the Will, but the testator told him to sign by stating that he had executed the Will, whereupon, Raja Rao the Scribe D.W.2 asked him to sign the Will. 21. The learned Senior Counsel for the plaintiff would contend that during Chief Examination, D.W.3 stated one version nevertheless during Cross examination he stated another version. No doubt, in the Chief Examination D.W.3 would state as under: "mJ 24 tUc&k; Kd;g[/ ehd; uh$h ft[z;lh; tPl;lz;il nghndd;/ uh$h ft[z;lh; tPl;lz;il nghdnghJ rhae;jpuk; 4 kzp ,Uf;Fk;/ fh;zk; uh$h uht; ,Ue;jhh;/ uh$h ft [z;lUk; ,Ue;jhh;/ uh$h ft[z;lh; capy; vGjp itj;Js;nsd; ifbaGj;J nghL vd;whh;/ ehd; capypy; ifbaGj;J nghl;nld;. " In cross examination he deposed as under: "ehd; uh$h tPl;Lf;F nghdnghJ vd;ida[k;. uh$h ft[z;lh; jtpu ntW ahUk; ,y;iy. capypy; ifbaGj;J nghl;L tpl;L te;Jtpl;nld;/ kw;wth;fs; capypy; ifbaGj;J nghl;lij ehd; ghh;f;ftpy;iy/ uh$h ft[z;lh; vd; vjphpy; capypy; ifbaGj;J nghltpy;iy/ ehd; ngha; ifbaGj;J nghl;Ltpl;L clnd te;Jtpl;nld;/ capypy; fhfpjj;jpy; ifbaGj;J nghlr; brhd;dth; uh$h uht;/ Ex.B.1-I ehd; goj;J ghh;f;ftpy;iy." 22. Undoubtedly, the deposition of D.W.3 is not in consonance with the deposition of D.Ws.1 and 2 relating to the presence of all the witnesses at one and the same time when the testator signed the Will. But the core question is as to whether that contradiction should be held as a significant one so as to doubt the very genuineness of the execution of the Will by the Raja Gounder himself. In my considered opinion, the contradictions as highlighted on the side of the plaintiff are not relating to the very execution of the Will by Raja Gounder himself, but it is relating to the allied facts. No doubt, I am fully aware of the fact that a litigant who is desirous of attacking a Will would try to place reliance on these contradictions relating to allied facts as otherwise, according to him he would not be able to attack the Will at all. 23. At this juncture, my mind is redolent with the famous maxim - Omnia Presumuntur rite esse acta (A prima facie presumption of this regularity of the acts of public officials exists until the contrary appears). https://hcservices.ecourts.gov.in/hcservices/ I would further like to spotlight the fact that if the time gap between the execution of the Will and the date of deposition by the witnesses concerned are reasonably short, then certainly such contradictions should be taken as material. But on the other hand, when indubitably there was a time gap of 22 to 23 years between the date of execution of the Will and the deposition of the witnesses before the Court, certainly contradictions relating to allied facts cannot be termed as significant, capable of cutting at the root of the Will itself, if does so, it would amount to throwing the baby along with the bath water. 24. Here, D.W.4 Ponnusamy one other attesting witness would categorically state that he saw Raja Gounder signing the Will Ex.B.1, whereupon the witness himself signed it. D.W.5 Meda Krishna Chetty one other attesting witness to Ex.B.1 would depose that he saw the testator signing the Will, whereupon he attested the Will, but he pleaded loss of memory relating to the presence of other witnesses. D.Ws.4 and 5 clearly and categorically stated that they saw the testator signing the Will and thereafter, they attested the Will on the same day and that itself would satisfy the requirement of law as embodied in Section 63(c) of the Indian Succession Act read with Section 68 of the Indian Evidence Act. Over and above that, D.W.3 also would clearly and categorically delineate that even though he did not see the testator signing it, the testator had acknowledged the fact that he only executed the Will, whereupon, D.W.3 signed it. Hence, his deposition also satisfies the requirement of Section 63(c) of the Indian Succession Act. At this context, it is just and necessary to extract Section 63(c) of the Indian Succession Act. "63(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." 25. It is not a case here where only one attesting witness was examined, but as many as three attesting witnesses, namely D.Ws.3,4, and 5 were examined and each of those witnesses clearly and categorically deposed before the Court that