Madras High Court
Subbaiya Gounder vs Velathal on 19 January, 2021
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 07.01.2021
PRONOUNCED ON : 19.01.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
S.A.No.1117 of 2008
Subbaiya Gounder ... Appellant
Vs.
1.Velathal
2.Palanathal
3.Nallathal
4.Eswari ... Respondents
Prayer :- Second Appeal has been filed under Section 100 of CPC against
the Judgement and Decree dated 23.04.2008 passed in A.S.No.23 of 2007
on the file of the Subordinate Court, Dharapuram, reversing the Judgment
and Decree dated 19.01.2007 passed in O.S.No.56 of 2001 on the file of the
District Munsif Court, Dharapuram.
For Appellant : Ms.Rita Chandrasekar
for M/s.Aiyar and Dolia
For Respondents : No appearance
set exparte vide order dt.07.01.2021
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JUDGMENT
Challenge in this second appeal is made to the judgment and decree
dated 23.04.2008 passed in A.S.No.23 of 2007 on the file of the Subordinate
Court, Dharapuram, reversing the judgment and decree dated 19.01.2007
passed in O.S.No.56 of 2001 on the file of the District Munsif Court,
Dharapuram.
2.The second appeal has been preferred by the first defendant in
O.S.No.56 of 2001.
3.Suit for partition.
4.For the sake of convenience, the parties are referred to as per their
rankings in the trial Court.
5.Shorn of unnecessary details, according to the plaintiff, she and the
defendants 1 to 4 are the children of the deceased Ramasamy Gounder and
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the suit properties are the self-acquired properties of the deceased
Ramasamy Gounder and Ramasamy Gounder’s wife pre-deceased him and
he died intestate in the year 1993 and after his demise, the suit properties
had been in the possession and enjoyment of the plaintiff and the defendants
in common and thus, the plaintiff is entitled to 1/5th share in the suit
properties as the legal heir of the deceased Ramasamy Gounder. Of late, the
first defendant in particular and the other defendants had failed to handover
the share of properties derived from the suit properties to the plaintiff and
hence, according to the plaintiff, she had been necessitated to demand the
partition of her share in the suit properties and as her request had been not
complied with by the defendants, according to her, she has been necessitated
to lay the suit for partition.
6.The first defendant resisted the plaintiff’s suit by filing the written
statement and additional written statement and according to him, the suit
laid by the plaintiff is not legally sustainable and the suit properties are not
the self-acquired properties of the deceased Ramasamy Gounder. The suit
properties are the ancestral properties of the deceased Ramasamy Gounder
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and for the purpose of discharging the debts, the suit properties were
alienated in the year 1949 and 1953 with the right of re-conveyance to the
third parties and subsequently, the suit properties had been again
reconveyed in favour of Ramasamy Gounder during 1958 & 1959 and
Ramasamy Gounder had acquired the suit properties by way of
reconveyance as the manager of the family and therefore, the suit properties
are only the ancestral properties of the deceased Ramasamy Gounder and
further according to the first defendant, Ramasamy Gounder did not die
intestate in the year 1993 as alleged by the plaintiff and on the other hand,
he died on 14.12.1987 itself and further, according to the first defendant, the
plaintiff and the defendants 2 to 4 had been given in marriage several years
prior to the institution of the suit by providing adequate seer and articles and
Ramasamy Gounder during his lifetime in a fit state of mind and health
without any inducement and on his own volition, bequeathed his share in
the suit properties in favour of the first defendant by way of a Will dated
12.12.1985 and the plaintiff and the defendants 2 to 4 are very well aware of
the execution of the abovesaid Will by the deceased Ramasamy Gounder in
favour of the first defendant and accordingly, not endeavoured to secure any
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share in the suit properties for several years after the demise of the deceased
Ramasamy Gounder and furthermore, according to the first defendant, after
the demise of the deceased Ramasamy Gounder, he has been openly and
continuously enjoying the suit properties adverse to the interest of the
plaintiff and the defendants 2 to 4 and therefore, had acquired right over the
suit properties by way of adverse possession also and the plaintiff and the
defendants 2 to 4 had not enjoyed the suit properties at any point of time and
the plaintiff is not entitled to claim the benefit as stipulated under the
Amendment Act, 39 of 2005, particularly, when the deceased Ramasamy
Gounder had bequeathed his half share in the suit properties in favour of the
first defendant by way of a Will dated 12.12.1985 and therefore, the
plaintiff’s suit for partition, as such, is not maintainable and the suit is liable
to be dismissed.
7.In support of the plaintiff’s case, PW1 was examined and Exs.A1 &
A2 were marked. On the side of the defendants, DWs1 to 4 were examined
and Exs.B1 to B36 were marked.
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8. On an appreciation of the materials placed on record, both oral and
documentary and the submissions put forth by the respective parties, the
trial Court was pleased to dismiss the plaintiff’s suit. Impugning the
judgment and decree of the trial Court, the plaintiff has preferred the first
appeal and the first appellate Court, on a consideration of the materials
placed on record by the respective parties and the submissions made, was
pleased to reverse the judgment and decree of the trial Court and by way of
allowing the appeal preferred by the plaintiff, granted preliminary decree in
favour of the plaintiff as prayed for. Challenging the judgment and decree of
the first appellate Court, the first defendant has preferred the present second
appeal.
9.At the time of admission of the second appeal, the following
substantial questions of law were formulated for consideration:
"1.Whether the finding of the lower
appellate Court that there are suspicious
circumstances surrounding Ex.B36 Will and it is
not valid, is vitiated and liable to be set aside.
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2.Whether the lower appellate Court has
failed to appreciate the oral and documentary
evidence in proper perspective and its findings
are vitiated."
10.The relationship between the parties is not in dispute. The plaintiff
and the defendants 2 to 4 are the sisters of the first defendant and the
plaintiff and the defendants are the children of the deceased Ramasamy
Gounder. Now, according to the plaintiff, the suit properties are the self-
acquired properties of the deceased Ramasamy Goudner and inasmuch as he
had died intestate, she being one of the legal heirs of the deceased
Ramasamy Gounder, put forth the case that she is entitled to obtain 1/5 th
share in the suit properties and as the request for allotting her share in the
suit properties had not been acceded to by the defendants, according to the
plaintiff, she has been necessitated to institute the suit for partition.
11.Per contra, the first defendant contested the abovesaid version of
the plaintiff by putting forth the case that the suit properties are the ancestral
properties of the deceased Ramasamy Gounder and the first defendant and
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the suit properties had been alienated to the third parties for the purpose of
discharging the debts with the right of reconveyance in the year 1949 &
1953 and subsequently, acquired in the name of Ramasamy Gounder as the
manager of the family in the year 1958 & 1959 and therefore, according to
the first defendant, the suit properties are the ancestral properties of the
deceased Ramasamy Gounder and the defendants 2 to 4 and the plaintiff are
not entitled to claim any share in the suit properties and furthermore,
according to the first defendant, Ramasamy Gounder died only on
14.12.1987 and he did not die intestate and on the other hand, during his life
time in a fit state of mind and health on his own volition bequeathed his half
share in the suit properties in favour of the first defendant by way of a Will
dated 12.12.1985 and following his demise, the Will has come into force
and based on the same, the first defendant has acquired right in entirety over
the suit properties and furthermore, the first defendant has also acquired
right over the suit properties by way of adverse possession on account of
long, continuous and open enjoyment of the suit properties to the knowledge
of the plaintiff and the defendants 2 to 4 and thus, according to the first
defendant, the plaintiff is not entitled to invoke the Amendment Act, 39 of
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2005 for claiming a share in the suit properties and accordingly, sought for
the dismissal of the plaintiff’s suit.
12.Before adverting to the issues involved between the parties, at the
foremost, we will have to decide as the nature of the suit properties
i.e.,whether the suit properties are the self – acquired properties of the
deceased Ramasamy Gounder as projected by the plaintiff or the ancestral
properties of the deceased Ramasamy Gounder and the first defendant as put
forth by the first defendant.
13.No doubt, the suit properties had been acquired in the year 1958 &
1959 under the sale deeds in the name of the deceased Ramasamy Gounder
and the certified copies of the abovesaid sale deeds have been marked as
Exs.A1 & A2. The first appellate Court, on the mere acceptance of Exs.A1
& A2, proceeded to hold that the suit properties are the self-acquired
properties of the deceased Ramasamy Gounder without considering the
earlier conveyances made in respect of the suit properties by the deceased
Ramasamy Gounder’s family during 1949 & 1953. According to the first
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defendant, for the purpose of discharging the debts of the family, the suit
properties had been alienated by the deceased Ramasamy Gounder and his
father and the first defendant in favour of the third parties with the right of
reconveyance and thereafter, had been acquired in the name of the deceased
Ramasamy Gounder in the year 1958 & 1959 and to substantiate the
abovesaid facts put forth by the first defendant, the copy of the sale deeds
effected in the year 1949 & 1953 have been marked as Exs.B1 & B3 and
also marked the reconveyance agreement as Ex.B2 and considering the
evidence tendered by the first defendant as well as the recitals contained in
Exs.B1 to B3 in toto, it is noted that as rightly held by the trial Court, the
suit properties had come to be alienated to the third parties by the family of
the deceased Ramasamy Gounder along with the first defendant as well as
the grandfather of the first defendant with the right of reconveyance, which
could be evidenced by way of Ex.B2 and thereafter, the suit properties had
come to be reconveyed to the family of Ramasamy Gounder under Exs.A1
& A2. The first appellate Court has failed to consider the abovesaid
documents and instead ipso facto based its determination that the suit
properties are the self-acquired properties of the Ramsamy Gounder only on
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the strength of Exs.A1 & A2. On the other hand, as rightly contended by the
first defendant’s counsel, considering the documents marked as Exs.B1 to
B3 and the recitals contained therein, coupled with the recitals contained in
Exs.A1 & A2, it is noted that the suit properties had been alienated by
Ramasamy Gounder and his father and the first defendant in favour of the
third parties on the earlier occasions, subsequently, the same had come to be
reconveyed to the family of the deceased Ramasamy Gounder under the
reconveyance agreement and in such view of the matter, it has to be held
that the reacquisition of ancestral/joint property character, upon such
reconveyance, would reacquire the character of ancestral/joint family
property if reconveyed back to the family/coparceners and the above
position of law could be gathered from the decision of the apex Court
reported in (2019) 7 Supreme Court Cases 193 (Doddamuniyappa (Dead)
Through Legal Vs. Muniswamy and others), which is extracted below:-
"Family and Personal Laws - Hindu Law -
Ancestral property/Joint family property - Effect
of reconveyance to the family/coparceners, prior
to which there had been a valid conveyance of
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the said ancestral/joint family property to
stranger(s) - Reacquisition of ancestral/joint
property character upon such reconveyance,
which had been lost upon the conveyance to a
stranger
-Property inherited from father (prior to
coming into effect of Hindu Succession Act,
1956) - Reiterated, the same becomes joint family
property in hands of sons and grandsons, and all
male issue, even the unborn upon their taking
birth -Any conveyance or compromise regarding
inherited property by some
coparceners/shareholders would not affect and
bind the shares of the coparceners/shareholders
not a party to the conveyance/compromise in
question
-Further held, ancestral /joint family
property which had lost this character upon a
valid conveyance to stranger(s) would reacquire
character of ancestral/joint family property if
reconveyed back to the family/coparceners, and
would thus revest in all the coparceners,
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including those who had been born in the
meantime
-R-7 to R-9 were sons of C - R-1 to R-6 and
R-10 were grandsons of C and sons of R-7 to R-9
- Suit property which was ancesstral/family
property, was sold by R-1 to R-9 to M with a
condition that it would be reconveyed to them if
M intends to sell - Later, M sold suit property to
MS, and from him appellant-Defendant 1
purchased it - R-7 to R-9's suit for reconveyance
against appellant-Defendant 1 was ultimately
decreed, and the decree attained finality -
Subsequently, execution proceedings commenced
wherein reconveyance deed was executed and
possession was handed over to R-7 to R-9 - Thus,
decree got executed - Subsequently, appellant
filed execution appeal - Thereupon, matter was
compromised between R-7 to R-9 and appellant -
R-1 to R-6 and R-10 (plaintiffs) challenged this
compromise contending that it was entered into
without their consent, and therefore, was not
binding upon them - Trial court dismissed suit -
In first appeal, High Court decreed suit holding
that suit property was joint family property
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-R-7 to R-9 (Defendants 2 to 4) inherited
suit property from their father - Therefore, held,
suit property was ancestral property in their
hands, and upon delivery of possession upon
reconveyance to R-7 to R-9 when their suit for
the same was decreed and executed in 1974, held,
it reacquired its character an ancestral/joint
family property, by which time the grandsons (R-
1 to R-6 and R-10) had been born - R-1 to R-6
and R-10 were neither party to the abovesaid
compromise nor consented to the same, so
compromise would not be binding over share of
R-1 to R-6 and R-10 in suit property - However,
said compromise would bind R-7 to R-9 - Mere
filing of execution appeal would not take away
efficacy of reconveyance decree already passed
and executed by virtue of which the property
concerned had reacquired its character as
ancestral/joint family property - Thus, held, the
right, title and interest in suit property arising
out of its reacquired character as ancestral/joint
family property cannot be defeated by
compromise to which R-1 to R-6 and R-10 were
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not parties and as such compromise would not
bind their shares and Civil Procedure Code,
1908 - Or.23 R.3 - Property Law - Transfer of
Property Act, 1882, S.7"
14.Applying the abovestated principles of law enunciated by the
Apex Court to the facts and circumstances of the case and considering the
evidence adduced on behalf of the first defendant and the recitals contained
in Exs.B1 to B3 and Exs.A1 to A2, all would go to point out that the suit
properties are not the self-acquired properties of the deceased Ramasamy
Gounder and on the other hand, as put forth by the first defendant, the suit
properties are only the ancestral properties of the deceased Ramasamy
Gounder and the first defendant.
15.The suit properties being the ancestral properties of the deceased
Ramasamy Gounder and the first defendant and when it is seen that the
deceased Ramasamy Gounder had passed away on 14.12.1987, which could
be gathered from Ex.B8, his death certificate, what would be the nature and
extent of the right of the plaintiff and the defendants 2 to 4 over the share of
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the deceased Ramasamy Gounder in respect of the ancestral properties has
to be seen.
16.Now, according to the plaintiff, the deceased Ramasamy Gounder
died intestate. Controverting the abovesaid case of the plaintiff, according to
the first defendant, the deceased Ramasamy Gounder did not die intestate
and on the other hand, during the course of his life time, in a fit state of
mind and health on his own volition, bequeathed his half share in the suit
properties in favour of the first defendant by way of a Will dated 12.12.1985
and the Will having come into existence on the demise of Ramasamy
Gounder on 14.12.1987, according to the first defendant, the plaintiff is not
entitled to claim any share in the suit properties by invoking the Amendment
Act, 39 of 2005.
17.The plaintiff has not invoked the Amendment Act, 39 of 2005 for
claiming a share in the suit properties in the plaint. The abovesaid
contention has been raised by the plaintiff only during the course of
arguments before the trial Court. Before considering the abovesaid
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contention of the plaintiff, it has to be seen whether the deceased Ramasamy
Gounder had died intestate or left behind a Will in favour of the first
defendant dated 12.12.1985 as put forth by the first defendant. The first
defendant being the propounder of the Will dated 12.12.1985 in question
marked as Ex.B36, it is the bounden duty of the first defendant to establish
the truth and validity of the abovesaid Will. To establish the same, the first
defendant has examined the attestors of the Will as DWs2 and 3 and the
scribe of the Will as DW4 on the same date and considering the evidence of
DWs 2 to 4 in unison, it is seen that they have clearly deposed that the Will
marked as Ex.B36 had been executed only by the deceased Ramasamy
Gounder at his instance and the recitals contained in the Will are dictated to
the scribe by the deceased Ramasamy Gounder and the same was readout by
the deceased Ramasamy Gounder and accepting the recitals contained
therein, he had executed the Will in favour of the first defendant and the
same had been witnessed by DWs 2 to 4 and the attestors have also attested
the Will in the presence of the testator i.e. the deceased Ramasamy Gounder
and considering the abovesaid evidence of DWs2 to 4 in toto, it is seen that
the first defendant has established the veracity of the Will Ex.B36 in the
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manner known to law and despite the cross examination of DWs2 to 4,
nothing has been culled out from them to disbelieve the genuineness of
Ex.B36 Will. Therefore, it is noted that the trial Court has rightly
appreciated the evidence of DWs 2 to 4 in the right perspective and
accordingly, determined that the first defendant has established the
authenticity of the Will dated 12.12.1985 marked as Ex.B36 and considering
the nature of the suit properties, they being ancestral, accordingly, it is
found that the deceased Ramasamy Gounder had chosen to bequeath his half
share in the suit properties in favour of his son viz., the first defendant.
According to the deceased Ramasamy Gounder, as recited in Ex.B36 Will,
he had given his daughter in marriage by providing good seer and articles
and they are living in affluent circumstances and considering the factor that
it is only the first defendant, who had been maintaining the family and, in all
aspects, the deceased Ramasamy Gounder had chosen to bequeath his half
share in the suit properties in favour of the first defendant by way of the
Will marked as Ex.B36.
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18.The first defendant having established the truth and validity of
Ex.B36 in the manner known to law and the suit properties being the
ancestral properties of the deceased Ramasamy Gounder and the first
defendant, the Will having come into operation on the demise of Ramasamy
Gounder on 14.12.1987, it is noted that the right over the suit properties had
crystallized in favour of the first defendant during 1987 itself and the first
defendant having acquired right in entirety and absolutely over the suit
properties during 1987 itself, the claim of the plaintiff that she is entitled to
a share in the suit properties on the footing that the suit properties are the
self-acquired properties of the deceased Ramasamy Gounder, as such,
cannot be accepted in any manner.
19.It is the specific case of the first defendant that the plaintiff and the
defendants 2 to 4 are very well aware of the existence of the Will executed
by the deceased Ramasamy Gounder in favour of the first defendant and
accordingly, not put forth any claim of share in the suit properties even after
the demise of the deceased Ramasamy Gounder for several years and in fact,
according to the first defendant, knowing the execution of the Will by the
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deceased Ramasamy Gounder in favour of the first defendant, enraged over
the same, according to the first defendant, the defendants 2 to 4 had not
attended the death ceremony of the deceased Ramasamy Gounder and the
other allied functions connected thereto and accordingly, also not
endeavored to make any claim of share in the suit properties over a long
period of time and subsequently, without any basis or right, had chosen to
lay the present suit only in the year 2001 nearly 14 years after the demise of
the deceased Ramasamy Gounder and therefore, according to the
defendants, the plaintiff is not entitled to any claim any share in the suit
properties by invoking the Amendment Act, 39 of 2005.
20.Considering the abovesaid factors in toto, when it is noted that the
suit properties are the ancestral properties of the deceased Ramasamy
Gounder and the first defendant and the deceased Ramasamy Gounder
having bequeathed his half share in respect of the suit properties in favour
of the first defendant by way of Ex.B36 Will and the truth and validity of
the Will having come to be established by the first defendant in accordance
with law as above discussed, as per the decision of the Apex Court reported
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in (2020) 9 SCC 1 (Vineeta Sharma Vs.Rakesh Sharma and others) qua
the rights which could be claimed by the daughter born earlier with effect
from 09.09.2005, it is noted that the provisions contained in substituted
Section 6 of the Hindu Succession Act, 1956 confer the status of coparcener
on daughter born before or after the amendment in the same manner as son
with the same rights and liabilities, however, the abovesaid rights can be
claimed by the daughter born earlier with effect from 09.09.2005 with
savings as provided under Section 6(1) as to the disposition or alienation,
partition or testamentary disposition which had taken place before the 20th
day of December 2004.
21.Applying the abovesaid principles of law enunciated by the apex
Court to the case at hand, the suit properties being the ancestral properties as
put forth by the first defendant and the deceased Ramasamy Gounder having
conveyed his share in respect of the suit properties in favour of the first
defendant vide Ex.B36 Will and the Will having come into force, on the
demise of the deceased Ramasamy Gounder in the year 1987 and thereafter,
the first defendant having acquired full right over the suit properties and
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enjoying the same independently, which could be gathered from the
documents projected by the defendants and as above discussed, the plaintiff
having also not evincing any interest to claim share in the suit properties
after the demise of her father and chosen to lay the present suit only in the
year 2001, in all, it is seen that the first appellate Court, without adverting to
the abovesaid aspects in the right perspective both on factual matrix and the
position of law, had erroneously proceeded to grant the preliminary decree
in favour of the plaintiff declaring that the plaintiff has 1/5 th share in the suit
properties.
22.The first appellate Court had erroneously held that the suit
properties are the self-acquired properties of the deceased Ramasamy
Gounder and improperly disbelieved the Will projected by the first
defendant marked as Ex.B36 and as above noted, the first appellate Court
had failed to consider the import of Exs.B1 to B33 and the effect of
reconveyance of the suit properties to the family of the deceased Ramasamy
Gounder as outlined by the apex Court in the decision reported in (2019) 7
SCC 193 (Doddamuniyappa (Dead) Through Legal representatives Vs.
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Muniswamy and others) and therefore, it is evident that the determination
of the first appellate Court that the suit properties are the self-acquired
properties of the deceased Ramasamy Goudner is liable to be setaside.
23.With reference to the Will Ex.B36, the first appellate Court has
proceeded to disbelieve the Will merely and solely on a comparison of the
signature of the deceased Ramasamy Gounder in the abovesaid Will with
the signatures of the deceased Ramasmy Gounder in Exs.B5 and B7, as
according to the first appellate Court, the signatures of the deceased
Ramasamy Gounder found in Exs.B5 & B7 are not similar to the signature
of the deceased Ramasamy Gounder in Ex.B36 and therefore, by invoking
the power granted under Section 73 of the Indian Evidence Act, proceeded
to disbelieve the Will projected by the first defendant. However, the
abovesaid approach of the first appellate Court cannot be appreciated and
countenanced.
24.As seen from the decision reported in AIR 1979 SC 14 (State
Delhi Administration Vs. Pali Ram), it is found that though the Court is
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empowered to compare the disputed signatures with the admitted signatures
as per Section 73 of the Indian Evidence Act, as a matter of prudence and
caution, the Court should be hesitant in giving its findings with regard to the
identity of the disputed signatures and the admitted signatures and it is not
advisable on the part of the Court to take upon itself the task of comparing
the admitted signatures with the disputed one to find out whether the two
agree with each other and the prudent course is to obtain the opinion and
assistance of an expert.
25.As above seen, the first appellate Court merely on a naked eye
comparison has proceeded to hold that the signature of Ramasamy Gounder
found in Ex.B36 is not that of his signature, as according to it, the same did
not tally with the signatures of the deceased Ramasamy Gounder in Exs.B5
and B7. However, for ariving at the abovesaid conclusion, the first appellate
Court has not given any reason in what way it had come to hold that the
signature found in Ex.B36 are different in characteristics and style with the
signatures found in Exs.B5 & B7. In this connection, I had an occasion to
deal with the subject on a different context and in the decision rendered by
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me which had been reported in 2017 (4) Law Weekly, page No.830
(Sankara Narayana Pillai Vs. Ignatious Selvaraj), the point in issue was
discussed and determined in the following manner.
“8. For holding that the petitioner
Sankara Narayana Pillai has resigned his post,
the Court below is found to have compared his
signatures found in the disputed documents with
that of his admitted signatures and finding them
to be similar, accepted the case of the contesting
Trustees and declined the relief sought for by the
petitioner. Aggrieved over the same, the present
civil revision petitions have been preferred by the
petitioner.
9. As rightly argued by the learned counsel for
the petitioner, the Court below in the impugned
orders have not cared to disclose or detail as to
with what admitted signatures of the petitioner it
had compared the disputed signatures.
Therefore, it is unable to detect as to what are
the admitted signatures of the petitioner with
which the Court below had compared the
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disputed signatures and therefore, as rightly put
forth by the learned counsel for the petitioner,
the impugned orders are very silent with
reference to the same and therefore, the
impugned orders on that score are liable to be set
aside. Further, according to the learned counsel
for the petitioner, though the Court is
empowered to compare the disputed signatures
with the admitted signatures as per Section 73 of
the Indian Evidence Act, in the light of the
decision of the Apex Court and other
pronouncements of the High Courts, the Court
as a matter of prudence and cautions, should be
hesitant in giving its findings with regard to the
identity of the disputed signatures and the
admitted signatures and it is not advisable on the
part of the Court to take upon itself the task of
comparing the admitted signatures with the
disputed one to find out whether the two agree
with each other and the prudent course is to
obtain the opinion and assistance of an expert.
With reference to the same, the learned counsel
for the petitioner placed reliance upon the
decision reported in AIR 1979 SC 14 [State
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(Delhi Administration) vs. Pali Ram]. The above
aspect of the matter as put forth by the learned
counsel for the petitioner is pointed out in the
said decision.
10. Therefore, the Court below should be careful
in comparing the disputed signatures with the
admitted signatures, even assuming that the
Court is empowered to take up the said task by
itself, in such circumstances,when the Court is
suo motu taking up the role of an expert, it
should clearly point out as to what are the
admitted signatures with which it had compared
the disputed signatures and whether the admitted
signatures have been admitted by the party
concerned and that apart the Court should also
give the reasons in detail as to on what basis or
on what aspects, it had found similarities or
dissimilarities with the admitted signatures and
the disputed signatures on its comparison and
the Court should also endeavour to clearly spell
out the varying characteristics of the similarities
or dissimilarities as observed by it so as to enable
the parties to understand that the Court has
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approached the matter in the right perspective
and determined the issue rightly one way or the
other and further, the Appellate Forum also
would be in a position to understand that the
Court below has dealt with the said issue
properly and correctly in a scientific manner as
that of an expert.
11. However, in so far as this case is concerned,
it is found that no such attempt seems to have
been made out by the Court below and it has
simply held that on comparison of the signatures
found in Exs.P2 and P3 with the admitted
signatures, they being found to be similar, has
resultantly declined the request of the petitioner.
As seen above, the Court has not spelt out as to
what are the admitted signatures of the petitioner
with which it had compared the disputed
signatures. Further, it is found that the petitioner
has been kept in dark as to the above said
endeavour of the Court below and therefore, it is
highly doubtful whether at all the Court below
would have compared the admitted signatures of
the petitioner with the disputed signatures.
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12. Further, if at all, as rightly argued, the Court
had compared the admitted signatures of the
petitioner with the disputed signatures, the
petitioner having not produced any document
containing admitted signatures before the Court
below, it should be presumed that the Court
would have endeavoured its comparison only
based upon the signatures available in the
vakalat and written statement. However, it has
been held by this Court that the Court cannot
direct the disputed document to be compared
with the signatures available in vakalat or
written statement of a party in the decision
reported in 2010-1-L.W.646 [S.Chinnathai vs.
K.C.Chinnadura]. Further, it has also been held
in the decision reported in AIR 1996 SC 1140
[O.Bharathan vs. K.Sudhakaran and another]
that the approach of the Court in taking upon
the task of the expert and comparing the
admitted signatures with the disputed signatures
on its own without the aid of the expert or the
evidence of the person conversant with the
disputed signatures is not in conformity with the
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spirit of Section 73 of the Indian Evidence Act.
Therefore, in the light of the above said legal
pronouncements, when it is found that the
impugned orders do not spell out as to what are
the admitted signatures the Court had taken into
consideration for comparing with the disputed
signatures and further when the Court has also
not given any reason whatsoever as to on what
basis it has come to the conclusion that the
admitted signatures and the disputed signatures
are similar and further when the contesting
Trustees have not established their claim that in
the place of the petitioner, his brother had been
elected as a Trustee and thereby one of the
Trustees had been discharging his duties as the
Managing Trustee lawfully, it is found that the
Court below has committed an error, not
sustainable in the eyes of law, in rejecting the
case of the petitioner. On the mere evidence of
the petitioner that he has handed over his
responsibilities could not be taken as an
admission that he had resigned the post of
Trustee when the petitioner has stoutly denied
the said fact and also disputed the resignation
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letter projected by the contesting Trustees as a
concocted document. In such view of the matter,
the Court below is expected to send the document
for scientific comparison by an expert and the
Court should have been cautious and hesitant to
take up the task on its own and even assuming
that the Court has the power to carry out the said
task, having undertaken to discharge the same, it
is expected of the Court that it should give
plausible and acceptable reasons as to how it has
come to the conclusion that the admitted and
disputed signatures are either similar or
dissimilar.”
26.In the light of the abovesaid situation, when it is found that the
first appellate Court has not given any reason whatsoever for arriving at the
conclusion that the signature found in Ex.B36 is different from the
signatures of the deceased Ramasamy Gounder found in Exs.B5 & B7, I am
unable to subscribe to the determination of the first appellate Court that the
Will projected by the first defendant marked as Ex.B36 is surrounded with
suspicious circumstances and therefore, it cannot be valid in law. When it is
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found that the first appellate Court has flawed in its approach and erred in
holding that the signature of the deceased Ramasamy Gounder in Ex.B36 on
the one hand and Exs.B5 & B7 on the other hand, do not tally based only on
its subjective satisfaction without giving any detailed and scientific analysis
as required to be done as per law, it is found that the determination of the
first appellate Court in disbelieving Ex.B36 Will cannot be sustained in the
eyes of law and liable to be set aside. When the Court is embarking upon the
comparison of disputed signature with the admitted signatures by donning
the role of an expert as provided Section 73 of the Indian Evidence Act, the
Court should make and provide detailed and scientific analysis and reasons
as to how it has come to the conclusion that the admitted and the disputed
signatures are either similar or dissimilar and without giving plausible and
acceptable reasons in arriving at the conclusion as to how the signatures
differ or tally, or if the Court is unable to assign any reasons worth
acceptance on comparison, the Court should be hesitant to take on the role
of an expert and embark upon the exercise of comparing the signatures as
provided under Section 73 of the Indian Evidence Act.
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27.In addition to that, the first appellate Court has not even cared to
analyse and appreciate the evidence of the attestors and the scribe of the
Will examined as Exs.DWs2 to 4 in any manner and purely, on the
comparison of the signatures found in Exs.B36 and B5 and B7 proceeded to
hold that Ex.B36 Will is not a genuine document. As above pointed out, the
abovesaid approach of the first appellate Court has to be strongly
deprecated and not entitled for acceptance, particularly, the first appellate
Court having failed to adduce any valid and convincing reason as to how it
had come to the conclusion that the signature in the two set of documents
differ.
28.On the plea of adverse possession raised by the first defendant, to
a query raised by this Court to the first defendant’s counsel/appellant, the
learned counsel appearing for the appellant would submit that the first
defendant is not resting his case upon the plea of adverse possession and
only basing his case upon the Will marked as Ex.B36. As above pointed out,
the first defendant has established the genuineness of the abovesaid Will in
accordance with law by examining the attestors and the scribe of the Will
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and therefore, it is seen that his claim of title to the suit properties based on
Ex.B36 Will merits acceptance.
29.Though it is often stated that the defendant in a suit is entitled to
raise alternative pleas, however, the first appellate Court has rejected the
defence version of the first defendant on the footing that the plea of title put
forth by the first defendant based on Ex.B36 Will and the plea of adverse
possession raised by him are inconsistent and contradictory pleas and the
abovesaid determination of the first appellate Court cannot be easily
brushed aside. In this Connection, reliance is placed upon the decision of
the Apex Court and the reasons of the Apex Court rendered in 2020 SCC
OnLine SC 672 (Narasamma and others Vs. A.Krishnappa
(Dead)Through Lrs.). In the civil appeal concerned in the abovesaid
decision, it is found that the same has been preferred by the defendant. In
that case also, the pleas has been taken by the defendant based on the title as
well as on the plea of adverse possession. While considering the abovesaid
inconsistent pleas, the apex Court in the abovesaid decision, has held that
the claim of title and the plea of adverse possession cannot simultaneously
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hold and outlined the legal position that the defendant is not entitled to
advance the plea of title and adverse possession simultaneously and from
the same date. The position of law with reference to the same has been
explained by the apex Court in the abovesaid decision and the same is
extracted below.
"29. We may also note that on the one
hand, the appellants herein have sought to take a
plea of bar of limitation vis-à-vis the original
defendant claiming that possession came to them
in 1976, with the suit being filed in 1989. Yet at
the same time, it is claimed that the wife had title
on the basis of these very documents. The claim
of title from 1976 and the plea of adverse
possession from 1976 cannot simultaneously
hold. On the failure to establish the plea of title,
it was necessary to prove as to from which date
did the possession of the wife of the defendant
amount to a hostile possession in a peaceful,
open and continuous manner. We fail to
appreciate how, on the one hand the appellants
claimed that the wife of the original defendant,
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appellant 1 herein, had title to the property in
1976 but on their failure to establish title, in the
alternative, the plea of adverse possession should
be recognised from the very date.
30. We also find that the reliance placed by
learned counsel for the appellants in Ravinder
Kaur Grewal & Ors.8 is also misplaced. The
question which arose for consideration before
the three Judge Bench was whether, a suit could
be maintained for declaration of title and for
permanent injunction seeking protection on a
plea of adverse possession, or that it was an
instrument of defence in a suit filed against such
a person. In fact, if one may say, there was, for a
long time a consistent view of the Court that the
plea could only be of shield and not a sword. The
judgment changed this legal position by opining
that a plea to retain possession could be
managed by the ripening of title by way of
adverse possession. However, to constitute such
adverse possession, the three classic
requirements, which need to co-exist were again
emphasized, nec vi, i.e., adequate in continuity,
nec clam, i.e., adequate in publicity and nec
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precario, i.e., adverse to a competitor, in denial
of title and his knowledge.
31. The question which confronts us is not the
aforesaid, but whether simultaneously a plea can
be taken of title and adverse possession, i.e.,
whether it would amount to taking contradictory
pleas. In this behalf, we may refer to the four
judgments cited by learned counsel for the
respondent herein, which succinctly set forth the
legal position.
32. In Karnataka Board of Wakf case, it has
been clearly set out that a plaintiff filing a title
over the property must specifically plead it.
When such a plea of adverse possession is
projected, it is inherent in the nature of it that
someone else is the owner of the property. In
that context, it was observed in para 12 that “…
.the pleas on title and adverse possession are
mutually inconsistent and the latter does not
begin to operate until the former is
renounced…”
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33. The aforesaid judgment in turn relied upon
the judgment in Mohan Lal (Deceased) Thr.
LRs.10, which observed in para 4 as under:
“4. As regards the first plea, it is inconsistent
with the second plea. Having come into
possession under the agreement, he must
disclaim his right thereunder and plead and
prove assertion of his independent hostile
adverse possession to the knowledge of the
transferor or his successor in title or interest and
that the latter had acquiesced to his illegal
possession during the entire period of 12 years,
i.e., upto completing the period of his title by
prescription nec vi, nec clam, nec precario. Since
the appellant's claim is founded on Section 53-A,
it goes without saying that he admits by
implication that he came into possession of the
land lawfully under the agreement and
continued to remain in possession till date of the
suit. Thereby the plea of adverse possession is
not available to the appellant.”
34. In order to establish adverse possession an
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inquiry is required to be made into the starting
point of such adverse possession and, thus, when
the recorded owner got dispossessed would be
crucial.
35. In the facts of the present case, this fact has
not at all been proved. The possession of Smt.
Narasamma, the wife of the defendant, is stated
to be on account of consideration paid.
Assuming that the transaction did not fructify
into a sale deed for whatever reason, still the
date when such possession becomes adverse
would have to be set out. Thus, the plea of
adverse possession is lacking in all material
particulars.
36. The possession has to be in public and to the
knowledge of the true owner as adverse, and this
is necessary as a plea of adverse possession seeks
to defeat the rights of the true owner. Thus, the
law would not be readily accepting of such a
case unless a clear and cogent basis has been
made out.
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37. We may also note another judicial
pronouncement in Ram Nagina Rai & Anr. v.
Deo Kumar Rai (Deceased) by LRs & Anr. 13
dealing with a similar factual matrix, i.e., where
there is permissive possession given by the owner
and the defendant claims that the same had
become adverse. It was held that it has to be
specifically pleaded and proved as to when
possession becomes adverse in order for the real
owner to lose title 12 years hence from that time.
38. The legal position, thus, stands as evolved
against the appellants herein in advancing a
plea of title and adverse possession
simultaneously and from the same date.
39. We have, thus, no hesitation in coming to the
conclusion that the appeal is meritless and is
accordingly dismissed with costs."
30.In the light of the abovesaid position of law enunciated by the
apex Court in the abovesaid decision, it is found that the plea of title raised
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by the first defendant based on Ex.B36 Will and the plea of adverse
possession put forth by him cannot be validly upheld in the eyes of law. Be
that as it may, inasmuch as the counsel appearing for the appellant/first
defendant has put forth the submission that the first defendant is resisting
his cast only based on the Will and not upon the adverse possession, the
plea of adverse possession put forth by the defendant in the written
statement and during the course of his evidence are not taken into
consideration and answered in this second appeal.
31.As above discussed, the first appellate Court has failed to
appreciate the oral and documentary evidence adduced in the matter in the
proper perspective and without any discussion on the evidence tendered in
the matter, both oral and documentary, erroneously proceeded to hold that
the suit properties are the self-acquired properties of the deceased
Ramasamy Gounder and that the Will projected by the first defendant
Ex.B36 executed by the deceased Ramasamy Gounder is not a true
document. The abovesaid determination and findings of the first appellate
Court are liable to be set aside for the reasons above discussed and
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accordingly, the substantial questions of law formulated in the second
appeal are answered in favour of the first defendant and against the plaintiff.
In the light of the abovesaid discussions, the judgment and decree
dated 23.04.2008 passed in A.S.No.23 of 2007 on the file of the Subordinate
Court, Dharapuram, are set aside and the judgment and decree dated
19.01.2007 passed in O.S.No.56 of 2001 on the file of the District Munsif
Court, Dharapuram are confirmed. Accordingly, the second appeal is
allowed with costs. Consequently, connected miscellaneous petition, if any,
is closed.
Index : Yes / No
Internet : Yes / No 19.01.2021
sms
To
1.The Subordinate Court, Dharapuram.
2.The District Munsif Court, Dharapuram.
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T.RAVINDRAN, J.
sms Pre-Delivery Judgment made in S.A.No.1117 of 2008 19.01.2021 43/43 https://www.mhc.tn.gov.in/judis/