IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :23.09.2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.606 of 1997 K.S.Venugopal ... Appellant/Respondent/Plaintiff Vs. R.Meenakshi ... Respondent/Appellant/10th Defendant Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 25.07.1995 in A.S.No.12 of 1995 on the file of the learned Subordinate Judge, Dharapuram, reversing the Judgment and Decree of the trial Court dated 14.12.1994 in O.S.No.597 of 1987 on the file of the District Munsif Court, Dharapuram. For Appellant : Mr.S.V.Jayaraman Senior Counsel For M/s.I.C.Vasudevan For Respondent : Mr.R.Subramanian J U D G M E N T The Appellant/Respondent/Plaintiff has preferred the present Second Appeal before this Court as against the Judgment and Decree dated 25.07.1995 in A.S.No.12 of 1995 passed by the Learned Subordinate Judge, Dharapuram. 2.Before the trial Court, the Appellant/Respondent/Plaintiff, in the suit, had sought the relief of Declaration that the 'A' schedule property mentioned in the Plaint belonged to him as per the Will dated 07.06.1987 executed by Gurusamy Iyer and in respect of the relief of possession to be handed over to the Appellant/Respondent/Plaintiff by the Defendants 1, 2 and 5 to 15 and further, sought the relief in respect of 'B' schedule property. 3.The trial Court framed 1 to 4 issues for adjudication in the suit. During the trial of the suit, on behalf of the Plaintiff (Appellant/ Respondent), witnesses P.W.1 to P.W.4 were examined and Exs.A.1 to A.12 were marked. On the side of the Defendants, witnesses https://hcservices.ecourts.gov.in/hcservices/ D.W.1 to D.W.4 were examined and Exs.B.1 to B.62 were marked. 4.The trial Court, after contest and on an appreciation of oral and documentary evidence available on record, in the Judgment in O.S.No.597 of 1987, had held that the Appellant/Respondent/Plaintiff was entitled to get the relief of Declaration in respect of 'A' schedule property and in respect of 'B' schedule property, it further held that the Appellant/Respondent/Plaintiff was entitled to recover possession from the Defendants 1 and 2 and resultantly, passed a Decree without costs. 5.Feeling aggrieved against the Judgment and Decree of the trial Court dated 14.12.1994 in O.S.No.597 of 1987, the Appellant/10th Defendant filed A.S.No.12 of 1995 before the Learned Subordinate Judge, Dharapuram as an aggrieved person. 6.The First Appellate Court viz., the Learned Subordinate Judge, Dharapuram, in Appeal, came to the conclusion that Ex.A.1-Will was not proved and answered in favour of the Appellant and also held that the plea of the Respondent/Plaintiff that the Appellant/10th Defendant should be evicted from the 'B' schedule property was not to be accepted and consequently, allowed the Appeal by setting aside the Judgment and Decree passed by the trial Court and dismissed the suit filed by the Respondent/Plaintiff with costs. 7.Being dissatisfied with the reversing Judgment and Decree dated 25.07.1995 in A.S.No.12 of 1995 passed by the First Appellate Court, the Appellant/Respondent/Plaintiff had preferred the instant Second Appeal before this Court. 8.At the time of admission of the Second Appeal, this Court has framed the following Substantial Question of Law: "Whether the Will executed by Gurusamy Iyer has been proved with reference to Section 68 of the Evidence Act and the Judgment of the first appellate Court suffers from non-consideration of material evidence in that behalf." The Contentions, Discussions and Finding on Point:- 9.According to the Learned Senior Counsel for the Appellant/ Respondent/Plaintiff, the First Appellate Court failed to appreciate the uncontradictory disinterested evidence of witnesses P.W.2 and P.W.3 which were relied on by the trial Court in discharging the heavy onus of proof cast on P.W.1 and in proving the truth and genuineness of the Ex.A.1-Will. https://hcservices.ecourts.gov.in/hcservices/ 10.It is the further contention of the Learned Senior Counsel for the Appellant that witnesses P.W.2 and P.W.3 had deposed before the trial Court, the circumstances under which the thumb impression of the testator was taken. But, these aspects of the matter were not adverted to by the trial Court in real perspective. 11.Advancing his arguments, it is the submission of the Learned Senior Counsel for the Appellant/Respondent/Plaintiff that the First Appellate Court had omitted to consider Exs.B.58 to B.62 [Petition copy of Gurusamy Iyer addressed to Periyar District Collector, Certified copy of Sale Deed dated 31.01.79 executed by S.S.Gurusamy Iyer in favour of Muthulakshmi Ammal, the Finger Print copy of S.S.Gurusamy and others with negative, the Finger Print of S.S.Gurusamy with negative, S.S.Gurusamy Iyer Finger Print Photo] which were filed before the trial Court to point out the existence of suspicious circumstances surrounding the execution of the Will. Also, the onus of proof could not shift to the Appellant/Respondent/Plaintiff to explain away the purported suspicious circumstances. In fact, it was for the Defendants to call for the expert witness to prove the genuineness of Exs.B.58 to B.62 produced from their custody. 12.Expatiating his submissions, the Learned Senior Counsel for the Appellant/Plaintiff contends that the First Appellate Court had failed to appreciate that in any event, even D.W.2 admitted that the signatures of the testators found in Exs.B.58, B.7 and B.16 were different and therefore, it was necessary to compare the signatures of the deceased when he affixed his thumb impression only in the Will. 13.The Learned Senior Counsel for the Appellant projects an argument that when the First Appellate Court after rejecting the Ex.B.16-Pronote as not a true one and also not contained the signature of the deceased should have held that Exs.B.58 and B.62 were created for the purpose of the case in the absence of evidence on the side of the Defendants to prove the truth and genuineness of Exs.B.58 to B.62. 14.Yet another contention put forward on the side of the Appellant/Plaintiff was to the effect that the First Appellate Court failed to note the clear recitals in Ex.A.1-Will dated 07.06.1987 which are clear and is evident to show that the hands of the deceased were in a shaky condition and as such unable to put his signature. 15.The stand of the Appellant/Respondent/Plaintiff is that the First Appellate Court must have held that reference to Ex.A.1-Will dated 07.06.1987 in Ex.A.23 and the production of prior title deeds of the deceased Exs.A.4, A.7 and A.10 from P.W.1's custody would clearly prove that Ex.A.1-Will was a true and genuine one which was validly executed in the presence of P.W.2 and P.W.3. https://hcservices.ecourts.gov.in/hcservices/ 16.The Learned Senior Counsel for the Appellant/Respondent/ Plaintiff submits that the First Appellate Court ought to have rejected Ex.B.59-Certified Copy of Sale Deed dated 31.07.1979 filed by P.W.3 (Sub Registrar), inasmuch as the said document would not contain the thumb impression of the deceased for the purpose of comparison with that of the Will. 17.Lastly, it is the submission of the Learned Senior Counsel for the Appellant that the First Appellate Court failed to take note of the vital admissions made by P.W.1 to P.W.4 which clearly point out the falsity of the case of the other side. 18.Per contra, it is the contention of the Learned Counsel for the Respondent/Appellant/10th Defendant that the First Appellate Court analysed meticulously the oral and documentary evidence available on record and came to the right conclusion in holding that Ex.A.1-Will dated 07.06.1987 was not proved in a proper manner and also held that the plea of the Plaintiff requiring the Respondent/10th Defendant to vacate from the 'B' schedule property was an unacceptable one and allowed the Appeal with costs, which need not be disturbed. 19.The Learned Senior Counsel for the Appellant/Respondent/ Plaintiff cites the decision of this Court in B.Parvathy V. Ramakrishna Mission rep. By duty authorised Power Agent Swami Amirthanantha & others, 2001 (2) T.L.N.J. 89 at page 90 wherein it is held that 'while reversing the judgment and decree of the trial Court, the lower appellate court ought to have given reasonings as to how the trial Court is wrong. But, the lower appellate court has not given any such finding in its judgment.' 20.He also relies on the judgment of this Court in Nambi Iyyengar and another V. The District Collector, Tirunelveli and others, 2001 (2) T.L.N.J. 312 at page 313 wherein it is held that 'it is the duty of the appellate court to analyse and consider the trial Court judgment with due and proper application of mind.' 21.Yet another decision is relied on the side of the Appellant/ Plaintiff in A.Mohan Doss and others V. The Revenue Divisional Officer, Madurai and another, 2003 (2) T.L.N.J. 76 at page 80 wherein it is, inter alia, held that '... In fact, it is a settled position of law that to reverse a well considered finding given by the trial Court, there should be valid and convincing reason; but unfortunately, no such reason has been given as to why the overwhelming documents have to be ignored. The approach by the lower appellate court is not proper and correct.' 22.The Learned Senior Counsel for the Appellant draws the attention of this Court to the decision in Hindu Community in General https://hcservices.ecourts.gov.in/hcservices/ and Citizens of Gobichettipalayam V. The Commissioner, Hindu Religious and Charitable Endowment, Madras and 19 others, 2005-2- L.W.-627 at page 686, 687, 688 in paragraph 114, wherein it is laid down as follows: "114. We are of the view that the dictum laid down by the Supreme Court in H.Venkatachala case (AIR 1959 SC 443) would apply to the facts of the case. It is a case where there are suspicious circumstances surrounding the Will. Though there is a statement in the Will that the hands of the testatrix were shaky and she could not sign the document and hence, she put her thumb impression, the evidence of witnesses who were examined on behalf of defendants 4 and 5 clearly establish that Rangammal was able to sign on the date of execution and her eye sight was normal and she was hale and healthy and in spite of the same, it is stated that she affixed her thumb impression, for which there is no explanation from the side of the defendants 4 and 5. There is also no explanation for her thumb impression at the time of registration when the case of the defendants 4 and 5 was that she could sign once or twice but, she could not sign 4 or 5 times. On the other hand, it is seen from Ex.A-16 that when they presented the Will ( Ex.A-5) for registration, Palaniappa Chettiar and Rangammal refused to put thumb impression, but insisted to sign and that shows her attitude and there is documentary evidence to show that she was able to sign. We therefore hold that the statement in the Will that she was not able to sign and hence, affixed her thumb impression creates a genuine suspicion, particularly when the evidence let in on behalf of the defendants is to the effect that Rangammal was able to sign on the date of execution of the document which is contrary to the statement made in the Will and the suspicion has not been removed by the defendants 4 and 5. We also find that when the Will says that she was bedridden, the evidence is that she was hale and healthy and she was able to move about. The disposition made in favour of third parties is quite unnatural as she would not have acted against her deceased husband' s direction but, on the other hand, normally she would have respected his directions in the earlier Will, Ex.A-5 that the properties should go to charities as she led a long married https://hcservices.ecourts.gov.in/hcservices/ life with her husband. It is for the defendants 4 and 5 to remove the suspicious circumstances created in getting the thumb impression in the Will, Ex.B-109, particularly when the evidence let in on the side of the defendants show that Rangammal was not affected by paralysis and she had a normal eye sight and her hands were not shaky and she had no nervous disability. We are of the view, the defendants 4 and 5 have not discharged the burden cast on them to dispel the suspicious circumstances surrounding the Will and satisfy the Court that it was her last will. Learned Subordinate Judge had the opportunity to see the demeanour of the witnesses and he has held that the suspicious circumstances surrounding the execution of the will were not cleared and his judicial conscience was not satisfied to accept the will (Ex.B-109) as a valid, true, genuine and last will of Rangammal. We therefore hold that the defendants have not removed the suspicious circumstances surrounding the execution of the Will to the satisfaction of the Court for accepting the Will as genuine and last Will of Rangammal. We also hold that the defendants 4 and 5 failed to establish that Ex. B-109 is the true, genuine and last Will of Rangammal. We fully concur with the reasonings and the conclusion of the trial Court. Apart from the reasonings of the trial Court, we also hold that the defendants 4 and 5 have not discharged the burden cast on them to remove the legitimate suspicion surrounding the execution of the Will. We hold that the discrepancies in the evidence cannot be said to be immaterial as the statements made in the Will are contrary to th e depositions of the witnesses examined on their behalf and in may respects, their statements made in the evidence are contrary to the written statement of the defendants 4 and 5. On appreciation of the entire evidence on record, we come to the conclusion that the Will dated 27.11.1980, Ex.B- 109 alleged to have been executed by Rangammal is not a true and genuine Will of hers and it is not her last Will also." 23.However, the Learned Counsel for the Respondent/Appellant/ 10th Defendant cites the decision of the Hon'ble Supreme Court in K.Laxmanan V. Thekkayil Padmini and others, 2009-3-L.W.854 at 855 in paragraphs 20, 21, 22, 23, 25, 26 and 27, it is observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "So far as a Deed of Will is concerned, the position in law is no longer in doubt for the onus of proving the Will is on the propounder. The propounder has to prove the legality of the execution and genuineness of the said Will by proving absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and the signature of the testator. Once the same is proved, it could be said that the propounder has discharged the onus. When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. So far as Section 68 of the Act is concerned, it categorically provides that a Will is required to be attested and therefore, it cannot be used as evidence until at least one of the attesting witnesses is called for the purpose of proving its execution provided such attesting witness is alive, and subject to the process of the court and capable of giving evidence. In the present case the scribe and one of the attesting witnesses to the Will namely Vasu died before the date of examination of the witnesses. The second attesting witness namely Gopalan was also not in good physical condition inasmuch as neither was he able to speak nor was he able to move, the fact which is proved by the deposition of the doctor examined as DW.2. Consequently, as the execution of the Will cannot https://hcservices.ecourts.gov.in/hcservices/ be proved by leading primary evidence, the propounder i.e. The appellant herein was required to lead secondary evidence in order to discharge his onus of proving the Will as held by this Court to be permissible. No attempt was made by the appellant to prove and establish the mental and physical condition of the testator at the time of execution. Rather the respondent has proved that Chathu, the father of the appellant, was at the time of the alleged execution of the Deed of Will was 82 years of age and he was suffering from serious physical ailments and was not mentally in a good state of mind. In view of the aforesaid suspicious circumstances brought on record regarding the execution of the Will and the same having not been proved in accordance with law, we find no reason to take a different view than what is taken by the first appellate court as also by the High Court so far as it concerns the Deed of Will. This leaves us with the responsibility of considering the legality of execution of the Deed of Gift. Incidentally, the said Deed of Gift was also executed on the same day as that of the Will which was held to be not proved and established in accordance with law and was discarded by both the appellate courts." Also, in the aforesaid decision at page 856 at 857, in paragraph 36, it is held as follows: "Taking all the factors as stated hereinbefore into consideration and also noticing the fact that execution of the Will, which was executed on the same day as that of the Gift Deed, we hold that even the said document is found to be of suspicious nature and therefore the said deed is also held to be not duly proved." 24.In the Plaint, the Appellant/Respondent/Plaintiff had averred that the Plaint 'A' and 'B' Schedule properties belonged to the 1st Defendant's brother S.S.Gurusamy Iyer. Earlier, the said Gurusamy Iyer served as Karnam of Sankarandampalayam and he resigned the job of Karnam owing his ill health. Gurusamy's wife died 7 years before https://hcservices.ecourts.gov.in/hcservices/ from now. Gurusamy Iyer has no male or female heirs. The Appellant/ Respondent/Plaintiff was very close to the Gurusamy Iyer's family. The Appellant/Plaintiff and his family met the medical and food expenses of Gurusamy Iyer. All the expenses of the said Gurusmay have been met only by the Appellant/Plaintiff. In O.S.No.48 of 1965 a decree has been passed on 25.07.1965 by the Dharapuram District Munsif Court that Plaint 'A' schedule property belong to said Gurusamy. The said Gurusamy in E.P.R.No.245 of 1965 obtained possession of the Plaint 'A' schedule property through Court. 25.The 1st Defendant was the sister of Gurusamy Iyer. The 2nd Defendant was the son of the 1st Defendant. Before his death, S.S.Gurusamy on his own volition, without anybody's compulsion bonafidely on 07.06.1987 with consciousness executed a Will. Based on the Will, the Appellant/Plaintiff got the Plaint 'A' schedule property. In 'A' schedule property the eastern side room and the upper portion southern side room let out by Gurusamy to Defendants 3 and 4. The said Gurusamy expired on 12.07.1987 at Dharapuram. The Appellant/ Plaintiff gave a sum of Rs.2,000/- to the 2nd Defendant towards funeral expenses. The centre room of the 'A' schedule property was asked by the Defendants 1 and 2 from the Appellant/Plaintiff for the purpose of performing the funeral rites of Gurusamy. The Appellant/Plaintiff gave his consent for the same and on 12.07.1987 handed over the possession of 'B' schedule property. The Defendants 1 and 2 agreed to hand over possession of the 'B' schedule property within a month's time after performing the funeral rites of Gurusamy. Defendants 1 and 2 were in possession of the room mentioned in 'B' schedule property. The Appellant/Plaintiff on 15.08.1987 and 15.09.1987 demanded the Defendants 1 and 2 to hand over the possession of the room to him. But the 1 and 2 Defendants were procrastinating the matter and now claim a right in 'B' schedule room. 26.After the death of Gurusamy, the Appellant/Plaintiff in 'A' schedule property let out an eastern side room to the 3rd Defendant on a monthly rent of Rs.100/- on 01.08.1987 and that he and 3rd Defendant on 29.09.1987 executed a Rent Chit. The Appellant/Plaintiff let out an upper side and southern side room in 'A' schedule property to the 4th Defendant on 01.08.1987 for rent. The 3rd Defendant paid a monthly rent of Rs.100/- by October 1987 to the Appellant/ Plaintiff on 01.09.1987, for which a receipt was issued. The 4th Defendant paid October monthly rent of Rs.25/- to the Appellant/Plaintiff for which a receipt dated 01.11.1987 was obtained by her. Defendants 3 and 4 had not objected to the Will executed by Gurusamy in favour of the Appellant/Plaintiff. The suit was filed by the Appellant/Plaintiff praying for a Declaration in respect of 'A' schedule property. Therefore, third and fourth Defendants were arrayed as formal parties. https://hcservices.ecourts.gov.in/hcservices/ 27.During the pendency of suit, the 2nd Defendant expired at Dharapuram on 07.02.1990. For the 2nd Defendant, his mother 1st Defendant, sons Defendants 5 to 8 and daughters Defendants 9 and 10 and the wife, 11th Defendant were the legal heirs. The Defendants 5 to 11 were added in the suit as LRs of the 2nd Defendant. Since possession was sought for from the 2nd Defendant in respect of 'B' schedule property, his other heirs were arrayed in the suit. 28.During the pendency of the suit, the 1st Defendant expired on 27.08.1990. The 2nd Defendant and another daughter Savithiri Ammal were the heirs of the 1st Defendant. Since the 2nd Defendant expired on 07.02.1990, the heirs were added already as L.Rs. as Defendants 5 to 11. For the 1st Defendant's deceased daughter Savithiri, Defendants 12 to 15 were the Legal heirs. The Defendants 12 to 15 were added as parties in the suit since a relief of possession was sought for from the 1st Defendant in respect of Plaint 'B' schedule property. In respect of 'B' schedule property as against the Defendants 1, 2 and 5 to 15 Defendants, the Appellant/Plaintiff would seek a relief by way of filing a separate suit for damages in respect of use and occupation. 29.In the Written Statement filed by Defendants 1 and 2, it was averred that the suit was not maintainable in law and justice. The Appellant/Plaintiff had no locus to claim any right in the suit property. The Will dated 07.06.1987 was a forged one. There was no necessity at any point of time for late Gurusamy Iyer to execute the Will. It was blatantly false to state that the Appellant/Plaintiff gave a sum of Rs.2,000/- to the 2nd Defendant for performing the funeral rites of late Gurusamy on 12.07.1987. It was false to state that the Defendants 1 and 2 asked the Appellant/Plaintiff to provide a room in Plaint 'A' schedule property for the purpose of performing the funeral rites of Gurusamy. Also, it was a lie to state that after the consent being accorded by the Appellant/Plaintiff on 12.07.1987, the Plaint 'B' schedule property was given in possession to Defendants 1 and 2. For many years Defendants 1 and 2 remained with late Gurusamy. The 1st Defendant was the Heir of late Gurusamy. The suit property belonged to the 1st Defendant. The 1st Defendant on 03.11.1987 gave a public notice in Dinamalar Daily in respect of the suit property mentioning that it belonged to him. The Appellant/Plaintiff had not issued any denial to the said notice and had created the suit Will. 30.Defendants 1 and 2 family members remained with the late Gurusamy for the past 40 years. When Gurusamy Iyer was not well and admitted into the Dharapuram Government Hospital, the Defendants 1 and 2 have treated him. After his death, the 2nd Defendant performed the funeral rites. Therefore, the Appellant/ Plaintiff