The 1st and 2nd defendants have preferred the present appeal. The 1st defendant had passed away. Her legal heirs are already on record.
2. The suit is filed for partition and separate possession of 1/7th share in 'A' and 'B' Schedule properties and also for rendition of accounts by the defendants 1 to 3.
3. The plaintiffs and defendants 3 to 6 are the daughters and the 2nd defendant is the son of the 1st defendant Mariyammal and late P.P.Palanisamy Nadar.
4. The Plaintiff would contend that P.P.Palanisamy Nadar died intestate on 26.1.1986 at Coimbatore Medical College Hospital, Coimbatore. The properties described in 'A' and 'B' Schedules were self-acquired properties of the deceased P.P.Palanisamy Nadar. The plaintiff and the defendants 1 to 6 are in the joint possession of the same. Each of them is entitled to 1/7th share therein. The defendants 1 to 3 are in management of the suit properties for and on behalf of the defendants 1 to 6 and the plaintiff. The 'B' schedule property is the amount in Savings Bank Account in the name of P.P.Palanisamy Nadar lying in Bank of Baroda, Coimbatore who has been shown as 7th defendant. The plaintiff has claimed 1/7th share in the 'A' and 'B' Schedule properties.
5. The 1st and 2nd defendants filed written statements. The defendants 3 to 6 adopted the written statement of the 1st defendant. They have contended in their written statements that though the properties are separate and self-acquired properties of P.P.Palanisamy Nadar, he executed a Will dated 23.5.1983 bequeathing the life estate in favour of the 1st defendant and absolute ownership in favour of the 2nd defendant. The 2nd defendant was let in possession of the suit property as per the lease arrangement he had with his father P.P.Palanisamy Nadar. The plaintiff and her husband were fully aware of the execution of the Will. Suppressing the lease in favour of the 2nd defendant and the Will in existence, the present suit has been filed. As far as the 'B' schedule deposit is concerned, it was absolutely given to the 1st defendant with a direction to perform the marriage of the 6th defendant. Alleging that the plaintiff is not entitled to 1/7th share as claimed, the defendants 1 to 6 pray for dismissal of the suit.
6. In the reply statement filed by the plaintiff, it has been contended that the 2nd defendant was not a cultivating tenant of the suit properties and that the Will alleged to have been executed by P.P.Palanisamy Nadar was a forged and a fabricated one.
7. The trial court having adverted to the evidence on record arrived at a decision that the Will Ex.B.6 was validly executed by P.P.Palanisamy Nadar, bequeathing the life estate in favour of the 1st defendant and the absolute ownership in favour of the 2nd defendant. The trial court also held that as per the lease arrangement between the 2nd defendant and his father P.P.Palanisamy Nadar, the 2nd defendant was inducted into the possession of the 'A' schedule property. Therefore, the trial court was pleased to dismiss the suit with respect to the 'A' schedule property and granted relief with respect to 'B' schedule property.
8. Neither the 1st defendant nor the 2nd defendant took up the matter in appeal aggrieved by the share allotted to the plaintiff and the defendants 1 to 6 with respect to the 'B' schedule property.
9. Aggrieved by the dismissal of the suit with respect to the 'A' schedule property, the plaintiff took up the matter in First Appeal. The First Appellate Court observed that the suspicious circumstances surrounding the Will Ex.B.6 were not properly explained by the 1st and the 2nd defendants. It also observed that the allegation of forgery and fabrication made by the plaintiff was not established by the defendants 1 and 2. The testators would have preferred execution of a deed of settlement instead of execution of a Will inasmuch as the 2nd defendant was already inducted into possession of the 'A' schedule property as a lessee. The relationship of landlord and tenant set up by the 2nd defendant with his father appears to be quite unnatural and improbable. The First Appellate Court having compared the signature of the testators found in Ex.B.5 with that of Ex.B.3 and Ex.B.4 arrived at a decision that the testators signature found in Ex.B.5 did not tally with the signatures of the testators found in Ex.B.3 and Ex.B.4. P.P.Palanisamy Nadar, who had already engaged an Advocate to give a legal notice in the year 1967 would have definitely gone in for the registration of the Will if at all he had executed any Will. Referring to the evidence of the attesters D.W.4 to D.W.6, the First Appellate Court observed that D.W.4 and D.W.5 were close relatives of the 1st defendant and D.W.6 was a close friend of P.P.Palanisamy Nadar. The participation of the 2nd defendant in the execution of Will gives rise to suspicion, it has been observed. The 1st Appellate Court having commented that the trial court had chosen to give importance to the quantity of evidence rather than the quality of evidence disbelieved the execution of the Will Ex.B.6.
10. While admitting the Second Appeal, the following substantial question of law was formulated by this Court:
"Whether the judgment of the lower Appellate Court is vitiated by its failure to consider the entire evidence on record and to apply the correct principles of law."
11. The learned counsel appearing for the 2nd defendant would submit that the lower Appellate Court having found that cogent evidence was let in through D.W.1 and D.W.4 to D.W.6 with respect to the execution of the Will has disbelieved the Will executed by P.P.Palanisamy Nadar. No motive was attributed either to D.W.4, the brother-in-law of the testators or D.W.5, the son-in-law of the family. The integrity of D.W.6, the family friend of P.P.Palanisamy Nadar was not under challenge. There was no reason for the defendants 3 to 6 to support the case of the Defendants 1 and 2 if at all there was no execution of Will by P.P.Palanisamy Nadar. It is her further submission that in all Wills there would be disinheritance. As the 2nd defendant was the only son of the testator, the latter had chosen to bequeath the property in favour of his son disinheriting his daughters. It is her further submission that there is virtually no suspicious circumstance surrounding the execution of the Will. Therefore, she would submit that the judgment of the First Appellate Court calls for interference.
12. Learned counsel appearing for the respondent/plaintiff would submit that the findings factually rendered by the first appellate court cannot be upset by this court unless it is found to be perverse. Inasmuch as the first appellate court has given cogent reasons for setting aside the findings of the Trial Court, this court should be hesitant to interfere with the judgment of the first appellate court. The evidence on record would go to show that the Will, Ex.B6 is not the last Will inasmuch as the witnesses have spoken to the fact that the testator was toying with an idea to give the houses in the name of his wife, who is the first defendant herein, to his five daughters. No strong reason was given in the Will to disinherit the natural heirs. The second defendant, who was a college student during 1980-83, has come out with a plea that he was inducted as a lessee to the suit property by his father in order to give a colour of reality to the Will, Ex.B6. The second defendant has come out with a plea that he was already inducted in his capacity as a lessee by his father. DW1 has categorically stated that her husband tilled the lands and did direct cultivation till his death. DW1 and DW2 have come out with a different story from that of the content of the Will that the Testator proposed to allot the houses of the first defendant to his daughters. DW1 speaks about a Will which contains a clause that the Testator proposed to give the property of the first defendant to his daughters, but, not the subject Will, Ex.B6 projected by the second defendant. DW2 has admitted that a road is running in between the property measuring 5 acres dividing the property equally. Therefore, division of the property would not be difficult as recited in the Will. The court will have to hold that the second defendant participated in the execution of the Will inasmuch as he speaks about the intention of the Testator at the time of execution of the Will. The very fact that the second defendant failed to produce the Will alongwith the written statement would go to show that the unregistered Will was fabricated and long subsequent to the filing of the suit, the same was registered to suit the convenience of the second defendant. It is his last submission that the first appellate court has rightly applied the principles of law governing the attestation and execution of the Will. There is no necessity to interfere with the well considered judgment of the first appellate court, he would submit.
13. The second appellate court will not normally interfere with the findings of the courts below on facts if it is not found to be perverse. Only in cases where the courts below failed to appreciate the evidence on record, or the correct principles of law have not been properly appli