Madras High Court
Lakshmi Ammal (Died) vs Ammayi Ammal (Died)
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
SA Nos.337 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDERS RESERVED ON : 27.04.2022
PRONOUNCING ORDERS ON : 29.04.2022
Coram:
THE HONOURABLE JUSTICE MR.N.ANAND VENKATESH
Second Appeal No.337 of 2012
1. Lakshmi Ammal (Died) ..Plaintiff/1st respondent /Appellant
2. Ravi Ravi
3. Babu ..Appellants
.Vs.
1. Ammayi Ammal (Died)
2. Ranganathan (Died)
..Defendants 1 & 3 /Appellants 1 & 3/
Respondents
3. Sridhar Chettiar ..4th defendant / 2nd respondent /
Respondent
4. Alamelu Ammal
5. Kannapiran
6. Padmanaban
7. Andal wife of Venkatesan
8. S.Radha Wife of Selvaraj
https://www.mhc.tn.gov.in/judis 1
SA Nos.337 of 2012
9. V.Rukkumani Wife of Venkatesan
..Legal heirs of 2nd defendant /
Legal heirs of 2nd defendant /Respondents
10. Saroja wife of Soundarajan
11. Kumuthavalli Wife of Balu
12. Govindammal
13. V.Dhanammal
14. K.Bangaru Ammal
15. Rani
16. Vimala
17. Vanaja
18. Jeeva
19. Ramanujam
20. Latha
21. Chitra
22. Padmavathy
23. Deepa ...Respondents
(R12 – R14 brought on record as legal heirs of the deceased R1 and
appellants 2 and 3 and R15 to R17 brought on record as legal
heirs of the deceased appellant viz Lakshmi ammal and R18 to R23
brought on record as the legal heirs of the deceased R2 Ranganathan
Chettiar vide Court order dated 18.11.2021 made in CMP No.10196,
10200, 10203 8971 & 10213/2021 in SA No.337 of 2012 by TKRJ)
https://www.mhc.tn.gov.in/judis 2
SA Nos.337 of 2012
Prayer: Second Appeal filed Under Section 100 of the Code of Civil
Procedure against the Judgment and Decree in A.S.No.38 of 2008 on
the file of the II Additional Sub Court, Villupuram, dated 31.01.2012 in
reversing the well considered judgement in O.S.No.52 of 2003 on the
file of the Principal District Munsif Court, Villupuram, dated 12.12.2005.
For Appellant : Mr.V.Raghavachari
For Respondents : Mrs.Hema Sampath, Senior Counsel
for M/s.R.Meena for
R13, 18 to 23
M/s.R.Abdul Mubeen for
R15 to R17
R12 & R14 – No Appearance
R3 - Refused
JUDGMENT
The plaintiff is the appellant in this Second Appeal.
2. The case of the plaintiff is that the suit properties originally belonged to one Kuppusamy Chettiar. He died intestate and his properties were inherited by his sons. They divided the property among themselves through a partition deed dated 27.10.1949. The suit properties and certain other properties were allotted to the share of Perumal Chettiar, who is the father of the plaintiff. Thereby, he became the absolute owner of the suit properties.
https://www.mhc.tn.gov.in/judis 3 SA Nos.337 of 2012
3. The said Perumal Chettiar, through a settlement deed dated 28.9.1970, marked as Ex.A1, settled the properties in favour of the plaintiff and her sisters Govindammal, Dhanam Ammal and Bhangaru Ammal. The other three sisters were minors at the relevant point of time and the plaintiff was appointed as the guardian for her three sisters under the said document. As per this settlement deed, the plaintiff was given a life interest and the vested remainder was given to her children absolutely. It was further pleaded that this settlement deed was filed before the Land Reforms Tribunal and this document was acted upon when the orders were passed by the Tribunal on 9.6.1991. This order was marked as Ex.A2.
4. The grievance of the plaintiff was that the defendants attempted to interfere with the possession and enjoyment of the suit property and hence, the suit was filed seeking for the relief of declaration to declare that the plaintiff is entitled for a life interest in the suit properties and for a permanent injunction restraining the defendants from interfering with the possession and enjoyment of the suit properties.
https://www.mhc.tn.gov.in/judis 4 SA Nos.337 of 2012
5. The defendants 1 to 3 filed a written statement. They admitted the relationship between the parties and also the execution of the settlement deed dated 28.9.1970. However, they took a stand that this settlement deed was never acted upon and this settlement deed was created only for the purpose of getting an exemption under the Land Reforms Act. It was further pleaded that the father continued to deal with the properties and was in complete control and enjoyment of the properties and the patta also stood in his name till his demise. The father, Perumal Chettiar died on 12.4.2001 and according to the defendants, all the legal heirs are entitled for a share in the suit properties. For this purpose, he executed a Will dated 26.2.2001, marked as Ex.B37, whereby the suit properties and all the other properties were directed to be kept under the control of his wife, who was given the discretion to allot the properties in favour of the four daughters. In view of the same, the defendants took a stand that the relief sought for by the plaintiff is unsustainable and the suit is bad for non-joinder of all the co-owners of the property and accordingly, the suit is liable to be dismissed.
6. The Trial Court, on considering the facts and https://www.mhc.tn.gov.in/judis 5 SA Nos.337 of 2012 circumstances of the case and after appreciation of the oral and documentary evidence decreed the suit as prayed for, through Judgment and Decree dated 12.12.2005. Aggrieved by the same, the defendants 1 to 3 filed an appeal in A.S. No. 38 of 2006. They also filed a petition for additional evidence and it was allowed and Ex. B38 to Ex. B41were marked at the stage of appeal.
7. The Lower Appellate Court on re-appreciation of the oral and documentary evidence and after considering the findings of the Trial Court, allowed the appeal through Judgment and Decree dated 31.1.2012 and thereby the Judgment and Decree of the Trial Court was set aside. Aggrieved by the same, the plaintiff has filed this Second Appeal.
8. When the Second Appeal was admitted, the following substantial questions of law were framed:
a) In the light of the execution of Settlement Deed dated 28.09.1970, can there be a contra oral evidence disputing the terms of settlement deed and whether the same is barred under Section 91 https://www.mhc.tn.gov.in/judis 6 SA Nos.337 of 2012 and 92 of the Evidence Act?
b) Whether the Appellate Court failed to properly appreciate the oral and documentary evidence before concluding that Ex.A1 – Settlement Deed was not acted upon and hence, the plaintiff is not entitled for the relief sought for in the suit ?
9. This Court in the course of arguments, framed the following additional substantial questions of law on 7.3.2022 and the learned counsel on either side were directed to make their submissions on the additional substantial questions of law also:-
a) Where Exhibit A1 Settlement Deed has been presented before the Land Reforms Tribunal by the executor of the document and the Tribunal has relied upon this document and has passed an order on 09.06.1991, marked as Exhibit A2, whether the parties can be permitted to thereafter take a plea that Exhibit A1 has not been acted upon?
b) Whether the lower Appellate Court failed to consider the suspicious circumstances surrounding https://www.mhc.tn.gov.in/judis 7 SA Nos.337 of 2012 the execution of the Will marked as Ex. B37 and whether proper reasons were assigned while reversing the findings of the trial Court in this regard?
10. Heard Mr.V.Raghavachari, learned counsel for the appellant and M/s.Hema Sampath, learned senior counsel on behalf of M/s.R.Meenal, learned counsel for respondents 13, 18 to 23 and M/s.R.Abdul Mubeen for respondents 15 to 17. This Court also carefully perused the materials available on record and the findings of both the Courts below.
11. The Trial Court independently considered two important issues. One issue is with regard to the entitlement of the plaintiff under Ex.A1 settlement deed. The other issue is with regard to the validity of the Will dated 26.2.2001, marked as Ex. B37, which was relied upon by the defendants.
12. Insofar as the settlement deed dated 28.9.1970 is concerned, the Trial Court held that this document was acted upon https://www.mhc.tn.gov.in/judis 8 SA Nos.337 of 2012 before the Land Reforms Tribunal and an order was also passed by the Tribunal by relying upon this document and accordingly, the Trial Court rejected the claim made by the defendants to the effect that Ex.A1 document was not acted upon. Insofar as the validity of the Will is concerned, the Trial Court took into consideration the physical and mental status of Perumal Chettiar at the time of the execution of the Will and the suspicious circumstances surrounding the Will and came to a conclusion that Ex.B37 Will is not genuine and cannot be acted upon.
13. Insofar as the possession of the suit properties are concerned, The Trial Court held that the plaintiff had established her possession in the suit properties. Upon rendering these findings, the suit was decreed as prayed for.
14. The Lower Appellate Court found that the settlement deed was executed by Perumal Chettiar only to minimise the extent of surplus land and escape the consequences under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act. Therefore, according to the Lower Appellate Court, this document was never intended to be acted upon by Perumal Chettiar and consequently, the benefits conferred https://www.mhc.tn.gov.in/judis 9 SA Nos.337 of 2012 under this document never reached the daughters. The Lower Appellate Court also found that the bar under Section 92 of the Indian Evidence Act will not apply in the present case since it is always open to the concerned person to prove that the actual contract between the parties is different from what is mentioned in the document. The Lower Appellate Court also took into consideration the various sale deeds executed by Perumal Chettiar during his life time and which was admitted as additional evidence and these documents were taken to add strength to the finding rendered by the Lower Appellate Court. Accordingly, the finding of the Trial Court on the settlement deed marked as Ex.A1 was reversed by the Lower Appellate Court.
15. Insofar as the genuineness of the Will is concerned, a finding was rendered to the effect that it was properly registered and attestor was examined as DW-2 and the scribe was examined as DW-3 and there is nothing suspicious or unnatural about the disposition. Insofar as the mental state of Perumal Chettiar is concerned, the evidence of the doctor examined as PW-4 and the hospital records marked as Exhibits X1 and X2 were taken into consideration and it was found that the executor of the Will was in a fit state of mind while https://www.mhc.tn.gov.in/judis 10 SA Nos.337 of 2012 executing the Will. Accordingly, the Will was upheld and the findings of the Trial Court was reversed.
16. Insofar as the issue of possession is concerned, the Lower Appellate Court rendered a finding to the effect that the plaintiff has not proved her possession and enjoyment in the suit property and for this purpose, Exhibits B2 to B36 was taken into consideration and that apart, the Lower Appellate Court also held that the three sisters have not been added as parties in the suit and the suit is bad for non- joinder of necessary parties. Accordingly, the finding of the Trial Court with regard to the possession over the suit properties was also reversed by the Lower Appellate Court.
17. In the present case, the basis of the claim made by the plaintiff in the suit properties was the settlement deed marked as Ex.A1. There was no dispute that such a settlement deed was infact executed by Perumal Chettiar. The defence taken was that this settlement deed was never acted upon and such a settlement deed was brought forth only to reduce the holdings of Perumal Chettiar and to minimise the extent of the surplus land and thereby save the properties https://www.mhc.tn.gov.in/judis 11 SA Nos.337 of 2012 from being taken over by the State. In order to establish that the settlement deed was not acted upon, various documents were marked to substantiate the fact that the said Perumal Chettiar was dealing with the properties even after the execution of the settlement deed as if the properties belonged to him absolutely. It is on this footing that the subsequent Will executed by Perumal Chettiar under Ex.B37 was also justified since this Will covered not only the properties dealt with under Ex.A1 settlement deed but also all the other properties belonging to Perumal Chettiar.
18. In the background of the above facts, this Court framed the additional substantial question of law on 7.3.2022 to determine as to what will be the effect of the order passed by the Land Reforms Tribunal under Ex.A2 by relying upon Ex.A1 settlement deed.
19. In the considered view of this Court, the very fact that Ex.A1 settlement deed was placed before the Tribunal by Perumal Chettiar and the Tribunal acted upon this document while passing orders on 9.6.1991, is an ample proof that the settlement deed has been acted upon. Just because Perumal Chettiar had chosen to deal https://www.mhc.tn.gov.in/judis 12 SA Nos.337 of 2012 with the properties inspite of executing the settlement deed in favour of his daughters, does not in any way revive the lost right of Perumal Chettiar. A person cannot be allowed to make a judicial or a quasi- judicial forum to act upon a document in order to get a favourable order and thereafter disown the document and continue to deal with the property. A competent Civil Court cannot give its approval for such a dishonest conduct and sanctify his illegal act. The foundation of the law of election is that a person cannot accept and reject the same instrument. This is popularly referred to in the legal parlance as approbate and reprobate. Law does not permit a person to both approbate and reprobate.
20. This Court had an occasion to deal with this issue in G. Nagaiyan and Another Vs. K. Palanivel, S.A.No. 125 of 2014, by judgment dated 29.3.2022. The relevant portions in the judgment are extracted hereunder:
“24. It is a well-established rule in equity that a man cannot approbate and reprobate. The general rule, which originated from Scotland and is the foundation of the principle of election, was set out by Lord Redesdale in the https://www.mhc.tn.gov.in/judis 13 SA Nos.337 of 2012 early case of Birmingham v. Kirwan (1805 2 Sch. &Lef.
449) in the following way:
“The general rule is that a person cannot accept and reject the same instrument, and this is the foundation of the law of election.”
25. Years later in Smith v. Baker [[L.R.] 8 C.P. 350], Honeyman, J., explained the doctrine thus:
“As to the general rule of law there is no dispute. A man cannot at the same time blow hot and cold. He cannot say at one time that the transaction is valid, and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and at another time say it is void for the purpose of securing some further advantage.”
26. In Verschures Creameries Limited v. Hull and Netherlands Steamship Company [[1921] 2 K.B. 608], the Court of Appeal noted that the doctrine of election was not confined to instruments alone. These principles were finally approved by the House of Lords in Lissenden v. C.A Bosch Limited [[1940] A.C. 412], where Viscount Maugham pointed out as under:
https://www.mhc.tn.gov.in/judis 14 SA Nos.337 of 2012
“My Lords, I think our first inquiry should be as to the meaning and proper application of the maxim that you may not both approbate and reprobate. The phrase comes to us from the northern side of the Tweed, and there it is of comparatively modern use. It is, however, to be found in Bell's Commentaries, 7th ed., vol. i., pp. 141-2; and he treats “the Scottish doctrine of approbate and reprobate” as “approaching nearly to that of election in English jurisprudence.” It is, I think, now settled by decisions in this House that there is no difference at all between the two doctrines.”
27. Turning to its application to Wills and other instruments, Viscount Maugham opined thus:
“The doctrine is founded on the intention, explicit or presumed, of the testator in the case of a will and of the author or donor in the case of instruments, namely, the intention that a man shall not claim under the will or instrument and also claim adversely to it.”
28. These principles have been consistently followed in this country. In R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683, https://www.mhc.tn.gov.in/judis 15 SA Nos.337 of 2012 the Supreme Court has observed as under:
“Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that “a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage”. [See: Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd. [[1921] 2 K.B. 608, 612 (CA)], Scrutton, L.J.]”
29. In Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil Aviation, (2011) 5 SCC 435, the Supreme Court has held thus:
“12. The doctrine of election is based on the rule of estoppel--the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity….. Taking inconsistent https://www.mhc.tn.gov.in/judis 16 SA Nos.337 of 2012 pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily.”
30. In Union of India v. N. Murugesan ((2022) 2 SCC 25), the English decisions on the point were cited with approval by the Supreme Court. It is important to notice that the Supreme Court has recognised it as a principle emanating out of the common law and not from the statutory text of Section 115 of the Evidence Act. This is clear from the following observations:
“A person cannot be allowed to have the benefit of an instrument while questioning the same. Such a party either has to affirm or disaffirm the transaction. This principle has to be applied with more vigour as a common law principle, if such a party actually enjoys the one part fully and on near completion of the said enjoyment, thereafter questions the other part. An element of fair play is inbuilt in this principle. It is also a species of estoppel dealing with the conduct of a party.” https://www.mhc.tn.gov.in/judis 17 SA Nos.337 of 2012
31. In its latest decision in Premalata @ Sunita v. Naseeb Bee (Civil Appeal Nos 2055-2056 of 2022), decided on 23.03.2022, the Hon'ble Supreme Court applied the doctrine of approbate and reprobate holding that a litigant cannot be permitted to take two different/contradictory stands before two different forums. The Hon'ble Supreme Court has observed as under:
The respondents - original defendants cannot be permitted to take two contradictory stands before two different authorities/courts. They cannot be permitted to approbate and reprobate once the objection raised on behalf of the original defendants that the Revenue Authority would have no jurisdiction came to be accepted by the Revenue Authority/Tahsildar and the proceedings under Section 250 of the MPLRC came to be and thereafter when the plaintiff instituted a suit before the Civil Court it was not open for the respondents - original defendants thereafter to take an objection that the suit before the Civil Court would also be barred in view of Section 257 of the MPLRC.”
32. In the considered view of this Court, the respondent is https://www.mhc.tn.gov.in/judis 18 SA Nos.337 of 2012 not entitled to claim for any right or title over the ‘C’ schedule property. There is no requirement for this Court to undertake the exercise of finding out how much of property was acquired and how much was left out by the Government. This is in view of the fact that the respondent went before the competent Civil Court and obtained a Decree on the ground that no right or title was conveyed to him under the sale deed dated 27.8.1974 marked as Ex.B3.
This crucial fact was lost sight of by both the Courts below and both the Courts unnecessarily undertook the exercise of finding out the ownership of the respondent over the ‘C’ schedule property. The third substantial question of law is answered accordingly.
21. The principle of law that was discussed in the above judgment will squarely apply to the facts of the present case. The settlement deed marked as Ex.A1 was presented before the Land Reforms Tribunal by Perumal Chettiar and he had obtained a favourable order and that fact by itself will amount to acting upon Ex.A1 settlement deed. The fact that the said Perumal Chettiar dealt with the properties https://www.mhc.tn.gov.in/judis 19 SA Nos.337 of 2012 even thereafter, is irrelevant and not binding on his daughters in whose favour the properties were settled. The first and second substantial questions of law and the first additional substantial question of law are answered accordingly in favour the appellants.
22. The next issue to be gone into is with regard to the genuineness of the Will executed by Perumal Chettiar and which was marked as Ex.B37. In view of the finding of this Court to the effect that Ex.A1 settlement deed has been acted upon and Perumal Chettiar has lost his right over the properties covered under the settlement deed, the extent to which Ex.B37 included the suit properties also, the same must be held to be bad.
23. The main issue that is involved in the present case confines itself to the suit properties qua the settlement deed marked as Ex.A1. The Will that was marked as Ex.B37 covered large extent of properties and it also included the suit properties. This Court has already held the Will to be bad to the extent it included the suit properties. After having rendered such a finding, should this Court go into the genuineness of the Will and deal with the findings of both the https://www.mhc.tn.gov.in/judis 20 SA Nos.337 of 2012 Courts below ?
24. When this question was posed to both the sides, the learned counsel for the appellant submitted that this Court should not go into the findings on the genuineness of the Will since the Will now confine itself to other properties, other than the suit properties and therefore it goes beyond the scope of the suit filed by the plaintiff.
25. Per contra, the Learned Senior Counsel appearing on behalf of the respondents submitted that this dispute has been going on for nearly 20 years and if this question is left open, there are other cases pending and particularly the partition suit filed by the plaintiff is also pending where the genuineness of this Will, will once again come into question and it will become impossible to once again secure the witnesses and to prove the Will all over again. Therefore, the Learned Senior Counsel submitted that this Court has to give a final verdict on the genuineness of the Will so that all the parties will know where they stand.
26. While considering this issue, this Court takes into https://www.mhc.tn.gov.in/judis 21 SA Nos.337 of 2012 consideration the judgment of this court in R. Srinivasa Row Vs. Kaliaparumal (Minor) and Another reported in AIR 1966 Mad 321. The relevant portion in the Judgment is extracted hereunder:
“3. What is contended for the petitioner is that in view of the finding of the Court in the earlier litigation, on the first issue, the other issues did not arise for consideration and that in fact the Court said so, but, nevertheless, it proceeded to consider those issues and record its findings. In the circumstances, the findings in the earlier suit which were quite unnecessary for the disposal of the suit, according to theargument, cannot operate as res judicata. I think the contention is well-founded. For a finding in an earlier suit to operate as res judicata in a subsequent suit, it must be necessary for disposal of the earlier litigation, and in that tense the point was substantially in issue between the parties and it must have been heard and finally decided. In the earlier litigation once the Court found that the character of the property conveyed to the 8th defendant was not coparcenary, the suit should automatically fail and no further issue arose for decision. It https://www.mhc.tn.gov.in/judis 22 SA Nos.337 of 2012 was for the sake of fullness in the earlier litigation the Court recorded findings on the other issues. In my view, such findings on issues which were not necessary, or which did not arise, in view of a finding on a vital issue which would by itself dispose of the suit, will not operate as res judicata in a subsequent suit between the same parties where identical issues which were not necessary or required to be decided in the earlier suit, arise for consideration. This view is supported by Raja Gopala Venkatanarasimhacharyulu v. Veeraswami(1). In that case, Madhavan Nair J., held:
“If a decision on the point or issue in an earlier suit between the same parties are unnecessary for the disposal of the previous suit it cannot be considered to be res judicata in a later suit when the point involved in that finding arises for decision“.
With respect, I am of the same view.”
27. The above Judgment of this Court gives a clear https://www.mhc.tn.gov.in/judis 23 SA Nos.337 of 2012 indication that a Court is expected to only answer those issues which arises for consideration and a Court is not expected to get into those issues which does not have any impact on the dispute involved in the case. In other words, where a vital finding on an issue by itself is enough to dispose of the case, a Court should not be getting into other issues and render its findings. In fact, by rendering such findings on the issues where the Court need not have gone into, those findings cannot even be considered as res judicata in the later suit. This is in view of the fact that those findings were not necessary or required to decide the actual dispute between the parties.
28. Taking cue from the above judgment, this Court holds that there is no necessity to give a finding on the genuineness of the Will marked as Ex.B37 which now confines itself to the other properties apart from the suit properties. By rendering such findings, the answer that has been given to the main or vital issue is not going to be altered in any way and it will go beyond the scope of the relief sought for in the suit.
29. This Court finds a lot of force in the submission made https://www.mhc.tn.gov.in/judis 24 SA Nos.337 of 2012 by the Learned Senior Counsel to the effect that the exercise that had already been undertaken to prove the Will, should not go waste and it may become impossible to once again call the witnesses to prove the Will. Under such circumstances, this Court has to necessarily strike a balance. On the one hand, this Court should not undertake an exercise and render findings on an issue which is not germane to the dispute involved in the present case and at the same time, this Court must also ensure that the evidence that has already been collected is at least made use of in any other proceedings between the same parties when it touches upon the genuineness of the Will which was marked in this case as Ex.B37.
30. In view of the above, this Court holds that the contrary findings rendered by both the Courts below on the genuineness of the Will is liable to be set aside since those findings are not germane to the actual dispute involved in this case. However, the Will and the evidence that has been given to prove the execution and genuineness of the Will and the materials relied upon for the same, can be used as evidence by the parties in any other proceedings between the parties where there is an issue touching upon the genuineness of https://www.mhc.tn.gov.in/judis 25 SA Nos.337 of 2012 the Will. The concerned Court will take into consideration the available evidence which should be allowed to be marked in the suit and it will be left open for the Trial Court to render its independent findings on such evidence with regard to the execution and genuineness of the Will. If this safeguard is provided by this Court, it will substantially reduce the burden of the parties to once again undergo the exercise of proving the Will all over again.
31. The second additional substantial question of law need not be answered by this Court. The above safeguards provided by this Court will adequately protect the interests of both the parties. It will be relevant to rely upon the judgment of the Hon’ble Supreme Court in Ponnamma Jagadamma and Others Vs. Narayanan Nair and Others reported in (2017) 6 SCC 778 in this regard. The relevant portion in the judgment is extracted hereunder:
“15. So long as the compound wall is constructed by Respondent 1 on the portion of suit property over which the appellants have no right, title or interest; and by leaving out the portion which has been encroached upon by the appellant-defendants and some more land from https://www.mhc.tn.gov.in/judis 26 SA Nos.337 of 2012 such trespassed portion, the appellants can have no grievance whatsoever. It is a different matter that the High Court has not dealt with each of the substantial questions of law formulated while entertaining the second appeal. As the arrangement provided by the High Court would meet the ends of justice and also avoid any further litigation between the parties, it would not be necessary to deal with all the substantial questions of law. As a matter of fact, in the absence of specific denial about the execution or existence of the said will by the appellant-defendants, the question of examining the issue of admissibility of that will pales into insignificance. The High Court also justly noted that the beneficiary under the will was not before the Court. Even for this reason, it would be unnecessary to answer the substantial questions of law formulated at the instance of the appellant-defendants and because the nature of the arrangement predicated by the High Court is such that it would not affect the rights of the appellant- defendants in any manner with regard to the enjoyment of the property owned or occupied by them bearing Survey https://www.mhc.tn.gov.in/judis 27 SA Nos.337 of 2012 No. 2061 and including the stated encroached portion in Survey No. 2063. In that sense, there is no subsisting cause for the appellants to question the correctness of the will nor is there any tangible ground to assail the arrangement specified by the High Court while disposing of the second appeal filed by Respondent 1.”
32. It is clear from the above Judgment that this Court exercising its jurisdiction under Section 100 of CPC, after providing sufficient safeguards to either parties to meet the ends of justice, can decide not to answer a substantial question of law framed for consideration. In the present case, since the genuineness of the Will qua the other properties are concerned, is irrelevant to decide the main issue involved in the case, this Court is not rendering any finding on the same and it will be left open to the parties and persons claiming under them to agitate this issue with the evidence that has already been recorded in the present suit, in any other proceedings where the genuineness of this Will becomes an issue.
33. In view of the above discussion, this Court is inclined https://www.mhc.tn.gov.in/judis 28 SA Nos.337 of 2012 to interfere with the Judgment and Decree passed by the Lower Appellate Court and the same is accordingly set aside. The Judgment and Decree passed by the Trial Court is upheld. However as mentioned hereinabove, the findings of the Trial Court on the genuineness of the Will marked as Ex.B37 shall stand eschewed.
34. In the result, this Second Appeal is allowed in the above persons. Considering the facts and circumstances of the case, there shall be no order as to costs.
29.04.2022 Internet: Yes Index: Yes rka To
1.The II Additional Sub Court, Villupuram
2.The Principal District Munsif Court, Villupuram
3.The Section Officer V.R.Section High Court.
Madras.
https://www.mhc.tn.gov.in/judis 29 SA Nos.337 of 2012
N.ANAND VENKATESH,J.
rka Judgment in Second Appeal No.337 of 2012 29.04.2022 https://www.mhc.tn.gov.in/judis 30