Madras High Court
K. Andi Reddiar vs Ovu Ammal And 5 Others on 1 February, 2000
Equivalent citations: 2000(2)CTC184
ORDER
1. The plaintiff in O.S.No.344 of 1983 on the file of District Munsif Court, Kovilpatti, who had succeeded before the trial court and lost before the first appellate court is the appellant in this second appeal, the second respondent in the appeal died during the pendency of the second appeal and the respondents 4 to 6 were impleaded as per the order dated 27.1.1999 and they have also entered appearance.
2. Heard Mr.M.VeIusamy, learned counsel for the appellants and Mr.V.P.Venkat for the respondents. At the time of admission, the following substantial question of law was framed by this Court:-
"Whether the lower appellate court has committed an error of law in requiring the plaintiff to prove the Will Ex-A.1?"
However, Mr.M.VeIusamy, the learned counsel for the appellant sought for permission to raise additional substantial question of law at the final hearing. Both sides through their respective counsel advanced arguments in respect of the questions of law raised by Mr.M.VeIusamy at the hearing and detailed arguments were addressed. For convenience, the parties will be referred as arrayed before the trial court.
3. The plaintiff instituted the suit for declaration of title and for consequential relief of permanent injunction forbearing the defendants from interfering with his possession. According to the plaintiff one Nagu Reddiar died leaving the first defendant Ovu Ammal, his second wife and defendants 2 and 3 his daughters through the first wife, that the suit properties belonged to the deceased Nagu Reddiar, that Nagu Reddiar while in sound disposing state of mind executed a registered Will Ex.A.1 on 22.6.1964, that Nagu Reddiar died after 6 months from the date of the Will, that in terms of the Will, the first defendant Ovu Ammal is entitled to the suit properties, that on 5.2.1970 under Ex.A.2 the first defendant Ovu Ammal conveyed the suit properties for valid consideration to discharge the binding mortgage and promissory note debts payable by the deceased Nagu Reddiar, that the plaintiff is the brother of the first defendant and he is employed in State Government at far off place, that on 10.4.1980, under Ex.A.16 the plaintiff settled some of the items of the properties which he had purchased under Ex.A.2, that the remaining items are in exclusive possession and enjoyment of the plaintiff by paying kist and getting mutation of permanent land register, that the defendants claiming novel right in respect of the suit properties issued notice on 10.8.1983 to which the plaintiff had sent a reply, that the defendants are attempting to interfere with the plaintiff's possession on and from 8.11.1983, that the defendants have neither right nor in enjoyment of the suit properties, that the sale deed Ex.A.2 dated 5.2.1970 is neither sham nor nominal and that the plaintiff is entitled to the relief of declaration of title and consequential relief of injunction.
4. The defendants have filed common written pleas admitting that the suit properties originally belonged to Nagu Reddiar ancestrally that the Will Ex.A.1, dated 22.6.1964 was brought forth by the plaintiff with the assistance of the first defendant, while the testator was in very feeble condition and in a worst physical as well as mental condition where he could not decide himself and without knowledge of what he was doing, that the will Ex.A.1 has been brought forth by the plaintiff with the assistance of the first defendant with a view to deprive the due share of defendants 2 and 3, that after the death of Nagu Reddiar the defendants are in possession and enjoyment of the suit properties and patta also stands in their name, that Ex.A.2 sale deed is sham and nominal and no consideration had been paid for the said purchase by the plaintiff, that the recited consideration is false, that the amount for the purchase was provided only by the plaintiff before the Registrar and she had only discharged the mortgage and promissory note debts, that the plaintiff was never in possession of the suit property, that the suit properties are worth more than Rs.60,000 on the date of the sale, that the defendants are raising Kambu, cotton and other crops, that the plaintiff is residing at Chengalpattu and only with a view to knock away the suit properties, he had created the will and subsequent sale, that only with a view to appropriate the entire properties, the plaintiff made secret attempts, that as per the arrangement in the Panchayat the plaintiff executed settlement deed in favour of the first defendant in respect of few of the items which were the subject matter of conveyance under Ex.A.2 and the plaintiff had avoided to execute reconveyance deed in respect of the other items in favour of the defendants 2 and 3 as per the Panchayat, that the plaintiff is not entitled to the relief of declaration of title as well as injunction, that there is no cause of action for the suit and that the suit is liable to be dismissed with costs.
5. The trial court framed as many as nine issues. The plaintiff marked Exs.A .1 to A.20 while the defendants marked Exs.B.1 to B.5. The plaintiff examined himself as P.W.1 and one Thiramal Reddiar as P.W.2. The defendants examined the first defendant as D.W.2 besides examining three other witnesses.
6. The trial court held that Ex.A.1 Will is true and genuine and valid, Ex.A.2 sale is not sham or nominal, the defendants are estopped form disputing the plaintiff's title and possession, that the plaintiff alone continued in possession and enjoyment of the suit properties and that the plaintiff is entitled to the relief of declaration of title and consequential relief permanent injunction. The trial court decreed the suit as prayed for by its judgment and decree dated 27th August, 1984.
7. Being aggrieved the defendants 1 to 3 preferred A.S.No.22 of 1985 on the file of the Subordinate Judge of Tirunelveli. The Subordinate Judge of Tirunelveli set aside the judgment and decree of the trial court and dismissed the suit in its entirely with costs. The first appellate court held that Ex.A.1 will is invalid as it came to be executed not in a sound disposing state of mind, that the plaintiff had not proved Ex.A.1, that Ex.A.2 sale deed is not true and valid, that Ex.A.2 will not confer title on the plaintiff and the possession of the suit properties is with the defendants' and that the plaintiff had failed to establish his case. Being aggrieved, the plaintiff has preferred this second appeal.
8. As already pointed out, the trial court decreed the suit and the lower appellate court proceeded on mere surmises and it is for the plaintiff to prove that deceased Nagu Reddiar had in a sound disposing state of mind executed the Will and in that view of the matter held that the plaintiff had failed to establish that Ex.A.1 dated 22.6.1964 is not true and genuine and will not confer any right.
9. Ex.A.1 Will is dated 22.6.1964 and it was presented for registration on 24.6.1964. The execution of the Will by deceased Nagu Reddiar has been attested by three witnesses. One of the attestor also identified the witnesses before the Registrar apart from one Angamuthu Thevar. The testator Nagu Reddiar was alive for about six months after the execution of the said Will. In fact the plaintiff had produced Ex.A.1, the original Will- The defendants have examined D.W.I, an identifying witness namely Angamuthu Thevar. It was represented on behalf of the plaintiff that all the attestors are dead and nobody was alive. Subsequently it was challenged that one of the attestor Thirumal Reddiar was alive. After the closure of the defendants site, the said Thirumal Reddiar was examined on 20th August 1984, who is the only attesting witness alive. The other two attestors as well as the scribe are no more and this is admitted.
10. P.W.I had deposed that in a sound disposing state of mind the Will Ex.A.1 was executed by deceased Nagu Reddiar. It was fairly admitted that Nagu Reddiar was bedridden with Paralysis and he could not speak fluently. It was also the case of the contesting defendants that even prior to the date of execution of Ex.A.1 Will Nagu Reddiar was suffering from paralysis.
11. P.W.3 had deposed that Nagu Reddiar while in a sound disposing state of mind in the present of the attestors with full knowledge of the contents of the Will had affixed his mark. P.W.2 is the only attesting witness who was alive. The appellate court proceeded on the assumption that execution of the Will Ex.A.1 is surrounded by suspicious circumstances and that the plaintiff has to clear the same and dispel the suspicious circumstances. The deceased was taken to the Registrar's office on a bullock cart from his house and it is several miles away and he undertook the journey and presented himself before the Registrar affixed his mark admitted the execution before the Registrar. Thereafter, the Will has been registered. It is not the case of the defendants that Nagu Reddiar did not execute the Will at all or that Ex.A.1 Will is a brought up document, but what has been sought to be contended is that Nagu Reddiar did not possess the requisite disposing state of mind on the date of execution of the Will.
12. The plaintiff, though related to Nagu Reddiar is not a beneficiary under the Will. The beneficiary under the will is the first defendant Ovu Ammal, from whom the plaintiff had purchased the suit property after several years under Ex.A.2 on 25.2.1970. The execution of Ex.A2 is admitted, but what is sought to be contended by the contesting defendants being that Ex.A.2 is a sham and nominal document and that it is thus a benami. But the plaintiff's predecessor had discharged the mortgage ExA.3 which discharge .being a part of the sale consideration for Ex.A.2 which is supported by ExA.4. The plaintiff had also discharged Ex.A.5 promissory note, which discharge is substantiated by ExA6. There has been mutation of patta in favour of the plaintiff as well and the plaintiff had been remitting the kist for the suit property as seen from ExsA.8 to A.15.
13. First defendant is the second wife of the deceased Nagu Reddiar and the defendants 2 and 3 are his daughters through his first wife and this relationship is not disputed. The first defendant has no issues. Defendants 2 and 3 were already given in marriage long prior to the execution of the Will. Defendants 2 and 3 admittedly, did not care for Nagu Reddiar during his last days and it is only 'the first defendant who was attending on Nagu Reddiar: The trial court found, that Nagu Reddiar while in sound disposing' state, of mind had executed the will while the first appellate court had 'reversed it on the sole' reasoning that the plaintiff, though a third party had not established that the deceased Nagu Reddiar was in a sound disposing state or mind and that burden is on the plaintiff to establish the same.
14. P.W.1, the plaintiff bad deposed that Nagu Reddiar was in a sound state of mind and he was not a fickle minded person and it was elicited from P.W.1 that he was not present on the date of execution of Ex.A.1 and he came to know about the execution only after one week Admittedly during the relevant period P.W.1 was employed in Chengalpattu District while the lands are in Kovilpatti Taluk.
15. P.W.2, is one of the attestor of Ex A.1. He is also a witness to a deed of gift executed by Nagu Reddiar in favour of the first defendant. P.W.2 is an independent witness. The Will was written at Vilathikulam and he has also deposed that one Avudayapillai was the scribe. P.W.2 had deposed about the physical condition of Nagu Reddiar and also deposed that he had some difficulty in expression. In the cross examination it was elicited thus:
16. There is no challenge at all to the evidence of only attesting witness who is alive and the above portion of the deposition has been elicited during cross examination. According to P.W.2 the deceased was in sound disposing 'state of mind., None "has 'been examined to show that deceased was mentally incapacitated due to illness. It cannot be said that the deceased had lost his mental capacity on the date of execution of Ex.A.1 Will. P.W.2 being an independent witness, there, being no challenge, to his deposition, nor any suggestion has been made to him while he was in the witness stand, deserves to be accepted and the trial court had rightly accepted the same, while the first appellate court had commented about the non- examination of P.W.2 at the first' instance and his examination on a later point of time; but has not discussed the evidence of P.W.2 in detail. This This approach cannot be appreciated at all.
17. D.W.1 the identifying witness examined by the defendants in effect admits the execution of the Will. Ex.A.1 by Nagu Reddiar. In the cross examination, D.W-1 deposes thus:-
18. The first defendant who was examined as D.W.2 admitted that Ex.A1 is the last will of her husband. The above oral evidence of P.W.2, D.W1 and D.W 2. establish that Ex.A1 was executed by Nagu Reddiar, while he was in a sound disposing state of mind.
19. As was rightly pointed out by Mr.M.Velusamy, learned counsel for appellants the defendants 1 to 3 have joined together and filed the written statement whereunder it has been pleaded that Nagu Reddiar never intended to execute any Will, that the Will dated .22.6.1964 was brought about by undue influence and coercion exercised by the plaintiff and the first defendant on the fickle and weak minded Nagu Reddiar who was not in a sound disposing state of mind. It was further contended that the Will was brought about by the plaintiff, designed by the plaintiff with the sole object of putting the property out of the reach of the defendants 2 and 3. Except stating so, it has not been proved by any material that Nagu Reddiar was not in a sound disposing state of mind and that he was unable to speak or he lost the mental capacity.
20. It is to be noted that Ex.A.I Will is dated 22.6.1964 while the examination of witnesses namely P.W.2 as well as D.W.I and 2 took place after twenty long years. It is also to be noted that it is not as if Nagu Reddiar died immediately after execution of the Will, but he was alive for number of months after Ex.A.1.
21. Mr.V.P.Venkat, the learned counsel for the defendants vehemently contended that Nagu Reddiar did not possess the requisite disposing state of mind on the date of execution of Ex.A.1 and therefore Ex.A.1 is not valid. The trial court believed the evidence of P.W.2 an independent witness and held that the valid execution of Will has been proved by examination of P.W.2 as well as on the admission of D.W.1 and 2. The appellate court as already pointed out framed the points for consideration as whether the Will dated 22.6.1964 is true? The appellate court also held that it is for the plaintiff to prove that the Will was executed in a sound disposing state of mind and it was not executed by exercise of undue influence or other vitiating circumstances.
22. In the present case even according to D.W.1 and 2 the plaintiff was not present. So also the first defendant was not present at Vilathikulam when the Will was executed and presented for registration. Nagu Reddiar travelled several kilometers from his village to Vilathikuiam to execute the Will and he took the journey even though he had a stroke and paralysed. Nagu Reddiar not only affixed his keeral before the Sub Registrar, but also affixed his thumb impression as deposed by D.W.2 the identifying witness. The evidence of D.W.2 would also show that Nagu Reddiar was in a sound disposing state of mind while executing the Will and this is supported by P.W.2 as well. The testamentary disposition is a valid disposition.
23. Mr.M.VeIusamy, the learned counsel for the appellant rightly pointed out that the onus of proving the Will and the onus that the deceased Nagu Reddiar was in a sound disposing state of mind or that he had lost his mental capacity is on the plaintiff, a third party which approach is not legally sustainable.
24. In the present case as deposed by D.W.1 and 2, the execution of the Will is admitted and D.W.2 who had accompanied the deceased Nagu Reddiar to the Registrar's office and the identifying witness had not stated that the deceased was mentally incapacitated in any manner whatsoever and as such there was no suspicious circumstances which surrounded the execution of the Will.
25. The decision in Shashi Kumar v. Subodh Kumar, was heavily relied upon by Mr.M.VeIusamy, the learned counsel for appellant in support of his contention that the onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus and when the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same, in this respect the Apex Court held thus:-
(4) The principles which govern the proving of a will are well settled (see H.Venkatachala lyengar v. B.N.Thimmajamma, and Rani Purnima Devi V. Khagendra Narayan Dev, . The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Where the cavetor alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case the court would naturally expect that also legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested.
26. In the present case the execution of the Will is admitted as well as the testamentary capacity and the keeral mark as well as the LTI of the deceased had been supported by sufficient evidence and thus the onus has been discharged. When the defendants allege undue influence or fraud, or coercion, the onus is on them to prove the same. As already pointed out, the defendants filed a written statement whereunder it was vaguely pleaded and the relevant portion of the written statement reads as follows:-
"4. The said Nagu Reddiar never intended to execute any Will. The will referred to in the plaint dated 22.6.1964 was brought about by undue influence and coercion exercised by the plaintiff and the 1st defendant on the fickle and weak minded Nagu Reddiar who was not in a sound and disposing state of mind.
5. The said Will was brought about by the evil design of the plaintiff with the sole object of putting the properties out of the reach of defendants 2 and 3 who are the daughters of the said Nagu Reddiar by his first wife."
27. Except setting out certain averments, the defendants have not proved their plea that the Will was brought about by undue influence and coercion exercised by the plaintiff. As rightly pointed out the first appellate court had caste the onus on the plaintiff to prove the negative namely, that there was no undue influence or coercion on the deceased. In fact D.W.2, identifying witness had deposed that the plaintiff was not at all present anywhere near and his admission is fatal. There is no iota of evidence to hold that the plaintiff had exercised undue influence or coercion on the deceased testator. As already pointed out the sound disposing state of mind of the testator was proved and admitted as well. The execution of the Will has been admitted by the first defendant D.W.I.
28. In the light of the decision of the Apex Court in Shashi Kumar v. Subodh Kumar, 1964 SC 529 this court holds that the finding of the first appellate court cannot be sustained and it is a perverse finding as the first appellate court proceeded on the assumption that it is for the plaintiff to prove that there was no undue influence or coercion .
29. In support of his contention Mr.VeIusamy, learned counsel for the appellant relied upon the latter decision in Susama baIa v. Anath Nath, AIR 1976 Cal. 377 D.B where after referring to the earlier case laws reported in H.VenkatachaIa lyengar v. B.N.Thimmajamma, , Rani Purnima Devi v. Khagendra Narayan Dev, , Shashi Kumar v. Subodh Kumar, , , and the Calcutta High Court held thus:-
"8. In order to buttress up their arguments the learned Advocates have drawn our attention to a number of decisions with a vie to guide the Court in the matter of appraisement of evidence regarding the execution of the Will and the alleged suspicious circumstances surrounding such execution. The first case that has been brought to our notice to provide us unnecessary guidance is reported in H.VenkatachaIa lyengar v. B.N.Thimmajamma, . In this case speaking for the Bench P.B.Gajendragadkar, J., (as he then was) elaborately discussed the relevant provisions of the Indian Evidence Act as to the manner of proving the Will, as a document. He also discussed the onus of removing the suspicious circumstances surrounding the execution of the Will, and the fact that if propounders themselves take a prominent part in the execution of the will and take benefit under it that itself would constitute a suspicious circumstance. Paragraphs 19, 20, 21 and 22 of the judgment are very much instructive on this point. The views expressed therein (if we may respectfully say so, a legacy from the past) have been to I lowed in cases after cases. To establish this, our attention has been drawn by the learned Advocates to cases reported in Rani Purnima Debi v. Kumar Khagendra Narayan Deb, , Shashi Kumar Banerjee V. Subodh Kumar Banerjee, , (since deceased and after him his legal representatives). In the above two cases Wanchoo, J., speaking for the Bench has reiterated the views which had already been formulated in H.VenkatachaIa lyengar v. B.N.Thimmajamma, . From these decisions we find that the initial onus of proving the execution of the Will rests upon the propounder and the will has to be proved like any other document under the provisions of the Indian Evidence Act besides proving the attestation of the execution by the witnesses. In the event there are suspicious circumstances surrounding the execution of the will, we find, the onus of explaining the circumstances which look suspicious and removing the suspicion from the mind of the court rests squarely upon the propounder. If any fraud, undue influence and coercion is alleged by the caveator then it is for the caveator to prove the allegation of fraud, undue influence and coercion. If it is shown that the propounder has taken a prominent part in the execution of the will under which he has been conferred substantial benefit, that in itself is generally treated as a suspicious circumstance surrounding the execution of the will and the propounder is required to remove the suspicion by clear and satisfactory evidence (vide also Gorantia Thataiah v. Thotakura, ,. We also find from the decisions referred to above that in the matter of appreciation of evidence for deciding material questions of fact arising from the application for probate or in actions on will, hard, fast and inflexible rules cannot be laid down and proof depends upon facts and circumstances of each case. Therefore bearing in mind all these essential, albeit elementary considerations, we shall now proceed to examine the contentions raised by the rival sides before us."
The learned counsel is well founded in his submission.
30. Learned counsel for the appellant also relied upon the decision of the Division Bench of this Court in Gopal A.K. & others v. S.Vasanthan & others, 1993 (1) L.W. 580 which applies on all fours. However, it is not necessary to refer to the same in detail in view of the said pronouncement of the Apex Court, which is a direct authority.
31. As already pointed out the approach of the first appellate court is legally erroneous and contrary to the law laid down by the Apex Court. As already pointed out the execution of the Will had been admitted by D.W.1 and D.W.2 apart from P.W.2 the attestor proving the execution of the Will by the deceased Nagu Reddiar and the attestation by the two attesting witnesses. The plea of undue influence or coercion, had not been established by the defendants and they have miserably failed to establish the same. The onus is on the defendants to prove that there was undue influence or the testator was coerced as pleaded in paragraph 4 and 5 of the written statement.
32. In the light of the decision of the Supreme Court, this Court holds that the conclusion of the first appellate court cannot be sustained in law as it is contrary to the decision of the Apex Court and this Court white setting aside the finding of the appellate court as vitiated and perverse, confirms the findings of the trial court that the Will was executed by the deceased testator in a sound and disposing state of mind and it is true and last Will of testator Nagu Reddiar.
33. It is not the contention of the respondents that the disposition under Ex.A.1 is unnatural. Therefore it follows that Ex.A.1 is valid and the first defendant had acquired valid title to the suit property under Ex.A.1. The attempt on the part of Mr.V.P.Venkat, learned counsel for the respondents to sustain the judgment of first appellate court is not acceptable and deserves to be rejected; In the circumstances the question of law framed has to be answered in favour of the appellant.
34. Mr .M.Velusamy, learned counsel for the appellant nextly contended that Ex.A.2 sale deed is valid and it is not sham and nominal nor it is a benami purchase. ExA.2 was admittedly executed by D.W.I the first defendant for a consideration of Rs 9,000 and the said sum was applied to discharge ExA.3 mortgage as well as ExA.5 promissory note. The discharge of the said mortgage and promissory note has been established by the plaintiff by producing ExA.4 and A.6. Under Ex. A. 3, and A.4 the plaintiff had not only paid the principal amount of Rs.4,000 but also paid interest due on the mortgage, ExA.3. So also the plaintiff had discharged not only the principal amount of Rs.1,000 but also the interest as seen from ExA.5 and A.6. The entire sale consideration has been utilised for the purpose of discharge of the mortgage and the promissory note debt incurred by the deceased Nagu Reddiar. The total amount so discharged as deposed by P.W.I come to Rs.7,760 and Only a sum of Rs.1240 was paid on the date of registration to the first defendant The first defendant had handed over ExA.1 will and other documents of title. In Ex.A.2 sale deed the first defendant had not only referred to the Will executed by Nagu Reddiar on 22.6.1964 but also traced his title to Ex.A.1. The sum of Rs.1240 was paid in cash before the Sub-Registrar which the first defendant had acknowledged as seen from the endorsement and her acknowledgment is found in page 2 of Ex A.2 sale deed. The evidence of P.W.I in this respect is natural and D.W.1 who had joined hands with the defendants 2 and 3 on a later date had attempted to swallow the entire property as if her funds were given for discharge of the mortgage debt, promissory note debt as well as payment of consideration before the sub-registrar. It is too big a pill to swallow for D.W.I. Admittedly Nagu Reddiar was indebted and he was not having substantial income as he was bed-ridden. Nagu Reddiar as seen from Exs. A.3 and A.5 had incurred debts. The first defendant has no separate income. ExA.2 is dated 5.2.1970 and for six long years he could hot discharge the mortgage debt Ex.A.3 as well as the promissory note Ex A.5 incurred by her.
35. In tact Ex.A.5 is the promissory note debt incurred by the first defendant alter the death of Nagu Reddiar. This would show that the first defendant was not in an affluent condition and she had no funds. Her evidence has been rightly disbelieved by the trial court and it is apparent that Ex.A.2 is not a sham or nominal document. It is not as if the first defendant had denied her signature or execution of Ex.A.2 sale deed. Therefore it is not necessary for the plaintiff to examine the attestors of Ex.A.2. As already pointed out, out of the sale consideration of Rs.9,000 Rs.7760 has been paid by the plaintiff to discharge the mortgage debt incurred by Nagu Reddiar and the promissory note debt incurred by the first defendant and what was remitted is only Rs.1240 in cash on Ex.A.2, with respect to which an endorsement of payment before the Registrar is found. The discharge of mortgage debt as well as the promissory note has been proved by the plaintiff by producing the originals namely Exs. A.3, A.4, A.5 and A.6.
36. D.W.4 had been examined and the very production of the said exhibits would show that the plaintiff had discharged those debts. These documents militates against the plea of benami and support the case of the plaintiff that it is a true transaction. The reliance placed on D.W.4 by the contesting defendants and acceptance by the first appellate court is nothing but perversity. D.W.4 had admitted that he is aware of the payment as pleaded by the first defendant." The evidence of D.W.4 wiII not substantiate the claim of the first defendant that she had discharged the mortgage debt as well as the promissory note debt. Exs. D.4 and D.5 are the account books produced through D.W.4 will in no way advance the case of the first defendant and D.W.4 has no personal knowledge of the alleged payment by the first defendant. Therefore it follows that these aspects have been lost sight by the first appellate court and that it had failed to take into consideration of the discharge by the plaintiff. The said findings by the first appellate court as already pointed out cannot be sustained at all as they are nothing but factual mistakes and they are perverse findings in every aspect of the matter. It is too much on the part of the first appellate court to reject the plaintiff's case and uphold the plea of the first defendant that Ex.A.2 is benami, sham and nominal as if she had discharged the mortgage debt and promissory note debt when she had not established that she had funds or surplus income or she had produced the original and marked the promissory note with discharge endorsement on that. On the contrary the plaintiff had produced the same and proved the discharge.
37. The evidence of D.W.1 is inadmissible in so far as the first defendant had acknowledged the payment of cash before the Registrar by separate endorsement as seen from Ex.A.2. The Appellate court had rightly held that Ex.A.2 is binding on the first defendant as well as other defendants and Ex.A.2 is neither sham nor nominal nor it is benami. The first defendant who is the executant is bound by Ex.A.2 and she had on a later date joined with defendants 2 and 3 for obvious reasons to defeat the plaintiff's claim. In the circumstances, this Court set aside the findings of the first appellate court and hold that Ex.A.2 is neither sham nor nominal. Such a finding arrived at by the appellate court as already pointed out is perverse and cannot be sustained and the finding of the trial court in this respect has to be restored.
38. The plaintiff had proved his possession by producing exhibits, the patta as well as kist receipts Exs. A.8 to A.15. The defendants have not filed any adangal extract to substantiate their claim of possession. Therefore as held by the trial court the sale deed Ex.A.2 was true and that it is not a sham and nominal document and that the defendants have no right to interfere with the suit property and the suit property is in possession and enjoyment of the plaintiff. The documents which have been produced by the defendants would show that only for the subsequent fasli there is some attempt to pay kist while for the relevant period the plaintiff had paid the kist as seen from ExsA.8 to A..12. The defendants have miserably failed to prove their possession as well as their plea that Ex.A.2 is a sham and nominal document.
39. Apart from Ex.A.2 the very defendants in the suit who are also closely related to the plaintiff had subsequently got a settlement on 10.4.1980 pursuant to a panchayat or mediation. Under Ex.A.16 dated 10.4.1980 the plaintiff had settled one of the items of the property covered by Ex.A.2 which is of the value of Rs.4, 900 and this is not disputed.
40. Ex.A.16 has been accepted by the first defendant and therefore the first defendant is estopped from challenging the said Ex.A.1 or Ex.A.2. The conduct of the first defendant in joining the defendants 2 and 3 and filing a written statement is nothing but an attempt on the part of the defendants on a later date, is an attempt to defeat the lawful claims of the plaintiff. The first defendant is bound by Ex. A. 2 as well as Ex. A. 16 as she had accepted his possession. It has been rightly pointed out that Ex.A.2 is dated 25.2-1970 and the defendants have not challenged the said Ex.A.2 or the settlement or transaction by the first defendant all these years nor they have filed a suit challenging the will and even now the defendants have not chosen to deny Ex. A..2 sale deed nor they have instituted separate proceedings to cancel Ex.A.2 sale deed. After a lapse of 10 years only there was an attempt to interfere with the plaintiff's possession and therefore the plaintiff has come before the court seeking for declaration of title and injunction.
41. It is also to be pointed out that on the date of execution of Ex. A-1, the deceased Nagu Reddiar had executed the deed of settlement in favour of Ovu Ammal as seen from Ex.A.20 which had been accepted by the first defendant. Therefore it is not open to the first defendant to contend that the deceased Nagu Reddiar had no mental capacity to execute Ex.A.1 Will. So also the other defendants.
42. Ex.A.16 has been accepted by the first defendant and therefore the first defendant is estopped from challenging the said Ex.A.1 or Ex.A.2. The conduct of the first defendant in joining the defendants 2 and 3 and filing a written statement is nothing but an attempt on the part of the defendants to defeat the lawful claims of the plaintiff. The first defendant is bound by Ex.A.2 as well as Ex.A.16 as she had accepted the plaintiff's possession. It has been rightly pointed out that Ex.A.2 is dated 25.2.1970 and the defendants have not challenged the said Ex.A.2 or the settlement transaction by the first defendant. All these years and even now the defendants have not chosen to deny Ex.A.2 sale deed nor they have instituted separate proceedings to cancel Ex.A2 sale deed. After a lapse of 10 years only there was an attempt to interfere with the plaintiff's possession and therefore the plaintiff has come before the court seeking for the declaration of title and injunction.
43. The first appellate court proceeded on the assumption that the kist receipt do not relate to the suit items while pointing out certain discrepancies in survey numbers or door numbers as the case may be. But the defendants 2 and 3 proved that they are residing in different places and they have not produced any document to show that the are in possession to the exclusion of the plaintiff, nor the first defendant had produced any document to show her possession right through, despite Ex.A.2.
44. The very fact that the first defendant had taken a settlement deed under Ex.A.16 marked by the plaintiff would go a long way to advance the case of plaintiff with respect to Ex.A.2. Based upon Ex.A-2, A.16 has been executed by the plaintiff nearly after 10 years. Only under Ex.A.18 dated 10.8.1983 after lapse of thirteen years the defendants 1 and 2 had caused a notice and till then they have not raised their little finger and kept silent. There were Panchayats and even according to the defendants pursuant to the Panchayat the plaintiff had executed Ex A.16. If that be so, the defendants are bound by the decision of the Panchayat and they have put forward a novel claim.
45. For all, the above reasons the judgment of the first appellate court deserves to be set aside. As already pointed out Ex.A.1, Will was executed by Nagu Reddiar in a sound disposing state of mind and the defendants have failed to establish the alleged inducement, influence, or coercion. The conduct of the defendants joining together and filing a written statement generally would show that their attempt is to defeat the claim of the plaintiff. The plea that Ex.A.2 sale deed is sham and nominal or a benami had not been established by me first defendant. Ex.A.2 sale deed is supported by valid consideration and the plaintiff had established the same by producing not only the original of Ex.A.2 but also the discharge mortgage deed and the earlier promissory note debts Ex.A.3 to A.6. The patta if any that the defendant had obtained behind the back of the plaintiff will not confer any title on the defendants in the light of the valid acquisition of title by a deed of conveyance in. favour of the plaintiff.
46. Normally this Court will not interfere with the findings recorded by the first appellate court in a second appeal . But as already pointed out the pervisity in the findings and the failure to advert material portion of the evidence and the erroneous casting of onus compels this Court to interfere with the findings of the first appellate court.
47. In the foregoing circumstances the other two contentions raised by Mr.Velusamy deserves acceptance. The substantial question raised is answered in favour of the appellant. The second appeal is allowed and the judgment and decree of the first appellate court are set aside and that of the trial court is restored. The parties shall bear their respective costs throughout.