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2022 DIGILAW 934 (MAD)

Raghupathy v. Rajammal

2022-04-18

N.ANAND VENKATESH

body2022
JUDGMENT (Prayer: APPEAL under Section 100 of the Civil Procedure Code against the judgment and decree dated 23.9.2011 in A.S.No.6 of 2010 on the file of the District Court No.2, Kancheepuram modifying the judgment and decree dated 14.8.2008 in O.S.No.128 of 2007 on the file of the Subordinate Court, Kancheepuram.) 1. The defendants are the appellants in this second appeal. 2. Respondents 1 to 3 herein/plaintiffs filed a suit seeking for the relief of partition and for allotment of 2/6th share in their favour. 3. The case of the plaintiffs is that the suit property belonged to Nagammal, wife of Govindasamy Naidu under a registered sale deed dated 02.1.1956. She was in possession and enjoyment of the property till her demise on 05.11.1996. The further case of the plaintiffs is that the said Nagammal had two sons and four daughters. The first plaintiff is one of the daughters and plaintiffs 2 and 3 are the children of yet another daughter - late Salammal. Defendants 1 and 2 are two other daughters and defendants 3 and 4 are the sons of the said Nagammal. 4. The grievance of the plaintiffs is that the defendants joined together, colluded with one another and made an attempt to knock off the entire property without giving any share to the plaintiffs. Hence, the plaintiffs, left with no other alternative, filed the suit seeking for the relief of partition. 5. Defendants 1 to 4 filed a written statement wherein they took a stand that their mother - the said Nagammal executed a registered will dated 24.9.1976, marked as Ex.B2, with respect to the suit property and the property was bequeathed in favour of defendants 2 to 4. They took a further defense that after the demise of the said Nagammal, the Will came into force and defendants 2 to 4 became the absolute owners of the suit property. Thereafter, they amicably partitioned the property among themselves through a registered partition deed dated 23.3.2000, marked as Ex.B4. The defendants, thus, denied the very right claimed by the plaintiffs and sought for dismissal of the suit. 6. The Trial Court, on considering the facts and circumstances of the case and on appreciation of the oral and documentary evidence, dismissed the suit through judgment and decree dated 14.8.2008. Aggrieved by the same, the plaintiffs filed an appeal in A.S.No.6 of 2010 before the District Court No.2, Kancheepuram. 6. The Trial Court, on considering the facts and circumstances of the case and on appreciation of the oral and documentary evidence, dismissed the suit through judgment and decree dated 14.8.2008. Aggrieved by the same, the plaintiffs filed an appeal in A.S.No.6 of 2010 before the District Court No.2, Kancheepuram. The Lower Appellate Court, on re-appreciation of the oral and documentary evidence, allowed the appeal through judgment and decree dated 23.9.2011 and thereby the judgment and decree of the Trial Court were set aside and a preliminary decree was passed in favour of the plaintiffs. Aggrieved by the same, the defendants have filed this second appeal. 7. When the second appeal was admitted on 08.3.2019, this Court framed the following substantial questions of law for consideration: 1. Whether the registered Will can be rejected in evidence under Section 68 of the Indian Evidence Act despite proof of its execution by examination of the attesting witnesses and examination of the Sub-Registrar? 2. Whether any oral evidence can be considered under Section 91 of the Indian Evidence Act with regard to the contents of the Will that had been duly registered and the original Will has been marked as Exhibit in evidence? 3. Whether the presumption under Section 90 of the Indian Evidence Act with regard to the signature and every part of the Will that has been duly registered, can be ignored in the absence of any challenge to the validity of the registered Will? 4. Whether any findings or conclusions can be drawn in the absence of any pleadings or proof to the effect that the Will was not executed voluntarily or that it was obtained by fraud? 5. Whether in the absence of any pleading or denial with regard to the execution of the Will, any issue can be framed regarding the validity of the Will, under Order XIV Rule 1 of the Code of Civil Procedure?” 8. This Court heard Mr.T.N.Sugesh, learned counsel for the appellants, Mrs.Sneha, learned counsel appearing for Mr.J.Ravindran, learned counsel for respondents 1 to 3 and Mr.C.D.Sugumar, learned counsel appearing for the fifth respondent. This Court also carefully perused the materials available on record and the findings rendered by both the Courts below. 9. The Trial Court framed the following issues for consideration: “1. This Court also carefully perused the materials available on record and the findings rendered by both the Courts below. 9. The Trial Court framed the following issues for consideration: “1. Whether Nagammal has executed a will in respect of the suit property in favour of defendants 2, 3 and 4 on 24.9.1976? 2. Whether the defendants 2 to 4 partitioned the properties under partition deed dated 23.3.2000 in pursuance of the will dated 24.9.1976? 3. Whether the plaintiffs are entitled partition as prayed for in the plaint ? and 4. To what relief the plaintiff is entitled to?” 10. The Trial Court, on appreciation of the oral evidence, found that the defendants have proved the Will executed by the said Nagammal by examining the attesting witness - DW2. The Trial Court also took into consideration the oral evidence of DW4, who was the Assistant from the Sub-Registrar Office, Sriperumbudur and who brought the relevant records and through whom, the registered Will was marked as Ex.B.10. The Trial Court wanted to test the genuineness of the Will and it compared Ex.B.2 and Ex.B.10 and satisfied itself on the genuineness of the Will. 11. The Trial Court also rendered a finding to the effect that the said Nagammal was the absolute owner of the property and she had executed a registered Will during her life time on 24.9.1976 and she died 20 years later only on 26.10.1996. The Trial Court, therefore, did not find any suspicious circumstances surrounding the Will and a clear finding was given to the effect that the Will has been proved in accordance with Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. The Trial Court also placed reliance upon the judgments of the Hon’ble Supreme Court. In view of the same, the Trial Court answered the issue with regard to the genuineness of the Will by holding that the defendants have proved the execution of the Will and also their possession and enjoyment of the suit property. 12. The Lower Appellate Court heard only the plaintiffs and the defendants were set ex parte. The Lower Appellate Court rendered a finding on the genuineness of the Will as follows: 13. In the considered view of this Court, the present case requires factual determination of the original Will and the certified copy of the Will that were marked before the Court below. The Lower Appellate Court rendered a finding on the genuineness of the Will as follows: 13. In the considered view of this Court, the present case requires factual determination of the original Will and the certified copy of the Will that were marked before the Court below. Even if the defendants were set ex parte and the judgment was delivered, the defendants should have resorted to filing an application under Order XLI Rule 21 of the Civil Procedure Code for rehearing of the appeal. This is a very important right that has been given to the respondents in an appeal, who, by showing sufficient cause for not appearing when the appeal was taken up for hearing, can seek for rehearing the appeal on merits. This right has been given since the appeal filed under Section 96 of the Civil Procedure Code is the last opportunity available to a litigant to agitate a matter on facts. In other words, the Lower Appellate Court is the last court on facts. Hence, the parties must take full advantage of re-agitating the entire case on facts by relying upon oral and documentary evidence. The appellants, having missed the bus, were attempting to draw the attention of this Court to the various documents for interfering with the findings of the Lower Appellate Court. 14. This Court, exercising its jurisdiction under Section 100 of the Civil Procedure Code, can entertain a second appeal only if substantial questions of law are involved. This Court can also interfere with the findings, if those findings are found to be perverse and not in accordance with the available oral and documentary evidence. 15. A careful reading of the judgment of the Lower Appellate Court shows that the Lower Appellate Court did not deal with the reasonings given by the Trial Court nor assigned proper reasons as to why it is disagreeing with the findings of the Trial Court. This is a mandate that is prescribed under Order XLI Rule 31 of the Civil Procedure Code. The Lower Appellate Court has given independent findings on the available oral and documentary evidence without dealing with the reasoning given by the Trial Court. 16. That apart, this case also requires some appreciation of facts in order to arrive at a conclusion on the genuineness of the Will and the suspicious circumstances that are shown to be existing around the Will by the plaintiffs. 16. That apart, this case also requires some appreciation of facts in order to arrive at a conclusion on the genuineness of the Will and the suspicious circumstances that are shown to be existing around the Will by the plaintiffs. In view of the same, this Court is inclined to remand the matter back to the file of the Lower Appellate Court in order to enable the Lower Appellate Court to render a judgment on merits after rehearing both the parties. This Court does not have any other option except to remand the matter back to the file of the Lower Appellate Court since the case requires certain definite findings on facts and also for the reason that the Lower Appellate Court failed to give cogent reasons while differing with the findings of the Trial Court. However, considering the length of time that has already been spent in this litigation, this Court will fix strict time lines for the completion of the appeal. 17. The substantial questions of law framed by this Court touch upon the merits of the case. Since this Court is remanding the matter to the file of the Lower Appellate Court, any finding on merits will have a bearing. Hence, the substantial questions of law framed by this Court are not answered. 18. In the result, the judgment and decree of the Lower Appellate Court made in A.S.No.6 of 2010 dated 23.9.2011 are hereby set aside. The matter is remanded back to the file of the District Court No.2, Kancheepuram with a direction to the District Judge to rehear the appeal on merits after properly framing the points for consideration. The Lower Appellate Court is expected to assign proper reasons while rendering findings as mandated under Order XLI Rule 31 of the Civil Procedure Code. The Lower Appellate Court shall pass a final judgment in the appeal on or before 25.7.2022 and shall report compliance to this Court. 19. Accordingly, the second appeal is allowed in the above terms. Consequently, the connected MP is closed. Considering the facts and circumstances of the case, there shall be no order as to costs.