Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 1710 (MAD)

Maarakkal v. R. Subbaiyan

2018-06-04

T.RAVINDRAN

body2018
JUDGMENT : 1. Challenge in this second appeal is made to the judgment and decree dated 31.03.2003 passed in A.S.No.113 of 2002 on the file of the I Additional District Judge cum Chief Judicial Magistrate Court, Coimbatore, reversing the judgment and decree dated 22.02.2002 passed in O.S.No.1432 of 1990 on the file of the Subordinate Court, Coimbatore. 2. The parties are referred to as per the rankings in the trial court. 3. Suit for partition. 4. The case of the plaintiff in brief is that the properties described in the plaint schedule belonging to the joint family consisting of the plaintiff and his only son, the defendant and the plaintiff has five daughters and all of them had been married long ago and living with their respective husbands and the plaintiff and his wife are being taken care of by Marrakkal, the Power of attorney agent and the plaintiff has been completely neglected by his son, the defendant and the plaintiff is living in the garden shed with his wife and but for the help given by his daughter, the plaintiff would not have sustained and hence the plaintiff issued a lawyer's notice to the defendant on 02.08.1990 declaring his unilateral intention to get himself divided in status from the defendant and the said notice was received by the defendant and hence division in status has become complete in law. The defendant sent a reply on 13.08.1990 containing false and untenable allegations and it is false to state that the plaintiff is a tool for in the hands of his daughter Marrakkal and her husband and it is false to state that there has been a Panchayath in the village in the year 1977 pursuant to which the plaintiff has orally relinquished the right, title and interest in respect of the suit properties in favour of the defendant and the abovesaid allegations are false, untenable and cannot be accepted and hence left with no other alternative, according to the plaintiff, he has been necessitated to lay the suit for partition of his equal share in the suit properties and for other reliefs. During the pendency of the suit, the first plaintiff has died on 09.08.1992 leaving behind a Will dated 25.07.1990 bequeathing the right in the suit properties, which he had, in favour of the second plaintiff Marrakkal and thereby Marrakkal being the legatee, is entitled to proceed with the suit and obtain the necessary reliefs sought for and the abovesaid Will dated 25.07.1990 had been executed by the deceased first plaintiff in a sound and disposing state of mind on his own volition and binding on all concerned and hence the suit. 5. The case of the defendant in brief is that the suit laid by the plaintiff is not maintainable either in law or on facts. It is false to state that the suit properties belonged to the joint family consisting of the plaintiff and his son, the defendant. 5. The case of the defendant in brief is that the suit laid by the plaintiff is not maintainable either in law or on facts. It is false to state that the suit properties belonged to the joint family consisting of the plaintiff and his son, the defendant. The suit properties were joint family properties before 1977 and in 1977, there was an oral family arrangement between the plaintiff and the defendant whereunder the plaintiff had relinquished all his rights in respect of the suit properties in favour of the defendant and it is true that the plaintiff has five daughters and they are living with their husband after marriage and the defendant had been cultivating the lands along with the plaintiff and after marriage, the defendant took over the entire affairs of the family and managing the suit properties and the daughters were given in marriage by providing goods seers and as above stated in the family arrangement held in the year 1977, the plaintiff relinquished the share in the suit properties in favour of the defendant in the presence of the elders of the village and the family arrangement was done in the presence of Subbae Gowder, Vadavalli, Ramasamy Gowder, Pujangappan, Karaiyan and another Ramasamy Gowder and the above said oral relinquishment was implemented and acted upon and accordingly the patta for the lands was challenged and registered in the name of the defendant exclusively and it is only the defendant, who is in exclusive possession and enjoyment of the suit properties by paying Kists etc., and the plaintiff is not entitled to deal with the suit properties after the relinquishment in the family arrangement and the plaintiff and his wife were allowed to stay in the house in the village and both were amply provided for their maintenance and taken care of by the defendant and it is false to state that, the defendant has denied the food and shelter to the plaintiff and his wife. It is false to state that the plaintiff and his wife were taken care off by Marrakkal, the power of attorney agent and the date when the plaintiff issued notice, the plaintiff has no right or title in the suit properties and hence the plaintiff has no cause of action to institute the suit and the suit is liable to be dismissed. 6. 6. The case of the defendant in the additional written statement is that it is false to state that the deceased first plaintiff executed a Will in favour of Marrakkal, when he was in a sound and disposing state of mind and he was not in a position to execute the Will and the Will projected and has been fabricated and obtained by fraud and is not a genuine document and hence the suit is liable to be dismissed. 7. In the reply statement filed by the second plaintiff, it is averred that the Will dated 25.07.1990 executed by the first plaintiff is a genuine one and executed by him in a sound and disposing state of mind and binding on the defendant and even during the life time of the first plaintiff, he issued a notice dated 02.08.1990 to the defendant declaring his intention to separate from the defendant and to the same, the defendant sent a reply dated 13.08.1990 and hence, the above said Will is binding on all concerned. 8. In support of the plaintiff's case, P.Ws.1 to 3 were examined. Exs.A1 to A5 were marked. On the side of the defendant, D.Ws.1 to 3 were examined. Exs.B1 to B45 were marked. Exs.C1 to C4 were also marked. 9. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial court was pleased to grant the preliminary decree for partition in respect of the suit properties in favour of the second plaintiff as prayed for and the first appellate court, on an appreciation of the materials placed on record, was pleased to set aside the judgment and decree of the trial court by way of allowing the appeal preferred by the defendant, thereby dismissed the suit preferred by the plaintiff. Impugning the same, the present second appeal has been laid. 10. At the time of admission of the second appeal the following substantial question of law was formulated for consideration. “Would not the execution of Ex.A5, the “Will” by the plaintiff/since deceased, which was found to be genuine by the trial court and in the absence of any registered instrument evidencing the release of the plaintiff of his share of the property in favour of the defendant (registration being compulsory), has not the lower appellate court committed an error in law in accepting such an oral release? 11. 11. The deceased first plaintiff is the father of the defendant. The second plaintiff, who has come on record, later by virtue of the Will dated 25.07.1990 alleged to have been executed by the first plaintiff in her favour, is one of the daughters of the deceased first plaintiff. It is found that the deceased first plaintiff had five daughters including the second plaintiff. The abovesaid relationship between the parties is not in dispute. 12. It is admitted that till 1977, the suit properties were the joint family properties belonging to the deceased first plaintiff and the defendant. Now according to the deceased first plaintiff, inasmuch as the defendant had refused to provide sustenance to him and his wife and finding that the joint enjoyment of the suit properties has become impossible, according to the deceased first plaintiff, declaring his intention to get divided, he had sent a notice to the defendant on 02.08.1990 and to the same, the defendant sent a reply on 13.08.1990 containing false and untenable allegations and hence left with no other alternative, according to the deceased first plaintiff, he being represented by his Power of attorney agent Marrakkal, has laid the suit for partition seeking equal share in the suit properties. During the pendency of the suit, the first plaintiff had died and the second plaintiff has come on record on the basis of the Will dated 25.07.1990 said to have been executed in her favour by the deceased first plaintiff. During the pendency of the suit, the first plaintiff had died and the second plaintiff has come on record on the basis of the Will dated 25.07.1990 said to have been executed in her favour by the deceased first plaintiff. 13.The defendant has resisted the plaintiff's suit contending that way back in 1977, in the presence of the Pachayathars, the family arrangement took place between the deceased first plaintiff and the defendant orally and in the said family arrangement, the defendant relinquished all his right, share and interest in the suit properties in favour of the defendant and since then, it is only the defendant, who has been in exclusive possession and enjoyment of the suit properties in his individual capacity and thus, according to the defendant, pursuant to the abovesaid family arrangement , the deceased first plaintiff is not entitled to claim any right or interest in respect of the suit properties and further, according to the defendant, on the date of the issuance of the notice dated 02.08.1990, the first plaintiff was not having any interest in the suit properties and accordingly, the same has been repudiated by the defendant by sending a reply on 13.08.1990 and hence according to the defendant, the deceased first plaintiff is not entitled to claim any share in the suit properties. Further, according to the defendant, the deceased first plaintiff did not execute any Will in favour of Marakkal, the second plaintiff on 21.07.1990 as alleged in the plaint and the said Will is a concorded document and not executed by the deceased first plaintiff and hence not binding upon the defendant and therefore, according to the defendant, on the basis of the above said Will, the second plaintiff is not entitled to lay any claim of right or interest in the suit properties and therefore, the suit is liable to be dismissed. 14. As above noted, till 1977, there is no dispute that the suit properties remained as the joint family properties belonging to both the deceased first plaintiff and the defendant, who are the father and the son. Now, according to the defendant, in the family arrangement orally effected in the presence of the Panchayathars, the deceased first plaintiff has relinquished all his interest and right in respect of the suit properties in favour of the defendant. Now, according to the defendant, in the family arrangement orally effected in the presence of the Panchayathars, the deceased first plaintiff has relinquished all his interest and right in respect of the suit properties in favour of the defendant. To establish the above said oral family arrangement, the defendant has examined one of the Panchayathars in whose presence, the family arrangement has been effected as D.W.3 and D.W.3 in his evidence has deposed that about 25 years ago, the deceased first plaintiff was unable to cultivate the lands and accordingly, the deceased first plaintiff had handed over all the lands and the properties to his son, the defendant and accordingly in the presence of Panchayathars it has been agreed that the deceased first plaintiff and his wife are to stay in the garden house and the defendant has to provide food and money for the maintenance of the deceased first plaintiff and his wife and further according to D.W.3, the said family arrangement was effected in his presence as well as in the presence of Ramasamy, Karaiyan Gounder, another Ramasamy, Subbaiya Gounder and accordingly in the abovesaid Panchayathars, the first plaintiff had relinquished the share and interest in respect of the suit properties in favour of the defendant and the same had been accepted by the defendant and it is only the defendant, who had been maintaining his parents till their demise and since the date of family arrangement, it is only the defendant, who has been in possession and enjoyment of the suit properties exclusively by cultivating the lands etc., Thus, it could be seen from the evidence of D.W.3, that way back in 1977 itself, there has been a family arrangement effected between the deceased first plaintiff and his son, the defendant orally and in the said family arrangement made in the presence of Panchayathars, the deceased first plaintiff had relinquished all his interest in favour of the defendant, in respect of the suit properties, by agreeing to stay in the garden house along with his wife and the defendant had agreed to provide food, shelter and money to his parents till their demise and accordingly had accepted the oral relinquishment effected by the deceased first plaintiff and thus it is seen that, by way of the evidence of D.W.3, which remains unassailable despite being cross examined by the plaintiff, as rightly determined by the first appellate court, it is found that the family arrangement had come to be effected orally in respect of the suit properties between the deceased first plaintiff and his son, defendant as spoken to by D.W.3. 15.The abovesaid oral relinquishment of the interest and right in respect of the suit properties by the deceased first plaintiff in favour of the defendant could also be gathered from the documents marked by the defendant as Exs.B3 to B38 which are the license, Patta and Kist receipts and all these documents stand only in the name of the defendant right from 1978 onwards and accordingly, it could be seen that inasmuch as, by way of oral family arrangement, the deceased first plaintiff had given up his share and interest in respect of the suit properties in favour of the defendant, his only son, thereafter, the same having been implemented and acted upon, thereafter, it is found that the suit properties continue to remain only in the name of the defendant as could be evidenced from Exs.B3 to B38 and accordingly, it is found that the first appellate court is justified in accepting the oral family arrangement and the resultant exclusive possession and enjoyment of the suit properties by the defendant in his own capacity. Inasmuch as the family arrangement had been orally effected between the deceased first plaintiff and the defendant as put forth by the defendant, it is found that no iota of evidence has been projected by the deceased first plaintiff or the second plaintiff to evidence that the first plaintiff has also been in possession and enjoyment of the suit properties even after 1977 onwards. On the other hand, all the documents as seen projected in the matter from 1977 onwards, stand only in the name of the defendant. On the other hand, all the documents as seen projected in the matter from 1977 onwards, stand only in the name of the defendant. If the properties had continued to remain joint till the date of the institution of the suit as rightly put forth by the defendant, the license, patta and the Kist receipts in respect of the suit properties would have remained only in the name of the eldest member of the family namely the deceased first plaintiff and on the other hand, when it is found that all the documents produced in the matter in respect of the suit properties are standing only in the name of the defendant right from 1978 onwards and as above seen, the first plaintiff has not placed any material to hold that he has also been in joint possession and enjoyment of the suit properties even after 1977 onwards, it is found that the family arrangement projected by the defendant has been rightly accepted by the first appellate court. As far as the oral family arrangement effected between the parties, the first appellate court rightly relied upon the decision of the authorities referred to in the judgment whereunder, it has been held that the family arrangement could be effected orally and in such view of the matter, there is no need for registration of the same and accordingly, it is found that the family arrangement projected by the defendant has been established by the defendant as above discussed and accordingly, it is seen that, it is only the defendant, who has exclusive title, interest and right as well as in exclusive possession and enjoyment of the suit properties and in such view of the matter, the claim of the deceased first plaintiff that the suit properties continued to remain as joint on the date of the suit as such cannot be accepted and it is thus found that the deceased first plaintiff himself had no valid cause of action to institute the suit against the defendant for claiming partition. The plea of oral family arrangement is sought to be assailed by pointing out the evidence of D.W.3 made during the course of cross examination on the lines that he had deposed about the deceased first plaintiff having handed over his half share in favour of his son, the defendant, by way of a release deed and they did not deem it fit to register the same. On the basis of the above evidence of D.W.3, it is contended that the family arrangement projected by the defendant is found to be effected by a document and in such view of the matter, it is further argued that the said document not being produced and also not shown to be a registered one as per law, the plea of oral family arrangement projected by the defendant should not be countenanced. However, as rightly argued by the defendant's counsel, considering the evidence of the defendant examined as D.W.1 as well as the evidence of D.W.3 on a whole and conjointly, their evidence adduced both during the chief examination as well as cross examination if read together, it would go to show that the family arrangement pleaded and projected by them has been only effected orally and not by way of a written document. Accordingly, it is found that they had vivdly deposed about the same in their evidence and in such view of the matter, merely from the isolated evidence of D.W.3 during the course of cross examination that the deceased first plaintiff has handed over his half share in the suit properties in favour of his son, by way of a release deed, that by itself in isolation, would not be the basis for holding that the family arrangement projected by the defendant had been effected by a written document. Thus, it is found that the family arrangement pleaded and projected by the defendant as well as spoken to by D.W.3 is found to be made only orally and accordingly, it is found that since then it is only the defendant, who has been in exclusive possession and enjoyment of the suit properties as above discussed and accordingly, it is also noted that not a scrap of paper has been placed by the deceased first plaintiff to evidence that he has also been in possession and enjoyment of the suit properties as the co-owner even after the family arrangement effected during 1977. In the light of the above discussion, I am unable to find any valid reason to interfere with the determination of the first appellate court for upholding the oral family arrangement pleaded, projected and established by the defendant through acceptable and reliable oral and documentary evidence as above pointed out. 16. When the deceased first plaintiff had given up his interest and right in respect of the suit properties in favour of the defendant by way of the oral family arrangement in the year 1977, it is found that, thereafter, the deceased first plaintiff would not be entitled to claim any right or interest in respect of the suit properties. In such view of the matter, the case of the deceased first plaintiff projected through his power of attorney Marrakkal that the deceased first plaintiff sent a notice dated 02.08.1990 declaring his intention to sever from the joint family as such cannot have any legal force, inasmuch as on the date of the said notice, the deceased first plaintiff was not having any right in respect of the suit properties and therefore by virtue of the said notice marked as Ex.A1/B1, the deceased first plaintiff or the second plaintiff cannot be held to have made out a case for claiming a share in the suit properties. Accordingly, it is found that the said notice marked as Ex.A1/B1 has been rightly repudiated by the defendant by sending a reply dated 13.08.1990, which has come to be marked as Ex.A2/B2. Therefore, the claim of the deceased first plaintiff that he has declared his intention to divide from the joint family by the issuance of Ex.A1/B1 notice does not hold water and would not be of useful purpose to uphold his entitlement to claim a share in the suit properties. 17. Therefore, the claim of the deceased first plaintiff that he has declared his intention to divide from the joint family by the issuance of Ex.A1/B1 notice does not hold water and would not be of useful purpose to uphold his entitlement to claim a share in the suit properties. 17. Pending suit, the deceased first plaintiff had died, the power of attorney agent Marrakkal has come to be impleaded as the second plaintiff by virtue of the Will said to have been executed by the deceased first plaintiff in her favour on 25.07.1990 which document has come to be marked as Ex.A5. Ex.A5 is vehemently challenged by the defendant contending that it has been fabricated by the second plaintiff and the same is not a valid document and the deceased first plaintiff is not having the competency to bequeath the interest in respect of the suit properties in favour of the second plaintiff Marrakkal and therefore according to the defendant by virtue of Ex.A5 Will, the second plaintiff would not be entitled to maintain the suit and also claim any share in the suit properties. In the light of the said defence projected by the defendant, it is for the second plaintiff, who has to establish the authenticity of the Will as per law. 18. In this connection, to establish the genuineness of the Will, the second plaintiff has chosen to examine one of the attestors of the Will as P.W.2 and by projecting his evidence, it is contended that Ex.A5 Will has been executed by deceased first plaintiff in favour of the second plaintiff. 19. Ex.A5 Will is not a registered Will. Further, it is found that the second plaintiff's daughter has been given in marriage to the son of P.W.2. It is thus found that P.W.2 is a very close relative of the second plaintiff. Be that as it may, when it is found that on the date of Ex.A5 Will, the deceased first plaintiff himself was not having any legal interest or right in respect of the suit properties, it is found that even assuming for the sake of arguments that the said Will had been executed by him, by virtue of the same, it is found that the second plaintiff would not be entitled to claim any share in the suit properties as put forth. 20. 20. On a perusal of Ex.A5 Will, the document is found to be signed by the first defendant as Rengaiyan. The first defendant has been described as Rengaiya Gounder in the plaint. That apart, if really, the first plaintiff has executed a Will on 25.07.1990 marked as Ex.A5 as rightly put forth, the same would have been referred to by him in the plaint. However, in the plaint, the deceased first plaintiff has not whispered anything about Ex.A5 Will, though, it is claimed to have been executed on 25.07.1990 much prior to the filing of the suit. That apart, on a perusal of Ex.A5 Will, it is found that the deceased first plaintiff is said to have recited that he had instructed his advocate to issue the notice to his son and by virtue of the said notice, he had become a divided member and the joint family members had become divided. As rightly determined by the first appellate court, the alleged notice referred to in Ex.A5 Will said to have been sent by the deceased first plaintiff through his advocate is found to be issued on 02.08.1990 marked as Ex.A1/B1 and when the said notice itself has come to be issued only on 02.08.1990, it does not stand to reason as to how the abovesaid notice could have been referred to by the deceased first plaintiff in the Will said to have been executed by him on 25.07.1990. Accordingly, it is found that the abovesaid aspect of the matter throws a great suspicion in the genuineness of the Will marked as Ex.A5 and the said point has been rightly determined by the first appellate court against the second plaintiff. 21. Further, as rightly determined by the first appellate court in the various documents projected by the defendant, such as the license as well as the sale agreement Ex.B39, the written statement and counter filed by the deceased first plaintiff marked as Exs.B1 and B42 in O.S.No.2092 of 1971 as well as the sale deeds marked as Exs.B44 and B45, all these documents would go to show that the deceased first plaintiff has signed only as Rengaiya Gounder and not as Rengaiyan as found in Ex.A5 Will. With reference to the same, the abovesaid discrepancy, as rightly determined by the first appellate court, no proper explanation has been put forth on the part of the second plaintiff. With reference to the same, the abovesaid discrepancy, as rightly determined by the first appellate court, no proper explanation has been put forth on the part of the second plaintiff. When it is found that in all the documents projected by the defendant as above discussed and when it is further seen that the first plaintiff has been described only as Rengaiya Gounder in the plaint and when there is no document produced by the second plaintiff to evidence that the deceased first plaintiff also used to sign as Rengaiyan, a serious doubt arises as to the genuineness of Ex.A5 Will as to whether at all it would have been executed by the deceased first plaintiff as claimed by the second plaintiff. To clarify the abovesaid point, as rightly determined by the first appellate court, no effort has been taken by the second plaintiff to compare the signature of the deceased first plaintiff said to be available in Ex.A5 Will with the admitted signatures of the deceased plaintiff in the documents projected as above discussed and when reference to the same, no proper explanation is forthcoming on the part of the second plaintiff as to why she had not resorted to the abovesaid course. 22.That apart, as per the evidence of the second plaintiff examined as P.W.1, it is found that according to her, as adduced during the course of her evidence, she had secured the Will only from the registrar's office and accordingly, it is her case that she had entrusted the registered Will to the advocate and further, according to her on the completion of the execution of the Will, it was presented to the registrar's office for registration and three years thereafter they had obtained the same and thus viewed, it is found that as per the case of the second plaintiff, during the course of evidence, the Will said to have been executed by the deceased first plaintiff is a registered document, whereas the Will marked as Ex.A5 is found to be not a registered one. This aspect also throws a great suspicion in the genuineness of Ex.A5 Will projected in the matter. 22. This aspect also throws a great suspicion in the genuineness of Ex.A5 Will projected in the matter. 22. Ex.A5 Will is said to be executed in the presence of a Notary Public and in this connection, the concerned Notary Public has been examined as P.W.3 and the entry made by the Notary Public in the register maintained by him has come to be marked as Ex.A6. However, on a perusal of evidence of the Notary Public examined as P.W.3, there is a great doubt as to whether at all the deceased first plaintiff and the attestors had been present at the time of notarizing the said document in the presence of P.W.3. According to P.W.3, he is not sure as to whether the person who is shown to be the executant and whether the persons who are shown to be the attestors of the Will had been really present at the time of notarizing the document by him and further when according to P.W.3, for the first time, he had seen the deceased first plaintiff and the attestors only at the time of notarizing the said document and when he is unable to throw a clear picture as to the identity of the abovesaid persons, merely from the evidence of P.W.3 and the entry marked as Ex.A6, we cannot safely conclude that Ex.A5 Will had been executed by the deceased first plaintiff and attested by the attestors concerned and notarized by P.W.3 as spoken to by him. Further, according to P.W.3, he had read over the contents of the Will to the deceased first plaintiff and the same had been accepted by the deceased first plaintiff and he had executed the document. However, there is no endorsement found made by P.W.3 in Ex.A5 Will that the contents of the Will had been read over by him to the first plaintiff and the same had been accepted by the deceased first plaintiff and thereafter, he had executed the document in his presence. That apart, no effort seems to have been taken by P.W.3 to obtain the LTI of the deceased first plaintiff in the Will, though it is admitted by him that Will is an important document. That apart, no effort seems to have been taken by P.W.3 to obtain the LTI of the deceased first plaintiff in the Will, though it is admitted by him that Will is an important document. Further, according to P.W.3, he could not state about the age of the persons who had appeared before him and further according to him, the prepared Will was presented before him and P.W.3 is unable to depose anything about as to how come the said Will has come to be effected and in such view of the matter, as rightly determined by the first appellate court, the evidence of P.W.3 by itself cannot be considered as sufficient to uphold the genuineness of the said Will, considering the unreliable, unsatisfactory evidence tendered by P.W.3 as above discussed. 23. In the light of the above said factors, merely from the evidence of the attestor examined as P.W.2, a close relative of the second plaintiff, we cannot uphold the genuineness of Ex.A5 Will. That apart, P.W.2 also is unable to state as to when the Will has come to be prepared by the deceased first plaintiff and who had accompanied with the deceased first plaintiff to Coimbatore at that point of time and further, when P.W.2 is unable to state as to whether the Will was typed and on whose instructions the same has come to be typed and further when there is no plausible reason offered by the second plaintiff as to why the deceased first plaintiff preferred only Marrakkal and not his other daughters to bequeath his interest only to her under the Will and when there is no material to hold that it is only Marrakkal who had been exclusively maintaining the deceased first plaintiff as claimed and when it is further seen that from the inception, the lis itself has come to be levied only through the power of attorney i.e., Marrakkall, all these factors put together would throw a serious suspicion in the genuineness of Ex.A5 Will. 24. In such view of the matter, as rightly determined by the first appellate court, the second plaintiff has failed to establish the genuineness of Ex.A5 Will and accordingly, it is seen that based on the said Will, the second plaintiff would not be entitled to lay any claim of interest or share in the suit properties as projected. 25. 24. In such view of the matter, as rightly determined by the first appellate court, the second plaintiff has failed to establish the genuineness of Ex.A5 Will and accordingly, it is seen that based on the said Will, the second plaintiff would not be entitled to lay any claim of interest or share in the suit properties as projected. 25. In the light of the above discussions, the first appellate court, on a proper appreciation of the materials placed on record, had rightly disbelieved the genuineness of the Will Ex.A5, for the reasons afore stated and also rightly upheld the oral family arrangement effected between the deceased first plaintiff and the defendant as projected by the defendant and rightly held that the said family arrangement is valid and binding upon the deceased first plaintiff and in such view of the matter, the first appellate court is found to be justified in dismissing the plaintiff's case and upholding the defence version. The substantial question of law formulated in the second appeal is accordingly answered in favour of the defendant and against the plaintiff. 26. For the above reasons aforestated, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.