COMMON JUDGMENT M.SATHYANARAYANAN, J The 8th Defendant in O.P.No.309 of 2000, which has been converted into T.O.S.No.5 of 2001 and the Plaintiff in O.S.No.455 of 2003, which was pending on the file of the City Civil Court, Chennai and transferred to the file of this Court and renumbered as C.S.No.90 of 2004, is the appellant and aggrieved by the decreeing of the suit in T.S.No.5 of 2001 and dismissal of her suit in C.S.No.90 of 2004, has filed these appeals.
2. The facts in brief for the disposal of these appeals are as follows:-
The Plaintiff in T.O.S.No.5 of 2001 viz., Ms.Crecey Fernandes has filed O.P.No.309 of 2000 on the file of this Court, under
Section 222 and
276 of the Indian Succession Act, 1925 against Sister Pia Fernandes and 7 others, praying for Probate of the Will dated 14.06.1986, executed by her Late brother S.R.Fernandes.
3. The 8th Respondent viz., S.J.Jansi Rani, who is the appellant in these appeals, entered a caveat and opposed the grant of Probate. Therefore, the O.P. was converted into T.O.S.No.5 of 2001.
4. In the Original Petition, it is averred among other things that wife of S.R.Fernandes pre-deceased him and they had no issues. S.R.Fernandes was living alone in the upstairs portion of his residence and died of cardiac arrest in the After Noon on 16.8.1998 and at the time of his death, none was with him. The tenant who is residing in the Ground-floor, on becoming aware of the death of S.R.Fernandes, called a doctor, who certified that he died of cardiac arrest. The tenant had also informed the police who registered a case and a telegram was also sent to a friend of the deceased in Bangalore. After post-mortem, the body was handed over to the friend of late S.R.Fernandes and it was buried according to Christian rites.
5. It is further averred in the petition that the plaintiff in T.O.S.No.5 of 2001 became aware of the demise of her brother S.R.Fernandes nearly after two months and immediately she rushed to Chennai. On visiting the house of her late brother, the plaintiff found that the tenant who was residing in the Ground-floor, had criminally trespassed in the upstairs portion occupied by her late brother and also taken away all important records and also plundered the household and other articles. The original Holograph Will dated 14.06.1986 (Ex.P1) was given to the Plaintiff by way of abundant caution under which, her deceased brother S.R.Fernandes has appointed her as a Sole Executrix of the Will and it is an unregistered Will. The deceased was possessed an immovable property in the City of Chennai, which is his self acquired property. The next kith and kin of the deceased were impleaded as parties to the above said O.P./T.O.S. and none of them had opposed. Therefore, the plaintiff in T.O.S.No.5 of 2001 prayed for the Probate of the Will.
6. The affidavit of attestors of the Will were also enclosed along with the said O.P.
7. As already stated, the said O.P. was converted into T.O.S.No.5 of 2001, on the opposition from 8th Defendant viz., S.J.Jansi Rani. She filed a written statement contending among other things that the Will dated 14.06.1986, is a manufactured one and the signature of S.R.Fernandes was forged thereon. It is further contended that the deceased S.R.Fernandes had executed an Adoption Deed dated 27.1.1994, in favour of the 8th Defendant as his Adopted-daughter and he had bequeathed all his properties by virtue of the said Adoption Deed. It is also contended by the 8th Defendant that the Will dated 14.06.1986, was not duly executed or attested and it is inadmissible in law.
8. The 8th Defendant in T.O.S.No.5 of 2001 filed O.S.No.455 of 2003, on the file of the City Civil Court at Chennai against Ms.Crecey Fernandes, for declaration that the Adoption Deed dated 27.1.1994, executed by late S.R.Fernandes, is a true and valid one binding on the defendant, for permanent injunction restraining the defendant from interfering with her possession of the suit property and also from executing the order of eviction dated 20.9.2002, in R.C.O.P.No.815 of 2002, on the file of the Court of Small Causes at Chennai.
9. The Plaintiff in T.O.S.No.5 of 2001, who was arrayed as the sole defendant in the above said suit, filed her written statement. It is averred in the written statement that the appellant herein has fraudulently fabricated a document purported to be an Adoption Deed by forging the signature of S.R.Fernandes and managed to get a Succession Certificate and based on it, withdrew several lakhs of cash deposits deposited by late S.R.Fernandes. It is further stated in the written statement that R.C.O.P.No.815 of 2002, was filed by her for evicting the appellant herein and it was allowed and eviction was ordered. Therefore, for the said reasons, the defendant in O.S.No.455 of 2003, who is arrayed as the Respondent in these appeals, prayed for the dismissal of the said suit.
10. The suit in O.S.No.455 of 2003 pending on the file of the City Civil Court at Chennai, was transferred to the file of this Court and renumbered as TR.C.S.No.90 of 2004. This Court on a consideration of the pleadings in T.O.S.No.5 of 2001 and TR.C.S.No.90 of 2004, has framed the following issues:
T.O.S.NO.5 OF 2001:-
(1)Whether the Will dated 14.06.1986 was executed by the Deceased Sylvester R.Fernandes?
(2) Whether the Will is a forged one?
11. On the side of the Plaintiff viz., Ms.Crecey Fernandes, examined herself, as P.W.1 and one of the attestors of the Will dated 14.06.1986 viz., Sham Chandra Banerjee, was examined as P.W.2. On the side of the Plaintiff, Exs. P1 to P25 were marked. On the side of the Defendant viz., S.J.Jansi Rani, she examined herself as D.W.1 and one of the attestors of the Deed of Adoption dated 27.1.1994 viz., Dhanalakshmi, was examined as D.W.2. On the side of the Defendant, Exs.D1 to D8 were marked.
12. Since the issues involved in both the suits were common, the learned Judge had taken up the trial of both suits together.
13. The learned Judge, on a consideration of pleadings, oral and documentary evidences, has held that Ex.P1 is a Holograph Will and through the testimony of P.W.2, execution of the said Will has been proved. As regards the contention that other brothers and sisters of late S.R.Fernandes, had been excluded, it has been held that other three brothers of late S.R.Fernandes, died and the wife of the second brother viz., Anthoni, had also given her consent for grant of Probate in favour of the plaintiff. The first defendant in T.O.S.No.5 of 2001 who is the sister of the plaintiff, had become a nun, since the plaintiff unmarried and the youngest sister being a nun, the Court found that quite naturally, S.R.Fernandes had bequeathed his property in her favour and also appointed her as the Sole beneficiary of the Will.
14. The learned Judge has also taken into consideration the caveatable interest of the 8th Defendant S.J.Jansi Rani and found that she had claimed her right based on the Deed of Adoption and also obtained the Succession Certificate in O.P.No.722 of 1999. The Plaintiff namely Ms.Crecey Fernandes, on coming to know of the same, has filed an application in Application No.3586 of 2000, for revocation of the Succession Certificate by questioning the genuineness of the said Adoption Deed marked as Ex.D1. The said document was sent for the opinion of the handwriting expert and it was found that the disputed signature did not tally with the admitted signature of S.R.Fernandes. The learned Judge based on the said report and other materials, had revoked the Succession Certificate granted in favour of the 8th Defendant/Appellant in these appeals.
15. The learned Judge has gone into detail, the validity of Adoption Deed which was marked as Ex.P20/Ex.D1. To prove the Adoption Deed, 8th Defendant examined her neighbour as P.W.2. This Court, relied upon the order of revocation of Succession Certificate granted by the learned Judge dated 24.9.2001 and the subsequent conduct of the 8th Defendant in not producing the Succession Certificate in spite of notice. The learned Judge has also taken note of the fact that the 8th Defendant/Appellant was also found guilty of contempt of Court and a fine of Rs.100/- was levied on her. Ultimately, the learned Judge found that there is absolutely no evidence to show that S.R.Fernandes has treated the appellant herein as his Adopted-daughter during his life time.
16. The learned Judge has also compared the disputed signature in Ex.P20, with the admitted signature of the S.R.Fernandes, in Exs.D5 and D6 and found that the disputed signature found in Ex.P20, is in variation from the admitted signatures and hence, given a clear and categorical finding that the appellant herein had fabricated Ex.P20-Adoption Deed. The learned Judge taking into account, the conduct of the appellant/8th Defendant, has imposed costs of Rs.5,000/-, while decreeing the suit in T.S.No.5 of 2001. The suit filed by the 8th Defendant in TR.C.S.No.90 of 2004 was dismissed with costs.
17. The present appeals are filed by the 8th Defendant, challenging the legality of the judgment and decree passed in the above suits.
18. Heard the submissions of Mr.S.Parthasarathy, learned Senior Counsel appearing for Mr.S.Sivakumar for the appellant and Mr.S.A.Syed Haroon, learned counsel appearing for the first Respondent who is the contesting Respondent. Even though notice served on the Respondents 2 and 3, they neither chosen to appear in person nor through the counsel. Batta with fresh address due regarding R4 to R8 and it is represented that they did not oppose the claim of the Respondent Ms.Crecy Fernandes in the Original Proceedings. This Court has also perused the pleadings, oral and documentary evidences.
19. The learned senior counsel appearing for the appellant would submit that the testamentary Court is a Court of Conscience and dehors the findings in respect of Ex.P1-Will and Ex.P20-Adoption Deed, the duty cast upon the Court to find out whether Ex.P1-Will is a genuine one and not came into being in a fraudulent or suspicious manner.
20. The learned senior counsel has drawn the attention of this Court to oral testimony of P.W.2-one of the attesting witnesses to Ex.P1-Will. In the Chief Examination, P.W.2 has deposed that he has signed Ex.P1 will and he is able to identify the signature of S.R.Fernandes in the Will and he subscribed his signature before him and at that time, the other attesting witness viz., Mr.Tapan Kumar Paul was also present and both of them had signed in the Will in the presence of Fernandes and he in turn, signed in their presence. P.W.2 has also filed an affidavit marked as Ex.P18.
21. In the cross-examination, P.W.2 would depose that on the date of the execution of the Will (Ex.P1), he went personally to the house of S.R.Fernandes. When he went to the house of Fernandes, he found that the Will was written before hand and he did not read the contents of the Will. He saw the signature of the S.R.Fernandes in the Will and he signed under his signature. P.W.2 further deposed that Fernandes told him that he personally wrote the Will and after signing the Will, he gave the Will back to Fernandes who in turn, gave it to Mr.Tapan Kumar Paul for signing it. When, P.W.2 signed in the Will, Fernandes and Mr.Tapan Kumar Paul also saw him signing. It was suggested to P.W.2 that the terms of the Will were dictated by the plaintiff viz., Ms.Crecey Fernandes, and it was written by S.R.Fernandes and at the time of writing the Will, Fernandes was drunken and was under the influence of alcohol. It was further suggested to him that Ex.P1-Will, is not in the handwriting of the Fernandes and he did not sign the Will in his presence, P.W.2 denied all the suggestions.
22. The learned senior counsel appearing for the appellant had heavily relied upon the testimony of P.W.2 and vehemently contended that the mode and manner of execution of an unprivileged Will, as contained in Section 63 of the Indian Succession Act and the mode and manner of proof thereof, as contained in
Section 68 of the Evidence Act, has not been complied with, as P.W.2 in his cross-examination, did not depose that he saw S.R.Fernandes signing the Will before he signed the said document, as attesting witness. It is the further submission of the learned senior Counsel appearing for the appellant, that dehors the finding of the learned Judge regarding Ex.P20-Adoption Deed, this Court is the testamentary Court and it is a Court of conscience and therefore, duty cast upon it to find out whether the Will is genuine one. Since the testimony of P.W.2, has not satisfied the requirement Section 63 of the Indian Succession Act and
Section 68 of the Indian Evidence Act, the learned Judge has committed a grave error in decreeing the suit in T.O.S.No.5 of 2001.
23. The learned senior counsel appearing for the appellant would further submit that by virtue of the Deed of Adoption, the appellant is having caveatable interest and the learned Judge ought not to have relied upon the findings given in the collateral proceedings regarding revocation of the Succession Certificate. Since the appellant has provided food and taken care of S.R.Fernandes, he on free volition, has executed a Deed of Adoption, adopting the appellant herein as a daughter and gave her, the properties and there is nothing suspicious about it. Hence, the learned senior counsel appearing for the appellant prayed for setting aside the judgment and decree passed in Tr.C.S.No.90 of 2004 and further prayed for decreeing of the said suit. On the other hand, learned counsel appearing for the first Respondent has supported the findings of the learned Judge and taken us through the pleadings and evidence.
24. The points for consideration are as follows:
(i)Whether the execution of Will (Ex.P1) has been proved in accordance with law?
(ii) Whether Ex.P20 Adoption Deed is a valid and genuine one?
25. Point No.1:- Affidavit of P.W.2 has been filed along with O.P.No.390 of 2000 (T.S.No.5 of 2001) and it would indicate that he and Tapan Kumar Paul-another attesting witness, had seen S.R.Fernandes, subscribing his signature in the Will and they in turn subscribed their signatures as witnesses, which was also witnessed by S.R.Fernandes. Chief-examination of P.W.2, was in consonance with the contents of his affidavit. In the cross-examination, P.W.2 has deposed that he personally went to the house of Fernandes on the date of the examination of the Will and when he went there, he found that the Will was written before hand. P.W.2 has further deposed that he saw the signing of Fernandes in the Will and he signed it under his signature and after him Mr.Tapan Kumar Paul had subscribed his signature in the Will. P.W.2 also deposed that Fernandes told him that he personally wrote the Will. The suggestions put to P.W.2 as stated above were denied by P.W.2.
26. There is a strong presumption in favour of holographic Will. Vide 1996(9) SCC 324 - Joyce Primrose Prestor (Mrs) (nee Vas) v. Vera Marie Vas (Ms). The appellant has not disputed the handwriting or the signature of the testator. In fact the suggestion in the cross-examination is that the testator wrote it under the dictation of the Respondent-his sister Crecy. This suggestion has been denied. All along the testator's intention had been to make her the sole beneficiary. Even in Ex.P17 the earlier Will which he wrote while he was living in Mangalore dated 8.4.1985, he had bequeathed his entire estate to her she was at Calcutta. Even in cross-examination, she had stated Ex.P17 is the previous Will. So there is nothing suspicious about the present Will Ex.P1, where the same intention is expressed. Ex.P1 is dated 14.6.1986. The testator died only on 16.8.1998 more than 2 years later. He had enough time to revoke it if he so desired. The anumus attestandi is clear. In cross-examination P.W.2 had said "Before I signed in the Will as attesting witness Mr.Tapan Kumar did not tell anything". Tapan Kumar is the other attesting witness. Again in cross-examination he had said "when I signed in the Will, Fernandes and Mr.Tapan Kumar saw the signing" and "After I signed the Will, I gave the Will back to Mr.Fernandes, who gave the Will to Mr.Tapan Kumar for signing". The one statement in cross-examination is ..... on by the learned senior counsel is "Mr.Fernandez told me that he personally wrote the Will". It was submitted that there is then no evidence for testator signing the Will. But this submission is unsustainable since the Will is a holographic Will. So one should understand that statement in that context and we have no doubt that what P.W.2 meant was that Fernandez told him he personally wrote the Will which included signature. This satisfies the statutory requirement of Section 63 of the Indian Succession Act and
Section 68 of the Indian Evidence Act. We must also remember that P.W.2 was 77 years old when he gave evidence. He was speaking of an event that happened 20 years before. If there are small differences in his evidence, we cannot disbelieve the execution and attestation on that score. The Chief examination is clear in this regard. We have already seen the cross-examination. In this when we look at Ex.P1, the last sentences are as follows:-
"This is the last Will and testament of me Sylverster Rapheal Fernandes, S/o Lazarus Fernandes.
I hereby revoke all forms of Wills and Codicils and offer testamentary disposition by me at any time heretofore made and declare this to be my Will. It will take effect after my death. It is my wish and desire that after my death Miss.Crecy Fernandes may youngest sister shall be entitled to all my estate and effect thereof absolutely and legatee of my this Will.
I hereby have given desire and bequeath absolutely and for ever to his heirs, executors, administrators for their use and benefit, absolutely and for ever, all my property, assets and credits both movable and immovable of whatsoever character or whatsoever situate including all securities expectancy and future assets if any acquired by me and I hereby appoint Miss.Crecy Fernandes the said sole executor of this my Will who will be entitled to obtain probate without being required to furnish my security.
Dated this fourteenth day of June 1986.
In witness, I have hereunto set and subscribed my hand and signature this 14th day of June 1986. Sd/-..............
as his last Will and testament in our presence all being present at the same time. Thereafter at their request and in his presence we subscribed our respective names and signatures as attesting addresses all being also present at the same time.
Shyam Chandra Banerji, 107, C.I.T. Road, Cal-14.
Tapan Kumar Paul, Saradapally, Rabhla, Hooghly (W.B.). "
27. In an identical situation the supreme Court in AIR 1964 SC 529- Shashi Kumar Banerjee v. Subodh Kumar Banerjee it has been held as follows:
Further the fact that the Will is a holograph Will and admittedly in the hand of the testator and in the last paragraph of the Will the testator had stated that he had signed the Will in the presence of the witnesses and the witnesses had signed it in his presence and in the presence of each other raise strong presumption of its regularity and of its being duly executed and attested. On these facts there is hardly any suspicious circumstance attached to this Will and it will in our opinion require very little evidence to prove due execution and attestation of the Will. There is no doubt about the genuineness of the signature of the testator, for it is admitted that the signature at the foot of the Will is his. The condition of the testators mind is also not in doubt and he apparently had full testamentary capacity right up to March 1947, even though he was an old man of about 97 when he died on 1-4-1947. ... There is nothing to show that the dispositions were not the result of the free will and mind of the testator. Further, the propounders (namely, the appellants) had nothing to do with the execution of the Will and thus there are really no suspicious circumstances at all in this case. All that was required was to formally prove it, though the signature of the testator was admitted and it was also admitted that the whole Will was in his handwriting. It is in the background of these circumstances that we have to consider the evidence of the two attesting witnesses. ... and in 1996(9) SCC 324 - Joyce Primrose Prestor (Mrs) (nee Vas) v. Vera Marie Vas (Ms)., it has been held as follows:-
" 12. In applying the above general principles to particular cases, the nature of the Will, the pleadings of the parties in the case, facts admitted or proved and the presumptions available in law, will have to be carefully given effect to. The case of a holograph Will which is admittedly in the handwriting of the testator, is a special case which will require a different approach in considering the evidence in the case, to find whether the Will has been duly executed and attested. The approach to be made in such cases has been stated by the Constitution Bench in Shashi Kumar Banerjee case, at p.532 paragraph (5). In that case, the Court referred to certain undisputed preliminary facts as follows: The testator, a well-known wealthy lawyer, who died at the age of 97, had executed a Will when he was 93 years old. He had made provision for his heirs by executing a number of documents, and the Will referred to the remaining property. The Will was witnessed by two persons. The entire Will was in the handwriting of the testator, corrected in various places and the corrections were initialled by him. It was admitted that the signature at the bottom of the Will was of the testator. The dispositions were very clear and detailed and it could not be said to be an unnatural document. There was no evidence to show that the propounders took any part in the execution of the Will. After stating these preliminary facts, the Court stated the approach to be made in the case of a holograph Will, thus:
The High Court in the appeal filed by Defendants 3 and 4, reappreciating the evidence, the circumstances and the probabilities, formed its own impression about the evidence in the case, and taking an overall picture of the entire case as revealed in the evidence held that it was constrained to observe that this case of the alleged Will is shrouded in suspicion.
13. We heard the counsel. As stated in The Law of Wills in India and Pakistan by Mantha Ramamurthi, at pp. 81-82, the general principles governing the presumption of due execution and attestation, in the case of Wills are:
If a Will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Act, the maxim omnia presumuntur rite esse acta, applies, unless it is clearly proved by the attesting witnesses that the Will is not in fact duly executed. The Court of Probate has long been accustomed to give great weight to the presumption of due execution arising from the regularity ex facie of the testamentary paper produced where no suspicion of fraud has occurred.
The maxim Omnia Presumuntur rite esse acta is an expression in a short form, of a reasonable probability, and of the propriety in point of law on acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established. In Blake v. Knight1 Sir Herbert Jenner Fust observed Is it absolutely necessary to have positive affirmative testimony by the subscribed witnesses that the Will was actually signed in their presence, or actually acknowledged in their presence? Is it absolutely necessary, under all circumstances that the witnesses should concur in stating that these acts took place? Or is it absolutely necessary, where the witnesses will not swear positively, that the court should pronounce against the validity of the Will. I think these are not absolute requisites to the validity of the Will. Consequently, where the evidence of attesting witnesses is vague or doubtful or even conflicting the court may take into consideration the circumstances of the case and judge from them collectively whether the requirements of the Statute were complied with; in other words the court may, on consideration of other evidence or of the whole circumstances of the case, come to the conclusion that their recollection is at fault, that their evidence is of a suspicious character, or that they were wilfully misleading the court, and accordingly disregard their testimony and pronounce in favour of the Will. (emphasis supplied)
14. The author has also categorised the various instances where the maxim has been applied in different cases (1) absence of evidence; (2) some attestors speaking for and some against the Will; (3) attestors honest but mistaken and (4) attestors giving false evidence.
15. While the presumption in the case of ordinary Wills is as stated above, in the case of holograph Wills, the presumption is all the more a greater presumption. Ex. P-1 is a holograph Will. It is one which is wholly in the handwriting of the testator. The Calcutta High Court in Ajit Chandra Majumdar v. Akhil Chandra Majumdar (AIR Cal at p.552) stated about such a Will, thus:
The whole of this Will was written in the hand by the testator himself in English. The handwriting is clear and firm. The law makes a great presumption in favour of the genuineness of a holograph Will for the very good reason that the mind of the testator in physically writing out his own Will is more apparent in a holograph Will than where his signature alone appears to either a typed script or to a script written by somebody else.
The writing of the Will and signature of the testator are admitted. There is also due and proper attestation in accordance with the relevant statutory provisions. No suspicious circumstance appears on the face of the document, Ex. P-1. The Will appears to be moderate and rational. Viewed from the above angle, there is a great presumption even bordering on actual proof of the due execution and attestation of the Will."
The law does not emphasis that the witness must use the language of Section 63 to prove the requisite matters thereof. P.W.2 has given a clear and cogent evidence regarding execution and unless there are strong grounds, to repel the effect of testimony of P.W.2, it cannot be said that Ex.P1 came into being under suspicious circumstances.
28. The testimony of P.W.2 in the considered opinion of this Court, is not seriously impaired in the cross-examination. In order to dislodge the testimony of P.W.2, something more than suspicion, is required to discredit his testimony and this Court finds that the testimony of P.W.2 is natural, cogent and nothing suspicious to discredit his testimony.
29. The learned Judge has elaborately gone into the said issue in detail and has given sound reasons for accepting the testimony of P.W.2 and held that Ex.P1 has been proved in accordance with law.
30. This Court finds no sound or tenable reasons to differ from the said reasons given by the learned Judge. Therefore, this Court holds that Ex.P1 has been proved in accordance with law and we answer the said point in favour of the Respondent.
31. Point No.2:- Ex.P20-Adoption Deed was produced in O.P.No.722 of 1999, by the appellant, for Succession Certificate and it was ordered. Thereafter, the Respondent herein filed an application for revocation of Succession Certificate, in Application No.3586 of 2000. The Respondent herein also filed an application to sent the Deed of Adoption and other documents containing admitted signature of late S.R.Fernandes, for expert opinion and it was ordered. The documents were sent to Tamil Nadu Forensic Science Department for obtaining opinion of the handwriting expert. The disputed signature in the Adoption Deed was compared with previous Will of Fernandes dated 8.4.1985, letter dated 8.8.1986, Special Form No.143 of TNEB, Form B of TNEB, Health Card and Voter Identity Card. The Handwriting expert in his report, has stated that the disputed signatures are not the signatures of Fernandes.
32. The learned Judge, after taking note of the said report, has revoked the Succession Certificate granted in favour of the appellant and allowed the Application No.3586 of 2000 filed by the Respondent.
33. On 16.8.1998, S.R.Fernandes died of cardiac arrest and the appellant at that time was the tenant under him. She lodged a complaint in Crime No.1466/1998, with regard to the death of S.R.Fernandes and a case was registered under
Section 174 of Cr.P.C. In her statement dated 16.8.1998, given to the police, the appellant did not state that she is an adopted daughter of S.R.Fernandes. It is to be remembered at this juncture, the alleged adoption deed came into existence on 27.1.1994, and nothing precluded the appellant herein from stating that she is the adopted daughter of late S.R.Fernandes.
34. The learned Judge has also taken note of the testimonies of D.W.1 and D.W.2. D.W.1 had deposed in O.P.722 of 1999 that she was not aware of the adoption deed at the time when it was written. D.W.2 pleaded ignorance and stated that the parents of the Defendant never told her that they are giving their daughter in adoption to Fernandes. The husband of the appellant herein viz., Parasuraman has also not informed D.W.2, that his wife was given in adoption to Fernandes. It is also to be remembered at this juncture that admittedly the appellant herein is professing Hindu faith and it is not made clear under what circumstances she became the adopted daughter of S.R.Fernandes.
35. The Respondent herein filed a petition for eviction in R.C.O.P.No.817 of 2002, against the appellant herein, for eviction and it was ordered on 20.9.2002. The appellant aggrieved by the order of eviction, preferred an appeal in RCA No.802 of 2003. The appeal was also dismissed.
36. Thereafter, the Respondent herein levied execution, in pursuant to the decree for eviction in E.P.No.395 of 2009 and since there was an obstruction, she filed an application in E.A.No.79 of 2009 for removal of the obstruction. The obstructor has raised an objection that the suit property was sold in her favour on 23.3.2007 by means of a registered document dated 2954/2007. In view of the pendency of this appeals, the Execution petition is not taken up for disposal and it is pending.
37. The learned judge has considered the validity of Ex.P20 Adoption Deed and also the opinion of the handwriting expert under Ex.P9 in great detail and held that Ex.P20 Adoption Deed is not a genuine document. The learned Judge has also compared the disputed signature of Fernandes in Ex.P20 with the admitted signatures particularly in Ex.D5 and D6 and found that disputed signature in Ex.P20 is variation with the admitted signatures. The learned Judge ultimately found that the appellant herein has fabricated the Adoption Deed by using the stamp papers purchased in the name of late S.R.Fernandes and after his demise, has trespassed in the upstairs portion and taken away all important records, material evidences, household articles and valuables and also put in possession of her son. The learned Judge further found that in view of the order of eviction passed in R.C.O.P.No.815 of 2002 her possession cannot deem to be a lawful one and therefore in terms of
Section 41(a) of the Specific Relief Act, injunction to restrain the execution of the decree cannot be granted. The appeal preferred against the eviction order was also dismissed and Execution application is pending in view of the pendency of these appeals.
38. We concur with the view taken by the learned Judge that the appellant herein has failed to approach this Court with clean hands and her case is based on falsehood. The appellant herein has abused the process of this Court and made her claim based on a fabricated document alleged to be a Deed of Adoption marked as Ex.P20.
39. This Court on a careful consideration and appreciation of pleadings, oral and documentary evidences and on an independent application of mind, finds that the appellant herein has miserably failed to prove and establish that Ex.P1 Will is not genuine one and that Deed of Adoption in her favour is a true and valid one. Therefore, point No.2 is answered against the appellant.
40. This Court finds that the learned Judge has considered the materials in detail and given clear and cogent reasons in negativing the claim of the appellant. There is no error apparent on the face of the record or illegality or irregularity in the findings recorded by the learned Judge. This Court finds that the grounds raised by the appellant herein lack merit and substance and hence no interference is warranted.
41. In the result both appeals are dismissed with costs. Consequently, M.P.No.2 of 2008 is closed.
gr