In the High Court of Judicature at Madras Dated 02.03.2010 Coram The Honourable Mr.Justice R.SUBBIAH Civil Miscellaneous Appeal No.3234 of 2009 and M.P.No.1 of 2009 G.Sundarraj @ Sundaram ..Appellant ..vs.. 1. Rajamani 2. A.G.Lakshmi Narayanan ..Respondents Civil Miscellaneous Appeal filed under section 43 Rule 1(v) of C.P.C., against the fair and decretal order dated 04.08.2009 in E.A.No.62 of 2006 in E.P.No.57 of 2004 in O.S.No.59 of 2000 on the file of Additional District Judge, Puducherry at Karaikal. For Appellant : Mr.Sai Krishnan for M/s.Sai Bharath and Ilan For Respondents: Mr.R.Natarajan for R1 JUDGMENT This appeal is filed against the order dated 04.08.2009 passed by the learned Additional District Judge, Puducherry at Karaikal, in E.A.No.62 of 2006 in E.P.No.57 of 2004 in O.S.No.59 of 2000, in and by which, the application filed by the 1st respondent herein to remove the obstruction raised by the appellant herein and put her into the possession of suit schedule property, was allowed. 2. The facts, which are necessary to decide the issue involved in this appeal, are as follows: (a) The 1st respondent, viz., Rajamani, has filed O.S.No.59 of 2000 against the 2nd respondent before the Additional District Court, Puducherry at Karaikal for recovery of a sum of Rs.3,81,250/- with interest at 18% per annum on the principal sum of Rs.2,50,000/- and the same was decreed in favour of the 1st respondent/plaintiff by a judgment and decree dated 20.04.2001. The 1st respondent/decree holder filed E.P.No.39 of 2001 to conduct an auction sale of the petition mentioned property and since no payment was made, proclamation was ordered. Thereafter, the decree holder moved an application to participate in the auction sale since no bidder had come forward to participate in the auction and the application was allowed. The sale was conducted on 10.02.2003 and the decree holder became the auction purchaser. In the meantime, the 2nd respondent has filed a petition to set aside the sale; but, by order dated 24.06.2004, the said petition was dismissed and the sale was confirmed. Thereafter, the 1st respondent/auction purchaser filed E.P.No.57 of 2004 for taking delivery of the said property and the same was allowed by ordering delivery. Pursuant to the same, the 1st respondent went to the suit property to take delivery on 27.02.2006 along with the Court Amin and at that time, the appellant herein, who is the brother of the judgment debtor, resisted the same by way of a written objection to the court Amin, stating that the said property, namely No.7, Veerapillai Street, Thirumalairayan-pattinam is his forefather's property, which remains undivided and he is having a share in the said property. Hence, the 1st respondent herein filed an application in E.A.No.62 of 2006 before the trial court to put the 1st respondent in possession of the property after removing the obstruction raised by the appellant herein. (b) The appellant contested the same by filing a counter and stated that the subject property was originally owned by his father Gopalakrishna Chettiar, who got the same under a partition deed of the year 1954; the appellant got the same through the Will executed by his ancestors and he leased out the property orally to his brother Lakshmi Narayanan, the 2nd respondent/judgment debtor for a period of three years. Subsequently, by way of an additional counter, the appellant has stated that the appellant got the property through a Will executed by his father, who got the said property by way of a partition deed of the year 1954. Further, he has stated that one of his brothers, viz., Varadarajan, did not spend any amount for acquiring this property by their father and in the partition deed dated 15.12.1975, this item of property was not included and that the 2nd respondent was never in possession and enjoyment of the property. The subject property was exclusively owned and held by the appellant and his clan and the auction purchase made by the decree holder is not binding on the appellant. The 1st respondent, by suppressing these facts, brought the property for court auction fraudulently. Thus, the obstruction petition has to be dismissed. (c) Before the trial court, on the side of the decree holder, P.Ws.1 and 2 were examined and Exs.P-1 to P-7 were marked and on the side of the appellant/obstructor, R.Ws.1 and 2 were examined and Exs.R-1 to R-10 were marked. The executing court, after analyzing the entire evidence, has allowed the petition on a finding that the obstructor, who is the brother of the judgment debtor, has created a Will to defeat the claim of the 1st respondent/decree holder. Aggrieved over the same, the obstructor has filed the present appeal. 3. The learned counsel for the appellant contended that the appellant is the owner of the petition mentioned property and he is entitled to possession of the same by the Will dated 10.02.1974. To strengthen the same, the appellant has examined one of the attesting witnesses to the said Will, viz., Vaduvaiyan, as R.W.2. Though the Will was marked as Ex.R-1 before the court below, the lower court has come to an erroneous finding that the original Will or the copy of the Will was not produced by the appellant. Further, the trial court, by comparing the signature of R.W.2 in Ex.R-1 Will and his deposition, came to the conclusion that the signatures of the attestor did not not tally with each other. Thus, by inviting the attention of this Court to the said observation made by the lower court, the learned counsel for the appellant contended that the court below has allowed the application without properly applying its mind to the various objections raised by the appellant. Further, the learned counsel for the appellant brought to the notice of this Court Order 21 Rule 97 of C.P.C. and contended that in the obstruction application, the executing court must have decided the question of title to the property. But, in the instant case, though the Will dated 10.02.1974 has been marked as Ex.R-1, the executing court has come to the conclusion as if the appellant has not even stated the date of the Will in the counter, overlooking the fact that the said date was mentioned in the counter by the appellant. Further, the learned counsel for the appellant contended that when it is not in dispute that R.W.2 was an attesting witness, the court below, by relying upon the evidence of R.W.2, ought to have come to the conclusion that the father of the appellant had bequeathed the property to the appellant through a Will dated 10.02.1974 and dismissed the application filed by the 1st respondent. Learned counsel also relied upon the judgment reported in AIR 2003 SCC 3109 (RAMABAI PADMAKAR PATIL (DEAD) BY L.Rs.AND OTHERS ..vs.. RUKMINIBAI VISHNU VEKHANDE AND OTHERS) in support of his contention that in view of section 63 of the Indian Succession Act and the proviso to Section 68 of the Evidence Act, if one of the attesting witnesses was examined to prove the Will, that would satisfy the requirement of law. 4. Per contra, by inviting the attention of this Court to various documents marked before the trial court, the learned counsel for the 1st respondent/decree holder made his submission to disprove the theory of the Will put forth by the appellant. At the outset, the learned counsel brought to the notice of this Court the objections filed by the appellant before the court Amin on 27.02.2006, the date on which the Amin went to the suit property for effecting delivery, wherein it has been clearly stated by the appellant that the property was the ancestral property and it was not partitioned between the co- sharers, but the appellant has not whispered anything about the so called Will executed by his father in favour of him in 1974. That apart, in the partition deed dated 15.12.1975, which was marked as Ex.P-7, it was stated that the property of the father of the appellant and the judgment debtor was partitioned between the co-sharers and in the said partition, the subject property, which was described as 'B' schedule property, was allotted to one of his brothers Varadharajan and 'D' schedule property, namely, Door No.20 at Market Street was allotted to another brother, viz., Navaneetha Kannan. After the execution of the partition deed, Varadharajan, the brother of the appellant, by way of a Deed of Exchange dated 22.09.1976, which was marked as Ex.P-3, conveyed the subject property in favor of his brother Lakshmi Narayanan, the judgment debtor. Similarly, another brother Navaneetha Kannan had conveyed the property, namely, No.20 Market Street, by way of an exchange deed dated 29.03.1976, which was marked as Ex.P-6, to the appellant/obstructor herein. Thus, the learned counsel contended that a perusal of the documents would show that the subject property belonged to the judgment debtor and No.20, Market Street belonged to the appellant herein. Hence, the question of executing the Will by his father in 1974 does not arise and under such circumstances, it could be safely inferred that Ex.R-1 is a document created for the purpose of defeating the right of the 1st respondent in taking delivery of the property. That apart, the learned counsel for the 1st respondent also invited the attention of this Court to the deposition of R.W.1 and demonstrated that the obstructor has admitted in his cross examination about the execution of the partition deed between the brothers and the deed of exchange executed by his brother Varadharajan in favour of his brother Lakshmi Narayanan, the judgment debtor, bequeathing the petition mentioned property. Relying upon the evidence of R.W.2, the attesting witness, the learned counsel contended that R.W.2 has stated in his evidence that the Will was a handwritten document, but Ex.R-1 produced before the Court was, with a typed version. The father of the appellant died only in the month of May, 1989, whereas R.W.2, who claimed that he was close to the father of the appellant, had stated in his evidence that the father of the appellant had died after four years from the date of execution of the Will. By pointing out the various contradictions found in the evidence of R.Ws.1 and 2, the learned counsel for the 1st respondent vehemently contended that the Will was a forged one and since the sale has already been effected by the executing court, the objections have to be rejected because absolute right over the property had been vested with the 1st respondent. In support of his contention, the learned counsel relied on the decisions reported in AIR 1953 TRA.CO.574 (VELAYUDHAN PILLAI ..vs.. OUSEPH AND ANOTHER), 1996 CRL.L.J.2476 (PADMAKAR BALKRISHNA SAMANT ..vs.. STATE OF MAHARASHTRA), (2002) 1 SC 253 (PRITISH ..vs.. STATE OF MAHARASHTRA) and 2007(4) CTC 672 (JOSEPHINE JEROME ..vs.. S.SANTIAGO). 5. Heard the learned counsel for both sides and perused the materials available on record. 6. On a perusal of the materials available on record, it could be seen that the appellant, who was the obstructor, was the brother of the judgment debtor, the 2nd respondent herein. When the 1st respondent, who had obtained the money decree as against the 2nd respondent in O.S.No.59 of 2000, put the decree into execution for court auction sale of the property which belonged to the judgment debtor/the 2nd respondent, the executing court has ordered auction and sale of the petition mentioned property in E.P.No.39 of 2001. Since no bidders have participated, the 1st respondent/decree holder herself participated with the permission of the Court in the bid and purchased the property in the auction held on 10.02.2003. When an application was filed by the judgment debtor for setting aside the court auction sale, the same was dismissed by the executing court and the sale was also confirmed, by order dated 24.06.2004 and the sale certificate was issued in favour of the 1st respondent. Pursuant to the same, the auction purchaser/decree holder filed an execution petition in E.P.No.57 of 2004 for delivery of the subject property, namely,No.7, Veerapillai street, T.R.Pattinam and the same was allowed. When the decree holder went to the suit property along with the Court Amin for effecting delivery on 27.02.2006, the appellant herein raised an objection to the Court Amin stating that the subject property was his forefather's property and the same remains undivided and he is having a share in the said property. Subsequently, when the decree holder/1st respondent has filed an application in E.A.62 of 2006 for removal of the obstructor, the appellant filed a counter stating that the subject property was bequeathed to him by a Will executed by his father, by totally changing his stand in the objection submitted to the Court Amin dated 27.02.2006, wherein it has been stated that the subject property was his forefather's property and it remains undivided and he was having a share in the said property. Subsequently, when the appellant has filed an additional counter in December, 2006 i.e.after 8 months from the date of filing the earlier counter, once again by changing his earlier statement made in the counter, has come forward with a new plea stating that the Will was executed in his favour by his father on 10.02.1974 bequeathing the suit schedule property. 7. Now the case of the 1st respondent/ decree holder, is that in order to prevent the decree holder from taking delivery of the property of the judgment debtor (brother of the obstructor) the theory of the Will was invented by the obstructor. In view of the submissions made on either side, now the question that has to be decided in this case is, whether the obstructor was the owner of the suit property and whether he has derived title by way of the alleged Will or not ? To decide this question, this Court has to look into certain factual aspects available in the case. 8. The suit in O.S.59 of 2000 initiated by the 1st respondent against the 2nd respondent was decreed in favour of the 1st respondent on 20.04.2001. Pursuant to the decree, the 1st respondent filed E.P.No.39 of 2001 for auction sale of the subject property stating that the property belongs to the judgment debtor/2nd respondent. Thereafter, the auction sale was held on 10.02.2003 and the sale was confirmed in favour of the 1st respondent on 24.06.2004. During those proceedings, the judgment debtor/2nd respondent did not whisper anything about the so-called Will executed by his father in respect of the subject property in favour of his brother, who was the obstructor/appellant herein. For the first time, when the Amin went to the suit property for effecting the delivery, the obstructor had come forward with an objection stating that the property belonged to his forefather, which remains undivided and he was having a share in that property. Even that time also, he has not mentioned anything about the so-called Will executed by his father in his favour. In the counter statement filed in the application taken out by the 1st respondent, he has come forward with the theory of the Will stating that the Will was executed by his father in respect of the subject property. Later on, in the additional counter, by totally changing the stand taken in the counter statement, he has come forward with the plea that the Will dated 10.02.1974 was executed by his father. It is common knowledge that had there been a Will in favour of the appellant, he would have stated the same even in the objection submitted to the Amin on 27.02.2006 itself i.e.the date on which the Amin went to the property for taking delivery. Even before the Court, he took two different stands, one in the counter filed by him that the Will was executed by his forefather and another in the additional counter that the Will was executed by his father. This inconsistent statement of the appellant strongly supports the case of the 1st respondent that the theory of the Will is a concocted story. Further, on the side of the 1st respondent/decree holder, several documents were marked before the trial court to prove that the subject property is the absolute property of the judgment debtor. Now, it could be relevant to look into the various documents filed on the side of the 1st respondent. 9. In order to substantiate the contention of the decree holder/the 1st respondent, the partition deed dated 15.12.1975 was marked as Ex.P-7. A perusal of the said partition deed would show that the subject property along with the other properties originally owned by one Gopalakrishna Chettiar, who is the father of appellant/ obstructor and the 2nd respondent/judgment debtor. By way of a partition deed, the properties were shared between the appellant/decree holder and the judgment debtor along with other two brothers namely Varadarajan and Navaneetha Kannan. In the said partition, the subject property was allotted to Varadarajan, shown as Schedule 'B' in the partition deed. The other property bearing Door No.20, Market Street was allotted to the brother, viz., Navaneetha Kannan, in Schedule 'D'. Later on, by way of the deed of exchange dated 22.09.1976, the subject property was given to the judgment debtor, namely, Lakshmi Narayanan by his brother Varadarajan and the said exchange deed was marked as Ex.P-3. Similarly, the property bearing Door No.20, Market Street, which was allotted to Navaneetha Kannan was given to the obstructor by way of a deed of exchange dated 29.03.1976, which was marked as Ex.P-6. 10. A combined reading of the said documents would show that the judgment debtor is the absolute owner of the subject property and the obstructor is the absolute owner of property at No.20, Market Street. Moreover, the obstructor who was examined as R.W.1 before the executing court has admitted in the cross examination about the partition deed executed among the brothers and also about the deed of exchange executed by his brother Navaneetha Kannan in his favour. That apart, the documents produced on the side of the decree holder and the admission made by the obstructor in his cross examination would demonstrably go to show that the subject property is the property of the judgment debtor. As could be seen from the evidence of R.W.2, Vaduvaiyan, one of the attestors to the Will, that he had signed in the hand written Will, whereas Ex.R-1 Will is a document with typed version. Further, I find that the father of the appellant died after four years from the date of execution of the Will. But the evidence on record would show that the father of the appellant had died even in the year 1989 itself. These vital contradictions would show that R.W.2 is a fabricated witness and the Will marked as Ex.R-1 is a concocted document. No acceptable reason was forthcoming from the submissions made by the learned counsel for the appellant to reject Exs.P-3, P-6 and P-7. The cumulative effect of the entire evidence and documents would undoubtedly go to show that the so-called Will has been created only in order to defeat the legitimate right of the decree holder from taking delivery of the property by playing a fraud on court. Moreover, as contended by the learned counsel for the 1st respondent/decree holder that once the sale is confirmed by the Court, the title of the auction purchaser becomes perfect. In this regard, a reference could be placed on the judgment reported in AIR 1952 PUNJAB 407 (ABDUL BASIT ..vs.. ABDUL ALIM), wherein it has been stated as follows: "The title of an auction-purchaser becomes perfect not from the date of his getting symbolical possession but from the date when the property is sold. The property vests in the purchaser immediately after the sale is confirmed by the Court and vesting is not postponed until after the grant of the certificate". 11. With regard to the contention put forth by the 1st respondent/decree holder by relying upon several judgments that since the appellant has committed the forgery, for which a criminal action should be taken by the Court as per Section 195 of Criminal Procedure Code, this Court is not inclined to take such harsh proceedings against the appellant. A perusal of the order would show that Ex.R-1 Will filed on the side of the appellant was considered in detail and negated by the trial court and under such circumstances, I am not inclined to accept the contention made by the learned counsel for the appellant that the Will was not properly considered, particularly in the circumstances when the other documents would show that the theory of Will is a concocted story. Under such circumstances, the case of the appellant has to be dismissed. For the foregoing reasons, the appeal fails and accordingly, it is dismissed. No costs. Consequently, connected M.P.is closed. Index: Yes. 02.03.2010 Internet: Yes. gl To The Additional District Judge, Puducherry at Karaikal. R.SUBBIAH, J., gl Pre-delivery judgment in Civil Misc. Appeal No.3234 of 2009 02.03.2010