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2014 DIGILAW 2263 (MAD)

Kolandaivel v. Valliammal

2014-07-30

T.MATHIVANAN

body2014
Judgment : S.A.No.156 of 2001:- 1. Challenge is made in this memorandum of second appeal to the judgment and decree, dated 30.11.2000 and made in A.S.No.129 of 1996 on the file of the learned Subordinate Judge, Gobichettipalayam, reversing the judgment and decree, dated 10.10.1996 and made in O.S.No.194 of 1987 on the file of the learned District Munsif, Gobichettipalayam. S.A.No.157 of 2001:- 2. Challenge is made in this memorandum of second appeal to the judgment and decree, dated 30.11.2000 and made in A.S.No.23 of 1987 on the file of the learned Subordinate Judge, Gobichettipalayam, confirming the judgment and decree, dated 10.10.1996 and made in O.S.No.201 of 1987 on the file of the learned District Munsif, Gobichettipalayam. 3. Both the second appeals have been arising out of the common judgment, dated 30.11.2000 and made in A.S.No.129 of 1996 and A.S.No.23 of 1997. 4. With the parties to the appeal as well as the subject matter in issue are common in nature, both the appeals have been consolidated together and disposed of in this common judgment. 5. For easy reference and also for the sake of convenience, the plaintiffs and the defendants in the suit in O.S.No.194 of 1987 may hereinafter be referred to as such without any change in their legal character wherever the context so require. 6. The first plaintiff Valliammal claims that she is the legally wedded wife of one Karuppa Moopan. The first defendant Karupayal @ Karupakkal also claims that she is the wife of the said Karuppa Moopan. 7. Both the ladies claim right and interest over the suit property and apart from this, during the pendency of the suit, it is alleged by the defendants 2 to 4 in O.S.No.194 of 1987 that the first defendant had executed a Will bequeathing the suit property in their favour and therefore, they have also claimed right over the suit property. 8. Under these circumstances, the first plaintiff had filed the suit in O.S.No.194 of 1987 seeking the relief of declaration and perpetual injunction in respect of the suit property. 9. The first defendant (since deceased) had also filed another suit in O.S.No.201 of 1987 seeking the relief of permanent injunction as against the first plaintiff in respect of the suit second item. COMMON FACTS IN BRIEF:- 10. 9. The first defendant (since deceased) had also filed another suit in O.S.No.201 of 1987 seeking the relief of permanent injunction as against the first plaintiff in respect of the suit second item. COMMON FACTS IN BRIEF:- 10. The first plaintiff claimed that she is the legally wedded wife of Karuppa Moopan and their marriage was solemnised 20 years ago. During the wedlock, she had begotten the second plaintiff, who is the minor daughter born on 8.4.1978. 11. Ever since from the date of marriage, she had been living along with Karuppa Moopan under the same roof and her husband Karuppa Moopan had died on 6.1.1987 leaving behind the plaintiffs 1 and 2 to succeed his estate and as such they are the legal heirs of the deceased Karuppa Moopan in accordance with provisions of the Hindu Succession Act, 1956. 12. The first defendant (since deceased), who is the plaintiff in O.S.No.201 of 1987, claims to be the wife of Karuppa Moopan. She belongs to Gounder Community and according to the first plaintiff, the first defendant Karuppayal @ Karuppakkal was originally given in marriage to one Kumarappa Gounder and their marriage is still subsisting and therefore, her adulterous life with Karuppa Moopan will not give her any legal status. 13. The first plaintiff has also contended that for the illicit connection of Karuppayal @ Karuppakkal with Karuppa Moopan, she was rewarded by Karuppa Moopan by depositing a sizeable amount in Canara Bank during his life time and therefore, she cannot claim maintenance out of the estate of the deceased paramour as his death took place only after coming into force of the Hindu Adoption and Maintenance Act, 1956. 14. The first plaintiff Valliammal has also claimed that the first defendant Karuppayal @ Karuppakkal is in wrongful possession of a portion of the property, i.e., second item of the suit property. 15. The defendants 2 to 4 are the brother's children of Karuppa Moopan and the deceased Karuppa Moopan had never adopted them as his children. 14. The first plaintiff Valliammal has also claimed that the first defendant Karuppayal @ Karuppakkal is in wrongful possession of a portion of the property, i.e., second item of the suit property. 15. The defendants 2 to 4 are the brother's children of Karuppa Moopan and the deceased Karuppa Moopan had never adopted them as his children. Hence, the first plaintiff Valliammal along with her minor daughter Sumathi happened to file the suit in O.S.No.194 of 1987 seeking the relief of declaration to declare that they are the absolute owners of the suit property and also for granting permanent injunction as against the defendants from interfering with their peaceful possession and enjoyment of the suit property and also for recovery of possession by directing the first defendant Karuppayal @ Karuppakkal to vacate and deliver the vacant possession of the second item of the suit property. 16. The first defendant Karuppayal @ Karuppakkal in her written statement has stated that the plaintiffs 1 and 2 are not the legal heirs of the deceased Karuppa Moopan and that the deceased Karuppa Moopan had deposited money in her name during his life time. 17. According to the first defendant Karuppayal @ Karuppakkal, the marriage between her and the deceased Karuppa Moopan was performed as per the rites and customs prevailing in their community and she had been living together with the deceased Karuppa Moopan till his death. 18. She would contend further that in the fixed deposit receipts, she had been described as the wife of Karuppa Moopan, but unfortunately, she got no issues through Karuppa Moopan. 19. She has also contended that after the death of Karuppa Moopan, she became the absolute owner of the property and that the plaintiffs 1 and 2 are utter strangers and as such they could not claim any right or interest over the suit properties. 20. She has contended further that when the plaintiffs were trying to trespass into the suit properties along with their henchmen, she happened to file the suit in O.S.No.201 of 1987 for permanent injunction. It is also her case that the plaintiffs are not the owners of the suit property and that the defendants 2 to 4 setting up themselves to be the adopted children of the deceased Karuppa Moopan, which is nothing but a rank falsehood. 21. It is also her case that the plaintiffs are not the owners of the suit property and that the defendants 2 to 4 setting up themselves to be the adopted children of the deceased Karuppa Moopan, which is nothing but a rank falsehood. 21. During the pendency of the suits in O.S.No.194 of 1987 as well as 201 of 1987, Karuppayal @ Karuppakkal. 22. When the suit was left unrepresented, the defendants 2 to 4 in O.S.No.194 of 1987 being the brother's children of the deceased Karuppa Moopan had filed an application in I.A.No.677 of 1990 to bring them on record as the legal representatives of the deceased Karuppayal @ Karuppakkal. 23. Despite the strenuous contest made by the plaintiffs 1 and 2, their application was allowed on 3.1.1991 and in consequence thereof, they came to be impleaded as the plaintiffs 2 to 4 in the suit in O.S.No.201 of 1987. Subsequently, in pursuant to the order, dated 3.1.1991 and made in I.A.No.677 of 1990, the paragraph 5(a) was inserted in the plaint in O.S.No.201 of 1987 24. They being the defendants 2 to 4 in the suit in O.S.NO.194 of 1987 had filed their additional written statement and the plaintiffs had also filed their written statement in O.S.No.201 of 1987. After getting inclusion of paragraph 5a' in the plaint in O.S.NO.201 of 1987, the defendants 2 to 4 have claimed that when the first defendant Karuppayal @ Karuppakkal, was in a sound and disposing state of mind had executed a Will, dated 11.6.1990 in their favour bequeathing the entire suit properties, in their favour. 25. They have also claimed that after the death of the first defendant Karuppayal @ Karuppakkal, they had inherited the suit properties and therefore, they are entitled to the same. 26. Necessary issues based on the pleadings of the parties to the suit were formulated by the trial court in both the suits and the evidence in common was recorded in O.S.No.194 of 1987. 27. The first plaintiff Valliammal was examined as P.W.1 and three more witnesses, viz., P.Ws.2 to 4 were examined on her part and during the course of their examination Exs.A1 to A22 were marked. On the other hand, the second defendant was examined as D.W.1 and two more witnesses were examined as D.Ws.2 and 3 respectively and during the course of their examination Exs.B1 to 31 were marked. 28. On the other hand, the second defendant was examined as D.W.1 and two more witnesses were examined as D.Ws.2 and 3 respectively and during the course of their examination Exs.B1 to 31 were marked. 28. On evaluating the evidences both oral and documentary, the learned trial Judge had proceeded to dismiss both the suits in O.S.No.194 of 1987 and 201 of 1987 on 10.10.1996. 29. Challenging the common judgment, dated 10.10.1996, the plaintiffs in the suit in O.S.No.194 of 1987 had preferred an appeal in A.S.No.129 of 1996 and the defendants 2 to 4 in O.S.No.194 of 1987 being the plaintiffs in O.S.No.201 of 1987 had also preferred an appeal in A.S.No.23 of 1997 on the file of the learned Subordinate Judge, Gobichettipalayam. 30. After hearing both sides and on appreciation of the evidences, the learned Subordinate Judge, had proceeded to allow the appeal in A.S.No.129 of 1996 reversing the judgment of the trial Court, which resulted in passing of the decree in favour of the plaintiffs 1 and 2 in O.S.No.194 of 1987 and he had also dismissed the appeal filed by the defendants 2 to 4/plaintiffs 2 to 4 in O.S.No.201 of 1987 confirming the judgment of dismissal in O.S.No.201 of 1987 passed by the trial court. 31. Challenging the legality of the judgment and decree passed by the lower appellate court in both the appeals, the defendants 2 to 4 in O.S.No.194 of 1987 and the plaintiffs in O.S.No.201 of 1987 have now preferred these second appeals. 32. The second appeal in S.A.No.156 of 2001 (O.S.No.194 of 1987) came to be admitted on the following substantial question of law:- a. Whether the lower appellate court is right in declaring the first respondent as wife of Karuppa Moopan in the absence of any evidence whatsoever and is not the judgment and decree vitiated in this regard? 33. The second appeal in S.A.No.157 of 2001 (O.S.No.201 of 1987) came to be admitted on the following two substantial questions of law:- a. Whether the judgment of the Courts below is vitiated by non consideration of material events before it? b. Whether the judgment and decree suffers from following the interference arrived at in another appeal without applying the correct principles of law in deciding the issues involved in the present suit? 34. b. Whether the judgment and decree suffers from following the interference arrived at in another appeal without applying the correct principles of law in deciding the issues involved in the present suit? 34. Heard Mr.S.V.Jayaraman, learned Senior Counsel appearing for the defendants 2 to 4 (O.S.No.194 of 1987)/plaintiffs 2 to 4 in O.S.No.201 of 1987 and Mr.N. Manokaran, learned counsel appearing for the plaintiffs 1 and 2 (O.S.No.194 of 1987)/defendants (O.S.No.201 of 1987). 35. In the opening paragraphs of the judgment, this Court has observed that both the women, viz., first plaintiff Valliammal and the deceased first defendant Karuppayal @ Karuppakkal have claimed that they are the wives of Karuppa Moopan. 36. As rightly argued by Mr.S.V. Jayaraman, learned Senior Counsel, if the factum of marriage is not established by the above said two women, their respective marital status would fail. 37. The suit in O.S.No.194 of 1987 is filed in respect of two items of properties. With reference to both the items, the plaintiffs 1 and 2 have claimed declaration to declare that they are the absolute owners of the property and in respect of the second item, they are claiming recovery of possession. According to them, the second item was under the wrongful possession of the deceased first defendant and they have also sought for permanent injunction as against the defendants. 38. In so far as the suit in O.S.No.201 of 1987 is concerned, as afore stated, it was originally filed by Karuppayal @ Karuppakkal, when she was alive, for permanent injunction in respect of the second item of the suit property as against the plaintiffs 1 and 2. After her death and subsequent to the impleadment of D2 to D4 (plaintiffs 2 to 4 in O.S.No.201 of 1987) excepting the inclusion of para 5a, the prayer in the suit in O.S.No.201 of 1987 has not been amended. 39. To substantiate her claim, the deceased Karuppayal @ Karuppakkal, the original plaintiff in O.S.No.201 of 1987 had not gone to the box and without proving her case, she breathed last. Her marital status with Karuppa Moopan and her exclusive right over the suit property, which were originally owned by Karuppa Moopan could not be spoken to by the defendants 2 to 4. 40. Admittedly, they are the brother's children of the deceased Karuppa Moopan. Her marital status with Karuppa Moopan and her exclusive right over the suit property, which were originally owned by Karuppa Moopan could not be spoken to by the defendants 2 to 4. 40. Admittedly, they are the brother's children of the deceased Karuppa Moopan. It is alleged that since they had also been making arrangements along with Karuppayal @ Karuppakkal, when she was alive, to trespass into the suit property, the plaintiffs 1 and 2 happened to file the suit in O.S.No.194 of 1987 for declaration and to restrain them from interfering with the peaceful possession and enjoyment of the suit properties. 41. It is, therefore, made clear that for continuing suit filed by Karuppayal @ Karuppakkal as against the plaintiffs 1 and 2, the defendants 2 to 4 got themselves impleaded in that suit and nothing beyond that. It is to be scrutinised as to whether they are having competency as well as cause of action to maintain the suit. 42. It is also to be noted that the plaintiffs have never stated in the plaint that the defendants 2 to 4 have claimed right over the suit property. It is also significant to note here that the deceased Karuppayal @ Karuppakkal while filing her written statement in the suit in O.S.No.194 of 1987, in the last three lines of paragraph No.4, she has stated that the defendants 2 to 4 (plaintiffs 2 to 4 in O.S.No.201 of 1987) setting up themselves to be the adopted children of the deceased Karuppa Moopan, which is nothing but a rank falsehood. 43. Though the sentences are stray in nature, these sentences shall have to be read in harmonious with the covenants of alleged Will purported to have been executed by the deceased Karuppayal @ Karuppakkal when she was alive. When she herself had stated in her written statement to the suit in O.S.No.194 of 1987 that “the defendants 2 to 4 setting up themselves to be the adopted children of the deceased Karuppa Moopan, which is nothing but a rank falsehood,” she would not have executed a Will, dated 11.6.1990 as propounded by the defendants 2 to 4 in their favour bequeathing the entire properties. 44. At the first instance, the court would say that the Will itself is left un-proved as it is shrouded with suspicious circumstances. 45. 44. At the first instance, the court would say that the Will itself is left un-proved as it is shrouded with suspicious circumstances. 45. It is also to be noted that the alleged Will Ex.B28, dated 11.6.1990 is said to have been executed by the deceased Karuppayal @ Karuppakkal during the pendency of the suit. If it is so, as argued by Mr.N.Manokaran, the factum of execution of Will would have been disclosed by her before the trial Court. 46. With regard to the marital status of the first plaintiff Valliammal as well as the deceased first defendant Karuppayal @ Karuppakkal, Mr. S.V. Jayaraman, learned Senior Counsel has pointed out that the trial court was totally in chaos and confusion, and therefore, it could not come to a definite conclusion as to who is the wife of the deceased Karuppa Moopan. 47. As pointed out by Mr.S.V. Jayaraman, in one place, the trial Court has stated in its judgment that Karuppayal @ Karuppakkal is the wife of the deceased Karuppa Moopan and in another place, it is stated that Valliammal is the wife of Karuppa Moopan, which resulted in total dismissal of both the suits. 48. He has adverted to that despite the first plaintiff Valliammal had claimed that her marriage was solemnised with the deceased Karuppa Moopan about 20 years back, she had miserably failed to specify the date and place of their marriage in the plaint and he has also argued that the claim of the first plaintiff that she is the legally wedded wife of the deceased Karuppa Moopan had not been established. 49. He has also maintained that P.W.2 being the relative of the deceased Karuppayal @ Karuppakkal had spoken to against her on account of enmity and therefore, his evidence need not be taken into account. 50. Mr.S.V. Jayaraman, while advancing his arguments has drawn the attention of this Court to the last portion of the judgment of the trial court in paragraph 13 at page 6. 51. In this portion, the learned trial Judge has stated that though there is no evidence to prove the alleged marriage said to have been solemnised between the first plaintiff and the deceased Karuppa Moopan, it is explicit that the first plaintiff had been living under the capacity of his wife. 51. In this portion, the learned trial Judge has stated that though there is no evidence to prove the alleged marriage said to have been solemnised between the first plaintiff and the deceased Karuppa Moopan, it is explicit that the first plaintiff had been living under the capacity of his wife. He has also observed that it is not the case of the defendants that there was illicit relationship between the first plaintiff and the deceased Karuppa Moopan and due to such illicit relationship, the second plaintiff was born to them. 52. Finally, he has concluded that the marriage was solemnised between the first plaintiff and the deceased Karuppa Moopan and during their wedlock the second plaintiff was born to them. In this regard, Mr.S.V. Jayaraman has contended that this finding could not be taken advantage of the case of the defendants. It may be relevant to note here that this finding is absolutely in favour of the plaintiffs. 53. Even in paragraph 14 also, the learned trial Judge has given the same finding and even in spite of this, he has proceeded to dismiss the suit. 54. In Paragraph 14, the learned trial Judge has found that though the first defendant deceased Karuppayal @ Karuppakkal was said to be the wife of Kumarappa Gounder, since no evidence was available it could not be heard to say that the deceased first defendant was the wife of Kumarappa Gounder and he has also concluded that since the first defendant had been living with Karuppa Moopan for a long time, which was proved by the documentary evidences, and though the marriage was not established, it could be presumed that they were only living as husband and wife. 55. It is inevitable to note here that the judgment cannot be pronounced on mere surmise and gesture and it must be only on the basis of the evidences both oral and documentary and not otherwise. 56. On the other hand, Mr.N.Manokaran, has adverted to that the first plaintiff Valliammal is only the legally wedded wife of the deceased Karuppa Moopan and that the first defendant deceased Karuppayal @ Karuppakkal was the concubine of the deceased Karuppa Moopan. 57. He has also argued that the status of Valliammal is not in dispute and that the status of Karuppayal @ Karuppakkal alone is in dispute. 58. 57. He has also argued that the status of Valliammal is not in dispute and that the status of Karuppayal @ Karuppakkal alone is in dispute. 58. He would further argue that if the contention of the defendants is accepted, it would be construed that the court is indirectly backing and supporting the immorality and it would also send a wrong signal to the society. 59. He has also questioned the genesis of Ex.B.28 Will, dated 11.6.1990, which is propounded by the defendants 2 to 4. In this connection, he would submit that when the deceased Karuppayal @ Karuppakkal is not having any locus standi to execute the Will, the defendants 2 to 4 could not claim that they have inherited the suit property through the invalid Will. 60. He has also added that when the properties are subjected to lis and pending adjudication before the Court of law, how the Will could have been executed by the first defendant, who was not having any substance of right over the suit property. 61. Besides this, the maintainability of the suit in O.S.No.201 of 1987 was also questioned by Mr.N.Manokaran saying that the suit was originally filed by Karuppayal @ Karuppakkal for bare injunction and after her demise, the cause of action did not survive and therefore, the defendants 2 to 4 were not entitled to continue the suit by stepping their legs into the shoes of the deceased Karuppayal @ Karuppakkal. 62. He has also argued that pending the suit the alleged Will Ex.B.28 was said to have been executed and there was no pleading in this connection in the plaint and therefore, the Will under Ex.B28 ought not to have been admitted in evidence before the trial Court. 63. As observed herein before, the first defendant Karuppayal @ Karuppakkal had not gone to the box to substantiate her case. 64. Merely showing the first defendant as the wife of the deceased Karuppa Moopan in the bank documents such as fixed deposit receipts and bank passbook, is not sufficient either to presume or to infer that she is the legally wedded wife of the deceased Karuppa Moopan. 65. On the other hand, Ex.A1 copy of the birth certificate of the second plaintiff would go to substantiate the fact that she was born to the deceased Karuppa Moopan through the first plaintiff, this has not been denied. 66. 65. On the other hand, Ex.A1 copy of the birth certificate of the second plaintiff would go to substantiate the fact that she was born to the deceased Karuppa Moopan through the first plaintiff, this has not been denied. 66. The trial in both the suits was commenced after the demise of the first defendant Karuppayal @ Karuppakkal. When the plaintiff was examined as P.W.1, she was not alive and therefore, the defendants side were not able to confront the first plaintiff as there was lacking of their competency because after the demise of Karuppayal @ Karuppakkal no cause of action was in existence for the defendants 2 to 4 to continue the litigation. 67. As per the case of the plaintiffs, Karuppayal @ Karuppakkal was the concubine of Karuppa Moopan and not the wife and therefore, she was compensated by depositing some amount in the bank. 68. Mere living with a woman without proving their marriage will not give any presumption that the woman would be the legally wedded wife of that man. 69. In her cross examination, P.W.1 has stated that Karuppayal @ Karuppakkal had lived in a shed along with karuppa Moopan till her death. She has also deposed that Karuppa Moopan had passed away in a hospital at Tiruppur, while he was on treatment and that she had been assisting him in all the ways and therefore, the so-called living of Karuppayal @ Karuppakkal with Karuppa Moopan could not be attached with any sanctity much less legal status. 70. It is pertinent to note here that P.W.1 Valliammal in her cross examination has stated that despite her severe warning her husband Karuppa Moopan had failed to mind her advise and continued to have illicit relationship with Karuppayal @ Karuppakkal. However, there was no misunderstanding between her and Karuppa Moopan. 71. Valliammal has also stated that originally Karuppayal @ Karuppakkal was given in marriage to one Kumarappa Gounder at Thuraiampalayam. When Karuppayal @ Karuppakkal was staying along with the deceased Karuppa Moopan, Karuppayal @ Karuppakkal's husband Kumarappa Gounder was in the habit of visiting Karuppayal @ Karuppakkal frequently in the capacity of her husband. 72. While she was living as the wife of Kumarappa Gounder, she was also living as the concubine of Karuppa Moopan, simultaneously. The evidence of P.W.1 Valliammal has been supported by the evidence of P.W.2. 72. While she was living as the wife of Kumarappa Gounder, she was also living as the concubine of Karuppa Moopan, simultaneously. The evidence of P.W.1 Valliammal has been supported by the evidence of P.W.2. No doubt, P.W.2 is closely related with Karuppayal @ Karuppakkal. He has specifically stated that Karuppayal @ Karuppakkal was originally given in marriage to one Kumarappa Gounder and now he is living in his native place. It is significant to note here that the marriage between Karuppayal @ Karuppakkal and Kumarappa Gounder has not been dissolved by any court of law. 73. According to Valliammal, the marriage between Karuppayal @ Karuppakkal and Kumarappa Gounder is still subsisting and when such being the case, a question is arisen for the consideration of this Court that when the marriage of Karuppayal @ Karuppakkal with her original husband is subsisting, how can she be treated as the legally wedded wife of Karupa Moopan? 74. P.W.2 also claims that Karuppayal @ Karuppakkal is his aunt. Therefore, it is brought into light that P.W.2 is not a stranger and closely related to Karuppayal @ Karuppakkal and he has competency to speak her antecedents and this Court places trust upon the evidence of P.W.2. 75. Even P.W.3 also supports the testimonies of P.Ws.1 and 2 saying that the deceased Karuppayal @ Karuppakkal's husband's name is Kumarappa Gounder and that she is not the wife of Karuppa Moopan. 76. P.W.3 has also deposed that the deceased first defendant was not having any issue and she had not adopted anybody else much less the defendants 2 to 4. He has also ratified that no marriage was solemnised between Karuppa Moopan and Karuppayal @ Karuppakkal. 77. It may also be relevant to note here that Karuppayal @ Karuppakkal's husband Kumarappa Gounder is none other than P.W.3's cousin and therefore, the testinonies of P.Ws.2 and 3 cannot be simply brushed aside. 78. P.W.3 has further deposed that Karuppayal @ Karuppakkal was originally given in marriage to Kumarappa Gounder and after their marriage they lived together for about 30 years and thereafter, Karuppayal @ Karuppakkal was having an illicit relationship with several persons and despite the warning given by Kumarappa Gounder, Karuppayal @ Karuppakkal had not mend her way and therefore, it is absolutely wrong to say that she is the wife of Karuppa Moopan. 79. 79. On the other hand, the evidence given by D.W.1 Kolandaivel, who is the second defendant, cannot be relied upon because he is not having any locus standi to give evidence in the absence of Karuppayal @ Karuppakkal. 80. As adumbrated supra, in her written statement itself, the first defendant has categorically stated that “the defendants 2 to 4 setting up themselves to be the adopted children of the deceased Karuppa Moopan, which is nothing but a rank falsehood.” 81. When such being the case, the defendants 2 to 4 cannot claim themselves to be the adopted children of Karuppa Moopan. 82. This court finds that the suspicious circumstances shrouded around the Will under Ex.B.28, dated 11.6.1990 has not been dispelled by the defendants 2 to 4 and as argued by N.Manokaran, learned counsel appearing for the plaintiffs, since the suit properties were under adjudication before the court of law and during the pendency of lis, this Will could not have been executed in favour of the defendants 2 to 4 by the deceased Karuppayal @ Karuppakkal when she herself had stated that they were total strangers and therefore, the suspicious circumstances surrounded around the Will under Ex.B.28 have not been satisfactorily removed by the defendants. 83. Even if it is presumed without admitting that the Will under Ex.B.28 was executed by the deceased first defendant in favour of the defendants 2 to 4 bequeathing the entire property, this Court would like to place it on record that when the deceased first defendant herself is having no right and title over the suit property, how she could have bequeathed the entire properties in favour of the defendants 2 to 4. But this question has not been answered by the defendants. 84. The documentary evidences adduced on behalf of the defendants cannot give better right and title to the defendants 2 to 4 to maintain the suit in O.S.No.201 of 1987. 85. Keeping in view of the above facts, this Court finds that the lower appellate court has correctly found that the plaintiffs 1 and 2 are the absolute owners of the property and that they are also entitled to have the recovery of possession of the suit item No.2. Accordingly, the substantial questions formulated above are answered in favour of the respondents. Accordingly, the substantial questions formulated above are answered in favour of the respondents. In the result, the second appeals are dismissed and the judgment and decree of the lower appellate court are confirmed. The decree and judgment of the trial court are set aside. However, there will be no order as to costs.