Duraiswami v. Swaminathan — 1990 DIGILAW 404 (MAD)

JUDGMENT K.M. Natarajan, J. 1. This appeal has been preferred by defendants 4 to 8 who were unsuccessful before the courts below. The brief facts which are necessary for the disposal of this second appeal are as follows: Respondents 1 and 2, who are the plaintiffs in O.S. No. 67 of 1976 filed the said suit for a declaration of title and for recovery of possession. The case of the plaintiffs is that the first defendant, and late Chidambaram Padayachi are brothers and their (Plaintiffs) mother Bagyam is their sister. The second defendant, since died, is the wife of the first defendant Defendants 3 and 4 are the sons. Chidambaram Padayachi and the first defendant became divided in or about 1930. Items 6,8 and 14 of the plaint schedule properties were allotted to Chidambaram Padayachi in the oral partition. Subsequently out of the income from the said properties as well as the income from his commission trade in paddy and grams, Chidambaram Padayachi purchased various properties. 2. The plaintiffs' father belonged to Athur village in Kumbakonam Taluk and Chidambaram Padayachi got married his younger sister, namely, mother of the plaintiffs, to the plaintiffs' father Ganapathi and he brought him to his family after marriage. After the death of their father, the plaintiffs' mother had been living with Chidambaram Padayachi along with the members of his family till her death. It is also stated that Chidambaram Padayachi died issueless on 17.10.1973 and his wife pre-deceased him six months prior to his death. It is also stated that the mother of the plaintiffs had also, by sale of her jewels, contributed to the purchases made by Chidambaram Padayachi, The first plaintiff also contributed money from his salary while he was serving in the Army. Further, the plaintiffs had been assisting Chidambaram Padayachi in cultivating the lands so purchased and also deriving income thefeform. According to the plaintiffs, it is only in that manner various other items in the plaint schedule in Marudur, Kolakkudi and Vadathalaikulam were purchased by Chidambaram Padayachi. They are his separate properties and defendants 1 to 4 have no manner of right to the same. Chidambaram Padayachi wanted that the plaintiffs should take his properties after his death, since they were living with him and assisting him in managing the properties, while the defendants 1 to 4 were living in Kolakkudi. They are his separate properties and defendants 1 to 4 have no manner of right to the same. Chidambaram Padayachi wanted that the plaintiffs should take his properties after his death, since they were living with him and assisting him in managing the properties, while the defendants 1 to 4 were living in Kolakkudi. They were also aware of the wish of Chidambaram Padayachi. Accordingly, Chidambaram Padayachi extorted a Will on 15.10.1973 in favour of the plaintiffs while he was in a sound and disposing state of mind bequeathing all his properties, namely, the suit properties, to be enjoyed by the plaintiffs during their life time and to be taken by the male issues of the second plaintiff after the life time of both the plaintiffs, absolutely. By virtue of the said Will, the plaintiffs have the right to enjoy the properties till their life time. The said Will is his last Will and the same has been executed out of love and affection towards the plaintiffs by the said Chidambaram Padayachi. The Will is valid and binding on the defendants. Though Chidambaram Padayachi intended to get the Will registered after a week thereafter, he died suddenly due to old age and heart attack on 17.10.1973 and the said Will took effect on his death. Chidambaram Padayachi also handed over the documents of title to the plaintiffs and after 17.10.1973 they alone became entitled to all the properties which they were already in possession and enjoyment even before the death of Chidambaram Padayachi and they continue to be in enjoyment in their own right under the Will. 3. Defendants 3 and 4 having aggrieved that Chidambaram Padayachi did not provide them with any of his properties, began to give trouble to the plaintiffs in their peaceful possession and enjoyment of the properties by setting up hostile title. In pursuance of their hostile attitude, they began to take out criminal proceedings since they are powerful and influential persons in the village and with the concerned police of the suit villages. Later, Defendants 2 to 4 issued a notice to the plaintiff and the first defendant, as if Chidambaram Padayachi and the first defendant were undivided and the properties are joint family properties and the first defendant was addicted to drinks and immoral habits. To the said notice, the plaintiffs caused a reply notice dated 29.5.1974 containing true allegations. Later, Defendants 2 to 4 issued a notice to the plaintiff and the first defendant, as if Chidambaram Padayachi and the first defendant were undivided and the properties are joint family properties and the first defendant was addicted to drinks and immoral habits. To the said notice, the plaintiffs caused a reply notice dated 29.5.1974 containing true allegations. Since the filing of the suit, defendants 1 to 4 trespassed into the suit property. The plaintiffs have filed suit for declaration of title and recovery of possession of the suit properties. Further, defendants 3 and 4 in assertion of their hostile and unlawful title, purported to have executed a Bogyam to the fifth defendant in respect of items 19 and 21 and sale of item 24 in favour of the seventh defendant in or about June 1974 and another sale of item 23 in favour of the sixth defendant. The 8th defendant is purported to have purchased items 12 and 13 on 29.7.1974 from defendants 3 and 4, and the children of the third defendant The alienations are not true, valid and binding on the plaintiffs. The sale in favour of the 8th defendant is affected by lis pendens Further, the alienations in favour of defendants 5 to 7 are also not true, valid and binding as defendants 3 and 4 have no sort of title to the suit properties: Subsequent to the institution of the suit, the first defendant died and still later, the second defendant also died. 4. It is seen that the plaint has been originally filed before the District Munsif, Chidambaram, and later transferred to the file of the District Munsif, Cuddalore. By an order dated 20.7.1976 the District Munsif, Cuddalore had returned the plaint for presentation before proper court on the ground that the plaint was beyond the pecuniary jurisdiction of the District Munsif. It is only thereafter it has been presented before the Sub Court, Chidambaram, and numbered as O.S.No.67 of 1976. The first defendant died even before the presentation of the plaint before the Sub Court. 5. The third defendant filed a written statement which is adopted by defendants 2 and 4 to 7 wherein it is alleged that the allegation that the father of the plaintiffs or their mother lived with Chidambaram Padayachi is false. But, the mother of the plaintiffs deserted her husband and was living with one Govindasamy in Ramavaram village. 5. The third defendant filed a written statement which is adopted by defendants 2 and 4 to 7 wherein it is alleged that the allegation that the father of the plaintiffs or their mother lived with Chidambaram Padayachi is false. But, the mother of the plaintiffs deserted her husband and was living with one Govindasamy in Ramavaram village. Further there was no oral partition between Chidambaram Padayachi and the first defendant in 1930. It is not true to allege that Chidambaram Padayachi purchased various items of the suit properties out of his own funds and that he was the separate owner thereof. According to them the two brothers were joint and they were acquiring properties jointly, though the documents are taken in the name of Chidambaram Padayachi as he is the eldest member of the family. It is false to state that the plaintiffs or their mother contributed any money for the purchase. It is also stated that two years prior to his death, Chidambaram Padayachi became blind. It is false to state that he executed the Will. Chidambaram Padayachi was not maintained by the plaintiffs, but he was maintained only by defendants 2 to 4. It is further stated that Chidambaram Padayachi was maintained by the first defendant as well as Krishna Pillai, the president of Kolakudi Panchayat. It is false to allege that Chidambaram Padayachi executed a Will on 15.10.1973. The plaintiffs had not performed the death ceremony as alleged. Since defendants 3 and 4 became aware of the plaintiffs setting up title under the alleged will, they complained to the police as well as registration authorities. The police made enquiries and demanded the plaintiffs to produce the Will. The plaintiffs admitted that there was no Will executed by Chidambaram Padayachi. They also admitted that if anybody claimed to have a Will, it must be a bogus. They signed a statement to that effect on 14.11.1973 before panchayatdars. The Will now produced by the plaintiffs must therefore have been forged after 14.11.1973 and the Will is unnatural. It is further stated that Chidambaram Padayachi died intestate and defendants 2 to 4 alone are entitled to the suit properties. They did not admit that the plaintiffs are in possession of the suit lands. It is further stated that the alienations in favour of defendants 5 to 7 are prior to suit and they are bona fide transactions. It is further stated that Chidambaram Padayachi died intestate and defendants 2 to 4 alone are entitled to the suit properties. They did not admit that the plaintiffs are in possession of the suit lands. It is further stated that the alienations in favour of defendants 5 to 7 are prior to suit and they are bona fide transactions. It is further stated that the first defendant is colluding with the plaintiffs due to enmity with defendants 2 to 4. Hence, they prayed for dismissal of the suit. 6. In the reply statement filed by the plaintiffs, it is alleged that when the deceased Chidambaram Padayachi was arranging to get the Will registered on the next day, coming to know of it on the night of 15.10.1973, defendants 3 and 4 took the deceased to Chidambaram in a taxi with a view to get another Will executed in their favour. They attempted to have another Will executed in their favour. Later, they had admitted him in the hospital on 16.10.1973. The Plaintiffs brought the Will in their favour to the Sub Registrar's Office for getting it registered on 13.11.1973. On coming to know that the plaintiffs are coming for registration, defendants 3 and 4 reported the matter to the concerned police stating that the plaintiffs are getting the Will in their favour registered and they should be prevented from doing so. When the second plaintiff and the karnam were in the Sub Registrar's Office, police came and asked them to come to the police station. Thereafter the police brought the first plaintiff, to the police station and asked him to produce the Will executed by Chidambaram Padayachi. The police threatened the first plaintiff that if the Will is net produced, he will be arrested. In the meantime, the first defendant after coming to know what is happening in the police station came to the police station and admitted about the Will in favour of the plaintiffs and asked for the release of the first plaintiff. On the next day, on the suggestion of Krishna Pillaf that he would effect a panchayat for settlement of disputes between them in respect of the suit properties a panchayat was convened at the police station. In the panchayat, Krishna pillanvanted the Will in favour of the plaintiffs produced before any division of the properties. On the next day, on the suggestion of Krishna Pillaf that he would effect a panchayat for settlement of disputes between them in respect of the suit properties a panchayat was convened at the police station. In the panchayat, Krishna pillanvanted the Will in favour of the plaintiffs produced before any division of the properties. Then it was represented by the plaintiffs that the Will is with their lawyer and that terms for the division of properties can be fixed between the parties and that after finalising it, they would go to their lawyer and consult their lawyer and the terms being accepted, they would get the Will from the lawyer and produce it. The plaintiffs were forced to sign the alleged agreement on 14.11.1973 under compulsion of the panchayatdars and the police. It is stated that they did not admit that there was no Will. But they only stated that the Will had been left with their lawyer. After having got the said statement from the parties, the panchayatdars talked about the division of the properties between the parties and prepared a document in that regard, postponing registration of the document after crops were harvested. But, no such document was prepared and three panchayatdars have colluded with defendants 3 and 4. Thus, the execution of the document having been under the above said circumstances, the same does not bind the plaintiffs as the same was not true and valid and that it is vitiated by fraudulent misrepresentation, fraud and compulsion by the panchayatdars and the police. 7. The third defendant thereupon filed an additional written statement denying the allegations in the reply statement as to what happened in the police station and submitted that the plaintiffs willingly admitted that there was no Will in their favour and that it is not open to the plaintiffs to contend contrary to the said document. He denied preparation of any other document by the Panchayatdars regarding division. The truth and validity of the Will is again denied specifically in the additional written statement. 8. The 8th defendant, who was subsequently impleaded has filed a written statement contending that he is a bona fide purchaser for value and the sale in his favour is valid and binding on the plaintiffs. 9. The trial court framed as many as 12 issues. On the side of the plaintiffs, P.Ws. 8. The 8th defendant, who was subsequently impleaded has filed a written statement contending that he is a bona fide purchaser for value and the sale in his favour is valid and binding on the plaintiffs. 9. The trial court framed as many as 12 issues. On the side of the plaintiffs, P.Ws. 1 to 10 were examined and Ex. A-1 to A-76 were marked. On the side of the defendants, D.Ws. 1 to 8 were examined and Exs.B.1 to B-33 were marked. The trial court for the reasons assigned in the judgment held that the oral partition of the year 1930 between Chidambaram Padayachi and the first defendant is true and that items 6, 8 and 14 alone were allotted to Chidambaram Padayachi in the partition and all other properties had been subsequently acquired out of his separate funds without reference to his brother, the first defendant and the said items were the separate properties of Chidambaram Padayachi and not the joint family properties of Chidambaram Padayachi and defendants 1 to 4. It was held that Ex.A.48 Will is true and validly executed by Chidambaram Padayachi while he was in a sound and disposing state of mind and was validly executed as required under law. The trial court also held the statement in Ex. B-l has not been voluntarily made by the plaintiffs but had been obtained from them by the Panchayatdars under compulsion. It was further held that defendants 5 to 8 are not bona fide purchasers for value and further, the purchase by the 8th defendant is affected by lispendens and the alienations in their favour are not binding on the plaintiffs. Consequently, it was held that under Ex.A.48 the plaintiffs acquired title and they are entitled to the suit properties and the suit was decreed in their favour declaring title to the suit properties and for recovery of possession from the defendants with costs. Aggrieved by the same, the defendants 3 to 8 preferred appeal before the learned District Judge, South Arcot at Cuddalore, in A.S.No.306 of 1978 and the learned District Judge dismissed the appeal confirming the judgment and decree of the trial court with costs. It is against the said concurrent finding, the present second appeal is filed. It is admitted on the following substantial question of law. It is against the said concurrent finding, the present second appeal is filed. It is admitted on the following substantial question of law. Whether the lower appellate court was right in merely endorsing as correct the conclusions arrived at by the trial Court without eonsidering the evidence for and against such conclusions and whether under those circumstances the adjudication by the lower appellate court could be termed as judgment at all? 10. Substantial question of law: Learned Counsel for the appellants, Mr. V. Krishnan, mainly submitted that the lower appellate court erred in law in not considering the oral and documentary evidence independently and the findings of the lower appellate court are merely based upon the consideration made by the trial court. Though the lower appellate court framed as many as 7 points for consideration, while considering point No.l which is in respect of character and nature of the properties (whether they are the self-acquired and separate properties of Chidambaram Padayachi), the learned Judge has simply observed that this question has been considered by the learned Subordinate Judge in paragraphs 34 to 39 of the Judgment and he has referred to the oral division between Chidambaram Padayachi and the first defendant which took place in 1930 and the acquisition of properties by Chidambaram Padayachi as well as by the first defendant separately in their respective names, and without discussing the evidence independently held that the suit properties are the self-acquired properties of Chidambaram Padayachi. Similarly with regard to Point No.2, which relates to the Will Ex.A.48 on the basis of which the plaintiffs based their claim, the learned lower appellate Judge observed while considering point No.2 that the Will was executed by Chidambaram Padayachi while he was in a sound and disposing state of mind and observed that this plea was considered in paragraphs 21 to 23 of the judgment and has come to the conclusion that Chidambaram Padayachi was in a sound and disposing state of mind when he executed Ex.A.48 and that the plaintiffs proved valid execution of Ex.A.48 Will. Similarly with regard to point 3 which relates to Ex.B.l statement dated 14.11.1973 made by the plaintiffs, the appellate Judge observed that the Subordinate Judge considered this point in paragraphs 27 to 33 in his judgment and has held that while the truth of the preparations of Ex.B.l is established, the contents thereof are proved to be untrue for reasons discussed earlier and hence no conclusion regarding the truth and validity of Ex.A-48 can be drawn on the basis of the recitals in Ex.B.l, and that he fully concurred with the finding of the learned subordinate Judge. According to the learned Counsel for the appellants, these three points are the main questions involved in this appeal and since the lower appellate Judge has not independently discussed the evidence oral and documentary and arrived at his conclusion, the judgment is not a judgment at all in the eye of law, and on that ground alone the appeal is to be allowed. 11. On the other hand, the learned Counsel for the respondents, M. Peppin Fernando submitted that the trial court elaborately considered the oral and documentary evidence and discussed the matter thereadbare both in law and on facts and came to the correct conclusion. According to the learned Counsel, under Order 41 Rule 31, C.P.C. the Judgment of the Appellate Court shall be in writing and shall state (1) the points for determination,(2) the decision thereon, and (3) the reasons for the decision. In the instant case, the learned lower appellate Judge has framed in para 8 as many as 7 points for consideration and while considering all the points the appellate Court not only concurred with the finding of the trial court but also added its own reasons for coming to the said conclusion. The learned Counsel for the respondents drew the attention of this Court to paras 9 and 10 of the Judgment of the lower appellate Court and submitted that the lower appellate Judge independently considered Exx.A.5 to A-24, sale deeds in favour of Chidambaram Padayachi and the kist receipts relied on by the plaintiffs, and observed that these documents would also support the inference that Chidambaram Padayachi was acquiring properties in his name without reference to his brother, the first defendant. Similarly Ex. Similarly Ex. A-34 to A-39 are the sale deeds in favour of the first defendant and these documents would also support the inference that the first defendant was acquiring properties in his name without reference to his brother Chidambaram Padayachi. The lower. Appellate Judge has also relied on Ex.A.70 written statement filed by the first defendant wherein he has admitted the oral partition and also considered the evidence of the Village Karnam, P.W.8. The learned lower Appellate Judge has also observed that the counsel for the appellants did not seriously press this issue relating to the nature of the properties. This observation of the learned lower appellate Judge is challenged in the grounds of appeal. Thus, it is seen that the learned District Judge not only concurred with the finding of the trial court and observed that this question has been considered by the learned subordinate Judge in paragraphs 34 to 39 of the judgment, but also independently considered the oral and documentary evidence and finally came to the conclusion that there is no difficulty in holding that the suit properties are the self-acquired properties of Chidambaram Padayachi. Similarly with regard to point No.2, though it is observed in para 12 of the Judgment by the learned appellate Judge that with regard to the state of mind of the testator Chidambaram Padayachi, the trial court has considered the point in paras 21 to 23 and concluded that Chidambaram Padayachi was in sound disposing state of mind when he executed Ex.A.48, the learned appellate Judge also independently considered the oral and documentary evidence in paras 13 to 15 and again in paras 19 to 21 and 23 and ultimately held that there was valid execution of Ex. A.48. While considering Point No.3, the learned appellate Judge besides observing that the Subordinate Judge has considered the effect of Ex. B.1, observed that the learned subordinate Judge has considered the question in paras 27 to 33 and held that while the truth of the preparation of Ex. B. 1 is established, the contents thereof are proved to be untrue for the reasons discussed earlier and hence no conclusion regarding the truth and validity of Ex.A.48 can be drawn on the basis of the recitals in Ex. B.1 and the learned lower Appellate Judge concurred with the finding of the learned Subordinate Judge. B. 1 is established, the contents thereof are proved to be untrue for the reasons discussed earlier and hence no conclusion regarding the truth and validity of Ex.A.48 can be drawn on the basis of the recitals in Ex. B.1 and the learned lower Appellate Judge concurred with the finding of the learned Subordinate Judge. The learned lower appellate Judge independently considered the attack made on Ex. B.1 with reference to the oral and documentary evidence in paras 25 to 29 and finally came to the conclusion that Ex. B.1 will not go against the case of the plaintiffs and the plaintiffs are not debarred from claiming on the strength of Ex.A.48. In support of his contentions, the learned Counsel for the respondent relied on various decisions. It is worthwhile to consider the ratio laid down in various decisions before ever considering the respective contentions of both parties. In Siva Reddy v. Nazimuddin it was observed: In a confirming judgment unlike in a judgment which reverses, it is not necessary to go into every fact and every piece of evidence at length and adduce all the reasons for the conclusion. This position is amply supported by authorities. For instance, in Vali Venkataswami v. Gannabathulla Venkataswami the lower appellate Judge in confirming the decree of the trial Court referred to the paragraphs where the trial Court had discussed the merits of the case and given good reasons in support of its conclusion, and said that he agreed with those reasons and conclusions. An argument similar to that now advanced on behalf of the present appellant was raised before Satyanarayana Rao, J. of the Madras High Court who observed as follows: The learned appellate Judge instead of discussing each point separately and recording his finding has merely adopted the easier method of stating that he agrees with the conclusions of the learned Subordinate Judge contained in paras 13 to 19. This sort of disposal, no doubt is not very satisfactory but on that ground I am not inclined to reverse the decision of the lower appellate Court as it is in affirming Judgment. In Girja Nandini Devi and Ors. This sort of disposal, no doubt is not very satisfactory but on that ground I am not inclined to reverse the decision of the lower appellate Court as it is in affirming Judgment. In Girja Nandini Devi and Ors. v. Bijendra Narain Choudhury it was held: It is not the duty of the appellate Court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trail court. Expression of general agreement with reasons given by the court decision of which is under appeal would ordinarily suffice. In Asstt. Commr., Tumkur v. K.N. Nagaraja A.I.R. 1983 Karnataka 111 the learned Judge referred to the decision of the Privy Council in Gokal Chand Jagannath v. Nand Ram Das Atma Ram (l939) 1 M.L.J. 56 : 178 I.C. 425 A.I.R. 1938 P.C. 292 and observed as follows: The Judgment of the first Appellate Judge cannot be vitiated for the reason that he has not formulated the points for his decision at the very commencement of his judgment. A substantial compliance with the requirements of Order 41, Rule 31 would be sufficient and any little deviation therefrom should not be a ground to set aside the entire judgment on that account. It is no doubt desirable that the first appellate Court complies with all the requirements of that Rule, but if it is possible to make out from the very judgment that they have substantially complied with the said requirements and that justice has not thereby suffered, that would be sufficient. To the same effect it was held in Balaji v. Narasingha Kar A.I.R. 1978 Orissa 199 as follows: In this case the confirmation of the finding of the trial court on the question of adoption is not by merely indicating general agreement to the said finding, but has been done on independent assessment of the relevant evidence on all important aspects of that matter, and the finding of the lower Appellate Court is, by itself, well founded and quite convincing. 12. On the other hand, the learned Counsel for the appellants relied on the decision of this Court rendered by Nainar Sundaram, J. in Ramakrishna Gounder y. Kannappa Mudaliar and Anr. 1985 T.L.NJ. 309 wherein it was observed. 12. On the other hand, the learned Counsel for the appellants relied on the decision of this Court rendered by Nainar Sundaram, J. in Ramakrishna Gounder y. Kannappa Mudaliar and Anr. 1985 T.L.NJ. 309 wherein it was observed. There is a mandate in the Code of Civil Procedure to the first appellate Court to advert to the evidence placed in the case and it must come to its own independent conclusion on a consideration of such evidence. It must not forget that as a final court of fact, it is duty bound to give an independent and comprehensive consideration and assessment of the evidence and come to its own conclusion one way or the other. There is no excuse to skip over this obligation, merely on the ground that the first appellate court affirms the judgment of the first court. The duty cast upon the first appellate court is an undoubted one and it must review the recorded evidence and draw its own conclusions and inferences. It should independently enter into all questions, including appreciation of the evidence in the case and give reasons of its own for its ultimate decision. In view of the decisions of the Supreme Court and the High Courts cited above and even as per the decision relied on by the learned Counsel for the appellants, I find that in the instant case the lower appellate Court not only expressed general agreement with reasons given by the trial court but' also independently considered the material oral and documentary evidence and came to its independent conclusion. It is to be noted that it is only an affirming judgment and that because of the fact the court expressed concurrence with certain findings while giving its independent reasons, it cannot be said that the judgment is not one under Order 41 Rule 31 C.P.C. It is not the case that the lower appellate Court merely stopped with the finding of the trial Court; but the lower appellate Court considered the oral and documentary evidence on all the vital issues and gave its own reasonings for coming to its conclusion. Hence I find every force in the contention of the learned Counsellor the respondents in this regard and on going through several paragraphs of the judgment, I find that the learned lower appellate Judge discussed the oral and documentary evidence in rendering the finding. Hence I find every force in the contention of the learned Counsellor the respondents in this regard and on going through several paragraphs of the judgment, I find that the learned lower appellate Judge discussed the oral and documentary evidence in rendering the finding. Hence, I answer the substantial question of law against the appellants and in favour of the respondents. 13. The learned Counsel for the appellants submitted that this Court can interfere with the question of fact and Section 100, CP.C. will not be a bar and advanced arguments with regard to the concurrent findings rendered by both the Courts on the questions, whether the oral partition of the year 1930 between Chidambaram Padayachi and his brother, the first defendant is true, whether the suit properties are the separate properties or the joint family properties of Chidambaram Padayachi and whether the Will Ex. A-48 put forward by plaintiffs is true and valid. In this connection, the learned Counsel for the appellants drew the attention of this Court to the decision of the Supreme Court in Budhwanti v. Gulab Chand Prasad wherein it was held: Where the trial court on basis of evidence before it found that the landlord was in bona fide requirement of the tenanted shop for the business requirement of the members of the joint family but the appellate Court reversed that finding on baseless assumptions and wrong principles of law, the High Court in second appeal is justified in setting aside the finding of the appellate Judge even though it was factual in character. It is true that in a second appeal a finding on fact even if erroneously will generally not be disturbed but where it is found that the finding is vitiated by application of wrong tests or on the basis of conjectures and assumptions then a High Court will be well within its rights in setting aside in a second appeal a patently erroneous finding in order to render justice to the party affected by the erroneous find. It is to be noted that first of all in the instant case it is not a reversing judgment and that unless it was established that the fact of fact is vitiated by application of wrong tests or on the basis of conjectures and assumptions this Court sitting in second appeal cannot interfere. It is to be noted that first of all in the instant case it is not a reversing judgment and that unless it was established that the fact of fact is vitiated by application of wrong tests or on the basis of conjectures and assumptions this Court sitting in second appeal cannot interfere. On the other hand, the learned Counsel for respondents drew the attention of this Court to the decision in Maniar Ismail v. Maniar Fakruddin rendered by R.S. Pathak, C.J. and M.H. Kania, J., it was held: The High Court had before it a second appeal under Section 100 of the Code of Civil Procedure and the appeal could have been entertained only if a question of law arose in the case. A perusal of the impugned judgment of the High Court shows that the High Court appraised the evidence on the record and "interfered with the findings of fact reached by the two courts below on the basis of evidence before them that the property in dispute was part of the land assigned under Exhibit P.3 and that the plaintiffs' case that Abdul Sab had constructed the two shops in question had not been established. The High Court has interfered with these findings of facts in the view that the two courts below had made out a new case by concluding that there was no partition between Abdul Sab and Mohammad Sab and they were tenants in common in respect of the suit property. What the High Court has done is to reverse the findings of fact upon considerations which proceed entirely upon facts. This the High Court was not competent to do in a second appeal under Section 100 of the Code of Civil Procedure. Accordingly the appeal is allowed, the impugned judgment and decree of the High Court are set aside and the judgment and decree of the first Appellate Court are restored. In the circumstances, there is no order as to costs. Accordingly the appeal is allowed, the impugned judgment and decree of the High Court are set aside and the judgment and decree of the first Appellate Court are restored. In the circumstances, there is no order as to costs. The learned Counsel for the respondents drew the attention of this Court to the relevant Section 100, C.P.C. as amended, and also case-laws, and submitted that in the instant case, there has been concurrent finding of fact established and no substantial question of law arises for consideration and in any event this Court cannot re-appraise the evidence and interfere with the finding of fact with regard to the oral partition between Chidambaram Padayachi and his brother in 1930 and the subsequent acquisition by Chidambaram Padayachi and the valid execution of the Will in favour of the plaintiffs as those findings were supported by acceptable evidence and convincing reasons and there is absolutely nothing to show that they are perverse or contrary to law. In Alangadu Immudi Aghora Sivacharya Ayira Vysia Mutt, Nerinjipettai by the Chairman of the Committee of Trustees v. Sankarasubramaniam and Anr. 1989 T.L.N.J. 276 this Court held, "These findings appear to be purely findings of fact and therefore unless any finding is perverse or of grave error that results in miscarriage of justice the second appeal cannot be maintained. In this context, Mr. V.R. Venkataraman, learned Counsel. for the first defendant strongly relies on the dictum laid down by the Supreme Court in Deity Pa Habhi Ramaswamy v. S. Hanumayya and Ors. A.I.R. 1959 S.C. 57...."After quoting the above decision it was observed, "When considered in this background of the law it does not appear to me that this Court can interfere with any of the findings arrived at by the first appellate court". In order to appreciate the rival contentions of both the parties, whether there is anything for this Court to interfere with the concurrent findings, both parties are allowed to advance arguments to find out whether the findings are based on any evidence and are in accordance with law. The findings are based on the two questions, namely, whether the suit properties are the separate properties and Chidambaram Padayachi acquired them after oral partition by virtue of his separate income and also from the properties allotted to him and whether the execution of the Will Ex. A. 48 by him is true and valid. 14. The findings are based on the two questions, namely, whether the suit properties are the separate properties and Chidambaram Padayachi acquired them after oral partition by virtue of his separate income and also from the properties allotted to him and whether the execution of the Will Ex. A. 48 by him is true and valid. 14. As regards the question whether there was oral partition in 1930 in which Chidambaram Padayachi got items 6, 8 and 14 of the suit properties and subsequently from out of the income from the properties as well as his income from the business carried on by him he purchased the suit properties, the burden is on the plaintiffs to establish the same. Since the partition took place in the year 1930 and the first plaintiff was aged about 40 years at the time of filing of the suit in 1976, both the courts below considered the various subsequent conduct and acts which probabilise the partition as well as the acquisition in deciding this question. Both the courts below relied on Ex.A.70 which is the copy of the written statement filed by the first defendant, who is no other than the father of defendants 3 and 4 and husband of the second defendant, and he admitted categorically that there was a partition as alleged in 1930 between him and his brother Chidambaram Padayachi. It is to be noted that a copy of the written statement filed in this suit was marked as an exhibit in the suit as the first defendant died before even the suit was transferred to the District Munsif, Cuddalore and it was returned for presentation to the Sub Court, Chidambaram as the said court has no pecuniary jurisdiction. The contention of the appellants that originally it was filed and that the written statement forms part of the record is devoid of any substance and merit as the said written statement was filed before the District Munsif when the suit was originally in the District Munsifs court and the written statement was not the one which was filed after the said suit was returned on the ground that the court has no pecuniary jurisdiction and that the courts below have rightly rejected the reason given by defendants 2 and 3 as the first defendant filed such written statement against the interest of the defendants. There is absolutely nothing to interfere with the same. The learned Counsel contended that the said written statement is not binding on defendants 3 and 4, but since they are the sons of the first defendant, certainly the plaintiff can rely on the same for falsifying the defence put forward by them, even though strictly it is not binding on them as it is the statement made by co-defendant. Besides that, there are clinching documents to support the division and also the acquisition of properties and dealing with the suit properties separately by Chidambaram Padayachi. It has been established by acceptable evidence that Chidambaram Padayachi was living in the ancestral house at Marudhur while the defendants left Marudur and were residing at Kolakudi. An attempt was made to explain their stay at Kolakudi by introducing a story of a tortoise entering the house at Marudur and it was rightly rejected by the courts below. Further, late Chidambaram Padayachi purchased properties under Ex.A. 5 to A. 24 from the year 1943 to 1958. He paid kist under Exs. A.25 to A.33 and A.50 to A. 68 from the year 1935 upto 1974. The patta No. 118 also stands in his name in respect of the said properties. Further, the first defendant also acquired properties in his name under Ex. A.34, A.35, A.36, A.38 and A.39. Under Ex. A.37 he has sold property wherein it has been specifically recited that he has acquired the property out of his self-acquisition. Ex. A.37 is dated 27.7.1957. The defendants were unable to get over the said recital in Ex. A.37. Further, the address given in all these documents is also relevant to show that he was living separately from his brother Chidambaram Padayachi. It is also to be noted that under Ex.A.49 Chidambaram Padayachi has mortgaged the property separately in the year 1941. Under Ex. A.44 defendants 3 and 4 executed, sale deed in favour of third party in the year, 1977. Under Ex. A.40 the third defendant mortgaged his property in favour of Maanamutti for Rs. 1,000/-. The evidence of the third defendant, who was examined as D.W.7 clearly shows that both Chidambaram Padayachi and his brother, the first defendant, were paying kist separately and they were dealing with the properties separately without the consent of the other. Similarly, his sons also were dealing with the properties separately. 1,000/-. The evidence of the third defendant, who was examined as D.W.7 clearly shows that both Chidambaram Padayachi and his brother, the first defendant, were paying kist separately and they were dealing with the properties separately without the consent of the other. Similarly, his sons also were dealing with the properties separately. Further, even the recitals in the sale deeds in respect of the properties purchased by the first defendant, the boundaries of the properties have been shown as that of Chidambaram Padayachi, in Ex. A.38 and A. 39. The lower appellate judge has also in para 10 of his judgment pointed out that the learned Counsel for the appellants did not seriously press the issue regarding the nature of the properties left by Chidambaram Padayachi. There is absolutely nothing to hold that the said observation is not correct. The documentary evidence is also corroborated by the oral evidence and that it is needless to traverse all of them. Suffice to say that the evidence of the Karnam is to the effect that the two brothers are living separately and that they were cultivating their lands separately, that he has got adjacent lands and that patta also stands in their names separately. His evidence has rightly been accepted by both the courts below. Besides that, there was admission even in the evidence of D.Ws. that the brothers were living separately and acquiring properties and dealing with them separately for a sufficiently long time, nearly about 30 to 40 years. In this connection, the learned Counsel for the respondents relied on the decision in Dattatreya v. Shakuntalabai A.I.R. 1956 Nagpur 95 for the proposition, "In the absence of anything to the contrary, the separate record in the jamabandi of the lands in the names of different members of the family would be indication of separation rather than jointness. Similarly, the fact that different members disposed of lands recorded in their respective names without concurrence of the others would be indicative 'prima facie' of separation and not to jointness". It was also held in that case that "the fact of partition can be proved by evidence of the conduct of the parties of a date' subsequent to the material date for throwing light on the question whether partition had taken place at the material time." In Bhagwan Dayal v. Mst. It was also held in that case that "the fact of partition can be proved by evidence of the conduct of the parties of a date' subsequent to the material date for throwing light on the question whether partition had taken place at the material time." In Bhagwan Dayal v. Mst. Reoti Devi , it was observed: Every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence of partition or by course of conduct leading to an inference of partition....In the case of old transactions when no contemporaneous documents are maintained and when most of the active participants of the transactions have passed away, though the burden still remains on the person who asserts separation, it is permissible to fill up gaps more readily by reasonable inferences than in cases where the evidence is not obliterated by passage of time. The conduct of the parties for about 50 years was consistent with their separation rather than with their jointness. The learned Counsel for the respondents submitted that the purchase of property by a member of joint family can be held as separate property and in support of this proposition he relied on the decision in Srinivas v. Narayan ; K.V. Narayanaswami Iyer v. K.V.Ramakrishna Iyer and Ors. ; G.Narayana Raju v. Chamaraju and Mudigowda v. Ramachandra It is seen that following the decision in Appalaswami v. Suryanarayanamurti (1947) 2 M.L.J 138 : ILR 1948 Mad.440 : 1948 MNN. 211 : A.I.R. 1947 P.C. 189 at page 192, it has been held by Venkatarama Iyyar, J. in Srinivas v. Narayan observed: Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact But where it is established that the family possessed some joint property which from its natural and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. This principle is followed in K.V Narayanaswami Iyer v. K.V. Ramakrishnan Iyer and Ors. also in G. Narayana Raju v. Chamaraju . This principle is followed in K.V Narayanaswami Iyer v. K.V. Ramakrishnan Iyer and Ors. also in G. Narayana Raju v. Chamaraju . This principle was followed by Ramaswami, J. In Mudigowda v. Ramachandra . As already stated in the instant case it has been held by both the courts below that from the conduct of the parties, the oral partition of the year 1930 was established. Further, those properties were purchased by Chidambaram Padayachi out of his self-earnings and also from the income of the properties allotted to his share. In view of the concurrent findings of both the courts below, which is supported by acceptable documentary evidence, there is no difficulty in coining to the conclusion that they are the separate properties of Chidambaram Padayachi. There is nothing to show that the said finding is either perverse or contrary to law so as to warrant this Court to interfere with the same. Hence, I have no hesitation in holding that the finding of the courts below that the suit properties are the separate properties of Chidambaram Padaychi, that there was an oral partition between Chidambaram Padayachi and the first defendant in 1930 and that it is his self-acquired and separate properties is unassailable. 15. As regards the truth and validity of the Will Ex. A.48 it is the case of the plaintiffs that the said Will which is marked as Ex. A.48 was executed by Chidambaram Padayachi while he was in a sound and disposing state of mind on 15.10.1973: The contention of the appellants is that the said Will was created subsequent to 14.11.1973 when the panchayat was held and Ex. B.1 agreement was entered into, that the testator Chidambaram Padayachi was not in a sound and disposing state of mind and that there are various suspicious circumstances and unnaturalness. P.W.9 is the scribe of the Will Ex. A.48 and it was attested by P.W.7 and P.W.8, Karnam of the village, and three other witnesses. Out of them, Jayaraman is the father-in-law of the second plaintiff. The other two attesting witnesses, according to the plaintiffs, were gained over by the defendants. P.W.9 is the scribe of the Will Ex. A.48 and it was attested by P.W.7 and P.W.8, Karnam of the village, and three other witnesses. Out of them, Jayaraman is the father-in-law of the second plaintiff. The other two attesting witnesses, according to the plaintiffs, were gained over by the defendants. Both the courts below accepted the evidence of P.Ws.7 to 9 who are attestors and scribe as they are disinterested witnesses and nothing tangible was elicited to discredit their testimony and there is sufficient evidence to conclusively establish that the deceased Chidambaram Padayachi voluntarily executed the said Will out of his own volition while he was in a sound and disposing state of mind. According to the appellants, the Will was unnatural as no provision was made to defendants 3 and 4 who are the nearest heirs as well as Bagyam, mother of the plaintiffs, who is the sister of the testator. The courts below have considered this aspect It is seen from the evidence that the mother of the plaintiffs was living with the plaintiff and there is absolutely no ill-feeling between them and the deceased would not have thought it necessary to make any provision in favour of the plaintiffs' mother and there is absolutely nothing unnatural in it Further, there is absolutely nothing to show that defendants 3 and 4 took any care or interest in the maintenance and welfare of the deceased Chidambaram Padayachi. They were also already possessed of sufficient properties. The plaintiffs and their mother were living with Chidambaram Padayachi admittedly nearly for 40 years. The plaintiffs' mother became a widow while she was young, she being brought up by the deceased Chidambaram Padayachi since her childhood. They were all assisting Chidambaram Padayachi in his cultivation throughout. Hence, out of natural love and affection, he wanted that the properties should be given to the plaintiffs and their heirs. As pointed out by the courts below, if it is a forged and created one, the plaintiffs could have recited in the Will that they would get the properties absolutely on the death of Chidambaram Padayachi. But on the other hand, the recitals show that the plaintiffs were given only the right to enjoy the properties during their lifetime and their heirs alone are entitled to the properties absolutely. But on the other hand, the recitals show that the plaintiffs were given only the right to enjoy the properties during their lifetime and their heirs alone are entitled to the properties absolutely. That Chidambaram Padayachi was in a sound and ' disposing state of mind is spoken not only by the plaintiff's witnesses but admitted by the witnesses examined on the side of the defendants, D.Ws.2 to 7 which also probabilises the case of the plaintiffs that Chidambaram Padayachi was in a sound and disposing state of mind till his death. It was also commented upon by the courts below that according to the written statement filed by defendants 2 to 7 and their evidence that the deceased was taken to the hospital about 15 days prior to his death and he was in the hospital for 10 days and he was treated and if the deceased was not in a sound and disposing state of mind, certainly they would not have failed to summon the doctor and hospital records to establish their case as they are the best evidence. The defendants have not examined the doctor and not produced the hospital records. From this an adverse inference can be drawn. In this connection, reliance was placed on the decision in Gopal Krishnaji v. Mohd. Haji Latif wherein it was observed: Even if the burden of proof does not lie on a party the Court may draw in adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. It is worthwhile to note the evidence of D.W.2 to the effect that he saw the deceased 2 days back and he was talking well. D.W.2 has deposed that he saw the deceased about 2 or 3 months prior to his death, that he was not blind and that he was able to recognise his voice and was talking. It is seen from Ex. A-1, death extract, that the cause of death is shown as old age. D.W.2 has deposed that he saw the deceased about 2 or 3 months prior to his death, that he was not blind and that he was able to recognise his voice and was talking. It is seen from Ex. A-1, death extract, that the cause of death is shown as old age. The evidence on the side of the plaintiffs is that the deceased used to pass blood along with urine for some time before his death, that he was treated locally by a native doctor and that such illness did not interfere with his state of mind which remained clear and sound till shortly before his death on 17th. Thus from the evidence of P.Ws.7 to 10 who are the attestors and the scribe and the admissions made by the defendants' witnesses themselves, it is clear that he was in a sound and disposing state of mind at the time of execution of the Will. For the reasons already stated, both the courts below have rightly come to the conclusion that Chidambaram Padayachi was in a sound and disposing state of mind when he executed Ex. A.48. 16. It was commented upon by the appellant that the draft of the Will, though was written, is not produced before court and the non-production of the draft of the Will also throws considerable suspicion. It is seen that the evidence of P.W.7 is to the effect that the scribe wrote a draft and thereafter it was read over to Chidambaram Padayachi. After he admitted it to be correct, the original Will was executed in two papers. The evidence of the scribe, P.W.9, is that he handed over the draft along with the original to the testator Chidambaram Padayachi. The mere fact that the draft was not kept safe is not a ground to hold againse the execution of the Will, as the parties could not have imagined civil litigation and as Chidambaram Padayachi is not alive, that itself cannot be a suspicious circumstance regarding the truth, genuiness and validity of the Will. In this connection, the learned Counsel for the respondents drew the attention of this Court to the decision in Indu Bala v. Manindra Chandra. While considering the various alleged suspicious circumstances, circumstance No.3 was the non-production of the draft and no explanation has come forth as to what happened to the draft. In this connection, the learned Counsel for the respondents drew the attention of this Court to the decision in Indu Bala v. Manindra Chandra. While considering the various alleged suspicious circumstances, circumstance No.3 was the non-production of the draft and no explanation has come forth as to what happened to the draft. While considering the same, it was observed by their Lordships as follows: With regard to circumstance No. (iii), there is no evidence to show that there was any invariable practice that the draft of a Will had to be preserved. No question was put in cross-examination to the scribe (P.W.I) who perhaps might have been able to say what he had done with it Similar is the position with regard to the diary of P.W.3. P.W.3 who deposed that his diary would show that he had drafted the Will was not asked in cross-examination as to whether he at all preserved in 1965 the diary of 1952 or whether he could produce it. Ultimately it was held that the same does not appear to be a suspicious circumstance surrounding the execution of the Will. 17. It was also commented upon that the plaintiffs, the profounder of the Will, took active part and not the testator and that also throws considerable suspicion. It is the evidence of P.W.7 that the deceased Chidambaram Padayachi sent the second plaintiff to fetch him for executing the Will and accordingly he went there and he himself went on the next day. Similarly, P.W.8 Karnam has stated that it is only the testator Chidambaram Padayachi who sent for him and when he went there, he told him about his intention of executing a Will and requesting for his help. According to him, about 10 or 15 days prior to the execution, Chidambaram Padayachi himself told him personally and accordingly he went there on the date when Ex. A-48 was executed. P.W.9, the scribe, has also stated that the second plaintiff came and invited him by saying that the deceased wanted him for writing a Will and accordingly he went on the next day. In this connection, it was also pointed out by the lower court that Chidambaram Padayachi was a widower and was assisted by the plaintiffs only and in the circumstances, there is nothing unnatural in utilising the service of the plaintiffs for the preparation or execution of the Will. In this connection, it was also pointed out by the lower court that Chidambaram Padayachi was a widower and was assisted by the plaintiffs only and in the circumstances, there is nothing unnatural in utilising the service of the plaintiffs for the preparation or execution of the Will. The evidence of the Karnam P.W.8 clearly shows that about 15 days prior to the execution of the Will Chidambaram Padayachi himself told him about his intention. P.W.8 has also stated that when the draft was written, Chidambaram Padayachi pointed out about the younger brother being married and not the elder brother. It is further stated that Chidambaram Padayachi was actually sitting on the pial at the time of executing the Will. It is only the deceased who took active part in the preparation of the Will and not the propounder. That the Will was published prior to and immediately after the death of Chidambaram Padayachi is also seen from the evidence of P.W.8 that on the date when the Will was executed, he met not only the first defendant but also Duraisami (Third defendant) and intimated them about his purpose of visit, namely preparing and executing the Will D.W.7 who is no other than the third defendant, also admitted that on the next day of the death of the deceased Chidambaram Padayachi, the plaintiffs were proclaiming that they were having a Will in their favour and that they were going to harvest In this connection, the learned Counsel for the respondents drew the attention of this Court to the additional written statement filed by the defendants wherein they have categorically admitted that immediately on the next day of the death of Chidambaram Padayachi, the plaintiffs were having a Will in their favour and that they are going to register it. Thus it is clear that the Will was published on the next day of the death of the testator. Even D.W.I admitted that the third defendant met him 10 days after the death of Chidambaram Padayachi and told him about the Will. That also probabilises the truth and genuineness of the Will. In this connection, reliance was placed on the written statement filed by the first defendant which is marked as Ex. A-70 wherein he has categorically admitted the execution of the Will by late Chidambaram Padayachi. That also probabilises the truth and genuineness of the Will. In this connection, reliance was placed on the written statement filed by the first defendant which is marked as Ex. A-70 wherein he has categorically admitted the execution of the Will by late Chidambaram Padayachi. The contention of the learned Counsel for the appellants that the original Will was not available in the proceedings and the written statement being the pleadings cannot be marked cannot be countenanced, as it must be noted that the written statement was filed in the suit filed in the first instance in the District Munsifs Court, Chidambaram and it was subsequently transferred and then the plaint was returned for presentation before proper court for want of pecuniary jurisdiction and in the meantime the first defendant died. In the circumstances the marking of the written statement of the first defendant as Ex. A-70 through P.W. 1 is in order and that it cannot be said that it cannot be exhibited and reliance cannot be placed. The circumstances under which the attestors put their signatures in both the pages of the Will have been considered by the courts below and in view of the positive evidence of P.Ws.7 to 9 there is absolutely no suspicion in Ex. A-48. On the other hand, it only strengthens the case of the plaintiffs that it is nothing but a true document. It is the positive evidence of the scribe and the witnesses that the deceased Chidambaram Padayachi gave instructions for preparing the Will. The mere fact that the karnam furnished the particulars of the properties would not mean that he gave instructions for drafting the Will. The failure to mention the oral partition would not in any way falsify the genuineness of Ex. A.48 The reason for not registering the Will has been properly explained as the testator died within two days. Further, when an attempt was made to register the Will, a police complaint was given by defendants 3 and 4 and the plaintiffs were taken to the police station and thereafter they were coerced to sign a signment and in the circumstances it could not be registered. It is to be noted that the Will does not require registration. When once it is proved that it was validly executed, certainly it can be relied on as it is not compulsorily registerable. It is to be noted that the Will does not require registration. When once it is proved that it was validly executed, certainly it can be relied on as it is not compulsorily registerable. There is acceptable evidence on the side of the plaintiffs that they attempted to register the Will but due to circumstances it could not be registered. 18. Much reliance Was placed on Ex. B-1 agreement. The plaintiffs signed Ex.B-1 in which it is stated that Chidambaram Padayachi has not left any Will in favour of either of the parties. Both the courts below did not accept the same, as admittedly it was the plaintiffs who had been to the Registrar's Office for registration and the Will was taken to the police station where the signatures of the plaintiffs were obtained by exercising coercion and threat with the active support and assistance of one Krishna Pillai who was the President of the village and who got himself registered as a tenant of all the suit properties under defendants 3 and 4. It was pointed out by the courts below that Ex.B.l was not even relied on by the defendants even in the very notice Ex. A-3 which was issued after Ex. B-1 and even though they did not rely upon the same, now they got the document from the said Krishna Pillai who is interested in the litigation since he registered himself as a tenant of the suit properties and he was also actively assisting defendants 3 and 4 by attending court on all the hearings which has been observed by the trial Court. This circumstance was also rightly relied on by the courts below in rejecting Ex. B-1. There is ample evidence to show the existence of the Will even prior to Ex.B-1 which is dated 14.11.1973 and in the circumstances, there was no necessity for the plaintiffs to execute such a document. The version of the plaintiffs that they were compelled to sign the document at the police station is probabilised by the admission of the defendants and the evidence adduced on the. side of the plaintiffs. The evidence of P.W.I, who is a senior advocate at Cuddalore having put in 20 years of service, clearly shows that within a few days of the Will, the plaintiffs came to him along with his client and showed him the Will Ex. A-48. side of the plaintiffs. The evidence of P.W.I, who is a senior advocate at Cuddalore having put in 20 years of service, clearly shows that within a few days of the Will, the plaintiffs came to him along with his client and showed him the Will Ex. A-48. He advised the plaintiffs to register the Will. But the plaintiffs left the Will with him and promised to come after the ceremonies were over. Subsequently they came and took the same for the purpose of registration. Both the courts below have rightly accepted the evidence of P.W.I who had deposed about the existence of the Will long prior to Ex. B-1 and there is absolutely nothing to disbelieve his evidence. The learned Counsel for the appellants submitted that since P.W.I appeared for the plaintiff, his evidence ought not to have been accepted. This contention has been rightly repelled by the trial court. Though P.W.I originally appeared for the plaintiffs, he is a proper person to give evidence in respect of the entrustment of the Will during the relevant period. He retired from the case and later one Mr. Ranganathan entered appearance and conducted the case for the plaintiffs. There is absolutely nothing improper or illegal in the conduct of P.W. 1 He has only spoken about his seeing the Will within 3 or 4 days after the death of the deceased Chidambaram Padayachi and the entrustment of the Will with him and about his advise to them to register the Will which probabilise the case of the plaintiffs about the existance of the Will and also falsifies the contention of the defendants that the said Will was fabricated sties 14.11.1973 when Ex. B-1 was executed in the panchayat. As already Slated, the evidence of P.Ws. 7 to 9 is cogent and convincing and it establishes beyond all reasonable doubt that it was the deceased Chidambaram Padayachi who duly executed the Will while he was in a sound and disposing state of mind. The above finding of fact rendered by the courts below cannot be said to be perverse or contrary to law. When once it is held that there was valid execution of the Will and that it is proved according to law, certainly the plaintiffs are entitled to the reliefs as prayed for. The above finding of fact rendered by the courts below cannot be said to be perverse or contrary to law. When once it is held that there was valid execution of the Will and that it is proved according to law, certainly the plaintiffs are entitled to the reliefs as prayed for. In this connection, the learned Counsel for the respondents drew the attention of this Court to the decision in Rangaswami Raja v. Venkata Raja I.L.R. (1965) 1 Mad. 722, where a Division Bench of this Court held; But where the Court is satisfied from the evidence that the Will was validly executed by a testator with capacity, the suspicions are dispelled by the very force of that conclusion. In such a case suspicion is then reduced to a perversity in the mind of the testator upon which the Court will not judge. For the Court does not make a Will and apart from the question of the execution of the Will by a free testator with capacity the court is not concerned with the wisdom and righteousness of the dispositions. The circumstances which excite the suspicions of the Court must be relevant to the preparation and execution of the Willin some form and cannot merely be suspicious concerning the veracity of witnesses. In the instant case, the witnesses to the Will are disinterested and independent witnesses. Their evidence is natural and convincing. The alleged suspicious circumstances surrounding the execution of the Will had been fully explained and all doubts and suspicions regarding the execution had been removed and the Court's conscience was satisfied. Consequently, the Will is to be held valid. There is absolutely nothing to hold that the said concurrent findings of both the courts below suffer from any infirmity. For all these reasons, I am of the view that the concurrent finding of the Court below that there is valid execution of the Will by the deceased Chidambaram Padayachi in favour of the plaintiffs in respect of his separate properties is supported by acceptable evidence and convincing reasons and does not suffer from any infirmity and that it cannot be said that the said finding is perverse or illegal so as to warrant this Court to interfere with the same. 19. In the result, the second appeal fails and stands dismissed. 19. In the result, the second appeal fails and stands dismissed. However, in the circumstances of the case and in view of the relationship of the parties, there will be no order as to costs in this appeal.