This Appeal has been preferred against the Judgment and Decree, dated 21.01.1992 made in O.S.No.218 of 1987 on the file of the Subordinate Court, Periyakulam.
2. The appellant herein was the first defendant in the suit filed by the plaintiff therein. The plaintiff filed the suit, seeking declaration of title, delivery of possession, final decree for redemption of mortgage and other consequential relief in respect of the suit property against the first appellant / D1 and two others.
3. The trial court, considering the evidence both oral and documentary and also the arguments advanced by both sides, has decreed the suit as prayed for. Aggrieved by which, the first defendant in the suit has preferred this appeal. As the plaintiff was reported dead, the Legal Representatives of the deceased plaintiff have been impleaded as respondents 4 to 8 in the appeal.
4. The properties set out in the schedule of the plaint are situated in Periyakulam Town. The entire property has been described as "A" schedule of the property, "B" schedule represents the western part and "C" schedule represents the eastern side of the said property. It is an admitted fact that the entire "A" schedule property was originally belonged to one Sadaiyammal. According to the plaintiff, the said Sadaiyammal executed her last Will and testament on 29.06.1983, while she was in a sound disposing state of mind in favour of her sister Palaniammal, vendor of the plaintiff by revoking her earlier Will, that had been executed by her in favour of her brother, late Pichai Pillai, husband of the appellant and his sons. According to the plaintiff, by virtue of the Will, dated 29.06.1983, the said Palaniammal became the absolute owner of the property, after the demise of her sister, Sadaiyammal. Palaniammal, as the sole legatee under the Will owned the property and sold the same to the plaintiff, Govindasamy on 17.02.1986 for a valuable consideration of Rs.47,750/-, reserving Rs.25,000/- with the plaintiff for discharging two earlier mortgages executed by Sadaiyammal in favour of the appellant / D1 on one hand and defendants 2 and 2 on the other on 30.11.1981 and 03.09.1981 respectively. According to the respondents 4 to 8, the plaintiff had been the bonafide purchaser of the property and as such, entitled to the relief sought for in the suit appeal.
5. The appellant herein, as first defendant has filed her written statement before the trial court, wherein she had disputed the alleged Will, dated 29.06.1983 executed by Sadaiyammal in favour of her sister, Palaniammal, vendor of the plaintiff. In the grounds of appeal, the appellant / first defendant has stated that the court below should have held that Sadaiyammal had not executed the suit Will in a sound disposing state of mind and that the plaintiff has not proved the Will as required by law. According to the learned counsel appearing for the appellant, Palaniammal had no right or interest in the suit property and the sale deed executed by her in favour of the plaintiff is not valid in law. The appellant has submitted further that Sadaiyammal had already executed a Will in favour of Pichai Pillai, husband of the appellant and his minor sons on 28.04.1980, while she was in a sound disposing state of mind and according to her the said Will had not been revoked by her. In the grounds, the appellant has also sated that the suit could have been dismissed for non- joinder of Palaniammal as a necessary party.
6. Considering the pleadings of both the parties and the grounds raised by the appellant herein, this Court decided that the following points for determination are arising for the disposal of this appeal:
(a) Whether the finding of the trial court that the Will, dated 29.06.1983 executed by Sadaiyammal in favour of Palaniammal a valid document is sustainable in law ?
(b) Whether the Will executed in favour of Pichai Pillai, husband of the appellant and his minor sons on 28.04.1980 was not revoked by Sadaiyammal, as alleged by the appellant herein?
(c) Whether the plea of the appellant that the sale deed executed by Palaniammal in favour of the plaintiff, Govindasamy was not supported by consideration and as such not valid in law is acceptable ?
(d) Whether the appeal has to be allowed on the grounds raised by the appellant and the impugned Judgment and Decree has to be set aside ?
7. It has been admitted by both sides that Sadaiyammal was the owner of the suit property. The appellant, as D.W.1 has admitted in her evidence that the suit property was the self-acquired property of Sadaiyammal. According to the appellant, under the original of Ex.B.3, on 28.04.1980, Sadaiyammal had executed a registered Will bequeathing the suit property in favour of husband Pichai Pillai and his sons and prior to that she had mortgaged the property for a sum of Rs.15,000/- on 30.11.1981 in favour of the appellant herein under the original of Ex.A.5 and in lieu of the interest towards the mortgage debt, the appellant was given possession and enjoyment of the property without paying rent. The aforesaid factum is not in dispute in the suit and appeal. However, the plaintiff has stated that Sadaiyammal had revoked the aforesaid Will and executed the Will, dated 29.06.1983 in favour of Palaniammal.
8. As per the plaint averments, by virtue of the registered Will, dated 29.06.1983 executed by Sadaiyammal in a sound disposing state of mind and free Will, Palaniammal, the vendor of the plaintiff, became the absolute owner of the suit property. Palaniammal, as sole legatee under the Will sold the entire "A" schedule property to the plaintiff on 17.02.1986 for a consideration of Rs.47,750/- reserving Rs.25,000/- with the plaintiff towards discharging two earlier mortgage debts obtained by Sadaiyammal from the appellant / D1 and defendants 2 and 3. The appellant herein has disputed the genuineness of the Will, dated 29.06.1983 executed in favour of Palaniammal, vendor of the plaintiff. In order to prove the genuineness of the said Will, dated 29.06.1983, the plaintiff examined P.W.3, who was the identifying witness of Sadaiyammal before the Sub-Registrar, at the time of registering the Will. The said witness has adduced evidence on the registration of the Will and also admitted his signature available in the Will as identifying witness, the same has been marked as Ex.A.23. According to him, Sadaiyammal affixed her left hand thumb impression in the Will before the Sub-Registrar in his presence and in the presence of the other attestor to the Will at the Sub-Registrar's Office.
9. One of the attestors to the Will, Ex.A.25 was examined as P.W.4 and according to him, he had acquittance with Sadaiyammal and at her request, he was an attestor to the Will, Ex.A.25. According to him, Sadaiyammal had affixed her left hand thumb impression in the Will in his presence. He has further deposed that the scribe had read over and explained the contents of the Will, prior to the affixture of the thumb impression by the executant, Sadaiyammal. He saw Sadaiyammal affixing her left hand thumb impression and also the other attestor putting his signature in the Will, Ex.A.25 and Sadaiyammal and the other attestor were also seeing him signing the Will as one of the attestors. As per the evidence of P.W.3 and P.W.4, Sadaiyammal was hale and healthy and also in a sound disposing state of mind to execute the Will, Ex.A.25. As per the evidence of P.W.3, it is clear that he had identified Sadaiyammal before the Sub- Registrar for registering the Will.
10. On the side of the appellant / D1, plaintiff's vendor Palaniammal herself was examined as D.W.3. She has deposed that Sadaiyammal had not executed any Will in her favour and according to her, Sadaiyammal was mentally sound, when she had executed a Will in favour of her brother and his sons, but subsequently, she became insane. She has also denied the execution of sale deed by her in favour of the plaintiff, Govindasamy. According to her, she had not even seen the plaintiff Govindasamy. However, she has admitted that the appellant herein had filed a suit against her in O.S.No.120 of 1986 before the District Munsif Court, Periyakulam. Prior to the filing of the suit, she had issued a legal notice, for which, Palaniammal (D.W.3) sent her reply through her counsel. As contended by the learned counsel for R4 to R8, Palaniammal in the written statement filed by in the said suit has admitted the execution of the Will by Sadaiyammal in her favour and also the sale deed executed by her in favour of the plaintiff herein.
11. The reply notice, dated 25.03.1986 sent by the appellant herein to the counsel for palaniammal has been marked as Ex.A.2, wherein the appellant has stated that Palaniammal, D.W.3 herein cannot claim any right, as per the Will, dated 29.06.1983 and also raised allegation that the same was fraudulently obtained by Palaniammal, D.W.3 herein. As per the reply notice, it is made clear that the appellant herein had knowledge about the registered Will, dated 29.06.1983, Ex.A.25, however, she has not challenged the Will and she had not even claimed any right, as per the earlier Will, executed by Sadaiyammal in favour of the appellant's husband and sons. Totally contrary to the averments in the written statement filed by her in the said suit, Palaniammal (D.W.3) has deposed evidence in this case. In the chief, she has stated that no Will was executed by her sister, Sadaiyammal in her favour, but strangely in her cross- examination, she has admitted that she had brought Sadaiyammal and the left hand thumb impression of Sadaiyammal was obtained from her by the scribe Maideen Rawuthar.
12. In order to establish the execution of a Will, it must be attested at least by two witnesses. ONe of such attestor to Will should have been examined to prove the execution and genuineness of the Will. In the instant case, P.W.3 and P.W.4 were respectively the identifying witness and one of the attestors to the Will who have spoken to about the execution and genuineness of the Will, executed by Sadaiyammal in favour of Palaniammal (D.W.3).
13. As contended by the learned counsel appearing for the respondents 4 to 8, the self-contradictory version of the appellant's witness, D.W.3 shows that after acquiring title to the property, as per the Will, Ex.A.25 and executing the sale deed, Ex.A.4 in favour of the plaintiff, in order to help the appellant, being her brother's wife, she has changed her version, by way of adducing self-contradictory version against her own averments made in her written statement filed by her in O.S.No.120 of 1986 on the file of the District Munsif Court, Periyakulam. In Ex.A.25, Will, dated 29.06.1983, Sadaiyammal has specifically stated that on 25.08.1976, she had purchased the property from one Seeniammal and others, subsequently, executed a Registered Will, dated 28.04.1980 in favour of her brother Pichai Pillai and his sons and having cancelled the said Will, she executed the subsequent registered Will, dated 29.06.1983, marked as Ex.A.25 in favour of Palaniammal.
14. As per
Section 68 of the Indian Evidence Act, 1872, "If a document is required by law to be attested, it shall not be used as evidence until one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence."
15. In Janki Narayan vs. Narayan Namdeo, reported in 2003 (2) SCC 91, the Hon'ble Supreme Court has held that where one attesting witness examined to prove the Will fails to prove the due execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects.
16. In the instant case, P.W.4, one of the attesting witnesses to the Will has given cogent and categorical evidence to establish the execution of the Will. Similarly, P.W.3, identifying witness has also given evidence to the effect that the executant Sadaiyammal was identified by him before the Sub- Registrar, when the Will being registered.
17. As per Section 114 (e) of the Indian Evidence Act, 1872, the Court may presume that judicial and official acts have been regularly performed, until the contrary is proved. The presumption under clause (e) of Section 114 of the Indian Evidence Act is attracted for any official act, which is done in the regular course of business of a public office. Though, Sub-Registrar could not identify the executant, Sadaiyammal, she was identified properly by P.W.3. The evidence of P.W.3 and P.W.4 is sufficient to establish that the Will, Ex.A.25 was properly executed by Sadaiyammal. As the Registration is an official act done in the regular course of business of the Sub-Regsitrar, the plea of the appellant that Sadaiyammal was an insane person on the date of executing the Will cannot be accepted, as there is no acceptable contra evidence to the said official act, as per Section 114 (e) of Indian Evidence Act.
18. The original sale deed, deed 17.02.1986 executed by Palaniammal in favour of the plaintiff for the consideration of Rs.47,750/- has been marked as Ex.A.4. As per the sale deed, the plaintiff discharged the loan amounts obtained by his vendor from one Swaminathan under promissory note, Ex.A.8 and one Karuppiah Devar under promissory note, Ex.A.9. Similarly, Ex.A.10 was given as receipt to the plaintiff for the payment made towards the loan obtained by his vendor, as per sale deed, Ex.A.4.
19. It is seen that P.W.2, Swaminathan has deposed that Palaniammal had obtained Rs.4,000/- from him on the pro-note, Ex.A.8 and for which, he got Rs.4,640/- towards principal and interest from the plaintiff and returned the original pro-note to plaintiff and he made an endorsement on the pro-note for receiving the amount, that has been marked as Ex.A.22. He has also given a receipt under Ex.A.10. Similarly, P.W.6, Karuppiah Devar has deposed that Palaniammal had obtained loan of Rs.3,000/- from him under Ex.A.9, pro-note and that was discharged by the plaintiff. As per the evidence available on record, Palaniammal, vendor of the plaintiff had affixed her left hand thumb impression in the aforesaid pro-notes for the amount received. As per the evidence of P.W.2 and P.W.6, pursuant to the sale deed, the plaintiff discharged the loans and also got back the promissory notes from them with endorsement of the concerned persons, for which there is no contra evidence on the side of the appellant herein.
20. As per Ex.A.17, it is made clear that Sadaiyammal died on 11.12.1983 and therefore, as contended by the learned counsel appearing for the respondents 4 to 8, Palaniammal became the sole legateee under the Will, dated 29.06.1983. As per the Will, Ex.A.25, Palaniammal was liable to discharge the debts incurred by Sadaiyammal, subsequently, the suit in O.S.No.120 of 1986 was filed by the present appellant against Palaniammal before the District Munsif Court, Periyakulam, seeking the relief of Injunction that the appellant herein should not be dispossessed from the suit property by Palaniammal (D.W.3) in violation of the agreement relating to the property.
21. It is seen that the appellant herein had averred in the plaint that as per the certified copy, Ex.A.27, Sadaiyammal had obtained Rs.15,000/- from the appellant and mortgaged the property as per the said mortgage deed, dated 30.11.1980 executed by Sadaiyammal in her favour and that the appellant, she was entitled to be in possession and enjoyment of the property only in lieu of the interest payable towards the mortgage debt. In the plaint, the appellant herein has not claimed title to the property, based on the Will, dated 28.04.1980, that had been executed by Sadaiyammal in favour of her husband, Pichai Pillai and his sons and further, in the written statement filed in O.S.No.120 of 1986, the sole defendant in the suit, Palaniammal has stated that she got title to the property as per the Will executed by Sadaiyammal in her favour and also sold the same to Govindasamy, who is the plaintiff in the suit, relating to this appeal. The certified copy of the Judgment on the file of the District Munsif Court, Periyakulam in O.S.NO.120 of 1986, marked as Ex.B.4 reveals the aforesaid facts.
22. Palaniammal (D.W.3), ater filing her written statement in O.S.No.120 of 1986 stating that she had title to the suit property, as per the Will executed by her sister, Sadaiyammal and after having sold the property in favour of Govindasamy, the plaintiff in the suit is estopped from making a totally contradictory oral evidence stating that there was no Will executed by her sister in her favour and no sale deed was executed by her in favour of the plaintiff herein and that she did not know the plaintiff, Govindasamy. Similarly, based on the mortgage deed, without claiming any title to the property, the appellant herein had sought only injunction against Palaniammal not to disturb her possession and enjoyment of the property, in view of the agreement.
23. Mr.M.Thirunavukarasu, learned counsel appearing for the respondents 4 to 8 submitted that Palaniammal, vendor of the plaintiff is estopped from raising a totally contradictory statement to her legal notice, Ex.A.2 and the written statement filed by her in the suit in O.S.No.120 of 1986 on the file of the District Munsif Court, Periyakulam, in order to favour her brother's wife, the appellant herein. In support of his contention, he relied on the decision, Surendra Bhatia vs. Punam Bhatia, reported in AIR 2001 Rajasthan 338, wherein the Rajasthan High Court, Jaipur Bench has held that the defendant once having admitted the existence of certain fact in the written statement, cannot be allowed to take an inconsistent plea, which will irretrievably prejudice the case of the plaintiff.
24. It is not in dispute that in the earlier case in O.S.No.120 of 1986, Palaniammal, the vendor of the suit property has categorically stated that she had obtained the suit property, by way of the registered Will, executed by her sister, Sadaiyammal and sold the same in favour of Govindasamy, the plaintiff herein. In the reply notice, the appellant has also admitted the fact that she had knowledge about the alleged Will, dated 29.06.1983 executed in favour of Palaniammal, vendor of the plaintiff's herein. However, the said Palaniammal has taken a totally inconsistent plea in this case, which is legally not permissible. As per Order 6 Rule 2 of the Code of Civil Procedure, after making a clear admission, the person, who gave the statement is estopped from raising a totally contradictory plea prejudicial to the right of the other party.
25. As per the Will, Ex.A.25, Sadaiyammal has cancelled the earlier registered Will, dated 28.04.1980 executed by her in favour of Pichai Pillai, husband of the appellant and his sons and executed the subsequent registered Will, Ex.A.25, dated 29.06.1983 in favour of her sister, Palaniammal. After the demise of Sadaiyammal, Palaniammal became the absolute owner of the property, by virtue of the Will. The plaintiff has also produced number of documents to establish that he has discharged the debts incurred by Sadaiyammal and Palaniammal. In support of his contention, the plaintiff has also examined the concerned witnesses from whom his vendor obtained loan and executed promissory notes.
26. As absolute owner of the property, Palaniammal had executed the sale deed, Ex.A.4 in favour of the plaintiff. In order to prove the sale deed, the plaintiff himself was examined as P.W.1, apart from examining the attestor to the sale deed, Ex.A.4. In order to prove the execution and genuineness of the Will, apart from the identifying witness, P.W.3, Out of the two attestors, one of the attestors has been examined as P.W.4 to speak about the execution and the attestation. Though, it is a registered Will, as contended by the learned counsel appearing for the appellant, merely because it is a registered Will, the genuineness of the Will cannot be legally presumed by the court.
27. Similarly, it is the duty of the propounder of the Will to satisfy the court about the execution and attestation of the Will and also the fact that the Will was the product of free volition of the executant. The Hon'ble Supreme Court in the decision, Gurdial Kaur & Ors. vs. Kartar Kaur & Ors., reported in 1998-2-L.W. 134, has held as follows :
"The law is well settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the said executant who had voluntarily executed the same after knowing and understanding the contents of the Will."
28. In the light of the decision rendered by the Hon'ble Apex Court, considering the evidence available on record, I am of the view that the finding of the court below that Sadaiyammal had executed the Will, dated 29.06.1983 in favour of Palaniammal, while she was in a sound disposing state of mind on the free volition of the said executant is sustainable in law. Even as per the registered Will, Ex.A.25, she has specifically cancelled the earlier Will executed on 28.04.1980 in favour of Pichai Pillai, husband of the appellant and his sons and therefore, I am answering the points 1 and 2 for determination in favour of the respondents 4 to 8 and against the appellant herein.
29. It has been established that Palaniammal has executed the sale deed, dated 17.02.1986 in favour of Govindasamy, the plaintiff herein by examining the attestor to the document, apart from marking Ex.A.25, sale deed. As per the sale deed, the plaintiff had discharged various mortgage debt and other loans obtained by Palaniammal on promissory notes. In order to establish the discharge of the said loans obtained by the vendor, the plaintiff has examined the concerned persons and also marked the discharged pro-notes executed by Palaniammal.
30. The evidence available on record would clearly establish that the plaintiff had been the bonafide purchaser of the property for value. There is no suspicious circumstance to consider the sale deed, a shame and nominal document. Therefore, I am of the view that it has been clearly proved that the sale deed executed by Palaniammal (D.W.3) in favour of the plaintiff has been supported by consideration and there is no other circumstance available to hold that the said document was not valid in law. Accordingly, I answer the point number three for determination in favour of the respondents 4 to 8 and against the appellant herein.
31. In view of the findings given for points 1 to 3 for determination, I could find no error or infirmity in the Judgment and Decree passed by the court below to be interfered with in this appeal. Hence, the appeal is liable to be dismissed.
32. In the result, confirming the Judgment and Decree passed by the court below, the appeal is dismissed. However, there is no order as to costs.
tsvn To The Subordinate Judge,Periyakulam.