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2019 DIGILAW 1533 (MAD)

Ramasamy v. Senathipathy

2019-06-04

R.PONGIAPPAN

body2019
JUDGMENT : R. Pongiappan, J. 1. Aggrieved over the concurrent findings made in O.S. No. 338 of 1983 and A.S. No. 40 of 1996 on the file of the District Munsif Court, Palani and Subordinate Court, Palani, respectively the appellant/plaintiff filed this second appeal prayed to set aside the findings arrived at by the Courts below. 2. Before the trial Court, the plaintiff/appellant Ramasamy filed a suit against the respondents/defendants seeking the relief of declaration declaring that the plaintiff is entitled the suit property and consequently, the relief of permanent injunction restraining the defendants and their men from interfering with the plaintiff peaceful possession and enjoyment. The learned District Munsif, Palani, by judgment and decree dated 22.08.1994 decreed the suit declaring that the plaintiff is the absolute owner of the property in S.F. No. 118/1 of Chinthalavadampatti village only to an extent of 3 Acre 19 Cents situated on the northern side. Further, granted the relief of declaration that the plaintiff is entitled only 5/7th share in the well situated in S.F. No. 127/2. Accordingly, the trial Court has not granted the relief in favour of the plaintiff in respect to 5.40 acres, since the same was claimed by the defendants 2 and 3 as they are the absolute owner of the said property through the Will executed by Alameluammal. In the appeal, the learned Subordinate Judge has also confirmed the findings arrived by the trial Court. However, the said Court granted the relief of injunction in favour of the plaintiff for the entire property by stating that as of now the entire property is in possession of the plaintiff. Aggrieved over the said findings, the plaintiff/appellant filed this present second appeal. 3. For the sake of convenience, the parties are referred to as, as described by the trial Court. 4. The averments made in the plaint, in brief, are as follows:- (i) The suit property and some other properties originally belonged to the family of the plaintiff's father and his one another brother namely, Semba Gounder. In the year of 1955, the said two brothers and the sons of Semba Gounder partitioned their properties by virtue of a registered partition deed dated 03.03.1955. In that partition deed, 'A' schedule properties were allotted in favour of the plaintiff's father. 'B' schedule properties were allotted to Semba Gounder and to his sons. In the year of 1955, the said two brothers and the sons of Semba Gounder partitioned their properties by virtue of a registered partition deed dated 03.03.1955. In that partition deed, 'A' schedule properties were allotted in favour of the plaintiff's father. 'B' schedule properties were allotted to Semba Gounder and to his sons. Right from that date till his life time, the plaintiff's father was enjoying 'A' schedule properties with all rights. The father of the plaintiff had three wives namely Mangayammal, Alamelu Ammal and Rengammal. Alamelu Ammal is none other than the present first defendant. Mangayammal is predeceased her husband long back without any issues. Alamelu Ammal also had no issues. The plaintiff is the only issue to his father Sivagiri Palanisamy Gounder through his third wife Rangammal. The Rangammal died immediately after the birth of the plaintiff. The plaintiff's father bequeathed all his properties including the suit properties except item No. 5 of 'A' schedule in the above said partition deed to his only son through a registered Will dated 12.03.1955. The said Will is the last Will of plaintiff's father Sivagiri Palanisamy Gounder. (ii) As per the said Will, the property described in Item No. 5 of 'A' schedule in the partition deed, should vested upon the first defendant Alamelu Ammal and she would enjoy the same without any encumbrance till her lifetime and after her lifetime, it also should go to the plaintiff. There is absolutely no dispute in respect to the properties given to the first defendant in lieu of maintenance. Subsequently, after the death of the plaintiff's father, some of the properties owned by the plaintiff were notified as excess land by the Tamil Nadu Government under the Land Ceiling Act. In that notification, the suit properties were allowed to be continued with the plaintiff along with some other properties. Consequently, all the revenue records has been changed in the name of the plaintiff including to the suit properties. The patta given by the revenue authorities and the adangal extract are also stand in the name of the plaintiff. The defendant has no right whatsoever over the suit properties and other properties of the plaintiff. Hence, she was given with separate property for her maintenance through the registered Will. The patta given by the revenue authorities and the adangal extract are also stand in the name of the plaintiff. The defendant has no right whatsoever over the suit properties and other properties of the plaintiff. Hence, she was given with separate property for her maintenance through the registered Will. (iii) As the first defendant is living with her brother's son in Majanaickenpatty, she wanted to give some of the properties to her brother's son. But, the plaintiff was not agreeing to that because she is neither mother of the plaintiff nor sister of the plaintiff's mother. Apart from that, she is not given any right to encumber the properties given to her for her maintenance as per the registered Will. Hence, the first defendant is interfering with the peaceful possession and enjoyment of the suit properties. On 30.05.1983, the first defendant came with her henchmen by saying that she is going to harvest the cholam crops and trespassed into the suit properties. Due to the timely intervention of the plaintiff, the defendant's interference was averted. (iv) In the meantime, during the pendency of the suit, the second defendant has filed a petition in I.A. No. 736 of 1983 praying to implead him as a defendant in the suit on the ground that he has taken an extent of 5.40 Acres on lease from the first defendant, out of the total extent of 8.59 Acres in S.F. No. 118/1. The said application was allowed and thereafter the second defendant was impleaded as a party. Further, the third defendant filed a petition and praying to implead him as a party to the proceedings on the ground that the deceased first defendant executed a registered Will in his favour and bequeathed the entire suit property (i.e.,) 5.40 Acres in S.F. No. 181/1. Further, he stated that the first defendant expired on 04.05.1984. In the said circumstances, the suit was proceeded after impleading the third defendant as a party to the suit. 5. The averments made in the written statement filed by the first defendant, in brief, are as follows:- (i) The suit filed by the plaintiff is not maintainable in law and originally Sivagiri Palanichamy Gounder is having two legally wedded wives namely, Alamelu Ammal, first defendant and Mangayammal, who died even prior to 1955. The first defendant was living all along with her husband Sivagiri Palanisamy Gounder. The first defendant was living all along with her husband Sivagiri Palanisamy Gounder. However, she had no issues. The plaintiff is the concubine's son of her husband. Sivagiri Palanisamy Gounder executed a maintenance settlement in favour of the first defendant in respect of Ac. 5.40 on the southern side of a total extent of Ac. 8.59 in S.F. No. 118/1 of Sandalavadampatty village, Palani Taluk with the well right and 2/7th share in 5 H.P. Electric motor pumpset installed in the same under the registered settlement deed dated 16.10.1968. She was given possession of the property settled in her favour on the day itself. (ii) The first defendant's husband undertook to pay the kist for the property settled in her favour. On 03.03.1976, the first defendant leased out the properties to the second defendant at an annual rent of Rs. 500/-. The lease is borne out by the registered document of lease dated 03.03.1976. The second defendant has taken possession of the property and is cultivating the same from 03.03.1976 by contributing his own physical labour. The lease in favour of the second defendant is totally suppressed by the plaintiff. The plaintiff is entitled to the remaining extent of Ac. 3.19 on the northern side of S.F. No. 118/1. The plaintiff is to prove his title relies upon the Will dated 12.03.1955 said to have been executed by the first defendant's husband. She does not admit the truth and validity of the said Will. The Will executed by the Sivagiri Palanisamy Gounder stands cancelled through the settlement deed dated 16.10.1963 in favour of the first defendant as far as Ac. 5.40 on the southern side of S.F. No. 118/1 out of Ac. 8.59. The plaintiff is fully aware of the details of settlement stands in favour of the first defendant. (iii) By virtue of Section 14 of the Hindu Succession Act, 30/56 the first defendant has become the absolute owner of the property, settled in her favour. Even according to the terms of the Will, the plaintiff can get the property only on attaining majority and after the death of his father. On the date of Will, he should have been aged only 15 years and attained majority only in September 1971. In the meantime, the settlement in favour of the first defendant came into being and the first defendant was let in possession of the property. On the date of Will, he should have been aged only 15 years and attained majority only in September 1971. In the meantime, the settlement in favour of the first defendant came into being and the first defendant was let in possession of the property. As the plaintiff owned the remaining extent of the property and the first defendant being a woman folk, he seemed to have got the patta transferred in his name without notice to her. There is no cause of action for the suit. 6. The averments made in the written statement filed by the second defendant, in brief, are as follows:- The suit property consists of an extent of 5 Acres 40 cents in S.F. No. 118/1 of Sindalavadampatti village, Palani Taluk. The well and 7.5 H.P Electric Motor Pump set installed in the well have been suppressed in the description of property in the plaint. An extent of 5 Acres and 40 cents on the southern side of S.F. No. 118/1 of the suit property with the well rights and 2/7th share right in Electric Motor Pump set was leased to this defendant by the first defendant through Registered document dated, 03.03.1976 for a period of 5 years oh an annual rental of Rs. 500/-. The first defendant who is the lessor is entitled the property through the registered settlement deed dated 16.10.1968 executed by her husband Sivagiri Palanisamy Gounder. The Will dated 12.03.1955 is not admitted by this defendant. The plaintiff could never had taken possession of the suit properties and did not take possession at any time. The plaintiff is not entitled to any declaration and permanent injunction. 7. The averments made in the written statement filed by the third defendant, in brief, are as follows:- The first defendant is the aunt (father's sister) of defendants 2 and 3. An extent of Ac. 5.40 out of Ac. 8.59 on the southern side in S.F. No. 118/1 belonged to the first defendant under the settlement deed dated 16.10.1968 executed by her husband Sivagiri Palanisamy Gounder. The first defendant bequeathed the same in favour of the defendants 2 and 3 along with the right in the well and 7.5 H.P. electric motor pumpset and the house situated in Ramapattinampudur under a registered Will dated 29.02.1984 in a sound and disposing state of mind. The first defendant bequeathed the same in favour of the defendants 2 and 3 along with the right in the well and 7.5 H.P. electric motor pumpset and the house situated in Ramapattinampudur under a registered Will dated 29.02.1984 in a sound and disposing state of mind. The plaintiff cannot at any stretch of imagination, claim to be the heir of the deceased first defendant, because he is neither a class-I heir nor the first defendant died as intestate. The plaintiff cannot dispute the genuineness of the Will. On the death of the first defendant on 04.05.1984, the will came into operation and the defendants 2 and 3 got Ac. 5.40 on the southern side. The second defendant, who till then was a lessee under the first defendant became entitled to the property along with the third defendant. The suit filed by the plaintiff is not maintainable in law. He is neither entitled to declaration nor for injunction. 8. Based on the above pleadings, the learned District Munsif, Palani, had framed necessary issues and tried the suit. 9. Before the trial Court, on the side of the plaintiffs, three witnesses were examined as P.W. 1 to P.W. 3 and 85 documents were marked as Ex. A.1 to Ex. A.85. On the side of the defendant, three witnesses were examined as D.W. 1 to D.W. 3 and 3 documents were marked as Ex. B.1 to Ex. B.3. 10. Having considered all the materials placed before him, the learned District Munsif, Palani, granted the relief of declaration in favour of the plaintiff only to an extent of 3.19 acrs out of 8.59 acre in S.F. No. 118/1 of Sindalavadampatti village, Palani Taluk. Further, he declared that the plaintiff is entitled 5/7th share in the well situated in S.F. No. 127/2. As already stated, in the appeal the learned Subordinate Judge, Palani, has confirmed the findings arrived by the trial Court. However, the said Court granted the relief of injunction alone for the entire property to an extent of 8.59 acres in favour of the plaintiff. 11. In the said circumstances, at the time of admitting the Second Appeal, this Court has formulated the following Substantial Questions of Law, for consideration:- "i). However, the said Court granted the relief of injunction alone for the entire property to an extent of 8.59 acres in favour of the plaintiff. 11. In the said circumstances, at the time of admitting the Second Appeal, this Court has formulated the following Substantial Questions of Law, for consideration:- "i). Whether the learned appellate court having rightly held that the plaintiff is entitled to a decree for injunction with regard to the entire property has not committed an error in holding that the first defendant's right had enlarged into an absolute estate? (ii) Whether the learned Appellate Court has not committed an error in construing the provisions of Sections 14(1) & 14(2) of Hindu Succession Act?" 12. Before the trial Court, the partition deed made between Sivagiri Palanisamy Gounder and Semba Gounder, Ramachandran and Thiyagarajan dated 03.03.1955 was marked as Ex. A.1. It is proved through the said document that the suit schedule property in S.F. No. 118/1 of Sindalavadampatti village measuring an extent of 8.59 Acres is allotted in favour of the Sivagiri Palanisamy Gounder. Admittedly, the Sivagiri Palanisamy Gounder is having two legally wedded wife namely Mangayammal and Alamelu Ammal. The said Mangayammal died long ago. The second wife Alameluammal is the first defendant. It is the contention raised by the learned counsel appearing on behalf of the plaintiff that the plaintiff Ramasamy is the son of Sivagiri Palanisamy Gounder through the another one wife Rengammal. 13. On the other hand, it is the submission made by the learned counsel appearing for the defendants that the said Rengammal is not the legally wedded wife of Sivagiri Palanisamy Gounder, but she is only a concubine. In this regard, in order to know the status of the said Rengammal, it is necessary to see the Will dated 12.03.1955 executed by Sivagiri Palanisamy Gounder in favour of the plaintiff. Before the trial Court, the said document was marked as Ex. A.2. In respect to the said document, there is no dispute on either side. About the said Rengammal, the deceased Sivagiri Palanisamy Gounder has mentioned in the said Will as follows:- xxxxxxxxxxxxxxxxx 14. The said recital found in the Will dated 12.03.1955 is clear authentication that the mother of the plaintiff Rengammal is not the legally wedded wife of Sivagiri Palanisamy Gounder. About the said Rengammal, the deceased Sivagiri Palanisamy Gounder has mentioned in the said Will as follows:- xxxxxxxxxxxxxxxxx 14. The said recital found in the Will dated 12.03.1955 is clear authentication that the mother of the plaintiff Rengammal is not the legally wedded wife of Sivagiri Palanisamy Gounder. However, in order to settle the dispute between the plaintiff and defendants, the status of the Rengammal is not necessary. 15. In the said circumstances, it is the contention raised by the plaintiff that the entire property measuring an extent of 8.59 acres and the well right, were bequeathed by the Sivagiri Palanisamy Gounder through the above said Will dated 12.03.1955 in favour of the plaintiff. On the other hand, it is the contention raised by the learned counsel for the defendant is that the said Will was executed in favour of the plaintiff after excluding the suit property situated on the northern side of S.F. No. 118/1 measuring an extent of 5.49 Acres and well right, which was given to the first defendant Alameluammal in lieu of maintenance. The said fact was mentioned in the Will dated 12.03.1955 executed by the Sivagiri Palanisamy Gounder in favour of the plaintiff. In fact, the said Will was executed in the year of 1955 before the enactment of Hindu Succession Act, 1956. In the said circumstances, even though the said property was given to the Alamelu Ammal in lieu of maintenance, due to the enactment, the same maintenance right becomes absolute right of Alameluammal in lieu of Section 14(1) of Hindu Succession Act. 16. Upon considering the arguments advanced on either side, it is true that the said Sivagiri Palanisamy Gounder bequeathed his entire property in favour of the plaintiff through the Will dated 12.03.1953. Further in the said Will, he appointed the first defendant as a guardian to the plaintiff. However, in para No. 3, he mentioned that 5th item of 'A' schedule property mentioned in partition deed dated 03.03.1955, was given to the first defendant as a maintenance and the property is measuring an extent of 5.40 Acres in S.F. No. 118/1 and well right to an extent of 5/7 and the well is situated in S.F. No. 127/2. In respect to the survey numbers and the extent, there is no dispute between the plaintiff and defendants. 17. In respect to the survey numbers and the extent, there is no dispute between the plaintiff and defendants. 17. It appears from the recital found in the Will dated 12.03.1955, the property to an extent of 5.40 acres and the well right was given to the first defendant Alameluammal as a maintenance. Subsequent to the said Will, in respect to the same property on 16.10.1968, the Sivagiri Palanisamy Gounder executed the deed of maintenance in favour of the first defendant. The said document was marked before the trial Court as Ex. B.1. Through the said registered deed, he handed over the property to an extent of 5.40' Acres in S.F. No. 118/1 and well right in favour of the first defendant as a maintenance till her life time. The description of the property found in the settlement deed is stated as follows:- xxxxxxxxxxxxxxxxxx 18. Even though the said settlement was registered on 16.10.1968 as per the recital found in Ex. A.2 Will the said property was handed over to the first defendant in the year of 1955 itself. 19. Now all are aware that the Hindu Succession Act, 1956 (Act of 30/96) came into force in the year of 1956. So as a maintenance the property now under dispute was handed over to the first defendant Alameluammal before enactment of the Hindu Succession Act, 1956 (Act 30/1956). At this juncture, it is necessary to see the Sections 14(1) and 14(2) of Hindu Succession Act, 1956, which reads as follows:- 14. Property of a female Hindu to be her absolute property:- (1) Any property possessed by a female Hindu, Whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation- In this sub-section "property includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after the marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. 20. Accordingly, as per the the Sub Section 1 of Section 14 of the Hindu Succession Act, it is very clear that if the property given to the female in lieu of maintenance before the Act becomes an absolute property of the said lady. In this regard, the first appellate Court has relied celebrated judgment of our Hon'ble Apex Court in the case of Thulasamma Vs. Sesha Reddy reported in 1977 TLNJ 41 and observed that the right given to the first defendant is a pre-existing right and thereby as per Section 14(1) of Hindu Succession Act, the property now under dispute becomes an absolute property of the first defendant. In the said judgment our Hon'ble Apex Court has held as follows:- "On a careful consideration and detailed analyze is of the authorities and Shastric Hindu law on the subject, the following prepositions emerge with respect to the incidents and characteristics of a Hindu Woman's right to maintenance. (1) that a Hindu Woman's right to maintenance is a personal obligation so far as the husband is concerned and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow. (2) through the widow's right to maintenance is not a right to property but, it is undoubtedly a preexisting right in property i.e., it is a jus and rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement by obtaining a decree from the civil Court. 21. Following the said principles of law, in the case of Kutnba Vs. 21. Following the said principles of law, in the case of Kutnba Vs. Joyboy reported in 1994 (2) SCC 511 , our Hon'ble Apex Court has held as follows:- But what is its effect on the right of the widow if the testator gives only right of maintenance. Can it be said to be a lieu of maintenance? The answer is simple. The legislature then would be used the words, 'for maintenance' and not instead of in lieu of maintenance. 22. Further, recently in the judgment reported in 2016-2-L.W. 517 : 2016 (2) SCC 56 in the case of Jupudy Pardha Sarathy Vs. Pentapati Rama Krishna and others, our Hon'ble Apex Court has held as follows:- Though no specific word has been mentioned in Ext. A-2 that in lieu of maintenance life interest has been created in favour of Veeraraghavamma, in our opinion in whatever form a limited interest is created in her favour who was having a pre-existing right of maintenance, the same has become an absolute right by the operation of Section 14(1) of the Hindu Succession Act. 23. Further in the judgment reported in (1996) 8 SCC 525 in the case of C. Masilamani Mudaliar and others Vs. Idol of Sri Swaminathaswami, Swaminathaswami Thirukoil and others, our Hon'ble' Apex Court has held as follows:- In Gumpha case though the Will was executed in 1941 and the executor died in 1958 after the Act had come into force, the concept of limited right in lieu of maintenance was very much in the mind of the executor when Will was executed in 1941 but after the Act came into force, the Will became operative. The restrictive covenant would have enlarged it into an absolute estate; but unfortunately the Bench had put a restrictive interpretation which in our considered view does not appear to be sound in law. 24. So according to the said precedent, in this case also in the property given to the first plaintiff in lieu of maintenance, she is having pre-existing right and thereby the said right becomes the absolute right of Alameluammal. 25. In this regard, the learned counsel appearing for the appellant would rely upon the judgment of this Court reported in 2007-2-L.W. 541 : 2006 (4) TCC 773 in the case of Sadhu Singh Vs. 25. In this regard, the learned counsel appearing for the appellant would rely upon the judgment of this Court reported in 2007-2-L.W. 541 : 2006 (4) TCC 773 in the case of Sadhu Singh Vs. Gurdwara Sahib Narike and others and the judgment reported in 2018 (2) L.W 1 in the case of Ranvir Dewan Vs. Rashmi Khanna and another and contend that since the settlement executed by the Sivagiri Palansamy Gounder is after the commencement of the said Act, Section 14(2) of the Act alone is applicable to the case in our hand. It is true that if the property under dispute was given to the first defendant after the enactment of Act 30/1956, the principle now stated by the plaintiff's Counsel alone has to be followed. As already pointed out by the learned counsel appearing for the respondent that in this case in 1955 itself the said Sivagiri Palanisamy Gounder has stated in the Will Ex. A.2 as the property now under dispute was given to the Alamelu Ammal in lieu of maintenance. So the judgment relied on by the learned counsel for the appellant is factually not applicable to the case in our hand. 26. Now, the first appellate Court at the time of disposing the appeal has held that as per the document exhibited on the side of the plaintiff, the property is under the possession of the plaintiff. It is true before the trial Court the plaintiff has produced so many documents as plaintiff's side exhibits i.e., Ex. A.1 to Ex. A.77 in the said documents Ex. A.63 to Ex. A.77 are the documents related to the orders passed by the Agricultural Income Tax Department, which clearly established the fact that the assessment was fixed only on the plaintiff. P.W. 3, who is Head Clerk in the Agricultural Income Tax Department, Dindigul, has stated in his evidence that for property under dispute, the agricultural income tax was levied the tax only in the name of the plaintiff. So, absolutely nothing wrong in holding that the plaintiff is entitled the relief of permanent injunction. 27. P.W. 3, who is Head Clerk in the Agricultural Income Tax Department, Dindigul, has stated in his evidence that for property under dispute, the agricultural income tax was levied the tax only in the name of the plaintiff. So, absolutely nothing wrong in holding that the plaintiff is entitled the relief of permanent injunction. 27. In otherwise, it is the case of the defendant that before her death, the said Alameluammal leased out the said property in favour of the second defendant and thereafter, she executed the Will in favour of the second and third defendants, through which she bequeathed the property under dispute in favour of the second and third defendants. Before the trial Court, the lease deed executed by the Alameluammal in favour of the second defendant Senathipathi dated 03.03.1955 was marked as Ex. B.3. 28. It is the contention raised by the learned counsel appearing for the appellant that even though the Will alleged to be executed by the Alameluammal was marked as Ex. B.3, the same has not been proved as per Section 63 of Hindu Succession Act and Section 68 of Indian Evidence Act. In this regard, it is the contention raised by the learned counsel for the defendant that before the trial Court one of the attestor Murugesan and Scribe Marimuthu were examined as D.W. 2 and D.W. 3 respectively. In respect to the execution of the said Will, their evidence will propabilise that at the time of executing the Will the testator Alameluammal is having sound state of mind. 29. In this regard, the learned counsel appearing for the appellant would rely upon the judgment of this Court reported in 2018 (5) LW 124 in the case of J. Rani Vs. G. Manoharan and others, for applying the said principle laid down by this Court, now it is necessary for this Court to find out whether any suspicious circumstances are arised in respect of the execution of the Will. Taking into consideration that the evidence given by P.W. 1 is very clear that after the death of Sivagiri Palanisamy Gounder, the first defendant Alameluammal was resided with his brother, who is the father of the defendants 2 and 3. It is natural for the lady, who is not having any support, having the affection towards the person who gave support to her life. It is natural for the lady, who is not having any support, having the affection towards the person who gave support to her life. Secondly, when we go through the evidence given by D.W. 2 and D.W. 3, who are the attestor and scribe respectively, it will appear from the evidence of D.W. 2 that the left thumb impression found in the Will is belonged to the first defendant Alameluammal. He has stated before the trial Court as in the said Will, one Thangavel has also signed as a witness along with him. He specifically stated that only after read over the contention of the Will by the scribe to the first defendant, she put her left thumb impression in their presence. The said evidence is duly corroborated through the evidence of D.W. 3. 30. In otherwise, the whole reading of the evidence given by D.W. 2 and D.W. 3, is only in accordance with Section 63 of Hindu Succession Act. More than that, before the trial Court the plaintiff has not seriously disputed the Will stand in the name of the second and third defendants. 31. Of course, it is the duty of propounder to remove all the doubts and the suspicious circumstances to the full satisfaction of the Court. In this case, on a whole reading of the evidence given by P.W. 1 and the argument advanced by the learned counsel appearing for the plaintiff will not create any specific suspicious circumstances in respect to the Will. Accordingly, I am of the considered opinion that the Will marked as Ex. A.3 before the trial Court is reliably proved through D.W. 2 and D.W. 3. 32. It is the contention of the learned counsel appearing for the appellant/plaintiff that even though the property measuring an extent of 5.4 Acres and well right was given to the first defendant, she is not in actual possession. In the said circumstances, we cannot come to the conclusion that the property now under dispute was handed over to the first defendant through the Will and the settlement is came into effect. In this regard, the first appellate Court in its judgment has clearly relied the judgment reported in 2002 (1) CTC 776 and concluded in favour of the defendant. In this regard, the first appellate Court in its judgment has clearly relied the judgment reported in 2002 (1) CTC 776 and concluded in favour of the defendant. In the said judgment our Hon'ble Apex Court has observed as follows:- There is a dispute regarding actual physical possession of the suit land by angammal but it is immaterial as she had legal possession. Which would be Sufficient in view of the law laid down in Thulsamma's case 1997(3) SCC 99 33. So accordingly the judgment relied on by the first appellate Court is very clear that it shall be presumed that the property handed over to the first defendant in lieu of maintenance was in the possession of defendant. Accordingly, we cannot come to the conclusion that the settlement and the Will is not acted upon. 34. Accordingly, from the discussion stated supra the substantial questions of law are answered that the pre-existing right hold by the first defendant had enlarged in an absolute right as per the Hindu Succession Act, 1956 (Act 30/1956). The trial Court and the first appellate Court have held only as above and thereby, the first appellate Court had not committed any error in considering the provisions of Sections 14(1) and 14(2) of the Hindu Succession Act. 35. In the result, the Second Appeal is dismissed by confirming the Judgment and Decree, dated 31.12.2002, passed in A.S. No. 40 of 1996 by the learned Subordinate Judge, palani. No costs.