WP/7837/1999 of Vs on 12 December 2001

Relief

:JUDGMENT

The plaintiffs in O.S.No.14 of 1988 on the file of the SubordinateCourt, Kumbakonam, are the appellants herein.

2. O.S.No.14 of 1988 had been filed by two plaintiffs, Radha and Chandra who are both sisters. The suit had been filed seeking a declarationthat the plaintiffs are the absolute owners of the suit properties and forconsequential relief directing the first defendant to put the plaintiffs inpossession of the suit -A- schedule properties, directing the seconddefendant to put the plaintiffs in possession of the suit -B- scheduleproperties, directing the defendants 3 and 6 to put the plaintiffs inpossession of the -C- schedule properties and directing the defendants 3, 4,9 and 10 to put the plaintiffs in possession of the -D- schedule propertiesand also grant past and future profits and also costs of the suit.

3. This suit came up for consideration before the learned Subordinate Judge, Kumbakonam. By judgment dated 21.07.1995, the suit was dismissed.Challenging the same, the plaintiffs have filed the present First Appeal.4. Pending the appeal, both the plaintiffs died and their legalrepresentatives were brought on record as appellants 3 to 6. Pending theappeal, the fifth respondent died and his legal representatives were broughton record as respondents 8 to 11. Thereafter, the 11th respondent also diedand a memo was filed that her legal representatives were already on record asrespondents 3, 4, 8 to 10. The 12th respondent was also brought on recordalso as another legal heir of the 11th respondent.

5. The said suit had been filed by two plaintiffs/sisters, Radha and Chandra seeking as stated above the declaration of title and recovery ofpossession of the suit ?A? to ?D? schedule properties. They were daughtersof Late Chinnappa Pillai. He was the absolute owner of the suit properties.He died intestate on 16.04.1976 at Panthanalloor Village, Kumbakonam. Hiswife had predeceased him. The first defendant Shantha Ammal was hisconcubine. The second defendant Panneerselvam was her son. The defendants 3and 4 were children of Mani Pillai the first cousin of Chinnappa Pillai. Hedied before the filing of this suit. The fifth defendant was a satellite tothe family of Mani Pillai. The sixth defendant was the brother~in~law ofMani Pillai. The plaintiffs claimed that the defendants 1 to 6 set up a

will, as if it had been executed by Chinnappa Pillai on 30.03.1976. In theplaint, they claimed that Chinnappa Pillai was suffering physically andmentally at the time of his death. He was under the complete control of thefirst defendant. He was not in a position to understand anything. It wasstated that taking advantage of his physical and mental condition, thedefendants 1 to 6 had brought about the will, dated 30.03.1976. Theplaintiffs denied that the will was a true and genuine document. After thedeath of the Chinnappa Pillai, the plaintiffs and one Sambandam Pillai filedO.S.No.57 of 1976 before the Subordinate Court, Kumbakonam, against the samedefendants seeking accounts of the properties left behind by ChinnappaPillai. That said suit was dismissed as not maintainable. Thereafter, theplaintiffs and the said Sambandam Pillai filed A.S.No.1127 of 1980 before theHigh Court, Madras. In the said first appeal, by order dated 02.03.1987 inC.M.P.No.2838 of 1987, the plaintiffs were given liberty to withdrawO.S.No.57 of 1976 and file a fresh suit seeking appropriate reliefs. It wasunder these circumstances that the suit had been filed seeking declaration oftitle and recovery of possession as stated above and also for payment of pastand future profits.

6. The first defendant filed written statement. This written statementwas adopted by the defendants 2 to 6. In the written statement, it wasstated that the properties had been bequeathed to the defendants 2, 3 and 4by a will and they claimed that the will was true, valid and binding on theplaintiffs. They claimed that the said Chinnappa Pillai was in completecontrol of his mental senses. It was also stated that the plaintiffs hadfiled several suits against him and he had contested those suits. It wasstated that he was therefore opposed to the conduct of his daughters, who arethe plaintiffs herein. They further stated that the plaintiffs had beensettled with properties and therefore they cannot challenge the will. It wasstated that the first defendant was the concubine of Chinnappa Pillai and thesecond defendant Panneerselvam was born to them. It was stated that the willhad been executed in accordance with due procedure and was also attested. Itwas stated that the suit is not maintainable. It was also stated that thesuit is barred by the law of limitation and also barred by res judicata. Itwas, therefore, stated that the suit should be dismissed.

7. This suit came up for consideration before the learned SubordinateJudge, Kumbakonam and on the basis of the pleadings, the learned SubordinateJudge framed the following issues for consideration:~

1. Whether the plaintiffs are the owners of the suit properties and whetherdeclaration of title can be granted in their favour?

2. Whether the Will executed by Chinnappa Pillai was executed when he was indisposing sound and deposing state of mind?

3. Whether the Will was brought about by undue influence?4.Whether the deceased Chinnappa Pillai had right to deal with the Dharmamproperties.

5. Whether the suit is barred by limitation?

6. Whether the suit is barred by res judicata?

7. Whether the suit had been correctly valued and whether the proper Courtfees had been paid?8.Whether the defendants are liable to pay past and future profits to theplaintiffs?

9. To what other reliefs of the plaintiffs are entitled to?

Thereafter, the following two additional issues were framed:~

1. Whether the suit properties in item Nos.34 and 66 have been properlydescribed in the plaint?

2. Whether the item Nos.34 and 66 absolutely belonged to the first defendant?The learned Subordinate Judge framed the following further additionalissue:~

Whether the suit is maintainable as framed?

8. During trial, the plaintiffs examined three witnesses. P.W.1, K.Sambandam, was the husband of the first plaintiff. P.W.2 was V.Govindasamyone of the witness to the will and P.W.3 was Dr.S.Ganesan, who treatedChinnappa Pillai. On the side of the defendants, three witnesses wereexamined. D.W.1, Santha, the first defendant, D.W.2 C.Panneer Selvam, thesecond defendant and D.W.3 K.Thiagaraja Pillai the other witness to the will.The plaintiffs marked Exs.A~1 to A~46 and the defendants marked Exs.B~1 to B~38. Among the documents marked by the plaintiffs, Ex.A1 is the birthcertificate of the second defendant. Ex.A.2, Ex.A.3 and Ex.A.4 are the birthcertificates of the other children of the first defendant. Ex.A5 is thejudgment is O.S.No.57 of 1976 and Ex.A.6 is the order of the Madras HighCourt in CMP.No.2838 of 1987 in A.S.No.1127 of 1980. Ex.A.7 and Ex.A.8 andEx.A.9 are sale deeds in the name of the first defendant executed byChinnappa Pillai. Ex.A~10 is the settlement deed in favour of the seconddefendant executed by Chinnappa Pillai. Ex.A~36 is the settlement deed infavour of Savithri Ammal executed by Chinnappa Pillai. The other documentswere the certified copies of the Judgments/decrees and related documents theearlier suits in O.S.No.38 of 1974, O.S.No.55 of 1974, O.S.No.56 of 1974and O.S.No.453 of 1985. On the side of the defendants, Ex.B.8 is themarriage invitation of the first plaintiff, Ex.B.9 and Ex.B.14 are theletters written by the husband of the first plaintiff to Mani Pillai, Ex.B.29is the gift deed in favour of the first defendant/Santha Ammal executed byChinnappa Pillai and Ex.B.37 is the will dated 30.03.1976 executed byChinnappa Pillai. The other documents also related to the Judgments/decreesand related documents in the suits in O.S.No.55 of 1974, O.S.No.56 of 1974and O.S.No.38 of 1974.

9. By Judgment dated 21.07.1995, the learned Subordinate Judge first took up for consideration the issue of limitation. The learned Judgeconsidered the order of the Madras High Court in C.M.P.No.2838 of 1987 inA.S.No.1127 of 1980, wherein the earlier suit filed by the plaintiffs inO.S.No.57 of 1976 was permitted to be withdrawn and liberty was granted toinstitute a fresh suit for such reliefs as considered proper. It was thenobserved that Chinnappa Pillai died on 16.04.1976. The will executed by himcame into effect on his death. The learned Judge determined that any suitfiled for properties which were the subject matter of the will should havebeen filed within a period of twelve years under Article 65 of the LimitationAct. The learned Judge also considered Article 58 of the Limitation Act,which provided three years time to file a suit for declaration. The learnedJudge then considered the rival arguments put forth by both sides. Theplaintiffs had contended that the suit will be covered by Article 65 of theLimitation Act. The defendants had contended that the suit will be governedunder Article 58 of the Limitation Act. The learned Judge then examined the

provision under Order 23 Rule 2 of C.P.C. He further examined whetherSection 14 of the Limitation Act would be applicable. The learned Judgefinally found that the suit was barred by limitation. The learned Judge thentook up the issue of Court fees and the valuation of the suit. Theplaintiffs had valued the suit under Sections 25~A, 44 and 22 of Tamil NaduCourt Fees and Suits Valuation Act, 1955. The learned Judge again found thatthe suit had not been properly valued. The learned Judge then took up theadditional issue, namely, whether the suit was maintainable as framed. Thelearned Judge examined the evidence and the pleadings and finally stated thatthe suit is not maintainable. The learned Judge did not examine any otherissue and dismissed the suit. Challenging that judgment, the plaintiffs hadfiled the present appeal.

10. As stated above, pending the appeal, both the appellants/plaintiffsdied and their legal representatives had been brought on record. The firstrespondent/first defendant and the 11th respondent also died and 5threspondent also died and his legal representatives had also been brought onrecord.

11. Heard arguments advanced by Mr.M.P.Senthil, the learned counsel forthe appellants and Mr.T.Antony Arulraj, learned counsel for the contestingsecond respondent, who was the second defendant in the suit.12. The parties will be referred as plaintiffs and defendants for thesake of convenience.

13. Mr.M.P.Senthil, learned counsel for the plaintiffs pointed that thesuit had been dismissed on the grounds of limitation, improper valuation ofthe suit and maintainability. It had been held that the suit should have beenfiled for partition and separate possession. The learned counsel stated thatthe suit had been filed well within the period of limitation and it wouldfall under Article 65 of the Limitation Act. This Court had grantedpermission to institute a fresh suit and that the suit had been filedimmediately. The learned counsel also stated that Ex.B.37~will dated30.03.1976 was shrouded with suspicion. It was stated that according to theevidence of P.W.3~Doctor, Chinnappa Pillai was not in good mental andphysical health. The learned counsel pointed out Ex.A.2~ birth certificateof the second defendant/ Panneer Selvam, which showed the name of his fatheras a different person. The learned counsel stated that the first defendant/Santha Ammal exercised extreme control over Chinnappa Pillai and alsostated that the will had been obtained by coercion and undue influence. Itwas also pointed out that under the will, the plaintiffs, who are the onlychildren/daughters of Chinnappa Pillai, had been completely excluded. Theyhad been allotted only 8 acres by an earlier settlement deed. ChinnappaPillai had executed sale deeds and settlement deeds in favour of the first,second defendants. The learned counsel stated that the learned SubordinateJudge had not given findings on other substantial issues, particularly, onthe proof of the will. He, therefore, stated that the judgment under appealshould be reversed.

14. On the other hand, Mr.T.Antony Arulraj, learned counsel for thecontesting second respondent stated that Article 65 will be attracted onlywhen declaration is sought on the basis of the title. In the present case,

in view of the will, the plaintiffs do not have any title over the propertiesand consequently only Article 58 would apply. The learned counsel alsostated that under Order 23 Rule 2 CPC, application of Section 14 ofLimitation Act is not possible. The learned counsel stated that the suit isbarred by limitation. The learned counsel also pointed out that ChinnappaPillai had settled properties in favour of both the plaintiffs. Theplaintiffs had filed three suits against Chinnappa Pillai. They also filedExecution Petitions. These proceedings ended just one month before he died.It was stated that he did not live with plaintiffs. They also did not attendhis funeral. It was stated that under the strained background between theplaintiffs and Chinnappa Pillai the will had been executed out of freeconsent and the learned counsel, further, stated that no influence wasapplied on Chinnappa Pillai for executing the will. The learned counselstated that the suit is barred by limitation and consequently, urged theCourt to dismiss the appeal.

15. The following points arise for determination in the appeal:~

1. Whether the suit in O.S.No.14 of 1988 is barred by limitation?2.Whether the period of limitation in instituting the suit is to bedetermined by Article 58 or by Article 65 of the Limitation Act?

3. Whether the suit had been properly valid and proper Court fees paid?

4. Whether the suit as framed is maintainable?

5. Whether the Will dated 30.03.1976 marked as Ex.B.37 was executed byChinnappa Pillai out of free consent and when in sound state of mind?

6. Whether the will was obtained through undue influence?

7. Whether the will had been proved in manner known to law?

8. Whether the plaintiffs are entitled for the relief of declaration andrecovery of possession?

9. Whether the judgment under appeal requires interference?

16. Point Nos.1 and 2:~

1. These points relate to whether the suit is barred under the law oflimitation:~

(i) It is the contention of the learned counsel for the plaintiffs thatthe suit reliefs fall under Article 65 of the Limitation Act. On the otherhand, it is the contention of the learned counsel for the defendants that thesuit reliefs are covered under Article 58 of the Limitation Act. UnderArticle 65 of the Limitation Act, the period of limitation is 12 years and itrelates to possession of immovable property or any interest therein based ontitle. It is contention of the learned counsel for the defendants that sinceChinnappa Pillai had executed a will and had died prior to the institution ofthe suit, the plaintiffs do not have title over the properties.

(ii) The learned counsel, therefore, stated that Article 58 alone isattracted which is the Article to obtain a relief of declaration and theperiod fixed therein is three years. It is seen that the plaintiffs had filedO.S.No.57 of 1976 seeking accounts of the income of the properties leftbehind by Chinnappa Pillai. The judgment in that suit was marked as Ex.A.5.It was dated 29.08.1980. The said suit was dismissed on the ground ofmaintainability. Thereafter, the plaintiffs filed A.S.No.1127 of 1980

before the High Court. They filed C.M.P.No.2838 of 1987. Orders were passedin the said Civil Miscellaneous Petition on 02.03.1987. This was produced asEx.A.6. In Ex.A6, the High Court had granted leave to withdraw O.S.No.57 of1976 and file a fresh suit for such reliefs, as though just and proper.After that, the present suit in O.S.No.14 of 1988 had been filed on20.01.1988. In the light of these background facts, the learned counsel forthe plaintiffs stated that the period of the pendency of O.S.No.57 of 1976has to be excluded and if it is so done, the suit would be very much withinthe period of limitation. It is seen that Chinnappa Pillai died on16.04.1976. The cause of action arose on that date. The learned counsel forthe defendants however pointed out Order 23 Rule 2 CPC, wherein it had beenprovided that if a fresh suit is instituted, then the plaintiffs shall bebound by the law of limitation, as if the first suit had not been filed. Thelearned Subordinate Judge had held that Article 58 of the Limitation Actwould apply to the present case.

(iii) I disagree with the said contention. The claim of the plaintiffsis based on title. Title will pass to the defendants, not by execution ofthe will but only when the will is proved in manner known to law. Thedefendants have not filed any application for probate of the will. Unlessthe will is proved, they also cannot claim title over the properties. If thewill was not in existence then the plaintiffs, as daughters, would inheritthe properties. Consequently, I hold that the suit will be covered onlyunder Article 65 and not under Article 58.

(iv) In AIR 2000 SC 1099 (State of Maharashtra Vs. Pravin JethalalKamdar), the scope of both Articles 58 and 65 of the Limitation Act had beenexamined:~

?Article 58 of the Limitation Act, 1963, prescribes limitation of threeyears from the date when the right to sue first accrues to obtain adeclaration. Under Article 65, the period of limitation prescribed for filinga suit for possession of immovable property or any interest therein based ontitle is 12 years from the date when possession of the defendants becomesadverse to the plaintiff. The contention urged on behalf of the StateGovernment was that Article 58 of the Limitation Act was applicable as theplaintiff had sought declaration about the invalidity of the order dated 26thMay, 1976 and sale deed dated 23rd August, 1976 and that the period oflimitation of three years had to be computed from 26th May, 1976 and,therefore, the suit filed on 22nd August, 1988 was hopelessly barred by time.This contention was rejected by the High Court as also by the trial court.The contention urged on behalf of the plaintiff and which has been acceptedis that the suit is basically for possession of the property based upon titleand the sale deed dated 23rd August, 1976 and the order dated 26th May, 1976and the order dated 26th May, 1976 being void ab inito and withoutjurisdcition, a plea about its invlidity can be reaised in any proceedingsand it is not necessary to claim any declaration and thus Article 65 whichdeals with suit for possession based on title would be applicable from thedate, the possession of the defendant becomes adverse to the plaintiff.?

?The fact of plaintiff having sought such a declaration is of no consequence.When possession has been taken by the appellants pursuant to void documents,Article 65 of the Limitation Act will apply and the limitation to file

the suit would be 12 years. When these documents are null and void, ignoringthem a suit for possession simpliciter could be filed and in the course ofthe suit it could be contended that these documents are nullity. In Ajudh Rajand Ors. v. Moti S/o Mussadi [(1991) 3 SCC 136] this Court said that if theorder has been passed without jurisdiction, the same can be ignored asnullity, that is, non~existent in the eyes of law and is not necessary to setit aside; and such a suit will be governed by Article 65 of the LimitationAct. The contention that the suit was time barred has no merit. The suit hasbeen rightly held to have been filed within the period prescribed by theLimitation Act. ?

(v) In 2015 7 SCC 58,(M.P.Steel Corporation Vs. Commissioner of CentralExcise), the ingredients of Section 14 of Limitation Act had been discussed:~

7. Section 14 of the Limitation Act reads as follows:

14. Exclusion of time of proceeding bona fide in court without jurisdiction.?(1) In computing the period of limitation for any suit the time during whichthe plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision,against the defendant shall be excluded, where the proceeding relates to thesame matter in issue and is prosecuted in good faith in a court which, fromdefect of jurisdiction or other cause of a like nature, is unable toentertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence anothercivil proceeding, whether in a court of first instance or of appeal orrevision, against the same party for the same relief shall be excluded, wheresuch proceeding is prosecuted in good faith in a court which, from defect ofjurisdiction or other cause of a like nature, is unable to entertain it.(3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Codeof Civil Procedure, 1908 (5 of 1908), the provisions of sub~section (1) shallapply in relation to a fresh suit instituted on permission granted by thecourt under Rule 1 of that Order, where such permission is granted on theground that the first suit must fail by reason of a defect in thejurisdiction of the court or other cause of a like nature.

Explanation.?For the purposes of this section,?

(a) in excluding the time during which a former civil proceeding was pending,the day on which that proceeding was instituted and the day on which it endedshall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to beprosecuting a proceeding;

(c) misjoinder of parties or of causes of action shall be deemed to be acause of a like nature with defect of jurisdiction.?

8. Shri A.K. Sanghi, learned senior counsel appearing on behalf of the Department has stated that at no point of time has the appellant taken up aplea based on Section 14. Neither has the appellant met with any of the fiveconditions set out in paragraph 21 of Consolidated Engg. Enterprises v.Principal secy., Irrigation Deptt., (2008) 7 SCC 169, which reads asfollows:~

?21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the saidsection, it becomes evident that the following conditions must be satisfiedbefore Section 14 can be pressed into service:

(1) Both the prior and subsequent proceedings are civil proceedingsprosecuted by the same party;

(2) The prior proceeding had been prosecuted with due diligence and in goodfaith;(3) The failure of the prior proceeding was due to defect of jurisdiction orother cause of like nature;

(4) The earlier proceeding and the latter proceeding must relate to the samematter in issue and;

(5) Both the proceedings are in a court.?

(vi) Order 23 Rule 2 CPC is as follows:~

Procedure

?in any fresh suit instituted on permission granted under the lastpreceding rule, the plaintiff shall be bound by the law of limitation in thesame manner as if the first suit had not been instituted.?

(vii) This provision has been relied on by the learned counsel for thedefendants to contend that Section 14 of the Limitation Act cannot be appliedto the facts of the present case.

(viii) In (2008) 7 SCC 169 (Consolidated Engineering Enterprises VsPrincipal Secretary, Irrigation Department), the scope of Section 14 of theLimitation Act had been illustrated:~

--To attract the provisions of Section 14 of the Limitation Act, five conditions enumerated in the earlier part of this Judgment have to co~exist.There is no manner of doubt that the section deserves to be construedliberally. Due diligence and caution are essentially pre~requisites forattracting Section 14. Due diligence cannot be measured by any absolutestandards. Due diligence is a measure of prudence or activity expected fromand ordinarily exercised by a reasonable and prudent person under theparticular circumstances. The time during which a court holds up a case whileit is discovering that it ought to have been presented in another court, mustbe excluded, as the delay of the court cannot affect the due diligence of theparty. Section 14 requires that the prior proceeding should have beenprosecuted in good faith and with due diligence. The definition of good faithas found in Section 2(h)of the Limitation Act would indicate that nothingshall be deemed to be in good faith which is not done with due care andattention. It is true that Section 14 will not help a party who is guilty ofnegligence, lapse or inaction. However, there can be no hard and fast rule asto what amounts to good faith. It is a matter to be decided on the facts ofeach case. It will, in almost every case be more or less a question ofdegree. The mere filing of an application in wrong court would not primafacie show want of good faith. There must be no pretended mistakeintentionally made with a view to delaying the proceedings or harassing theopposite party. In the light of these principles, the question will have tobe considered whether the appellant had prosecuted the matter in other courts

(ix) A combined reading of the principles stated above would imply thatif the suit is based on the title, then the period of limitation would begoverned under Article 65 of the Limitation Act. If an earlier suit had beenfiled and exemption is sought and if permission had been granted under Order23 Rule 2 CPC then to seek the benefit of Section 14 of the Limitation Act,the earlier suit should have been filed bona fide. In the present case, thereliefs sought in O.S.No.57 of 1976 were held to be not maintainable by thetrial Court. But that does not imply that the suit was not bona fide. Bonafide is inferred from the fact that the plaintiffs had also filed firstappeal before the High Court. The first appeal was pending for seven years.Thereafter, they filed an application seeking permission to withdraw andinstitute a fresh suit. When permission had granted under suchcircumstances, the period of pendency of O.S.No.57 of 1976 has to beexcluded and Section 14 of Limitation Act would come to the rescue ofplaintiffs. Article 65 also applies to the present case and I hold that thesuit has been filed within the period of limitation. The points are answeredaccordingly.

17. Point No.3:~

The learned Subordinate Judge held that the suit had not been properlyvalued and that proper Court fees had not been paid. It is seen that at thattime when the suit was adjudicated by the learned Subordinate Judge, theSubordinate Court had unlimited pecuniary jurisdiction. If the value of thesuit was not proper, then the learned Subordinate Judge should have calledupon the plaintiffs to revalue the suit in accordance with the Rules and paynecessary Court fees. Opportunity must have been given for that purpose.Consequently, I hold that the dismissal of the suit on that ground cannot besustained.

(i) I hold that the trial is the proper Court to decide about that andconsequently, the valuation given by the plaintiffs will have to be accepted.I hold that the suit had been properly valued and necessary Court fees hadbeen paid. If the valuation is improper, then at the time of drafting thedecree, opportunity has to be given and additional Court fees can becollected from the plaintiffs. The point 3 is answered accordingly.

Point No.4:~

18. The suit had been filed seeking declaration of title and forrecovery of possession. In the opinion of the learned Subordinate Judge, asuit for partition should have been filed. I do not agree with that opinionof the learned Subordinate Judge. A suit for declaration is filed when thereis a cloud on the title. In the present case, the defendants are inpossession of the suit property. They have challenged the title of theplaintiffs or the right of the plaintiffs succeed to title on the basis ofinheritance as daughters of Chinnappa Pillai. Naturally recovery ofpossession has to be sought. Further, the plaintiffs have to necessarilyseek a declaration of title. A suit for partition cannot be filed, since theplaintiffs dispute the status of the first and second defendants. Therefore,I hold that the suit as framed is maintainable. This point is answered accordingly.

Point Nos.5 to 7:~

Conclusion

accordingly.

Point Nos.5 to 7:~

19. The entire litigation surrounds around the amorous life ofChinnappa Pillai. The plaintiffs Radha and Chandra are the only daughters ofChinnappa Pillai. Chinnappa Pillai died on 16.04.1976. His wife (mother ofthe plaintiffs) predeceased him. The first defendant was his concubine. Thesecond defendant was her son. It is claimed by the first defendant that thesecond defendant was born through Chinnappa Pillai. This fact is denied andchallenged by the plaintiffs. They produced Ex.A.1, which is the birthcertificate of the second defendant. Ex.A1 is dated 27.12.1979. It showsthat a child by name Panneer Selvam was born on 07.01.1959. The name of thefather/mother is given as Krishnasamy/Santha. To further point out that theother children of Santha were also not born through the Chinnappa Pillai,the plaintiffs also filed Ex.A.2 and Ex.A3 and Ex.A4. Ex.A2 is the birthcertificate of the daughter of Santha. This daughter was born on 02.10.1955.The name of her father/mother were given as Dassi/Santha. Santha had twoother daughters, who are younger than the second defendant/Panneer Selvam.Their birth certificates were produced as Ex.A3 and Ex.A4. Ex.A3 isthe birth certificate of the daughter born on 19.02.1961. The name of thefather/mother are given as Narayanasamy Gounder/Santha Ammal. Ex.A4 is thebirth certificate of the last daughter who was born on 20.04.1964. The nameof the father /mother is given as Narayanasamy/Santha. All the four childrenwere born in Pandanallur Village, which is the native village of theplaintiffs and Chinnappa Pillai. Santha was also residing there. These fourdocuments throw up very disturbing facts. It is claimed that Santha wasliving with Chinnappa Pillai prior to and after the birth of the seconddefendant. But the birth certificates which have not been contested by thedefendants show that her children were not born through Chinnappa Pillai. Itwas during this period that settlement deeds were executed by ChinnappaPillai in her favour. It is seen that for each one of her four children thename of her husband is given differently. Though the suit is only regardingthe status of Panneerselvam / second defendant, it is seen that the name ofhis father had been given as Krishnasamy. I am not prepared to dwelve furtheron this issue.

(i) In the above background, the will Ex.B37, has to be examined. Itwas dated 30.03.1976. In the will, he had stated:?vdf;F mbf;fb cly; eyf;FiwT Vw;gl;L mbf;fb gLj;j gLf;ifapy; ,Ue;J tUfpwepiyik Vw;gl;Lf; nfhz;bUg;gjhy;...?He further stated:

?jw;NghJ ehd; ge;jey;Y}h; ngUkhs; Nfhtpy; fPo tPjpapy; trpf;Fk;ehuhazrhkp fTz;lh; Fkhup rhe;jh mk;khSila guhkupg;pgy; tho;e;J tUfpNwd;.?

(ii) It is thus seen that he had expressed that not only was he in goodphysical health but was also under care/control of the firstdefendant/Santha. He further stated:

?vd;Dila jpUg;jpf;Nfw;wgb vdf;F fe;j Njitahd gzp tpilfisAk; nra;J

nfhz;L vd;id guhkupj;J tUfpw fhuzj;jpdhYk; rhe;jh mk;khsplk; vdf;F ,Uf;fpwmgpkhdj;ij Kd;dpl;L ...?

(iii) This again reaffirms the fact that she was having control overhim. He then described the second defendant as follows:?,e;j capy; ?gp? n\l;a+ypy; fz;bUf;fpw nrhj;Jf;fis i\ rhe;jh mk;khspd;FkhuDk; vdJ mgpkhdGj;jpuDkhd 17 taJs;s ikdh; gd;d{h;nry;tk;...?

(iv) Chinnappa Pillai had described the second defendant only as hismgpkhdGj;jpud;. This description of the second defendant is verysignificant. On the date, when this Will/Ex.B.37 was executed, ChinnappaPillai-s wife was already dead. He had described Panneerselvam, who was aged17 years as his ?mgpkhdGj;jpud;? and not as ?Gj;jpud;?. Reading thisstatement in~conjunction with Ex.A1, A2, A3 and A4 will lead to conclusionthat Chinnappa Pillai did not consider the second defendant Panneer selvam ashis begotten son. He considered him as equivalent to a son and on whom he hadaffection. This affection cannot immediately mean that the second defendantwas born to him. The affection would also mean that the second defendant wasborn to Santha to whom he was indebted since he was living with her.

(v) A few background facts will have to be re~examined to determine therelationship among the parties. Ex.A.10 is settlement deed dated 27.09.1973executed by Chinnappa Pillai in favour of the second defendant /PanneerSelvam. Panneer Selvam was described as follows:~

?rhe;jh Fkhud; ikdh; 14 taJs;s gd;dPh;nry;tDf;F fhh;baDk; jhahUk;Rngh\fpAkhfpa i\ ge;jey;Y}upypUf;Fk; ehuhazrhkp fTz;lh; Fkhuj;jp rhe;jhvd;gtSf;F....?

(vi) Again Chinnappa Pillai had not described the second defendant ashis son. He had not even described the first defendant Santha as a marriedlady. He related her to her father rather than to himself. Later, in the verysame document after stating that he had two daughters, he further stated asfollows:~

?vdf;F Ntw Mz; re;jjpfs; fpilahJ. vd;Dila mgpkahdGj;jpud;......? (vii)The above statement leads to the irresistible conclusion that not only was heprepared to describe the first defendant as his wife, but he was also notprepared to accept the second defendant was his son. In fact hecategorically stated that he had no -Mz; re;jjpfs;-. This would mean he hadno sons to succeed him or to inherit his properties as a right.

(viii) In Ex.A7 which is a sale deed dated 20.01.1962 executed by Chinnappa Pillai in favour of Santha, she was described as daughter ofNarayanasamy Gounder. She was again not described as his wife. Similarly inEx.A8, which is yet another sale deed 23.06.1962 executed in favour of SanthaAmmal daughter of Narayanasamy Gounder, he did not describe her as his wife.In Ex.A9 , sale deed in favour of Narayanasamy-s daughter Santha executed byChinnappa Pillai, she was again not described as his wife.

(ix) The learned counsel for the defendants placed reliance on Ex.B.35,which is the SSLC certificate of Panneer Selvam/second defendant. In thisSecondary School Leaving Certificate, the father-s name of the seconddefendant was given as R.Chinnappa Pillai. However, this description cannotoverride, Chinnappa Pillai-s description as ?mgpkhdGj;jpud;? in all theregistered documents. Ex.A1 had been issued by the Revenue Authorities andD.W.1, who was the first defendant, had not objected to the names shown asfather/mother.

(x) . In this background it is clear that Chinnappa Pillai and Santha had not married. The terms of will shall have to be interpreted with thatfact as the basic premise. It is the specific contention of the learnedcounsel for the appellants that though he had stated that he has only twodaughters in earlier documents and though he had stated that he has no sons,he had however continuously described Panneer Selvam as his ?mgpkhdGj;jpud;?.

(xi) It has to be examined whether the will has been proved inaccordance with the stipulations laid down in Section 63 of the IndianSuccession Act and in Section 68 of the Indian Evidence Act.

Section 63 of the Indian Succession Act is as follows:~?Every testator, not being a soldier employed in an expedition orengaged in actual warfare (or an airman so employed or engaged) or a marinerat sea, shall execute his Will according to the following Rules:~

(a) The testator shall sign or shall affix his mark to the Will, or it shallbe signed by some other person in his presence and by his direction.(b)The signature or mark of the testator, or the signature of the personsigning for him, shall be so placed that it shall appear that it was intendedthereby to give effect to the writing as a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has seenthe testator sign or affix his mark to the Will or has been some other personsign the Will, in the presence and by the direction of the testator, or hasreceived from the testator a personal acknowledgment of his signature ormark, or of the signature of such other person; and each of the witnessesshall sign the Will in the presence of the testator, but it shall not benecessary that more than one witness be present at the same time, and noparticular form of attestation shall be necessary.Section 68 of the Indian Evidence Act is as follows:~?If a document is required by law to be attested, it shall not be usedas evidence until one attesting witness at least has been called for thepurpose of proving its execution, if there be an attesting witness alive, andsubject to the process of the Court and capable of giving evidence:?It is to be examined whether the will had been exempted in manner known tolaw and whether it had been proved in accordance with law. In the presentcase, the will/ Ex.B.37 had been attested by P.W.2/ V.Govindasamy and D.W.3/K.Thiagaraja Pillai. The crucial aspect in Section 63 of the IndianSuccession Act is ?each of whom has seen the testator sign....?P.W.2 in his evidence stated in chief as follows:?rpd;dg;gh gps;is capy; gj;jpuj;jpy; ifnaOj;J Nghl;lij ehd;ghh;f;ftpy;iy. fhl;lg;gLk; gp.th.rh.M.37y; ehd; rhl;rpf; ifnaOj;JNghl;Ls;Nsd;. me;j rhl;rp ifnaOj;ij vd; tPl;by; te;J thq;fpg; Nghdhh;fs;.ehd; ifnaOj;J Nghl;lij rpd;dg;gh gps;isNah kw;w rhl;rpfNsh ghh;f;ftpy;iy.gp.th.rh.M.37y; ehd; ifnaOj;J NghLk;NghJ rpd;dg;gh gps;is ,y;iy.?

The witness clearly stated that he did not see Chinnappa Pillai sign thewill. In fact, Chinnappa Pillai was not even present when the witness signedthe will as attestor.In cross he stated as follows:

?gp.th.rh.M.37y; mJ vd;d Mtzk; vd;W njupe;J nfhz;Ljhd; ifnaOj;J

(xii) The above statements indicate that the witness was not nurturingany hostility towards Santha Ammal. He had given evidence on her behalfbefore the Agriculture Income Tax Office. He was also not hostile toManipillai, who was also a beneficiary under the will. During the cross~examination, he has stated as follows:~

?vdf;F kzpg;gps;is ngaupy; nuhk;k ek;gpf;if.?He stated that he trusted Manipillai.

This evidence has to be seen in conjunction with the evidence of D.W.3/Thiagarajan who stated that; ?capy; vOjpa fhyj;jpy; rpd;dg;gh gps;isapd; cly;epiy ed;whf ,Ue;jJ.

ey;y epidNthL ,Ue;jhh;. mtUila kdepiy Qhgf rf;jp MfpaitAk; ed;whf ,Ue;jd.?He has stated that he actually signed the Will in the presence of theChinnappa Pillai.

The above evidence reveals the following :~

1. P.W.2 did not see Chinnappa Pillai signing the Will.

2. D.W.3 saw Chinnappa Pillai signing the Will.

3. D.W.3 further stated that the Chinnappa Pillai was fully consciousat that time of executing the Will.

(xiii) The evidence of D.W.3 is challenged by the learned counsel forthe appellants by pointing out in Ex.A37. In Ex.A37, D.W.3 had filed anaffidavit in O.S.No.4 of 1977, which was a suit filed by minor Panneerselvamagainst Sambandam Pillai and others and D.W.3 had stated in the affidavit:?I know the minor plaintiff............ I am closely connected withthe plaintiffs family?.

(xiv) This statement has been strongly relied to show that the witnesswas not an independent witness, but that he has attachment to the family ofthe first and second defendants. His statement about the mental andphysical condition of Chinnappa Pillai will have to be read in conjunctionwith the statement of P.W.3/Dr.Ganesan, who treated Chinnappa Pillai thatwitness stated that:~

?1976k; tUlk; khh;r; khjk; 3tJ thuj;jpy; Kjd;Kjypy; mtiug; ghh;j;Njd;.2> 3 ehl;fs; fopj;J 2tJ Kiwahf mtiug; ghh;j;Njd;. mth; xU tPl;by; jpz;izapy;,Ue;jNghJ mth; gLj;j gLf;ifahf ,Ue;jNghJ mtiu gupNrhjpj;J ghh;j;Njd;. xUnkj;J Nghl;L mjpy; mth; gLj;J ,Ue;jhh;. ehd; mtiu gupNrhjpj;j NghJ mth;rpWePh; NfhshW rk;ge;jkhf f\;lg;gl;Lf; nfhz;bUe;jhh;. ehh;kyhf rpWePh;NghfKbahky; ,Ue;jjpdhy; rpWePh; ntsptUtjw;F mth; tapw;wpy; xU ba+g;(mbtapw;wpy; xU gpshlh;) Nghlg;gl;L mjd; topahf rpWePh; ntspf; nfhz;Ltug;gl;lJ. mth; Fog;gkhd epiyapy; ,Ue;jhh;. Nfl;Fk; Nfs;tpfSf;F mtuhy;rupahf gjpy; nrhy;y Kbatpy;iy. njhlh;gpy;yhky; Ngrpf; nfhz;L ,Ue;jhh;.Fiwe;j msT rpWePh; te;Jf; nfhz;bUe;jJ. mtUf;F jhk; vd;d nra;fpNwhnkd;W kdepiy,y;yhJ ,Ue;jJ.?

(xv) This statement by the doctor clearly exposes the fact that theChinnappa Pillai was not physically well, was not mentally aware of what ishappening around him and he was speaking incoherently. He was not able toanswer any question and he was suffering from severe physical ailment. He wasin a confused state of mind. A catheter had been inserted.The Doctor, PW~3 also stated as follows:

?mtUf;F itj;jpak; ghh;j;J kUe;J nfhLj;Njd;. 2TJ jlitAk; vd;id me;jk;khs;jhd; te;J mioj;Jr; nrd;whh;. mg;NghJ rpd;dg;gh gps;is Kjy; jlit,Ue;jijf; fhl;bYk; f\;lkhd epiyikapy; ,Ue;jhh;. Mtuy; rupahf NgrKbatpy;iy.?The above evidence signifies that his condition worsened by the nextconsultation.He also stated as follows:~

?mjd;gpd; xU 10 ehl;fSf;Fs; vOjpa xU fj;ij Ngg;gh;fis vLj;Jf; nfhz;Lme;jk;khs; vd;id ifnaOj;J NghLk;gb Nfl;lhh;. ehd; mjw;F vd;d vd;WNfl;Fk;NghJ nrhj;J rk;ge;jhkhdJ vd;Wk;> mjdhy; ifnaOj;J Nghl Ntz;Lnkd;Wk;nrhd;dhh;. rpd;dg;gh ifnaOj;J NghLfpw msTf;F epjhdkhf ,y;iynad;Wk;> mjdhy;ehd; ifnaOj;J mtw;wpy; Nghl Kbahnjd;Wk; nrhd;Ndd;. mjd;gpd; me;jk;khs;Ngha;tpl;lhh;.?

(xvi) He identified the lady about whom he spoke in the evidence as Santha. During her evidence D.W.1/Santha disclaimed all knowledge of theDoctors. However, in her own evidence in the earlier suit in O.S.No.57 of1976, she had stated that Chinnappa Pillai took treatment with DoctorGanesan. She has stated as follows:

?,th; jhd; lhf;lh; ,lk; Ngha; ghh;j;J te;jhh;.?

It is thus seen that Ex.B37 is shrouded with suspicion. The executionhas not been proved since PW.2 has stated that he did not see the testatorsigning the doubt. The doctor-s evidence clearly reveals that the testatorwas both mentally and physically unsound.

In AIR 1959 SC 443 (H.Venkatachala Iyengar Vs. B.N.Thimmajamma), it hadbeen stated as follows:

--the mode of proving a will did not ordinarily differ from that of provingany other document except as to the special requirement of attestationprescribed in the case of a will by S.63 of the Indian Succession Act. Theonus of proving the will was on the propounder and in the absence ofsuspicious circumstances surrounding the execution of the will proof oftestamentary capacity and signature of the. testator as required by law wassufficient to discharge the onus. Where, however, there were- suspiciouscircumstances, the onus would be on the propounder to explain them to thesatisfaction of the Court before the will could be accepted as genuine. Ifthe caveator alleged undue influence, fraud or coercion, the onus would be onhim to prove the same. Even where there were no such pleas, but thecircumstances gave rise to doubts, it was for the propounder to satisfy theconscience of the Court. Further, what are suspicious circumstances was alsoconsidered in this case. The alleged signature of the testator might be veryshaky and doubtful and evidence in support of the propounder-s case that thesignature in question was the signature of the testator might not remove thedoubt created by the appearance of the signature., The condition of thetestator-s mind might appear to be very feeble and debilitated and evidenceadduced might not succeed in removing the legitimate doubt as to the mentalcapacity of the testator ; the dispositions made in the will might appear tobe unnatural, improbable or unfair in the light of relevant circumstances ;or the will might otherwise indicate that the said dispositions might not bethe result of the testator-s free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completelyremoved before the document was accepted as the last will of the testator.Further, a propounder himself might take a prominent part in the execution ofthe will which, conferred on him substantial benefits. If this was so it wasgenerally treated as a suspicious circumstance attending the execution of thewill and the propounder was required to remove the doubts by clear andsatisfactory evidence. But even where- there were suspicious circumstancesand the propounder succeeded in removing them, the Court would grant probatethough the will might be unnatural and might cut off wholly or in part nearrelations.?

In AIR (1974) 2 SCC 600 (Surendra Pal Vs. Dr.Saraswati Arora), it hadbeen stated as follows:~

?the propounder has to show that the Will was signed by the testator; that hewas at the relevant time in a sound disposing state of mind, that heunderstood the nature and effect of the dispositions, that he put hissignature to the testament of his own free will and that he has signed it inthe presence of the two witnesses who attested it in his presence and in thepresence of each other. Once these elements are established, the onus whichrests on the propounder is discharged. But there may be cases in which theexecution of the Will itself is surrounded by suspicious circumstances, suchas, where the signature is doubtful, the testator is of feeble mind or isoverawed by powerful minds interested in getting his property, or where inthe light of the relevant circumstances the dispositions appear to beunnatural, improbable and unfair, or where there are other reasons fordoubting that the dispositions of the Will are not the result of thetestator-s free will and mind. In all such cases where there may belegitimate suspicious circumstances those must be reviewed and satisfactorilyexplained before the Will is accepted. Again in cases where the propounderhas himself taken a prominent part in the execution of the Will which conferson him substantial benefit that is itself one of the suspicious circumstanceswhich he must remove by clear and satisfactory evidence. After all,ultimately it is the conscience of the court that has to be satisfied, assuch the nature and qualify of proof must be commensurate with the need tosatisfy that conscience and remove any suspicion which a reasonable man may,in relevant circumstances of the case, entertain.

In 1992 2 SCR 30 (Guro Vs. Atma Singh), which reads as follows:~

With regard to proof of a will, the law is well~ settled that the mode ofproving a will does not ordinarily differ from that of proving any otherdocument except as to the special requirement prescribed in the case of awill by section 63 of the Indian Succession Act. The onus of proving the willis on the propounder and in the absence of suspicious circumstancessurrounding the execution of the will, proof of testamentary capacity andsignature of the testator as required by law is sufficient to discharge theonus. Where, however there were suspicious circumstances, the onus would beon the propounder to explain them to the satisfaction of the court before thewill could be accepted as genuine. Such suspicious circumstances may be ashaky signature, a feeble mind and unfair and unjust disposal of property orthe propounder himself taking a leader part in the making of the will underwhich he receives a substantial benefit. The presence of suspicious circumstances makes the initial onus heavier and the propounder must removeall legitimate suspicion before the document can be accepted as the last willof the testator.

In 2005 1 SCC 40 (Daulat Ram Vs. Sodha), which reads as follows:~

Will being a document has to be proved by primary evidence except where thecourt permits a document to be proved by leading secondary evidence. Since itis required to be attested, as provided in Section 68 of the Indian EvidenceAct, 1872, it cannot be used as evidence until one of the attesting witnessesat least has been called for the purpose of proving its execution, if therebe an attesting witness alive, and subject to the process of the court andcapable of giving evidence. In addition, it has to satisfy the requirementsof Section 63 of the Indian Succession Act, 1925. In order to assess as towhether the Will has been validly executed and is a genuine document, thepropounder has to show that the Will was signed by the testator and that hehad put his signatures to the testament of his own free will; that he was atthe relevant time in a sound disposing state of mind and understood thenature and effect of the dispositions and that the testator had signed it inthe presence of two witnesses who attested it in his presence and in thepresence of each other. Once these elements are established, the onus whichrests on the propounder is discharged. But where there are suspiciouscircumstances, the onus is on the propounder to remove the suspicion byleading appropriate evidence. The burden to prove that the Will was forged orthat it was obtained under undue influence or coercion or by playing a fraudis on the person who alleges it to be so.

(xvii) In the present case, one of the attesting witnesses, PW.2 hasvery clearly stated that he did not see Chinnappa Pillai singing the will.The Doctor has very clearly stated that Chinnappa Pillai was suffering fromsickness and was not able to answer any question. He was in a confused stateof mind and was speaking incoherently. The Will was executed on 30.03.1976.Chinnappa Pillai died on 06.04.1976. In the Will, the plaintiffs had beentotally excluded. It is no doubt true that by a settlement deed, 4 acres ofland had been allotted both of them. But what was allotted to the defendantswas substantially more and no convincing reason has been given to disinheritand exclude the plaintiffs. It is a fact that the plaintiffs had filed asuit against him. But when a father openly lives with another lady, it isonly natural that the daughters would have taken steps to protect theproperties. In the present case also every step which the plaintiffs tookwere with intention to protect the properties. I hold that the will had notbeen proved in the manner known to law. In Ex.B.37, registration has alsobeen done in a perfunctory manner. The Sub~Registrar had not explained thepurpose of the document and the effect of disposition of properties through awill.

In AIR 1962 SC 567 (Rani Purnima Debi Vs. Kumar Khagendra Narayan Deb),which had been held as follows:~

?There is no doubt that -if a will has been registered, that is acircumstance which may, having regard to the circumstances, prove itsgenuineness. But the mere fact that a will is registered will not by itself

be sufficient to dispel all suspicion regarding it where suspicion exists,without submitting the evidence of registration to a close examination. Ifthe evidence as to registration on a close examination reveals that theregistration was made in such a manner that it was brought home to thetestator that the document of which he was admitting execution was a willdisposing of his property and thereafter he admitted its execution and signedit in token thereof, the registration will dispel the doubt as to thegenuineness of the will. But if the evidence as to registration shows that itwas done in a perfunctory manner, that the officer registering the will didnot read it over to the testator or did not bring home to him that he wasadmitting the execution of a will or did not satisfy himself in some otherway (as, for example, by seeing the testator reading the will) that thetestator knew that it was a will the execution of which he was admitting, thefact that the will Was registered would not be of much value. It is notunknown that registration may take place without the executant really knowingwhat he was registering.

Therefore, the mere fact of registration may not by itself be enough todispel all suspicion that may attach to the execution and attestation of awill; though the fact that there has been registration would be an importantcircumstance in favour of the will being genuine if the evidence as toregistration establishes that the testator admitted the execution of the willafter knowing that it was a will the execution of which he was admitting.?The Registration of Ex.B37 would not dispel the suspicious circumstances.

(xviii) For all these reasons I hold that the Will had not been provedin manner known to law and it has to be rejected. The point is answeredaccordingly. It is also seen that Chinnappa Pillai was totally under thecontrol of the first defendant/Santha. Even during the period they weretogether she had two further children after the second defendant and even inthe birth certificates of those children, the names of the father differ.She did not dispute the corrections of those even that of the seconddefendant-s birth certificate. There is no reason why he had bequeathedsubstantial properties to the second defendant after he had stated that?Mz;fs; re;jjpfs; ,y;iy?. Consequently, a very strong inference can be drawnthat the will was the result of extreme influence exercised by the first andsecond defendants. It is rejected by me. The points 5 to 9 are answeredaccordingly.

Point No.8:

20. In view of the fact that the Will is rejected by this Court andsince it is admitted by all the parties that the plaintiffs are the daughtersof Chinnappa Pillai and the only legal heirs, naturally, they are entitled toget the relief of declaration of title and consequential recovery ofpossession as sought in the plaint.

(i) . However, it had been pointed out that two of the items are theexclusive properties of the first and second defendants. At the time ofexecution, the defendants are at liberty to point out the properties, towhich, sale deeds/settlement deeds have already been executed in their favourand the learned Subordinate Judge can consider such applications in accordance with law. Consequently, I hold that the plaintiffs are entitledfor the relief of declaration and recovery of possession. Since even in theplaint, it had been stated that the defendants are not in possession of allthe properties, I further hold that in the absence of specific details, thefurther reliefs of past and future profits cannot be granted.

Issue No.9:

Issues

21. In the result, the Appeal is allowed with costs and the judgmentand decree in O.S.No.14 of 1988 on the file of the Subordinate Court,Kumbakonam dated 21.07.1995 is set aside and the suit is decreed with respectto the relief of declaration of title and recovery of possession butdismissed with respect to the claim for past and future profits. ConnectedCivil Miscellaneous Petition is closed.

ToThe Subordinate Judge of Kumbakonam.