Madras High Court
Subramaniya Moopanar (Died) And Ors. vs R. Sumathi And Ors. on 12 April, 1999
Equivalent citations: (1999)3MLJ651
JUDGMENT E. Padmanabhan, J.
1. The defendants 2 to 5 in O.S.No. 526 of 1978 on the file of the Subordinate Judge, Thanjavur, who have succeeded before the trial court and lost before the lower appellate court have preferred this Second Appeal. This Second Appeal is directed against the judgment and decree of the learned District Judge, West Thanjavur dated 20.4.1987 made in A.S.No. 13 of 1985 in reversing the judgment and decree of the learned Subordinate Judge, Thanjavur dated 31.1.1984 made in O.S.No. 526 of 1978. For convenience, the parties will be referred as arrayed before the trial court.
2. Heard Mr. K. Sarvabhauman, senior counsel appearing for the appellants and Mr. S.V. Jayaram, senior counsel appearing for the contesting first respondent.
3. Mr. K. Sarvabhauman, learned senior counsel appearing for the appellants submitted detailed arguments while challenging the findings recorded by the first appellate court and took the court through the evidence both oral and documentary and contended that the judgment and decree of the first appellate court in reversing the judgment and decree of the trial court are liable to be reversed in this second appeal. Per contra, Mr. S.V. Jayaram, learned senior counsel appearing for the contesting first respondent contended that the findings of the first appellate court are well supported by reasons, besides being fair and just and consequently no interference is called for in this second appeal.
4. Mr. K. Sarvabhauman, senior counsel strained himself and took the court through the evidence and contended that the Will relied upon by the plaintiff-purchaser in respect of her vendors title had not been proved and that the testator did not have the testamentary capacity to execute the Will in dispute. The learned Counsel further reiterated the three questions of law framed at the time of admission of the second appeal. The following three substantial questions of law were framed at the time of admission on 2.9.1987:
(i) Whether the lower appellate court has properly appreciated and applied the principles governing attestation of Will deducible from the Succession Act and Evidence Act to the facts of the Present case?
(ii) Whether the lower appellate court misconstrued and omitted to construe the material evidence on record when it chose to reverse the Judgment and decree of the first court?
(iii) Whether the lower appellate court rightly cast the burden of proof with regard to the genuineness of the Will on the parties concerned?
5. Mr. K. Sarvabhauman, elaborated the three substantial questions of law and contended that the first appellate court erred in law and misconstrued itself in upholding the testamentary succession when the original Will had not been proved, when the disposition under the original Will is unnatural and improper, when no attestor has been examined to prove the Will and the explanation for non production of the original Will ought not to have been accepted by the lower appellate court. In support of the above contention the learned senior counsel cited very many authorities.
6. Admittedly, the suit properties originally belonged to one Natesa Moopanar. The said Natesa and executed a Will on 25.8.1977 bequeathing the suit property in favour of the 6th defendant from whom the plaintiff had purchased the property for valuable consideration on 27.9.1978. It was the further case of the plaintiff that she had been a tenant in respect of the suit property even prior to the purchase besides she had also pleaded that an agreement of sale has been entered between the plaintiff and the 6th defendant on 15.10.1977.
7. The plaintiff further pleaded that she is in exclusive possession and enjoyment of the suit property since the date of purchase as the absolute owner and the defendants 1 to 5 have absolutely no manner of title or interest in any portion of the suit property, nor they have any right to interfere with the plaintiff's possession. The 6th defendant from whom the plaintiff had purchased conveniently remained absent. So also the first defendant.
8. The second defendant pleaded that the 6th defendant has no title or interest to convey the suit property in favour of the plaintiff, that the alleged Will put forward by the plaintiff bequeathing the suit property in favour of the 6th defendant is denied and that the same will not bind the plaintiff or other heirs of Natesa, that the defendants 1 to 3 are brothers, that the 4th defendant is the son of 3rd defendant and the 5th defendant is the son of 2nd defendant. It was further contended that the second and third defendants being the heirs of Natesa have succeeded to the property of Natesa and that they are in possession and enjoyment of the suit property.
9. The third defendant also filed a written statement contending that the plaintiff has been set up by the 6th defendant to file a suit and that the plaintiff has neither title, nor right to convey, that the third defendant was taken in adoption during the year 1942 by Natesa and the third defendant has been managing the property even during the life time of the said Natesa and that the sale claimed by the plaintiff cannot be true as the deceased Natesa had no testamentary capacity to execute such a Will, besides the Will is unnatural and improper.
10. The defendants 4 and 5 adopted the written statement filed by the third defendant.
11. The plaintiff marked Exs.A-1 to A-15 while the defendants marked Exs.B-1 to B-15. The summons issued to the 6th defendant to produce the Will had been marked as Ex.P.1. The plaintiff examined three witnesses while the defendants had examined three witnesses. The trial court framed material issues and held that the Will dated 25.8.1977 has not been proved by the plaintiff satisfactorily and as such the conveyance by the 6th defendant is not binding on the other defendants and consequently held that the sale in favour of the plaintiff is not valid. The trial court also held that neither the plaintiff nor the 6th defendant could have been in possession and enjoyment of the suit property. The plaintiff is not entitled to a declaration of title and consequential relief of injunction. The trial court also negatived the plea of adoption and oral gift put forwarded by the third defendant.
12. As against the said findings of the trial court, that there was no oral gift and that the third defendant was not the adopted son of Natesa, no further appeal has been filed and the said findings were allowed to become final. Being aggrieved by the decision of the trial court, the plaintiff alone had preferred A.S.No. 13 of 1985 on the file of the District Court, Thanjavur. The first appellate court reversed the findings of the trial court and held that the Will Ex.A-3 is true and genuine and consequently upheld the plaintiff's claim of title and possession pursuant to the sale deed Ex.A-2, dated 27.9.1978 executed by the 6th defendant in favour of the plaintiff.
13. The first appellate court framed as many as five points for consideration. On point No. 1, the first appellate court rendered a definite findings that Ex.A-3 Will dated 25.8.1977 is true and genuine and it had been executed by Natesa in a sound disposing state of mind. On the second point, the first appellate court held that the sale deed Ex.A-4 dated 29.7.1978 in favour of the plaintiff by the 6th defendant is also true and binding. On the third point, the first appellate court confirmed the findings of the trial court that there was no oral gift of the suit property in favour of the second defendant. On the fourth point, the first appellate court also found that Natesa had not adopted the third defendant during his life time and on the fifth point, the first appellate court held that the plaintiff has acquired valid title and she is in possession of the suit property and that she is in possession of the suit property and that she is entitled to declaration and injunction prayed for.
14. As regards the third and fourth points namely the oral gift and adoption, the findings of the trial court as affirmed by the first, appellate Court reached finality and in fact the learned senior counsel had not advanced any argument in respect of the alleged oral gift as well as the plea of adoption.
15. The main thrust and challenged by the learned senior counsel being challenge to Ex.A-3 Will dated 25.8.1977 as according to the learned senior counsel the Will had not been proved and suspicious circumstances had not been cleared to the satisfaction of the court and that no acceptable explanation has been given for non production of the original Will. Therefore, this Court has to consider whether the Will Ex.A-3 had been executed by Natesa while in a sound disposing state of mind. If this Court affirms the findings of the first appellate court that the Will is true and genuine, it follows automatically that the sale under Ex.A-2 dated 27.9.1978 by the 6th defendant in favour of the plaintiff has to be upheld automatically. As already pointed out the 6th defendant had neither entered appearance, nor had filed a written statement and had conveniently remained exparte.
16. The relationship between the parties are not in dispute. One Swaminatha Moopanar had four sons, namely, (1) Lakshmanan, (2) Subramanian, (3) Govindan, and (4) Natesa. The last son Natesa died issueless. The suit property admittedly belonged to the said Natesa. Lakshmanan the first son of Swaminatha had four sons who are defendants namely (1) Palanisamy (R-6), (2) Rajammal (R-7), (3) Kannayan (R-8), and (4) Selvam (R-9). Subramanian, the second son of Swaminatha is the second defendant in the suit and Kanagasabapathy his son has been impleaded as the 5th defendant in the suit. Govindan the third son on Swaminatha had been impleaded as the 3rd defendant in the suit and his sons Thyagarajan has been impleaded as the 4th defendant. As already pointed out the defendants 2 to 5 before the court below are the appellants while the other defendants have not chosen to join the appellants.
17. In fact the second defendant died pending the second appeal and his legal heirs namely Karumbayee, Vasantha, and Malarkodi were impleaded as his legal representatives by order dated 14.2.1997 made in C.M.P.No. 17563 of 1995. As already pointed out the defendants 6 to 9 have not chosen to appear before the trial court nor they have chosen to contest the suit, nor they have preferred the first appeal or the second appeal. Pending the first appeal Lakshmanan died and his heirs have been impleaded as respondents 7, 8, 9 in the first appeal.
18. The suit items 1 to 3 in all measuring one acre and 11 cents of nanja, situate in Sarapallam village and in items 2 and 3 there is a pumpset with an oil engine. Admittedly, Natesa was the owner of the item 1 to 3. Placing reliance upon the Will, the 6th defendant had conveyed the suit property in favour of the plaintiff under Ex.A-2 sale deed on 27.9.1978. Ex.A-1 is the agreement entered between the plaintiff and the 6th defendant on 15.10.1977 and on payment of the entire sale consideration of Rs. 10,000 the 6th defendant had conveyed the suit property. There is no challenge to the deed of conveyance executed by the 6th defendant in favour of the plaintiff.
19. The main contention is with respect to the alleged Will dated 25.8.1977. Under the said Will certain items of the properties were dealt with by the deceased Natesa and the 6th defendant had retained the original Will while executing Ex.A-2 sale deed. The plaintiff had agreed to obtain registration copy thereof for the purpose of record. It is the further case of the plaintiff that she was in possession of the suit property as a tenant even prior to the agreement as well as her purchase under Ex.A-2. As there is an attempt to interfere with her possession. She has filed the suit for declaration of title and consequential relief of injunction. Ex.A-3 is the Will which is being challenged.
20. It is true that the plaintiff could not produce the original Will and she has produced a certified copy of the same. The 6th defendant the vendor under Ex.A-2 had retained the original Will with him as under the original Will number of other properties have been bequeathed by Natesa. The plaintiff had taken every step or effort to bring the original Will into court. As seen from Ex.C-1 the plaintiff took out summons to the 6th defendant to produce the original Will which had been served on the 6th defendant, but he had not chosen to produce the original Will despite service of summons. The 6th defendant had conveniently absented himself in the suit. He had neither filed a written statement for he had supported the defendants or for that matter he had supported the plaintiff. But it is rightly pointed out by Mr. S.V. Jayaram, senior counsel that the 6th defendant had joined hands with the contesting defendants for obvious reasons and for illegal gains. As the 6th defendant had retained the original of Ex.A-3 Will, the plaintiff had taken steps to let in secondary evidence to prove the truth and genuineness of the Will.
21. The non production of the Will had been explained by the plaintiff and the first appellate court was satisfied in this respect as the plaintiff had taken every effort within his means to secure the original of Will Ex.A-3. Further, the plaintiff had also taken summons to the concerned Sub-Registrar calling upon him to produce the copy of the Will filed into the office of the said Registrar containing the left thumb impression of the testator Natesa and the same has been marked as Ex.A-10 and the register was marked as Ex.A-11 as deposed by P.W.-3, the Assistant employed in the Sub-Registrar's Office. The thumb impression of Natesa as available with the register in authority has been produced and marked. In Ex.A-3 Will thumb impression of Natesa had been obtained apart from his affixing "Keeral" Ex. A-10 the original of the Will produced by the registrar's office prove that Natesa had affixed his "keeral" and his left thumb-impression on the original of the Will. Thus the plaintiff making the requisite foundation and after taking all efforts for production of original was allowed to let in secondary evidence. The plaintiff was rightly permitted to let in secondary evidence to substantiate the Will and also had explained the reasons for non production of the original Will. The first appellate court was obviously satisfied with the explanation offered by the plaintiff for non production of the original and this Court do not find any compelling reasons to take a different view in this respect.
22. Admittedly the defendants are closely related to each other and in view of the close relationship, the 6th defendant who had already alienated the suit property in favour of the plaintiff had chosen to join hands with the other defendants and for reasons best known to himself and with the object of defeating the rights of the plaintiff and to get a benefit for himself had chosen to remain exparte and also had declined to produce the original of Ex.A-3 Will. The 6th defendant normally should have supported his alienation in favour of the plaintiff by producing the original Will, but he had avoidable to produce the original despite service of summons to him.
23. The first appellate court was justified in its finding and concluding that the 6th defendant had colluded with the other defendants. The plaintiff had rightly resorted to Section 63 of the Evidence Act for letting secondary evidence by producing certified copy of the Will. The certified copy has been marked as a document as Ex.A-3 and the original register maintained in the Registrars office has been marked as Ex.A-10 and Ex.A-11 being a certified copy of the Will filed with the Registrar which contains the thumb impression of the testator Natesa. In terms of Section 65 of the Evidence Act secondary evidence can be let in if the original document is in the possession of the person against whom the document is sought to be proved namely the 6th defendant. The 6th defendant admittedly had retained the original and he had not chosen to prove the original despite summons and mere non production of the original in the present case as found by the first appellate court cannot be said to be illegal, nor it will in any manner Vitiates the conclusion of the first appellate court The non production of the Will had been explained by the plaintiff and secondary evidence has been let in after laying the requisite foundation.
24. Exs A-10 and A-11 prove the thumb impression of Natesa with which the first appellate court was satisfied besides Exs. A-10 and A-11 were produced by the public authority in whose custody they continued to be in possession and there was no challenge to Ex.A-10 or A-11. The plaintiff had taken every effort to substantiate the Will Ex.A-3 by letting in secondary evidence. However, it is contended that production of Ex.A-3, Registration copy namely the secondary evidence is not sufficient unless the Will is proved by examining the attesting witnesses.
25. As already pointed out, secondary evidence is admissible in proof of a last Will like any other document. The evidence in respect of the Will must of course be trustworthy. The non production of a Will does not lead to loss of a Will nor such a contingency could be presumed, nor it could be stated that the Will could have been revoked. A certified copy of the Will is admissible and the certificate of a Registering Officer on the Will is sufficient proof of execution of the Will and its contents.
26. It cannot be said that the non Production of the Will by the plaintiff is for any fault of her own, but it is the refusal on the part of the 6th defendant to produce the original or to come out with clean hands either to support the plaintiff or to support the defendants. The plaintiff had taken every effort in the present case as stated above to secure the original, but ultimately he could not produce the original and he had let in secondary evidence namely the certified copy as well as the original register Exs.A-10 and A-11 maintained by the registering authority. The plaintiff had explained the non production of the original and on the facts of the case as held by the first appellate court the non production of the Will is not fatal and the contention raised to the contra by the learned senior counsel for the appellants cannot be sustained.
27. As regards the execution of the Will, the sole surviving attestor has been examined. The evidence of the sole surviving attestor had not been accepted by the trial court, but the first appellate court had for valid reasons accepted the evidence of the attestor namely P.W.2. According to the first appellate court, the rejection of the evidence of P.W.2 by the trial court is unsound and untenable. No exception could be taken to the said conclusion and finding recorded by the first appellate court.
28. The evidence of P.W.2 had been accepted by the first appellate court as according to the first appellate court P.W.2 is an independent witness who has spoken the truth. P.W.2 had deposed that he had seen Natesa executing the original of Ex.A-3 Will though the senior counsel pointed out an admission on the part of the P.W.2 that he had not seen Natesa affixing his L.T.I, to the original Will. The over all evidence and the disposition of P.W.2 would prove the execution of the Will by the deceased Natesa. When once the evidence of P.W.2 who is one of the attestor is accepted, the first appellate court was well justified in holding that the plaintiff had proved the Will and the challenge to the said Will had been rightly negatived by the first appellate court.
29. It has also been established that the other attesters are not alive which had been admitted by the defendants. The only surviving attestor namely P.W.2 had been examined and he with stood the cross-examination and his examination has been rightly accepted by the first appellate court. The other attesting witnesses are not alive and there is no reason at all to disbelieve to the evidence of P.W.2, the only surviving attestor to the Will. The first appellate court had rightly accepted the evidence of P.W.2 the attestor to the original Will. On the facts of the case, the first appellate court was right in holding that the plaintiff had proved the execution of the Will by the deceased Natesa.
30. The learned senior counsel for the appellants placed reliance on Kashibai and Anr. v. Parwatibai , in support of his contention that without attestation the execution of the Will is not valid and no witness has been examined to prove the attestation and therefore the court below ought to have held that the execution of the Will had not been proved. The Apex Court held thus:
This brings us to the question of the Will alleged to have been executed by deceased Lachiram in favour of his grandson Purshottam, defendant 3, Section 68 of the Evidence Act relates to the proof of execution of document required by law to be attested. Admittedly, a Deed of Will is one of such documents which necessarily require by law to be attested. Section 68 of the Evidence Act require by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. A reading of Section 68 will show that attestation and execution are two different acts one following the other. There can be no valid execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of no avail. Section 68 of the Indian Succession Act 1925 also lays down certain rules with regard to the execution of unprivileged Wills. Clause (c) of Section 63 provides that the Will shall be attested by two or more witnesses, each one of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark of the signature of such other person: and each of the witness should sign the Will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary. Here we may also take note of the definition of the expression attested as contained in Section 3 of the Transfer of Property Act which reads as under: 3. "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument or has some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.
Having regard to the aforementioned definition an attesting witness is a person who in the presence of an executant of a document puts his signature or mark after he has either seen the executant himself or someone on direction of the executant has put his signature or affixed his mark on the document so required to be attested or after he has received from the executant a personal acknowledgment of his signature or mark of such other person.
31. The learned Counsel for the appellants also relied upon the judgment of this Court in Kannammal v. Chinnaponnammal , in support of this contention that on the facts of the present ease there is no proof of attestation of the Will which is required to be proved and it cannot be assumed. This Court held thus:
One of the legal requirements is, that each of the witnesses shall sign in the presence of the testator. Even if the testator signed in their presence, the attestation is not complete unless and until the attestors signing the document. This aspect of the matter is not spoken to by P.Ws.2 and 3. In the recent decision of the Supreme Court reported in Kashibai v. Parvathibai , their Lordships said that Section 68 of the Evidence Act, shows that 'attestation' and execution are two different acts one following the other.... There can be no valid execution of a Document which under the law is required to be attested without the proof its due attestation and if due attestation is also not proved, the fact of execution is of no avail. Section 63 of the Succession Act also lays down certain, rules with regard to the execution of unprivileged Wills. The word attested has been defined in Section 3 of the Transfer of Property Act.
32. The learned senior counsel also relied upon the decision of the Apex Court in Girja Datt v. Gangotri Datt , in support of his contention, wherein their lordships held that to prove due attestation of the Will, the prepounder of the Will has to prove that the two witnesses saw the testator sign the Will and they themselves signed the same in the presence of the testator. There is no quarrel over the proposition of law laid own in this decision as well as other decisions cited by the learned Counsel for the appellants.
33. The learned senior counsel for the appellants also relied upon A. Rangaswamy v. A. Subramania , Pattammal v. Kanniammal (1981)2 M.L.J. 89, wherein the proposition of law had been reiterated. Mr. S.V. Jayaram, the learned senior counsel appearing for the respondents fairly stated that he has no quarrel with respect to the proposition of law, but pointed out that on the facts of the present case and on the evidence available on record, the first appellate court was well founded in holding that there is a valid attestation by the two attesting witnesses besides holding that there is valid execution by the testator in the presence of the two attestors each of whom seeing other and affixing their respective signature in the presence of the testator.
34. As regards the non production of the original Will the learned senior counsel for the appellants relied upon the decision reported in Dr. Gurumukh Ram Madan v. Bhawan Das Madan and Roman Catholic Mission v. The State of Madas and Anr. , in support of his contention that the failure to produce the original Will is fatal and the plaintiff has to fail. In , the Apex Court has considered the effect of Evidence Act with respect to permissibility of secondary evidence to prove a Will, the original of which had not been produced. In this respect the Apex Court held thus: "strong reliance had been placed in the trial court as well as m the High Court on Section 65 (f) of the Evidence Act, 1872. Section 65(f) states that secondary evidence is permissible when the original is a document of which a certified copy is permitted by the Evidence Act or by any other law in force in India, to be given" in evidence. All that it means is that secondary evidence is admissible notwithstanding the existence of the original when it is a document of which a certified copy is permitted to be produced by the Act or any other law. The document in question is not a public document and the document could not have been let in evidence except after explanation as to the nor availability of the original in an appropriate manner. Therefore the view taken by the High Court in this regard that Section 65(f) was not attracted to the case is justified. The High Court found on an analysis of the material on record that the greater probability is that the said document was taken away from the office of the Sub-Registrar by the appellant himself inasmuch as the respondent was not a willing party to it. The respondent had not admitted either in the pleadings or course of evidence of having executed the document dated 3.11.1962. The appellant himself had let in similar evidence in the shape of a letter which he admittedly wrote to Sadanand who was examined as a witness by the respondent mentioning about the transaction in question and that document was produced in original by D.W. Sadanand. But on the facts of the present case, it is to be stated that the original had been retained by the 6th defendant, who had chosen not to produce the same despite summons efforts taken by the plaintiff. The certified copy has been produced as well as the copy filed by the very executant bearing the testator's LTI produced from the Registrar's office and marked as Exs.A-10 and A-11. The first appellate court was right in holding that Section 65(f) of the Evidence Act has been complied with and secondary evidence had been permitted to be let in. I do not find any illegality in this respect.
35. As regards the execution also it has to be pointed out that the contesting defendant had admitted the execution of the very Will but sought to contend that the Will had been cancelled by a later Will which the defendant had not chosen to produce, nor speak about the same. Hence there is also an admission on the part of the contesting defendant. Based upon these material evidence it had been rightly held that the Will has been found to be true and genuine and it has been executed in a sound disposing state of mind.
36. The reliance placed upon a portion of the evidence of P. W.2 by the senior counsel though attractive, this Court finds that there are no compelling reasons to take a different view from that of the first appellate court with respect to the appreciation of evidence of P. W.2, the sole surviving attestor. I do not find any illegality in the accepting P. W.2 as he is an independent witness and a person speaking truth. In fact the chief examination of P.W.2 would substantiate the plaintiff's case that the execution of the Will dated 25.8.1977 by Natesa while he was in a sound disposing state of mind and it was in the presence of attesting witness.
37. Yet another challenge was made by the counsel for the appellants contending that Natesa was not in a sound disposing state of mind and that during the relevant period he was suffering from cerebral thrombosis and therefore it has to be held that the deceased Natesa did not have the requisite mental condition or in other words Natesa having lost his mental faculty, the Will was not executed in a sound disposing state of mind. The first appellate court considered the evidence in this respect and held that the Will dated 25.8.1977 came to be executed by Natesa while he was in a sound disposing state of mind. The third defendant was examined as P. W.2 who had admitted the execution of the Will by Natesa on 25.8.1977 as in the earlier suit it was contended to the contra. The evidence of D. W.2 go a long way to prove the execution of the Will by Natesa in a sound state of mind. The third defendant had admitted the Will dated 25.8.1977 under the original Ex.A-3.
38. As regards the testamentary capacity of the deceased Natesa, the lower appellate court found that Natesa was ailing as seen from Ex.B-1 the case sheet maintained by the Thanjavur Medical College Hospital, but it cannot be said that Natesa was either unconscious nor he was not in such a position to know what he was doing.
39. D.W.1 a leading Medical Practitioner who had given treatment to Natesa was examined on the side of the defendants. The said witness D.W. 1 had admitted that Natesa did not lose his thinking power and did not lose his power of speech. According to D.W.1 there was much improvement between 13.2.1977 and 18.2.1977 on which date Natesa was discharged. Only after a lapse of six months thereafter Natesa died. The first appellate court was very much satisfied with the sound mental condition of the testator Natesa and the appreciation of evidence in this respect by the first appellate court is just and it cannot be branded as perverse. I do not find any reason to hold that the appreciation of evidence by the first appellate court is perverse.
40. Though Mr. K. Sarvabhauman learned senior counsel strained himself and took the court through oral evidence let in by either side, this Court holds that the appreciation of evidence by the first appellate court is balanced and it cannot be branded as perverse and it has taken the possible view. Merely because another view is possible the second appellate court will not reappreciate the evidence and this legal position is well settled.
41. In the circumstances, this Court confirms the findings of the first appellate court that the deceased Natesa had executed the Will while he was in a sound disposing state of mind and the findings of the first appellate court deserves to be confirmed.
42. As regards the challenge to the Will as one being unnatural, the first appellate court found that the disposition under Ex.A-3 Will is not unnatural. No other challenge has been made to the findings of the first appellate court holding that Ex.A-3 Will has been executed by the deceased Natesa while in a sound disposing state of mind, that Natesa had the requisite mental faculty and he did not lose his mental faculty on the date of execution of the Will or at any point of time earlier there to and in a sound disposing state of mind Natesa had executed. Ex.A-3 original Will which had been proved by examining attestor P.W.2 and by producing Exs. A-10 and A-11, the original registers maintained by the Registering authority. The mental condition of the deceased has been spoken to by D.W.2 and the first appellate court had rightly relied upon the said evidence. D.W.2 had admitted the execution of the Will and he had not challenged the Will in the earlier litigation. For the above reasons, this Court holds that Ex.A-3 Will is true and genuine and the 6th defendant has got the right title and interest to convey the suit property in favour of the plaintiff.
43. In the light of the above discussion, all the three questions of law have to be answered against the appellants. As regards the first question of law, this Court holds that the first appellate court had analysed the entire evidence and had rightly come to the conclusion that the original of the Will had been validly executed and attested as required by law. The first question of law is answered against the appellants.
44. As regards the second question of law, this Court finds that the appreciation of evidence by the first appellate court is fair and comprehensive and it had taken into consideration all the material evidence and had chosen to accept the evidence of the independent attestor besides it had taken into consideration of the admission of D.W.2 about the execution of the Will in the earlier suit. Hence, the second question of law also deserves to be answered against the appellants as be first appellate court had considered the material evidence on record and had rightly reversed the judgment and decree of the trial court.
45. The third question of law has to be answered against the appellants as be first appellate court had not cast the onus on the contesting defendants as sought to be contended. In fact, the first appellate court found that the plaintiff had proved the execution of the Will and attestation as well as the sound disposing state of mind of the testator. The first appellate court had taken into consideration the conduct of sixth defendant and rightly commented about the non production of Original Will by the 6th defendant. The failure to examine the other two attestors had been explained. The third question of law also answered against the appellants.
46. In the result, the Second Appeal fails and it is dismissed, but without costs.