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2012 DIGILAW 1611 (MAD)

Vadivelu v. Subramaniam

2012-03-29

T.RAJA

body2012
Judgment :- 1. The present second appeal has been brought by the plaintiff/appellant against the judgment and decree of the first appellate Court reversing the judgment and decree of the trial Court. 2. Brief facts leading to the filing of the second appeal are as follows:- The plaintiff/appellant has filed the suit for declaration to declare that the suit property belongs to the plaintiff and also for a permanent injunction restraining the defendant, his men, servants and agents etc. from interfering with his peaceful possession and enjoyment of the suit property on the ground that the suit property was bequeathed by one Nagammal in favour of her son Vadivelu, the plaintiff, by a registered Will dated 4.9.1991. After her death on 15.4.1998, the plaintiff became entitled to the suit property viz. east west 21 ½', north south 45' because in the Will dated 4.9.1991, the measurement for north-south is wrongly mentioned as 22 ½' instead of 45'. The boundary description of the suit property shows the testator's intention to bequeath all her share to the plaintiff/appellant, but only by inadvertent mistake, the measurement of north-south is mentioned as 22 ½'. Since on the east of the suit property, the defendant's property is situated and the defendant is also the brother of the plaintiff, taking advantage of the measurement mentioned in the Will dated 4.9.1991 as north-south as 22 ½', claiming half share in the suit property for which he is not entitled, he attempted to trespass into the suit property claiming right over the suit property. As there is a cloud emanated on the title of the suit property, the plaintiff has filed the suit that the suit property belonged to the plaintiff. 3. When there was an attempt by the defendant to trespass into the suit property with his men, the plaintiff/appellant, with the help of his neighbours, was able to prevent him from entering into the suit property. Therefore, unless the defendant/respondent is prevented by means of permanent injunction, grave injustice would be caused to the plaintiff/appellant. On that basis, he prayed for a decree for declaration to declare that the suit property belongs to the plaintiff/appellant and also for consequential injunction restraining the defendant from in any manner interfering with his peaceful possession and enjoyment of the suit property. 4. On that basis, he prayed for a decree for declaration to declare that the suit property belongs to the plaintiff/appellant and also for consequential injunction restraining the defendant from in any manner interfering with his peaceful possession and enjoyment of the suit property. 4. A detailed written statement was filed by the defendant stating that the sale of the suit property by seller Sella Boyan to Ayyavu Boyan and the settlement deed executed by Ayyavu Boyan in favour of defendant on 23.9.1976 are true and correct. But the Will executed by Nagammal on 4.9.1991 in favour of the plaintiff/appellant was denied as untrue by stating that Nagammal, mother of both plaintiff and defendant has not executed any Will in favour of the plaintiff and the thumb impression found in the Will is not at all belonging to Nagammal. On that basis, it was pleaded that the Will dated 4.9.1991 is a forged one. It was further stated that when Nagammal, mother of the defendant and plaintiff, was very affectionate to both sons, she could not have bequeathed all her properties in favour of plaintiff/appellant alone. Even on the date of execution of the Will, mother Nagammal was not in a sound and disposing state of mind and therefore the question of execution of the Will would not arise. 5. In respect of possession of the suit property, it was stated in the written statement that the defendant alone is in possession and enjoyment of the suit property even during the life time of his mother, and the defendant obtained electricity service connection to the suit property in his name and made improvements by spending Rs.25.000/-. It was also stated in the written statement that the defendant alone was in open, continuous and exclusive possession of the suit property and thus he has prescribed title over the suit property. Finally, it was pleaded that the suit property was not properly valued for the purpose of court fee valuation and the value of the suit property worth being more than Rs. 1 lakh on the date of filing of the suit, the trial Court has no jurisdiction to try the suit. On this basis, he prayed for dismissal of the suit. 6. 1 lakh on the date of filing of the suit, the trial Court has no jurisdiction to try the suit. On this basis, he prayed for dismissal of the suit. 6. The trial Court, accepting the case of the plaintiff/appellant on the basis of the evidence produced by both sides and dissenting with the case of the defendant that no useful evidence was produced by the respondent/defendant to establish the fact that the defendant has come into possession of the suit property for about 30 years ago, granted the relief as prayed for by holding that the description of the suit property mentioned in the Will executed by Nagammal in favour of plaintiff dated 4.9.1991 stood properly established the correct boundaries of the suit property through the evidence adduced by the plaintiff/appellant. 7. In respect of the jurisdiction of the trial Court to try the suit, the learned trial Court held against the defendant that the suit property falls within its jurisdiction. Aggrieved by the judgment and decree passed by the trial Court, the defendant preferred appeal before the learned Subordinate Court at Tiruppur in A.S.No.16/2004. The learned first appellate Court reversed the judgment and decree passed by the trial Court on the ground that the execution of the Will was not in a sound disposing state of mind by the testator viz. Nagammal. Aggrieved by the reversing judgment passed by the first appellate Court, the present second appeal has been brought by the plaintiff/appellant. 8. At the time of admitting the second appeal, this Court framed the following substantial questions of law:- "1. In the facts and circumstances of the case, whether the lower appellate Court is right in holding that the execution of the registered Will Ex.A8 is not proved overlooking the deposition of the scribe as PW.2 which has been taken as basis by the trial Court for granting the decree? 2. In the facts and circumstances of the case, whether the lower appellate Court is right in giving a finding that suit for partition alone should be a proper remedy and not a suit for declaration?" 9. 2. In the facts and circumstances of the case, whether the lower appellate Court is right in giving a finding that suit for partition alone should be a proper remedy and not a suit for declaration?" 9. The learned counsel appearing for the appellant would submit that when the father and mother of the plaintiff and defendant had purchased an extent of 43' x 45' site on 12.7.1956, it is a common knowledge that the plaintiff and defendant, both sons, are entitled to have half share each from the property purchased through sale deed dated 12.7.1956. Further, when the father of both the plaintiff and defendant had executed settlement deed dated 23.9.1976 settling half share in favour of defendant/respondent herein, the mother also by executing another Will dated 4.9.1991 had rightly bequeathed her half share in favour of the plaintiff/appellant, this vital aspect has been completely overlooked by the first appellate Court. Yet another point that was lost sight of the learned first appellate Court, according to the learned counsel appearing for the appellant, is that when the properties of the family having been equally distributed among both the sons, there is no question of raising any suspicion in the execution of the Will dated 4.9.1991, in and by which, the mother of the plaintiff and defendant has given away the suit property only in favour of the plaintiff. In any event, when the property, consisting of 43' x 45', purchased under registered sale deed 12.7.1956 jointly by father and mother of the plaintiff and defendant has been equally distributed to both the plaintiff and defendant, the first appellate Court erroneously reversed the finding of the trial Court by accepting the doubt and suspicion created by the defendant and hence the same should not have been accepted. On the plea of sound and disposing state of mind of Nagammal at the time of executing the registered Will, it was contended by the learned counsel appearing for the appellant that when there was no evidence either oral or documentary produced from the side of the respondent/defendant to take a contrary inference against the plaintiff or against the execution of the Will, it is not open to the learned first appellate Court to take a totally unwarranted inference against the plaintiff or against the execution of the Will in the absence of aceptable evidence to show that on the date of the Will in favour of the plaintiff/appellant the mother was not in a sound disposing state of mind. Per contra, the learned Senior Counsel appearing for the respondent would submit that the disputed Will, said to have been executed by the mother of both parties, cannot be considered as a valid Will since the ingredients mentioned under Section 63 of the Indian Succession Act have not been properly complied with. 10. The learned first appellate Court, to hold the execution of registered Will dated 4.9.1991 as unproved, has simply based its conclusion only on insignificant and irrelevant evidence. When the father and mother of both the plaintiff and defendant had purchased an extent of 43' x 45' site on 12.7.1956, the father gifted his ½ share on the western portion of the suit property in favour of his eldest son defendant. Having gifted ½ share of 43' x 45' site, the remaining half portion left with mother, has been given away by registered Will dated 4.9.1991 in favour of another son plaintiff/appellant herein. But, in the Will, mistakenly the extent is mentioned as 22 ½ ' x 21 ½'. However, when PW.2 scribe and PW.3 attestor of the registered Will have proved the execution of the Will by coming to the Court stating that the mother of both the plaintiff and defendant has executed the Will in a sound disposing state of mind, the learned first appellate Court forgetting for a moment that the mother of plaintiff and defendant has given the extent of suit property as 22 ½ ' x 21 ½ ' instead of 22 ½' x 45' and therefore it goes to show the unsound disposing state of mind of the testator. This conclusion is not legally sustainable for the reason that P.W.2 scribe and PW.3 attestor of the registered Will have come to the Court and deposed in support of the plaintiff that only on the instruction given by Nagammal, mother of both the plaintiff and defendant, the scribe PW.2 has prepared the Will and thereafter the attestor also deposed clearly that only in the presence of him, the testator has signed the Will and thereafter the same was registered. These two living witnesses squarely fulfil the compliance of Section 63 of the Indian Succession Act for proper execution of the Will dated 4.9.1991. Accordingly, the first substantial question of law is answered against the Respondent. 11. It is settled law that when there is a conflict between the extent of land and description of the property, the correct description of the property given in the document alone will prevail over the extent. This view is well supported by a judgment of this Court rendered in THE CHURCH OF SOUTH INDIA TRUST ASSOCIATION THROUGH ITS POWER OF ATTORNEY AGENTS REV. C.E.SOUNDIRARAJ AND ANOTHER VS. RAJA AMBROSE (DIED) AND ANOTHER. "6. The principle of construction grants made under instruments in writing seems to be now well-settled not only in this country, but in many other systems as well. The principle accords with common sense and might be stated, broadly, thus: The subject-matter of the grant would depend on the intention of the parties as expressed in the relative conveyance deed. Where the deed sets out the extent and measurements correctly, there can be no difficulty in determining the subject-matter of the grant. But where no measurements are given or the extent mentioned in the deed is either vague or is only a rough and ready approximation, one has to look to other indications in the deed in order to fix the identity of the property which is the subject of the grant. If the deed in question sets out the boundaries of the property conveyed, then these boundaries will have to be accepted as a clear reflection of the intention of the grantor and they will conclude not only the exact positioning of the property conveyed, but also its true extent. If the deed in question sets out the boundaries of the property conveyed, then these boundaries will have to be accepted as a clear reflection of the intention of the grantor and they will conclude not only the exact positioning of the property conveyed, but also its true extent. The boundaries given in the deed will also, in such cases, prevail over the measurements given in the deed, if these are given as approximations." This ratio is reiterated by a Division Bench of this Court in KANNU REDDIAR V. T. PALANIRAJAN AND FOUR OTHERS (1995 (2) LW 769) and the same is extracted hereunder: "It is well established general principles of law that the boundary descriptions shall prevail over survey number, extent, etc., where there is conflict." In view of the above principle, if we look at the case of the plaintiff, when there has been a correct description of the suit property given in the Will, the learned first appellate Court unnecessarily ignoring the evidence of P.W.2 and P.W.3 has erroneously reversed the well reasoned and correct conclusion reached by the trial Court contrary to the well settled legal position. In this context it is useful to refer to the decision of the Hon'ble Apex Court rendered in GIRIJA DATT SINGH VS. GANGOTRI DATT SINGH ( AIR 1955 SC 346 ) wherein it is held that in order to prove the due attestation of the will the propounder of the will has to prove that the 'A' and 'B' two witnesses saw the testator sign the Will and they themselves signed the same in the presence of the testator. In this case, by examining both the scribe and the attestor of the registered will, the execution of the will has been proved. Therefore, the first substantial question of law is answered in favour of the appellant. 12. Section 96 of the Civil Procedure Code mandates that the first appeal is a valuable right of the appellant. Therefore, all the questions of fact and law decided by the trial Court being open for consideration by the first appellate Court, a full dressed hearing should be given by the first appellate Court on all the issues tried and decided by the Trial Court. Therefore, all the questions of fact and law decided by the trial Court being open for consideration by the first appellate Court, a full dressed hearing should be given by the first appellate Court on all the issues tried and decided by the Trial Court. But in the present case, the reason as found in the impugned judgment does not disclose that the learned first appellate Court has re-appreciated the entire evidence to come to a different conclusion from the trial Court. Therefore in my considered opinion, the first appellate Court, without adverting to the evidence of PW.2 and PW.3 has given an improper finding that suit for partition alone should be a proper remedy, hence, I hold that the same is uncalled for. Accordingly, the second substantial question of law is also answered against the appellant. 13. Besides, the correct facts and issue raised by the parties in their pleading have not been properly addressed by the first appellate Court. When Iyyavu Boyan and Nagammal had jointly purchased a vacant site of an extent of 43' east west and 45' north south, the father settled his half share of the property having 43' east west and 45' north south in favour of his elder son Subramanian, the defendant as per settlement deed 23.9.1976. Admittedly, the other half share belonging to Nagammal, had been bequeathed by Will dated 4.9.1991 in favour of her younger son, the plaintiff/appellant herein. This clearly shows the intention of the testator to bequeath 21 ½' east west and north south 45' and the plaintiff/appellant also has been in possession and enjoyment of the suit property right from the date of execution of the Will. Moreover, if the testator has mentioned in the Will that she has bequeathed only the remaining half share on the south, the defendant could very well set up a case that he was given more than half share by way of settlement deed by his father. As it is not so, the defendant cannot trespass into the plaintiff/appellant's suit property by taking advantage of the measurement wrongly mentioned as 22 ½' instead of 45'. 14. In view of the above reasons given, the first appellate Court has drawn totally a wrong inference from the facts by applying the law erroneously. 15. In the result, the second appeal is allowed. 14. In view of the above reasons given, the first appellate Court has drawn totally a wrong inference from the facts by applying the law erroneously. 15. In the result, the second appeal is allowed. The impugned judgment and decree of the first appellate Court are set aside and the judgment and decree of the trial Court are restored. However, there is no order as to costs.