1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.08.2012 CORAM THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI Rev. Aplc.(MD).No.34 of 2011 in S.A.(MD)No.182 of 2005 1.R.Krishnammal 2.K.G.Kothai Nayagi 3.K.G.Balamaheswari 4.K.G.Suriya Kala 5.K.G.Kajagowri ... Petitioners/Appellants/ Plaintiffs -Vs- 1.K.G.Kantha Kumar (died) 2.K.G.Sivasankara Narayanan 3.K.G.Alagarammal 4.The District Elementary Educational Officer, Tirunelveli -2. 5.Assistant Elementary Educational Officer, Palay Nagar, Palayamkottai-2, now at Perumalpuram 6.Joint Director, Directorate of Elementary Education of Tamil Nadu, Chennai-6. 7.State of Tamil Nadu, through its District Collector, Tirunelveli. 8.Selva Rani 9.Subbalakshmi 10.Ganesamurthy 11.Raja Gothai Nayagi 12.Jeya Durga 13.Vijaya Durga ... Respondents/Respondents/ Defendants PRAYER: Review application is filed under Order 41 Rule 1 C.P.C. and under Section 114 of C.P.C., against the judgment and decree, dated 04.01.2011, made in S.A.(MD).No.182 of 2005 on the file of this Court. https://hcservices.ecourts.gov.in/hcservices/ 2 For petitioners : Mr.G.R.Swaminathan For 2nd respondent : No appearance For 3rd respondent : Mr.S.C.Herold Singh For respondents 4 to 7 : Mr.T.S.Mohammed Mohideen, Addl. Government Pleader For respondents 8 to 13 : Mr.M.Gnanagurunathan ORDER The petitioners in the review petition are the plaintiffs/appellants 1 to 5 in the second appeal. The first plaintiff and other plaintiffs are the second wife and children of One Ganesha Moorthy, since deceased, who was the owner of Ganesamoorthy Middle school, Kurichi, Palayamkottai Circle. He had two wives and his first wife predeceased him and he has two sons and one daughter through his first wife, who are arrayed as the defendants 1 to 3 in the suit. The said Ganesha Moorthi married the first plaintiff, Krishnammal, after the death of his first wife and the plaintiffs 2 to 4 are four daughters born to Ganesha Moorthi through the second wife, the first plaintiff. 2.The plaintiffs, after the death of Ganesha Moorthi, filed the suit for declaring that the suit item No.1/ Educational Institution is the joint family property and the plaintiffs and defendants 1 to 3 are the trustees of the same and for consequential permanent injunction restraining the defendants 1 to 3 from administering and managing the educational institution in their capacity as trustees and for promoting the plaintiffs and defendants 1 to 3 to be in the management over the school and for partition of the plaintiffs 21/40 shares by metes and bounds in suit item No.2. 3. The plaint proceeds as if the school was established by one Kandasamy Pillai, who is the father of Ganesha Moorthi as early as in 1932 and all the properties owned by the school are purchased by Kandasamy Pillai, who was acting as Correspondent and Manager of the same and after his death, his only son Ganesha Moorthi and his daughters succeeded to the right of the Managment of the school and the daughters executed a release deed in favour of the only son Ganesha Moorthi and thereafter, Ganesha Moorthi had been in exclusive management and administration of the school and was also appointed as correspondent by the Government and Ganesha Moorthi purchased other properties out of the income derived by him as Government staff and Headmaster of the school and also income from other joint family properties and Ganesamoorthy had all along been treating the educational institution and other properties as joint family properties and the defendants 1 to 3 have been indulging in all sorts of fraudulent acts in order to deprive the plaintiffs from exercising https://hcservices.ecourts.gov.in/hcservices/ 3 their right of management over the property and their right in all other joint family properties by creating fraudulent documents. 4. The suit reliefs are seriously resisted by the defendants 1 to 3 by denying the joint family nature of the suit properties. According to the defendants, the grandfather Kandasamy Pillai had no ancestral nucleus and all the properties are his self acquired properties and as he died intestate, his only son became succeeded to all the properties and all the properties had been managed and enjoyed by Ganesha Moorthi only as absolute owner and there was no ancestral nucleus or joint family income to be utilised for the purchase of other properties so as to treat the same as joint family properties and Ganesha Moorthi during his life time executed a Will in sound disposing state of mind and voluntarily transfered the management of the school education in favour of the first defendant and the plaintiffs and other defendants 2 & 3 have no right of management in respect of the educational institution, etc. 5. With these pleadings, the trial Court framed the following issues in the suit: 1) jhth 1tJ ml;ltiz brhj;J Tl;L FLk;gr ;brhj;J vd;gJ rhpah> 2)fhy";brd;w fnzrK:h ;j ;jp vd;gtuhy; Vw;gLj;jg ;gl ;l 28/02/1995 njjpapl;l capy; rhrdk; rl;lg;go bry;yj ;jf ;fjh> 3) 1tJ ml;ltizr; brhj;ij bghWj;jtiu thjpfs; 1 Kjy; 3 gpujpthjpfSld; nrh;j ;J nkw;fz;l brhj;Jf ;fspy; Kfth;fs; vd;gJ rhpah> 4)1tJ ml;ltizr; brhj;Jf ;fSf;F 1 Kjy; 3 gpujpthjpfs; Kfth;fs ; vd;gJ rhpah> 5) 1 Kjy; 3 gpujpthjpfs; kw;Wk ; thjpfSf;F gs;spf;Tlj;jpy; eph;thfj;jpy; RHw;rp Kiwapy; eph;thfk; bra;a chpik cs;sjh> 6) 2tJ ml;ltiz brhj;jpy; thjpfSf;F 21-40 ghfk; cs;sJ vd;gJ rhpah> 7) 1tJ ml;ltiz brhj;ijg; bghWj;jtiu jtwhd eph;thfj;jpw;F 4tJ 5tJ gpujpthjpfs; jhd; bghWg;g [ vd;gJ rhpah> 8) thjpfSf;F fpilf;Fk; ,ju ghpfhuk; vd;d> 6. The parties in support of their respective claim adduced oral and documentary evidence on both sides. The trial Court, after due discussion, decided the issues relating to the joint family nature of the suit properties and the right of management of the plaintiffs and the defendants 1 to 3 and the validity of the Will, dated 28.02.1995, in favour of the plaintiffs and granted the declaratory and injunction reliefs and preliminary decree for partition of the plaintiffs' due share in other properties. Aggrieved against the same, the defendants 1 to 3 preferred A.S.No.77 of 2004. 7.The lower appellate Court, on the basis of the pleadings, nature of the evidence found on both sides, findings of the Courts below, memorandum of grounds raised in the appeal, framed the following points for determination in the appeal: https://hcservices.ecourts.gov.in/hcservices/ 4 1) f PH ;ik e Pjpkd;wj ;jpd; j Ph ;g ;g [k ; j Ph ;g ;ghiza[k ; rl;lg ;go epiyf;ff ; Toajh> 2) ,k;nky;Kiwa PL mDkjpf;fg;glf;Toajh> 3) nky;Kiwa Pl ;lhsh;fSf;F fpl;Lk ; ghpfhuk; ahJ> 8. The lower appellate Court reversed the judgment and decree of the trial Court mainly on the ground that the plaintiffs' side evidence is not sufficient enough to prove the joint family nature of the properties and the disputed Will are duly executed by him in sound disposing state of mind and as per which, his two sons are entitled to all the properties and on the basis of such findings, the appeal was allowed and the suit was dismissed. Aggrieved against the same, the plaintiffs preferred Second Appeal No.182 of 2005 before this Court. The second appeal was admitted on the following substantial question of law: "Whether the first appellate Court is justified in not discussing all the issues, which are discussed by the trial Court?" 9. During the pendency of the second appeal, the first defendant in the suit/first respondent in the second appeal died and his legal heirs are impleaded as the respondents 8 to 13 as per order, dated 12.06.2007, made in M.P.(MD).No.1 of 2007 by this Court. While the second appeal is pending, the 10th respondent in the second appeal filed W.P.No.11093 of 2008, challenging the order of the District Elementary Educational Officer, Tirunelveli, dated 20.11.2008, thereby directing the writ petitioner and the second defendant, who are the descendants of late Ganesha Moorthi born through his first wife, to submit certain documents to prove their right of management over the educational institutions. 10.Originally the writ petition was filed against the respondents 1 to 3, Educational Authorities and the second defendant in the suit is impleaded as the 4th respondent as per the order, dated 10.12.2008, made in M.P.No.2 of 2008. When both the writ petition and the second appeal were ripe for hearing, both the writ petition and the second appeal were at the instance of the parties heard together and jointly disposed of by this Court by order, dated 04.01.2011, thereby the second appeal was dismissed and the writ petition was allowed and the impugned order was set aside and the right to manage the school was devolved upon the legal heirs of the first defendant, as per the judgment and decree passed by the lower appellate Court in A.S.No.77 of 2004. 11. While doing so, our High Court concentrated more on the correctness of the finding regarding the genuineness, validity and execution of the Will and the burden of proof regarding execution of Will and arrived at a finding that late Ganesha Moorthi was in good physical condition and was holding the post of school Correspondent during relevant point of time and his first son was chosen by him to run the school as he was teacher in the school and helping him in the school management and the Will is duly proved in the manner known to https://hcservices.ecourts.gov.in/hcservices/ 5 law and the findings of the lower appellate Court in this regard warrants no interference and accordingly, the second appeal is dismissed and the writ petition is allowed. 12. The appellants 1 to 5/plaintiffs have come forward with this review application mainly on the ground that the impugned judgment of this Court in the second appeal suffers an error apparent on the face of the record, as the same failed and omitted to decide the issue regarding the ancestral and joint family character of the suit properties based on the outcome of which the adjudication regarding the competency of Ganesa Moorthi to execute the Will in question and the genuineness and validity and due execution of the Will could be decided. The other serious ground raised in the grounds for review is regarding gross failure on the part of this Court to consider the substantial question of law raised in the second appeal regarding the failure of the lower appellate Court to frame points for its determination and to consider all issues that were agitated before and decided by the trial Court. It is seriously contended that the lower appellate court being continuation of suit, fell in serious error in not independently discussing with and in agreeing or disagreeing with the finding of the trial Court by giving cogent reasons upon all issues. 13. Heard the rival submissions made on both sides and perused the records. 14. The review petitioners/appellants/plaintiffs 1 to 5 seek to review the judgment and decree of this Court mainly on the ground that this Court committed an error apparent on the face of the record by reason of its failure to duly consider the substantial questions of law raised in the second appeal and the circumstances which gave raise to such substantial questions of law. This Court has in the foregoing paragraph referred to the relevant facts, as per which the main controversy in issue in the suit is as to whether the property in question in the hands of Ganasa Moorthi was ancestral or joint family in nature, thereby the plaintiffs and the defendants 1 to 3 are entitled to get share in the same by survivorship, or as to whether the property has to be treated as self acquisition in the hands of late Ganasea Moorthi, he having inherited the same from his father who acquired the suit property by self acquisition and as to whether the Will in question in favour of the defendants is genuine and validly executed and the executant of the Will is competent to execute one such Will. 15. The perusal of the records would undoubtedly show that trial Court framed proper issues in the suit regarding real controversy between parties and discussed each issue in the light of oral and documentary evidence adduced and rendered a specific finding and on the basis of such finding decreed the suit, whereas the lower appellate Court has not only failed to frame appropriate points for determination on each of the issues but also not discussed about the findings of the trial Court on each of the issues and failed to hold discussion on facts in the light of available evidence, either to https://hcservices.ecourts.gov.in/hcservices/ 6 agree or disagree with the finding of the trial Court on each issue for independent reasons recorded in writing. Though the trial Court has reasonably discussed the issue and rendered findings on the basis of materials, the lower appellate Court failed to dispose of the appeal in the manner known to law, ie., as contemplated under Order 41 Rule 33 C.P.C, as such, the outcome of such disposal is legally unsustainable. 16.As a matter of fact, the only substantial question of law framed by this court is "whether the first appellant court is justified in not discussing all the issues, which are discussed by the trial court". Whereas, this court has, while disposing of the main second appeal along with writ petition commonly, fully concentrated on the correctness of the finding upon factual issues, such as, physical and mental health condition of the testator to execute the Will in question and legality and validity of execution of the Will and found physical and mental health condition of Ganesamoorthy to be good and execution of the will to be valid and this court, after having discussed the correctness of the finding regarding physical and mental health condition of Ganesamoorthy and the failure of the trial court to discuss all the material facts relating to valid execution of the will by the testator and absence of existence of suspicious circumstances, proceeded to say that no substantial question of law is involved herein and the finding of the lower appellate court deserves no interference. 17.As rightly argued by the learned counsel for the review petitioners, the finding of this court in the second appeal that no substantial question of law is involved, is absolutely misconceived and this court, while admitting the second appeal, rightly framed the substantial question of law. Whereas, this court, while disposing of the second appeal, failed to go into the same on merits and the same is gross error apparent on the face of the record committed by this court thereby calling for review of the finding of this court in the second appeal. On this score alone, the review application is bound to be decided in favour of the petitioners. 18.Though the learned counsel for the petitioners and the respondents cited catenna of judgments, regarding valid execution of the Will and the manner of proof of execution of Will and the limited power of this Court under review jurisdiction, the same are inapplicable to the present case in the given situation. Thus, this court for the discussion held above, is very much inclined to order the review application as sought for herein. 19.In the result, the review application is ordered and the judgment and decree, dated 04.01.2011, made in S.A.No.182 of 2005 by this Court is reviewed thereby the second appeal is allowed by setting aside the judgment and decree made in A.S.No.77 of 2004 on the file of the First Additional District Court, Tirunelveli, dated 08.12.2004 and A.S.No.77 of 2004 is remanded back to the first appellate Court for fresh disposal on merits in the manner known to law and in the light of the directions issued in this order and if https://hcservices.ecourts.gov.in/hcservices/ 7 warranted, after giving due opportunity to both the parties to adduce further oral and documentary evidence in respect of two main controversies in issue, regarding the nature of the properties and genuineness and validity and execution of the Will in dispute. The Office is directed to send back the records along with copy of the judgment at the earliest possible time. The lower appellate Court is directed to dispose of the appeal as expeditiously as possible not later than three months from the date of receipt of the copy of the judgment along with the records from this Court. No costs. 20. As this Court on earlier occasion disposed of both the writ petition and the second appeal by a Common Order, in view of the order of review of judgment and decree made in second appeal and the order of remand of first appeal, the parties are at liberty to approach the appropriate Court, where the writ appeal against the order made in the writ petition is pending, for appropriate relief, if any. Sd/- Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar To 1.The 1st Additional District Judge, Tirunelveli 2.The 2nd Additional Subordinate Judge, Tirunelveli. +1 CC to Mr.S.C.Herold Singh, Advocate (SR.No.26052) Rev.Aplc(MD) No.34 of 2011 in SA (MD) No.182 of 2005 03-08-2012 gcg/rk NSV/17.1.13/7P/4C https://hcservices.ecourts.gov.in/hcservices/