IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 04.06.2007 CORAM: THE HON'BLE MR. JUSTICE P.JYOTHIMANI Appeal Suit No.317 of 1993 1. Palaniammal 2. Veerakumar 3. A.Narayanasamy Gounder ... Appellants (Defendants 3 to 5) Vs. 1. Sundarambal 2. Devathal 3 Palaniammal ... Respondents (Plaintiff and Defendants 1 and 2) PRAYER: First Appeal filed under section 96 of CPC against the Judgment and decree passed by the learned Subordinate Judge, Tiruppur, dated 21.01.1993 and made in O.S.No.86 of 1987. For Appellant : Mr.R.Gandhi, S.C. for Mr.R.G.Harendhiran For Respondents : Mr.R.Krishnan for Mr.A.Sivaji for R1 Mr.G.Poonkundran for R2 R3 not served (No appearance) J U D G M E N T Defendants 3 to 5 in the Trial Court are the appellants. The first respondent herein filed the suit in O.S.No.86 of 1987 on the file of the Sub Court, Tiruppur for a partition and separate possession of one third share in Schedule A to D properties mentioned in the plaint and also for direction against defendants 3 to 5 to hand over possession of the said share to the plaintiff apart from mesne profits. The case of the plaintiff was that she is the elder sister of the first defendant. Both of them having born to their mother Palaniyammal the second defendant who has subsequently died, through, Chenniyappa Gounder. After the life time of their mother Chenniyappa Gounder has married the third defendant in the suit as his 2nd wife. The 4th defendant was born to Chenniyappa Gounder through his second wife Palaniyammal as their son. The 5th defendant is the purchaser of the D Schedule https://hcservices.ecourts.gov.in/hcservices/ property from the third defendant. 2. It is the further case of the plaintiff that during the life time of the second defendant, the said Chenniyappa Gounder has lived with the third defendant and therefore, the fourth defendant who was born to the third defendant through Cheniyappa Gounder is illegitimate. Therefore, according to the plaintiff the first defendant and the second defendant their mother are alone entitled to the properties of Cheniyappa Gounder. According to the plaintiff, Chenniyappa Gounder died on 14.07.1984 intestate leaving behind his wife, the second defendant apart from the plaintiff and the first defendant as his daughters being his only legal heirs. Thereafter, it is the case of the plaintiff that the third defendant who was his legitimate wife of her father Cheniyappa Gounder has trespassed into the A to C Schedule properties and defendants 3 and 4 are in possession as trespassers. 3. It is also the case of the plaintiff that the third defendant has illegally sold away the D Schedule property in favour of his close relative and the said document is not valid and inasmuch as the plaintiff is not a party to the document and did not derive any benefit along with defendants 1 and 2, the sale effected in favour of the 5th defendant in respect of the D Schedule property is not valid in law. The possession of defendants 3 and 4 are only as that of trespassers in respect of Schedule A to C. The plaintiff also stated that to her knowledge her father has not executed any Will. In any event it is stated that the plaintiff reserves her right to file her detailed reply statement as and when any such documents are produced. In view of the same, the said suit for partition was filed by paying court fee under Section 37(2) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 claming that the plaintiff is in joint possession with defendants 1 and 2 with regard to A to D Schedule properties. 4. The 3rd defendant has filed the written statement. While admitting, that the second defendant is the mother of the plaintiff and first defendant, it is the case of the 3rd defendant that she was the second wife of the deceased Chenniyappa Gounder. It is also admitted that the suit properties belonged to Chenniyappa Gounder. But it is denied that Chenniyappa Gounder died intestate. It is the case of the 3rd defendant that it was she, who has given in marriage to the plaintiff and the first defendant. It is also her case that since second defendant was not having any male child, it was on her advice the third defendant was married and thereafter the second defendant has never lived with her husband Chenniyappa Gounder after some criminal case. It is also the case of the 3rd defendant that the plaintiff and the first defendant have also fallen out of their father and during the last date of Chenniyappa Gounder, it was only the third defendant, who was looking after https://hcservices.ecourts.gov.in/hcservices/ him. It is also the case of the third defendant that the said Chenniyappa Gounder during his life time when he was hale and healthy, has executed a registered Will dated 07.08.1981 bequeathing the property in favour of the fourth defendant, who is the son of the third defendant and it was pursuant to the said Will the third and fourth defendants have been in possession. Since in the Will the Chenniyappa Gounder has not chosen to mention about the C Schedule property which he desired to give to the fourth defendant, if at all the plaintiff is entitled, she can only claim right under the C Schedule property along with the fourth defendant and the first defendant. Therefore, the third defendant denies that the plaintiff and the first defendant have any share in A and B Schedule properties. The first and the second defendants in the suit have remained ex-parte. 5. The Trial Court has framed the various issues including, as to whether the third and fourth defendants are the legal heirs of Chenniyappa Gounder, as to whether the Will executed by Chenniyappa Gounder on 07.08.1981 is valid in law and if so whether the fourth defendant is entitled for the A and B Schedule properties, as to whether the plaintiff was entitled for one third share apart from the issue as to whether the sale given to the fifth defendant in respect of D Scheduled property is binding on the plaintiff. There was another suit filed by the plaintiff in O.S.No.35 of 1988 claiming one fourth share from the 4th defendant, namely, Indian Bank, Tiruppur in respect of the amount pending and also for injunction against defendants 1 to 3. However, in the present appeal we are not concerned about the said second suit. Both the said suits were taken together and the plaintiff was examined as P.W.1 apart from the third defendant as D.W.1 and two other witnesses D.W.2 and D.W.3 on the defendant side after marking nine documents on the plaintiff’s side as Ex.A.1 to A.9 and seven documents on the defendant side as Ex.B.1 to B.7. 6. The learned Trial Judge while considering that Cheniyappa Gounder married the third defendant during the lifetime of his legally married wife namely the second defendant and therefore, his marriage with the third defendant cannot be accepted as legitimate but has held that the son born to Cheniyappa Gounder through the third defendant, namely, the fourth defendant can be treated as a son and entitled for share from Cheniyappa Gounder’s property, however, stating that he is not a legitimate son and therefore, held that the fourth defendant is not a legal heirs of Cheniyappa Gounder. While considering the validity of the Will executed by Cheniyappa Gounder dated 07.08.1981, which was marked as Ex.B.7 by giving the A and B Schedule properties in favour of the fourth defendant, the Trial Court has come to the conclusion that the said Ex.B.7 Will has not been proved by defendants 3 and 4 and therefore, held that the fourth defendant is not the owner of A and https://hcservices.ecourts.gov.in/hcservices/ B Schedule properties. While deciding about the share to which the plaintiff was entitled, the Trial Court has come to the conclusion that the plaintiff, first defendant and the second defendant along with the fourth defendant are entitled for one fourth share each from Cheniyappa Gounder’s property and in view of the same, the plaintiff was given one fourth share. Regarding the alienation made by third and fourth defendants in respect of D Schedule property to the fifth defendant the Trial Court has found that the third defendant has not proved that it was for the necessaries of the fourth defendant the sale was effected and therefore, the sale effected in favour of the fifth defendant, was held to be not valid. It is as against the said judgement and decree, defendants 3 to 5 have filed the above appeal. 7. Mr.R.Gandhi, learned Senior counsel appearing for the appellants would vehemently contend that when once the plaintiff has come forward with the specific case that defendants 3 and 4 are trespassers in respect of the Schedule mentioned properties and admitting specifically that the defendants 3 and 4 are in actual possession of Schedule A to C properties, paying court fee under Section 37(2) of the Court Fees Act, stating falsely as if she is in joint possession with defendants 1 and 2 is not correct. Unless the court fee is paid as per Section 37(1) of the Act, the plaintiff’s suit cannot be sustained. The third respondent in the appeal who is the second defendant in the suit has not appeared through counsel. In any event, it is stated that she died and the first and second respondents who are the plaintiff and the first defendant respectively are her only legal heirs who are already on record. 8. On the other hand, as contended by the learned counsel for the first respondent, the court fee was never an issue raised by defendants 3 and 4 in the court below and therefore, the Trial Court did not frame it as an issue and there was no decision rendered in that regard also. In such circumstances, the power and jurisdiction of the Appellate Court in that regard is relevant to be considered. That is enshrined under Section 12(4) of the Tamil Nadu Court Fees and Suits Violation Act, 1955. "12(4)(a) Whenever a case comes up before a Court of Appeal, it shall be lawful for the Court, either of its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower Court affecting the fee payable on the plaint or in any other proceeding in the lower Court and determine the proper fee payable thereon. Explanation:- A case shall be deemed to come before a Court of Appeal even if the appeal relates only to a part of the subject-matter of the suit. https://hcservices.ecourts.gov.in/hcservices/ (b) If the Court of Appeal decides that the fee paid in the lower Court is not sufficient, the Court shall require the party liable to pay the deficit fee within such time as may be fixed by it. (c) If the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower Court and which the appeal seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower court, the deficit fee shall be recoverable as if it were an arrear of land revenue. (d) If the fee paid in the lower Court is in excess, the Court shall direct the refund of the excess to the party who is entitled to it." 9. A reading of the Section especially Section 12(4)(a) shows that only if an issue relating to the court fee was raised by the Lower Court and the Lower Court has considered and given a finding on that the correctness of Court Fee can be looked into or decided by the Appellate Court. A fair reading of the Section shows that there is no suo moto power on the Appellate Court to decide about the correctness of court fee. Since it is the correctness of the order passed by the Lower Court in respect of the court fee, which alone can be decided by the Appellate Court. This was the view taken by this Court in Rajammal and others Vs. Selvi and another by Mrs.Prabha Sridevan.J., in the judgement reported in 2001(3) MLJ 315. While construing the provision of Section 12(4)(a) of the Tamil Nadu Court Fee and Suits Valuation Act, 1955 it was held that the suo moto power of the Appellate Court, in deciding about the correctness of the court fee itself is possible only when the Lower Court has given a decision about the court fee and if the defendants have not raised any objections about the correctness about the court fee and no issue was framed, the Appellate Court cannot on its own motion, consider it’s correctness. The relevant passage of the judgement as follows: "5. The Court of appeal may, therefore, lawfully consider the correctness of the Court fee payable either on its motion or on the application of any of the parties only if any order has been passed by the lower court affecting the fee payable on the plaint or any other proceeding. We cannot ignore even one word in the Section so as to give a different meaning from what was intended. In this case, the defendants who are the appellants herein had not raised any objection regarding the correctness of the court fee. Therefore, no issue was framed in this regard by the trial Court and no decision was given regarding the https://hcservices.ecourts.gov.in/hcservices/ valuation. While so, the Court of appeal cannot on its own motion, consider the correctness of the Court fee since there is no order passed by the lower Court affecting this question. In this case, there is no dispute that neither of the parties applied to the Court of appeal to consider this. Even if they had done, the Court of appeal can decide this issue only if the lower court had passed an order regarding the same. In the old Act, the accent appears to have been on the revenue and therefore, Sec.12(2) read thus: "But whenever any such suit comes before a Court of appeal reference or revision, if such Court consider that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided, and the provisions of Sec.10, paragraph (ii) shall apply." But the language of the Section as it stands now gives no room for any ambiguity." Therefore, the issue regarding the correctness of the court fee as raised by the learned Senior Counsel for the appellant cannot be gone into by this Court at this stage. 10. In these circumstances, the judgement relied upon by the learned Senior Counsel for the appellant rendered in Kamaleshwar Kishore Singh Vs. Paras Nath Singh and others in 2002(1) SCC 304 is not applicable to the facts of the case for the reason that there, the Lower Court has given a finding regarding the court fee and it was in those circumstances, held that it is the reading of the plaint as a whole which must be taken into consideration for the purpose of payment of court fee irrespective of any objection raised by the defendants in the written statement. 11. In respect of the decision arrived by the Trial Court regarding Ex.B.7 Will executed by Cheniyappa Gounder in favour of the fourth defendant, it is the vehement contention of the learned Senior Counsel that while the attesting witnesses have been produced before the Courts who were examined as D.W.2 and D.W.3 who have spoken about the mental status of the testator at the time Ex.B.7 was executed and clearly in terms stated that they saw the testator signing and in his presence they have also signed as attesting witnesses and in such circumstances the Trial Court has held against the Will on technical ground that the attesting witness has stated that what was signed was in a stamp paper whereas it remains to be a white paper and therefore, rejected the evidence, especially in the circumstance that evidence was given by https://hcservices.ecourts.gov.in/hcservices/ the attesting witnesses 11 years after they signed in the Will as a witnesses. 12. On the other hand, it is the contention of the learned counsel for the respondent that when 3rd and 4th defendants have placed reliance on the Will Ex.B.7, it is for them to prove that the Will has been executed in accordance with law and the same is genuine and according to the learned counsel, on appreciation of evidence when the court has come to a conclusion that the genuineness of the Will has not been proved, there is no necessity for this Court to interfere. On considering the above said facts and rival contentions and also referring to the judgement of the Trial Court as also the documents the point that arises for determination in this appeal is as to "whether the judgement of the Trial Court is correct in so far as it rejects the genuiness and proof of Ex.B.7 Will". 13. On pleading, it is clear that admittedly, the suit properties which are four in number, namely, A,B,C,&D were purchased by Cheniyappa Gounder. It is also admitted that Cheniyappa Gounder married the second defendant Palaniyammal and during the subsistence of the said marriage he married the third defendant who is also called Palaniyammal, and out of that relationship the 4th defendant was born. Likewise, it was through the first wife of Cheniyappa Gounder the plaintiff and first defendant were born and there were no other children. It is also now on admission that the second defendant died and the plaintiff and the first defendant are the her legal heirs. It is also not in dispute that Cheniyappa Gounder has executed a Will in Ex.B.7 dated 07.08.1981 and subsequently he also died. In this regard, it is relevant that the plaintiff in the plaint has originally stated that even though she was not aware of any other documents executed by Cheniyappa Gounder in favour of defendants 3 and 4, she reserved her rights to file a detailed reply statement on coming to know about any such documents. The wordings of the plaint in that regard are as follows: "Any how the plaintiff reserves her rights to file her detailed reply statement after appropriate time when any such make-fully documents are produced at a later stage." 14. It is in the written statement the 3rd defendant has clearly stated that in respect of A and B Schedule properties Chiniyappa Gounder during his lifetime has executed and registered a Will dated 07.08.1981 bequeathing the said properties in favour of the 4th defendant. The contents of the written statement are as follows: https://hcservices.ecourts.gov.in/hcservices/ "8. In fact Senniappa Gounder during his life time and when he was hale and healthy and in good sense had executed a registered Will dated 07.08.1981 attested by respectable persons in favour of the 4th defendant bequeathing the properties mentioned in Schedule A and B of the suit properties." 15. It is also on record that the plaintiff who has stated in the plaint that after she come to know about any document stated to have been executed by Cheniyappa Gounder she would file a detailed reply statement, has not chosen to file any reply statement even after she was informed in the written statement about the Will executed by Cheniyappa Gounder on 07.08.1981. It is relevant to point out that the plaintiff while examining herself as P.W.1 in the chief examination has not even stated opposing such Will even though she has stated that her father was not in sound state of mind 6 years before his death. However, during cross examination of the 3rd defendant as D.W.1, a suggestion was put to her that the Will was procured for taking away the property. A reference to Ex.B.7 shows that it relates to two items of properties, which are A and B Schedule in the suit. In that Will which is registered, Cheniyappa Gounder has given the said two items of properties in favour of 4th defendant absolutely after his lifetime. The two attesting witnesses who have signed under Ex.B.7, namely, Avinasiyappan and S.Easwaran were examined on the side of the 3rd and 4th defendants as D.W.2 and D.W.3. D.W.2, who is one of the attesting witnesses while speaking about the Will executed by Cheniyappa Gounder in categoric terms deposed that he saw Cheniyappa Gounder signing the Will along with other witness Easwaran and there after they have signed and afterwards it was produced before the Registrar Office in which also they have signed as witnesses. The portion of the evidence of D.W.2 as follows: "brd;dpag;gf; ft[z;lUf;F brhj;Jf;fs; ,Ue;jd/ mth; mtUila brhj;Jf;fisa[k; 4k; gpujpthjpapd; bgaUf;F capy; vGjp itj;jhh;/ ehd; me;j capypy; rhl;rp ifbaGj;J nghl;L ,Uf;fpnwd;/ capiy brd;dpag;gf; ft[z;lh; ifbaGj;jpl;lij ehd; ghh;j;njd;/ <!;tud; vd;gtUk; me;j capypy; rhl;rp ifbaGj;jpl;lhh;/ capy; mtpdhrpapy; rhh;gjpthsh; mYtyfj;jpy; gj;jpuk; vGJk; ,lj;jpy; itj;J vGjg;gl;lJ/ capYf;Fz;lhd thrff';fs; brd;dpag;gf; ft[z;lh;jhd; Twpdhh;/ capiy vGjpath; capiy goj;Jf; fhz;gpj;jhh;/ mjw;Fg; gpwF brd;dpag;g ft[z;lh; ifbaGj;J nghl;lhh;/ brd;dpag;gf; ft [z;lh; ifbaGj;J nghl;lij ehDk; <!;tuDk; ghh;j;njhk;/ mijaLj;J ehd; Kjyhtjhf rhl;rp ifbaGj;J nghl;nld;/ https://hcservices.ecourts.gov.in/hcservices/ mijaLj;J <!;tud; rhl;rp ifbaGj;J nghl;lhh;/ eh';fs; ifbaGj;jpl;lij brd;dpag;gf; ft[z;lh; ghh;j;jhh;/ eh';fs; rhl;rp ifbaGj;jpl;l gpwF capiy vGjpa[k; ifbaGj;jpl;lhh;/ mjw;Fg; gpwF capiy rhh;gjpthsh; mYtyfj;jpy; bfhLj;jhh;fs;/ rhh;gjpthsh; mYtyfj;jpYk; ehd; rhl;rp ifbaGj;jpl;nld;/ rhh;gjpthsh; Kd;dpiyapYk; brd;dpag;gf; ft[z;lh; ehd;. <!;tud; Mfpnahh; ifbaGj;jpl;nlhk;/ " 16. It is true that while cross examination he has stated that the evidence is given many years after his signature and therefore, he has forgotten the time when he reached the Registrar office, as follows: "eh';fs; jpUg;g{h; te;J nghd rkak; khiy 4 kzp ,Uf;Fk;/ ehshfptpl;ljhy; vy;yhk; kwe;J ngha;tpl;lJ/ vj;jid kzpf;F te;njhk; vd;W "hgfk; ,y;iy/ capy; vGjpa jpdk; mtpdhrpf;F ngha; nrh;e;j neuKk; "hgfk; ,y;iy/ ehshfptpl;lJ/ capy; vGjpa rkak; fhiy 10 kzp ,Uf;Fk;/ " 17. It is also true that D.W.2 has stated that a non-judicial stamp paper was purchased in the name of Cheniyappa Gounder but under which denomination it was purchased, was not known to him, which is as follows: "brd;dpag;g ft[z;lh; bgaUf;F Kj;jpiuj; jhs; th';fg;gl;lJ/ vt;tst[ U:gha;f;F Kj;jpiuj;jhs; th';fg;gl;lJ vd;W bjhpahJ/" In the further cross-examination he has stated that he was not aware as to whether it was a stamp paper or blank paper as follows: "ehd; ifbaGj;J nghLtjw;F Kd; brd;dpag;g ft[z;lh; ifbaGj;J nghl;lhh;/ rhh;gjpthsh; Kd;dpiyapy; ehd; ifbaGj;jpl;nld;/ mJ Kj;jpiuj;jhsh btw;Wj;jhsh vd;W bjhpahJ/" 18. A reference to the entire evidence of D.W.2 show that the plaintiff who has chosen to state as P.W.1 even though without pleading since she has not filed any reply affidavit, that her father was mentally not well 6 years before his death, there is not even any whisper about the mental status of the father of the plaintiff while cross examining the attesting witness D.W.2 as well as D.W.3. https://hcservices.ecourts.gov.in/hcservices/ 19. Likewise, a reference to the next attesting witness Easwaran examined as D.W.3 also states clearly "vf;!pgpl;/gp7 y; Kjypy; brd;dpag;gf; ft[z;lh; ifbaGj;J nghl;lhh;/ mij mLj;J mtpdhrpag;gDk; ehDk; rhl;rpf; ifbaGj;jpl;nlhk;/ brd;dpag;gf; ft[z;lh; ifbaGj;jpl;lij eh';fSk;. ehd; ifbaGj;jpl;lij brd;dpag;gf; ft[z;lUk; goj;njhk;/ mjd; gpwF gj;jpuj;ij vGjpa fpUc&;zK:h;j;jp ifbaGj;jpl;L mjw;Fg; gpwF gjpt[ bra;a vLj;Jr; brd;nwhk;/ gjpthsh; Kd;dpiyapy; ehDk; mtpdhrpag;gDk; rhl;rp ifbaGj;jpl;nlhk;/ brd;dpag;gf; ft[z;lUk; rhh;gjpthsh; Kd; ifbaGj;jpl;lhh;/ brd;dpag;gf; ft[z;lh; ,wg;gjw;F Kd;g[ vGjp itj;j capy; ,J/" In the cross examination he has stated "Kj;jpiuj;jhs; th';fp vGjtpy;iy/ bkhj;jk; vj;jid gf;f';fs; vGjg;gl;ld vd;W "hgfk; ,y;iy/ vGjp Kof;Fk; nghJ fhiy 11 kzp ,Uf;Fk;/ Kjypy; xd;W vGjp gpwF ,uz;lhtJ xd;W vGjpdhh;fs;/ ,uz;lhtJ vGjpajpYk; Kj;jpiuj;jhspy; vGjtpy;iy/" 20. Even while cross examining the said D.W.3 there was absolutely no suggestion from the plaintiff’s side that Cheniyappa Gounder was not in a sound state of mind at the time he has signed Ex.B.7. The legal aspect in respect of the requirement of Section 63(c) of Indian Succession Act, 1925 contemplates the manner in which the Will has to be attested, which is as follows: "63(c) The will shall be attested by