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2012 DIGILAW 1216 (MAD)

Karuppayammal v. Gurusamy

2012-03-07

V.PERIYA KARUPPIAH

body2012
Judgment 1. This appeal is directed against the judgment and decree passed by the First Appellate Court in A.S.No.31 of 2001 dated 29.07.2003 in reversing the judgment and decree passed by the I Additional Subordinate Judge (Incharge) Erode, made in O.S.No.868 of 1994 dated 12.10.1999 in decreeing the suit. 2. The appellants are plaintiffs and the respondents are the defendants before the trial court. 3. The case of the plaintiffs in the plaint filed before the trial court would be as follows:- The suit properties are self-acquired properties of Marappa Gounder. The plaintiffs are his daughters and the 1st defendant is his son, 2nd defendant is the wife and the 3rd defendant is another daughter. Marappa Gounder died intestate in the year 1977 leaving the plaintiffs and the defendants. The plaintiffs and the defendants are in joint possession of the suit properties. When the plaintiffs demanded partition, the defendants refused. Hence they filed the suit for partition and separate possession. 4. The objections raised by the defendants in his written statement are thus:- The suit is not maintainable. They admitted that suit properties are self acquired property of Marappa Gounder. While Marappa Gounder was in sound and disposing state of mind he executed a Will dated 02.07.1975. The Will came into force and the defendant inherited the suit properties. The plaintiffs have no right. The suit is bad for non-joinder of necessary parties. 5. The trial court had framed necessary issues and entered trial. After appraising the evidence adduced on either side, the trial court had decreed the suit. Aggrieved by the said judgment and decree passed by the trial Court, the first defendant has preferred an appeal in A.S.No.31 of 2001. After hearing the parties in the appeal, the first appellate court has reversed the judgment and decree passed by the trial court. Having aggrieved by the judgment and decree passed by the first appellate court, the plaintiffs have preferred this second appeal. 6. At the time of admitting the appeal, this Court had formulated the following substantial questions of law for consideration in this appeal. "1.) Whether the finding of the lower appellate Court that Ex.B3 'Will' is proved in accordance with law is opposed to the very evidence on record ? and 2.) If the 'Will' stands excluded, would not the plaintiffs entitled to the decree of partition?" 7. "1.) Whether the finding of the lower appellate Court that Ex.B3 'Will' is proved in accordance with law is opposed to the very evidence on record ? and 2.) If the 'Will' stands excluded, would not the plaintiffs entitled to the decree of partition?" 7. Heard Mr.V.Ragavachari, learned counsel for the appellants/Plaintiffs and Mr.S.V.Jayaraman,learned Senior Counsel appearing on behalf of Mr.D.Selvaraju, learned counsel for the respondents/defendants. 8. The learned counsel for the appellants/plaintiffs would submit in his argument that the suit was filed by the plaintiffs seeking for their 4/7 share in the suit properties as the properties were originally belonged to Marappa Counder, the father of the plaintiffs and they inherited the suit properties along with the defendants 1 to 3 on the death of the said Marappa Counder, who died intestate. He would further submit that the relationship between parties were admitted and the nature of the property held by the father Marappa Counder was also admitted and therefore there would not be any impediment for deciding the matter sought for by the plaintiffs. He would further submit that the 1st defendant had raised a plea that the said Marappa Counder had executed an unregistered Will in his favour, bequeathing all the properties on 02.07.1975 in the presence of attesting witnesses and he did not prove the Will in accordance with law and therefore, the suit has to be dismissed. He would further submit in his argument that the said plea of the 1st defendant was not accepted by the trial court and the Will stated to have been executed by Marappa Counder was not found to have been proved and thus, the suit was preliminarily decreed in favour of the plaintiffs by the trial court. He would further submit in his argument that the said plea of the 1st defendant was not accepted by the trial court and the Will stated to have been executed by Marappa Counder was not found to have been proved and thus, the suit was preliminarily decreed in favour of the plaintiffs by the trial court. He would further submit that however, the plaintiffs have sought for the comparison of the admitted signature found in Ex.B1 mortgage deed dated 25.05.1970 with that of the disputed signature in Ex.B3 Will by filing an application for sending the documents to hand writing expert and to obtain his opinion before the trial court and the said application was dismissed and against which the revision has been preferred before this court and this Court had also dismissed the said revision by holding that the burden of proving the Will was on the propounder the 1st defendant and in the case of proof of such Will only, the plaintiff has to take steps to compare the signature. He would further submit in his argument that the signature put by the Marappa Counder in Ex.B1 would go to show that the method of subscribing the signature was slightly slanting on the right side but the signature found in Ex.B3 was perfectly horizontal. He would further submit that the name Marappa Counder was different by written in both the admitted and disputed signatures found in Exs.B1 and B3 respectively and of all, the signature holder Marappa Counder used to put his signature as "TAMIL" and not as "TAMIL". The last letter "d;" was put instead of "h;" and it would raise suspicion over the signature of the Marappa Counder in Ex.B3 and in such circumstance, the option to send the documents to the hand writing expert for obtaining the opinion as to the genuineness of the signature in the Will had become vital and as per the order passed by this Court in the CRP No.2810 of 1999. The said circumstance has come for sending the documents for opinion of the hand writing expert and since there was no opportunity given by the 1st Appellate Court before reversing the judgment and decree passed by the trial Court, it had obviously snatched away the rights of the plaintiffs. The said circumstance has come for sending the documents for opinion of the hand writing expert and since there was no opportunity given by the 1st Appellate Court before reversing the judgment and decree passed by the trial Court, it had obviously snatched away the rights of the plaintiffs. He would further submit that the Court can compare the signature found in Exs.B1 and B3 and to come to an independent conclusion regarding its genuineness and if it is done so, the signature found in Ex.B3 could be construed as not belonging to Marappa Counder. He would also submit that the attestors to the Will namely DW2 and DW3 are none other than the close relatives of 1st defendant and they are interested witnesses and then evidence may not be helpful to the Court to come to a correct conclusion that the signature in the un registered Will Ex.B2 was belonging to the said Marappa Counder. He would further submit in his argument that the Will in Ex.B3 is not a true document, if the Court comes to a conclusion that the signature found in Ex.B3 are not genuine. He would further submit that the properties ought to have been shared as prayed for in the suit, in the event the Will in Ex.B3 was found to be not proved. Therefore, he would request the Court that the judgment and decree passed by the First Appellate Court was without any correct perception of evidence and the judgment of trial court was un necessarily interfered by the First Appellate Court which was against the principle laid down by the Hon'ble Apex Court. Therefore, he would request the Court to interfere with the judgment and decree passed by the First Appellate Court and to allow the second appeal. 9. The learned Senior Counsel appearing for the respondents would submit in his argument that the trial court was not correct in coming to a conclusion that the Will was not proved by the 1st defendant even after examining the attesting witnesses. He would further submit that the requirement under Section 68 of the Evidence Act coupled with the provisions of Section 63(c ) of Indian Succession Act were complied with by examining DW2 and DW3 and the First Appellate Court had correctly come to the conclusion after approving the evidence DW2 and DW3 and reverse the judgment of the trial court. He would further submit that the requirement under Section 68 of the Evidence Act coupled with the provisions of Section 63(c ) of Indian Succession Act were complied with by examining DW2 and DW3 and the First Appellate Court had correctly come to the conclusion after approving the evidence DW2 and DW3 and reverse the judgment of the trial court. He would further submit in his argument that if really, the appellants/plaintiffs wants to examine the signatures of the attestor Marappa Counder in Ex.B3 Will, it could be compared with the admitted signature found in Ex.B1 registered mortgage deed when it was not objected before the First Appellate Court even though this Court in CRP No.2810 of 1999 had found that the plaintiffs are at liberty to seek for sending the documents for analysing the signatures of the testator and to give his opinion regarding signature found in Ex.B3. He would further submit in his argument that the 1st defendant while he was examined as DW1 has categorically stated that he has no objection for comparing the signature as sought for by the plaintiffs. He would also submit in his argument that the Court can compare the signature and to come to a conclusion of confirming the judgment and decree passed by the First Appellate Court. He would also submit that if for any reason, this Court is inclined that the comparison of signatures of Marappa Counder be done by the hand writing expert alone and the Court can come to a conclusion only upon the opinion of the hand writing expert, suitable orders may be passed in the facts and circumstances of the case for coming to a correct conclusion in the dispute between the parties. He would further submit in his argument that the First Appellate Court had correctly compared the signature found in Exs.B1 and B3 and did not find any necessity to send the documents for hand writing expert's opinion and the said circumstance may be considered and suitable orders may be passed. He would therefore request the Court to confirm the judgment passed by the First Appellate Court and to dismiss the appeal or to pass a justifiable order in the facts and circumstances of the case in the second appeal. 10. I have given anxious thoughts to the arguments advanced on either side. 11. He would therefore request the Court to confirm the judgment passed by the First Appellate Court and to dismiss the appeal or to pass a justifiable order in the facts and circumstances of the case in the second appeal. 10. I have given anxious thoughts to the arguments advanced on either side. 11. The plaintiffs have filed the suit before the trial court seeking for partition and separate possession of their 4/7 shares in the suit property described in the plaint. The said prayer of the plaintiffs were up-held by the trial court and 4/7 share was granted and a preliminary decree was passed in their favour. Against the said judgment and decree passed by the trial court, the 1st defendant preferred an appeal in A.S.No.31 of 2001 before the First Appellate Court and the first appellate court had reversed the judgment, by holding that the Will executed by Marappa Counder was found to have been proved by the 1st defendant and therefore, the plaintiffs were not found entitled to any share in the property. 12. The relationship of the parties that the plaintiffs are the daughters of Marappa Counder and the 2nd defendant was the wife of Marappa Counder and the defendants 1 and 3 are the brothers of the plaintiff are admitted facts. Similarly, the suit property was admittedly the self-acquired property of the father Marappa Counder. The said Marappa Counder was in an exclusive possession and enjoyment of the property till his death. However, the 1st defendant claims an exclusive title over the suit property on the foot of an unregistered Will said to have been executed by the father Marappa Counder in his favour on 02.07.1975. If really, the said Will was proved to have been executed by the said Marappa Counder, the 1st defendant alone would be the title holder of the suit property. In the event of failure to prove the Will, said to have been executed by Marappa Counder, the intestate succession will come into operation and there is no dispute that all the parties namely the plaintiffs 1 to 4 and the defendants 1 to 3 will equally see entitled to 1/7 share from the suit property and the plaintiffs 1 to 4 would be collectively entitled to 4/7 share in the suit property. 13. 13. The main grounds of objection raised by the plaintiffs in the appeal was that the 1st defendant had admitted in his evidence when examined as DW1 for sending the Will along with the admitted document Ex.B1 mortgage for comparing the signature in the Will produced as Ex.B3 with that of the admitted signature found in Ex.B1. The learned counsel would submit in his argument that the First Appellate Court ought to have sent the documents to hand writing expert's when it was about to reverse the judgment of the trial court and thereafter to come to any conclusion about the genuineness of the signature found in Ex.B3. 14. No doubt, the plaintiff has filed an application before the trial court for sending the documents Exs.B1 and B3 to the hand writing expert in order to get his opinion regarding the signatures found in both the documents purported to have been signed by Marappa Counder and the said application was dismissed and against which a revision was preferred in CRP.No.2810 of 1999 and the same was also dismissed on the ground that the plaintiffs have no burden to disprove the signatures until the propounder (1st defendant) prove the Will in accordance with law. It is also a settled law that if the propounder of the Will, had satisfied the conscience of the Court about its genuineness, then only the Court would rely upon the said Will. Even if the Court has come to a conclusion of accepting the Will and the plaintiffs had raised the plea of the fabrication of the signature found in the unregistered Will, an opportunity must be given to the other party who bonafide require the signature of the testator in the Will for taking to hand writing expert's opinion. 15. It has been brought to the notice of the Court that the 1st defendant as DW1 and the other witnesses DW2 and DW3 have categorically admitted the close relationship DW2 and DW3 with the 1st defendant. In the said circumstance, I feel that the First Appellate Court ought to have given an opportunity to the plaintiff to take the original Will before the hand writing expert for getting his opinion regarding the signature of the testator after comparing them with the admitted signatures of the testator and thereafter only any decision can be reached in the appeal but it was not done so. In order to meet the ends of justice, I feel that it is just and necessary to direct the First Appellate Court to venture into the obtaining of the hand writing expert opinion regarding the signatures found in Ex.B3 compared with the admitted signatures found in Ex.B1, an admitted document and to give his opinion. It is also pertinent to point out that the last letter of the signature in both admitted document Ex.B1 and the disputed document Ex.B3 was to the effect that "d;" has been put instead of "h;" may be a vital fact which could also be considered by the hand writing expert, in order to enable the Court to come to a correct decision. In order to facilitate such venture of comparing the signature of the father Marappa Counder found in Ex.B1 with that of the disputed signature found in Ex.B3, the matter has to be necessarily remanded to First Appellate Court. For that the jugment and decree passed by the First Appellate Court has to be set aside so as to reach a fresh finding over the dispute pertaining to the suit, after getting the opinion of hand writing expert regarding the signature stated to have been put by Marappa Counder in Ex.B3 after comparing the same with that of the admitted signature in Ex.B1, and on giving his opinion. 16. For the foregoing discussion, I am of the considered view that the judgment and decree passed by the First Appellate Court are liable to be set aside and the second appeal is allowed and in consequence, the matter is remanded to the First Appellate Court for fresh disposal in accordance with law. The First Appellate Court is directed to send suo-motu send both the original documents through appointment of Commissioner from the local bar to the hand writing expert, Forensic Science Department, Mylapore, Chennai for comparing the signatures stated to have been put by Marappa Counder in Ex.B3 i.e., questioned signature with that of the admitted signatures of Marappa Counder found in Ex.B1 mortgage deed and after getting his opinion and the first appellate court shall hear the parties once again and pass a judgment on the basis of the evidence and the additional evidence produced by the hand writing expert. The expenditure for appointment of Commissioner and the expenditure for getting opinion of hand writing expert has to be borne by the appellants/plaintiffs. The expenditure for appointment of Commissioner and the expenditure for getting opinion of hand writing expert has to be borne by the appellants/plaintiffs. 17. Accordingly, the second appeal is allowed and the case is remanded to the First Appellate Court for fresh disposal in accordance with law with the observations as indicated above. There is no order as to costs. 18. The parties are directed to appear before the First Appellate Court on 09.04.2012 without fail.