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Gopalakrishna Pillai and anr. Vs. Chinnapillai Padayachi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1977)2MLJ368
AppellantGopalakrishna Pillai and anr.
RespondentChinnapillai Padayachi and ors.
Cases ReferredEdwards (Inspector of Taxes) v. Bairstow and Anr.
Excerpt:
- a. varadarajan, j.1. the plaintiffs who lost in both the courts below are the appellants. they filed the suit for declaration of their title to the suit properties and for recovery of possession thereof. the suit properties are 2.41 acres comprised in r.s. no. 6/1 and 17 cents in r.s. no. 6/8 of kilakarai village, chidambaram taluk. it is common ground that these properties originally belonged to one namasivayam who died about 38 years prior to the date of the suit and that after his death his second wife rukmani, who died on 30th june, 1968 was in possession of those properties. the appellants who are brothers contend that namasivayam's first wife was one kamalam and she had a son by name dharmalingam, who died in 1940 and they are the sons of dharmalingam and that therefore they are the.....
Judgment:

A. Varadarajan, J.

1. The plaintiffs who lost in both the Courts below are the appellants. They filed the suit for declaration of their title to the suit properties and for recovery of possession thereof. The suit properties are 2.41 acres comprised in R.S. No. 6/1 and 17 cents in R.S. No. 6/8 of Kilakarai Village, Chidambaram taluk. It is common ground that these properties originally belonged to one Namasivayam who died about 38 years prior to the date of the suit and that after his death his second wife Rukmani, who died on 30th June, 1968 was in possession of those properties. The appellants who are brothers contend that Namasivayam's first wife was one Kamalam and she had a son by name Dharmalingam, who died in 1940 and they are the sons of Dharmalingam and that therefore they are the heirs of Namasivayam. The 1st respondent is the lessee who is alleged to have declined to recognise the title of the appellants to the suit properties. Respondents 3 to 5 are the daughters and the 6th respondent is the widow of Dharmalingam, that is to say, respondents 3 to 5 are the sisters and 6th respondent is the mother of the appellants. Rukmani, the wife of Namasivayam had two sons--Shanmugham and Muthukumaraswamy and a daughter Radha. The daughter of Rukmani predeceased her, and her sons are also dead. Muthukumaraswami's widow Thangam is alleged to have remarried one Manickam and thereby lost her right in the family of her husband. The 1st respondent did not surrender possession despite the notice Exhibit A-1 to which he sent a reply Exhibit A-2 denying the appellant's title and saying that the 2nd respondent got the properties through Rukmani as the adopted son after discharging a usufructuary mortgage executed by her. Thus the appellants claimed title to the suit properties as heirs of Namasivayam.

2. The 1st respondent contended in the written statement that he was a cultivating tenant and he was willing to pay the rent to whomsoever as directed by the Court. The 2nd respondent contended that Rukmani had directed him to discharge the usufructuary mortgage, dated 23rd April, 1918 executed by Rukmani in favour of one Kumaraswami and take the properties and that he accordingly discharged that mortgage by the release deed Exhibit B-3, dated 26th April, 1943 and has acquired title to the suit properties by adverse possession. The 2nd respondent laid claim to the properties even under the unregistered will Exhibit B-1, dated 10th October, 1957. He claimed that it has been validly executed by Rukmani in his favour in respect of the suit properties and that she had wrongly included in that will some other properties which really belong to him by virtue of a Court auction sale in his favour. Respondents 3 to 6 did not contest the suit.

3. The trial Court found that the 2nd respondent has not proved that he discharged the mortgage, dated 23rd April, 1918 executed by Rukmani in favour of one Kumaraswami having regard to the fact that the release deed Exhibit B-3 in respect of the mortgage had been executed by the heirs of the mortgagee--Kumaraswami in favour of Rukmani herself and not in favour of the 2nd respondent, and the evidence of D.W. 5, who paid Rs. 1,500 at the time of registration of Exhibit B-3, that it was paid in on behalf of Rukmani; and it also found that the 2nd respondent was in possession only on behalf of Rukmani and had not acquired title by adverse possession. It further found that the will Exhibit B-1 is genuine and that the 2nd respondent has acquired title to the suit properties on the basis of the will, Exhibit B-1. On these findings the trial Court dismissed the suit with costs of respondents 1 and 2. These findings have been confirmed on appeal by the learned Subordinate Judge, who dismissed the appeal with costs. It may be stated that in the Courts below the 2nd respondent claimed title to the properties only on the basis that he discharged the usufructuary mortgage as directed by Rukmani and was in possession of the properties since then and had acquired title by prescription and also on the basis of the will and that both the Courts below have upheld his claim only on the basis of the will and negatived the claim that he had acquired title to the properties by adverse possession.

4. The point that arises for consideration therefore is whether the will Exhibit B-1 is true and whether this Court has jurisdiction to go into the question in second appeal in view of the concurrent findings of the Courts below that Exhibit B-1 is genuine. The 1st appellant alone has been examined on the side of the appellants as P.W. 1 while on the side of the respondents D.Ws. 1 to 4 have deposed about the will and D.W. 5 has been examined to depose about the discharge of the usufructuary mortgage, dated 23rd April, 1918. P.W. 1 has stated that Rukmani died intestate and that he and the other appellant are entitled to the properties as heirs of Namasivayam. The 2nd respondent as D.W. 1 has stated that he was not aware of the will at all until it was put into his hands by Rukmani about 2 or 3 days prior to her death. D.W. 4 is the scribe and D.Ws. 2 and 3 are the attestors of Exhibit B-1 and they have deposed about the execution of the will by Rukmani while in a sound and disposing state of mind with knowledge of its contents. Before considering the evidence of D. Ws. 1 to 4 it is necessary to refer to some of the decisions which were brought to my notice by the learned Counsel for both the parties.

5. The decision in Brajabala v. Nityamayee : AIR1934Cal17 , alone was relied upon by the learned' counsel for the appellants in this case. The first decision relied upon by the learned Counsel for the 2nd respondent is Kristo Gopal v. Baidya Nath : AIR1939Cal87 , where the learned Judges have observed:

It is difficult to avoid the conclusion that the learned Judge for some reason or other must have formed the idea that the will was not a genuine document and that having formed such an idea, he looked at the evidence of each of the witnesses with a suspicious eye. On no other hypothesis it is possible to explain the criticism which he has led himself to make. Let us now lock at the circumstances on which the learned Judge relies for the purposle of holding that the will could not possibly have been a genuine will. Before dealing with this point, it will perhaps be useful to recall the observations of Lord Watson in the case in Chotey Narain Singh v. Mt. Ratan Koer (1895) 22 I.A. 12 : I.L.R. 22 Cal. 519.

In that case, there was a large and consistent body of testimony, as here, evidencing the signing and attestation of the will. But it was argued that there were circumstances which tendered to raise a suspicion and made it 'improbable' that the will could have been executed. On this point, the observations which their Lordships made were these:

The theory of improbability remains to be considered: and the first observation which their Lordships have to make is that, in order to prevail against such evidence as has been adduced by the respondent in this case, an improbability must be clear and cogent. It must approach Very nearly to, if it does not altogether constitute, an impossibility.

In a case where such attesting witnesses are produced and they give clear and cogent testimony regarding execution, one should require very strong circumstances to repel the effect of such testimony. It will not do to talk airily about circumstances of suspicion. If he rests his case on suspicion, the suspicion must be a suspicion inherent in the transaction itself which is challenged and cannot be a suspicion arising out of a mere conflict of testimony.... If as a matter of fact there is evidence in a case that a will was actually made, one fails to see how it is relevant to inquire whether there was any occasion or motive for making the will.... What may be an adequate motive to one man may not be so to another and it can never be a safe or sound rule to start speculating as to what might have been the motive which impelled the testator to make the alleged will provided there is evidence and the Court has every right to call for such evidence and must, in fact call for it, that the will was in point of fact executed as required by law.... The mere fact that a will is not registered does not make it improbable, much less impossible, that the will was executed, and yet as their Lordships of the Judicial Committee point out, an improbability must approach very nearly to an impossibility, in order that it may be sufficient to outweigh the positive evidence of execution on the other side.

6. The learned Counsel for the 2nd respondent relied on the decision of the Privy Council in Jagrani Koer v. Durga Pershad (1914) 26 M.L.J. 153 : 41 I.A. 76 : I.L.R. 36 All. 93, in connection with the submission that better witnesses could hot be expected to testify the will in the present case. In that case the scribe of the will was the mukhtar, and the three attesing witnesses were the diwan, the treasurer and the daroga of the late Kumar Narindra Bahadur, who were his respectable private servants, who used to be always in the house. Their Lordships of the Privy Council observed:

In the first place, it is maintained that the witnesses might have been of a better class. Perhaps they might; but they were just those witnesses that the testator had about him; and a comment of this character has no force except upon something on a much higher level than mere suspicion, viz., proof which would thoroughly satisfy the mind of a Court that these persons had committed both forgery and perjury.

7. The next decision strongly relied on by the learned Counsel for the 2nd respondent is Venkatachala Iyengar v. Thimmajamal : AIR1959SC443 , where it is observed:

What is the true legal position in the matter of proof of wills?.... Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put the signature to the will knowing what it contained? Stated broadly it is the decision of those questions which determines the nature of the finding on the question of proof of wills....

Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.

8. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy, and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator....

9. It is quite true that, as observed by Lord Du Paroq in Harmes v. Hinksson (1946) 50 C.W.N. 895:

Where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.

10. In Brajabala v. Nityamayee : AIR1934Cal17 , mentioned above, the will was a registered one and the order granting letters of administration was set aside by the Bench and it has observed:

In this connexion it would not be inappropriate to refer to a passage from the decision of their Lordships of the Judicial Committee in the case of Edward Francis Woodword v. Ebrabeth Goulstone 11 A.C. 469. Lord Herschell, L.C. said this at page 475 of the report; Now I cannot but be alive to the extreme danger of establishing a will merely by parol evidence of its contents. The Legislature has endeavoured to safeguard the interests and rights of testators by requiring that the expression of their testamentary intentions shall be authenticated in such a manner as to leave no doubt, if possible, that the Court has before it that which really expresses the will and Intention of the testator. It is not enough that it is in his own handwriting; it must, even if in his own handwriting, be authenticated by witnesses who must be present and see the testator sign, and must sign in each other's presence. But if upon mere loose statements of the recollection of witnesses as to what has been said to them at some time or other, you were to grant probate of, and to establish as the will of the testator, something which no one had ever seen or purported to be able to depose to from recollection, it seems to me, that you would be doing that which would be in the highest degree dangerous, and the more so when these statements of witnesses (and one knows how fallible human memory is even when there is no interest to bias it) who have the strongest possible interest in remembering what they remember and in forgetting what they forget. I think therefore that in order to support a will propounded, when it is proved by parol evidence only, that evidence ought to be of extreme cogency, and such as to satisfy one beyond all reasonable doubt that there is really before one substantially the testamentary intentions of the testator.

I think therefore that in order to support a will propounded, when it is sought to be proved by parol evidence Only, as in this case, the evidence ought to be of extreme cogency and such as to satisfy one beyond all reasonable doubt that there is really before one substantially the testamentary intentions of the testator'.

11. Now I Will consider the evidence about the execution of the will in the light of the abovesaid decisions. But before I do so, it is necessary to refer to the criticism of the learned Counsel for the 2nd respondent that the appellants have not stated anything against the will in the plaint and that there is nothing in the evidence of P.W. 1 attacking the genuineness of the will Exhibit B-1. In this connection the learned Counsel for the 2nd respondent submitted that both the parties applied for the transfer of patta in respect of the suit properties, that the 2nd respondent made a statement, Exhibit B-7, dated 24th December, 1968 making reference to the will and has stated in his evidence that he produced the will before the Tahsildar and that P.W. 1 also had come to the office of the Tahsildar, on receipt of the notice of the application for transfer of patta. The order Exhibit B-28, dated 6th March, 1969 passed by the Tahsildar, after the date of the suit which has been instituted on 22nd January, 1969, for the transfer of patta in favour of the 2nd respondeint shows that he has passed the order on the basis of the will Exhibit B-1. P.W. 1 had no doubt admitted that he appeared before the Tahsildar in connection with the application for transfer of patta and made a statement before that officer, on a different day. It has not been suggested to him in cross-examination that he was aware of the production of the will Exhibit B-1 before the Tahsildar in that enquiry. The case of the 2nd respondent is that he himself was not aware of the will until it was put into his hands only 2 or 3 days prior to the date of death of Rukmani. Nor is it their case that the appellants were aware of the execution of the will before they filed the suit. Therefore nothing turns on the fact of the appellants not attacking the genuineness of Exhibit B-1 in the plaint and that P.W. 1 has not stated anything in his evidence to show that it is not genuine. The burden of proving that the will is genuine and has been executed by Rukmani while in a sound and disposing state of mind with knowledge of its contents is on the 2nd respondent who has propounded the will.

12. The evidence of D.W. 1 (2nd respondent) is that he belongs to Sirkali. There is evidence to show that he was working at the Taluk Office, Sirkali as Sub-Treasury Officer for some years. D.W. 4, the scribe of the will, lives in south street of Sirkali about 100 yards away from the house in which Rukmani was living in West Street at the time of the execution of the will, Exhibit B-1. He is the Karnam of Punkanur village for the last 20 years and he claims to possess property worth Rs. 11/2 lakhs. He has stated that he prepared a draft will on the basis of the chit which Rukmani had with her and that she executed Exhibit B-1 in the presence of the attestors after he read over the contents of the document to her. His evidence does not inspire confidence for he would say that so far as he knew the 2nd respondent did not work in the taluk office at Sirkali and that he knows him only for two years ever since he saw him at Mayuram. There is evidence to show that the 2nd respondent is a native of Sirkali and that he was working as Sub-Treasury Officer in the taluk office, Sirkali. It is seen from Exhibit B-7 the statement of the 2nd respondent made before the Tahsildar on 24th December, 1968, that he is a permanent resident of Sirkali. The evidence of the 1st respondent is to the effect that the house in which Rukmani was residing in West Street, Sirkali at the time of the alleged execution of Exhibit B-1 belonged to 2nd respondent, who as a matter of fact, does not appear to be the owner and was probably occupying it only as a tenant when he was working at Sirkali. D.W. 4 lives in south street, only 100 yards away from that house and he has been the karnam of Punkanur village for 20 years. Therefore, it is not probable that he had not known the 2nd respondent at all until he claims to have met him for the first time at Mayuram two years ago. D.Ws. 2 and 3, the attestors, also have stated that Rukmani executed Exhibit B-1, in their presence while in a sound and disposing state of mind after knowing its contents. D.W. 3 would say that his mother and Rukmani were friends. D.W. 2 has admitted that he is a friend of the 2nd respondent. He is the son of the deceased Pattamaniam of the village. He has admitted that the 2nd respondent was a sub-treasury officer at Sirkali and that D.W. 4 is a karnam for the last 20 years. D.W. 3, who lives about 100 yards away from the house where Rukmani was residing, claims now to be employed as a Manager in a cinema and he admits that he was formerly an attender in the taluk office at Sirkali in 1952. Thus it is seen that D.W. 4 the scribe of the will is a karnam of Punkanur village for about 20 years, that D.W. 3 an attestor to Exhibit B-1 was formerly an employee in the taluk office and that D.W. 2 the other witness is the son of a deceased Pattamaniam, and the 2nd respondent, in whose favour the will, Exhibit B-1 purports to have been executed, is a revenue official, who had been the Sub-Treasury Officer at Sirkali for some years and a permanent resident of that place. Therefore, it would appear that the evidence of these witnesses D.Ws. 2 to 4 is not quite independent.

13. The unregistered will Exhibit B-1 is alleged to have been executed on 10th October, 1957. Rukmani died on 30th June, 1968 nearly 11 years after the execution of the will. The 2nd respondent would say that he was not aware of the will until it was shown to him by Rukmani 2 or 3 days prior to her death. Thus the will had not seen the light of the day until 2 or 3 days prior to the death of Rukmani.

14. The evidence of D.W. 2 is that he did not inform the 2nd respondent about the will until the death of Rukmani. D.W. 3 has stated that Rukmani asked him not to inform the 2nd respondent about the will and that he did not know why she asked him not to tell the 2nd respondent about the will. However, he would say that Rukmani told him two or three months prior to the date of execution of the will that she must execute a will. D.W. 2 also has stated that Rukmani asked him not to inform the 2nd respondent about the will. Thus D. Ws. 3 and 4 would say that Rukmani herself wanted to keep the will a secret from the 2nd respondent and that D.W. 2 had not informed the 2nd respondent about the will until after the death of Rukmani. The learned Counsel for the appellants submits that this secrecy itself would show that the will could not be genuine. On the other hand, the learned Counsel for the 2nd respondent contended that there is nothing improbable in Rukmani having executed the will in favour of the 2nd respondent, having regard to the evidence of the 2nd respondent that he was looking after her from about 1942 and that she probably wanted to keep the secrecy about the will in order that her relations might not give her trouble about having executed the will in favour of the 2nd respondent. But it is not possible to accept this explanation having regard to the evidence of the 2nd respondent that he was leasing out the properties of Rukmani and managing them and taking the income with her permission. If that is so, the relations of Rukmani must have been aware of the 2nd respondent's possession and management of Rukmani's properties on her behalf. Therefore, it is not probable that Rukmani could have intended that the execution of the will must be kept a secret from the 2nd respondent to whom she wanted the benefit of the will. It was not in her interest to keep it a secret even from the 2nd respondent. Therefore the secrecy of the will and the fact that it had not seen the light of the day until about 11 years after its alleged execution in 1957 is a circumstance to be taken into consideration in assessing the evidence relating to its execution and genuineness.

15. The other circumstance relied on by the learned Counsel for the appellants about Exhibit B-1 is that the case of the 2nd respondent is that it has been executed not only about the properties which admittedly belonged to her but also some other properties which the 2nd respondent had purchased in a Court auction sale. Items 1 and 2 in Exhibit B-1 are a house and a part of house situate in Cuddalore town, and item 3 includes 31 cents in S. No. 6/5. These items are stated to have been purchased by the 2nd respondent in a Court auction sale. The 2nd respondent has not produced any sale certificate to show that those items belong to him. The learned Counsel for the appellants submits that if these three items belonged to the 2nd respondent as claimed by him, the fact that the will has been executed in respect of these items of properties would show that it could not be a genuine will for Rukmani must have known that those properties did not belong to her but belonged to the 2nd respondent as she is stated to have been under his care from 1942. It is not possible to accept the contentions of the 2nd respondent that Rukmani might have included those items out of ignorance. I agree with the learned Counsel for the appellants that this circumstance would go to improbabilise the case of the 2nd respondent regarding the genuineness of the will.

16. The other circumstance relied on against the genuineness of the will is the difference in the signature of Rukmani. According to Exhibit B-1, the executor has signed the document as. The appellants have produced Exhibit A-4 a mortgage-deed, dated 7th February, 1929 and Exhibit A-3 another mortgage-deed, dated 7th February, 1929 and Exhibit A-3 another mortgage-deed, dated 5th November, 1912 in which there is an endorsement signed by Rukmani, dated 10th July, 1927 and attested by her husband Namasivayam who appears to have been a vakil. In Exhibit A-4 and the endorsement in Exhibit A-3, Rukmani has signed as. Having regard to the difference in the spelling--in Exhibit B-1, where it is and in Exhibits A-4 and A-3, it is. It was contended that the signature in Exhibit B-1 could not be genuine. On the other hand the 2nd respondent has produced Exhibits B-5, B-6 and B-24, where Rukmani has signed as. It is seen from the trial Court's judgment that he genuineness of Exhibits B-5, B-6 and B-24 had not been attacked by the appellants before that Court. From the mere fact that she has signed as in Exhibits A-3 and A-4 it is not possible to hold that she could not have executed Exhibit B-1. It was contended on behalf of the 2nd respondent that Exhibits A-3 and A-4 have not come from proper custody as P.W. 1 is unable to explain how he got these two documents. Having regard to the view I have taken about the signature in Exhibit B-1, it is not necessary to go into the question whether Exhibits A-3 and A-4 have come from proper custody or not. But a comparison of the admitted signatures of Rukmani in Exhibits B-5, B-6 and B-24 with the signature in Exhibit B-1 would show clearly that the signature in Exhibits B-5, B-6 and B-24 arte not in settled handwriting and that the signatures in Exhibit B-1 are in clearly settled handwriting. It is not., probable that a person having such a settled handwriting as in Exhibit B-1 on 10th October, 1957 would have put her signature in such an unsettled manner in the subsequent documents Exhibits B-5, dated 4th February, 1958, B-6, dated 13th November, 1967 and B-24, dated 23rd October, 1967. The difference in these signatures creates strong suspicion against the genuineness of Exhibit B-1. The argument of the learned Counsel for the 2nd respondent that importance should not be attached to the difference in signatures as they were executed in different years, does not remove the suspicion having regard to the fact the signatures in the subsequent documents--Exhibits B-5, B-6 and B-24 are not so settled as the signatures found in Exhibit B-1. It is not probable that the; earlier settled signatures of Rukmani--assuming the signatures in Exhibit B-1 to be hers--would have become so unsettled in Exhibits B-5, B-6 and B-24 in later years.

17. The next circumstance relied on by the learned Counsel for the appellants is that in the reply notice Exhibit A-2, dated 9th September, 1968 sent by the 1st respondent to the notice Exhibit A-1 sent to him by the appellants it has been stated that the 2nd respondent is the adopted son of Rukmani and that he had discharged the usufructuary mortgage executed by Rukmani with his own funds, and that though such details have been given in Exhibit A-2 no reference has been made to the will Exhibit B-1. It is further contended that the 1st respondent could not have given these details in the reply notice, Exhibit A-2 without reference to the 2nd respondent and that since, the will has not been put forward in the reply notice, the will Exhibit B-1 could not be a genuine document. The 2nd respondent has not stated in his written statement that he is the adopted son of Rukmani but he has contended that he is Rukmani's sister's son. But in his chief examination he has stated that his father and Rukmani's father were brothers, which means, Rukmani was only his cousin sister. In his cross-examination he has stated that he has no records to show that his father and Rukmani's father were brothers, and he has admitted that he is not claiming the suit properties on the basis of any relationship with Rukmani. The learned Counsel for the appellants relies upon this discrepancy in the evidence regarding the alleged relationship and submits that his evidence is not reliable. The learned Counsel for the 2nd respondent submitted that there is no evidence to show that the 1st respondent contacted the 2nd respondent before he sent the reply notice Exhibit A-2 and that it could not therefore be presumed that he must have got the details mentioned in Exhibit A-2 only from the 2nd respondent. But having regard to the probabilities, I agree with the learned Counsel for the appellants that the 1st respondent must have contacted the 2nd respondent before he sent the reply notice Exhibit A-2, where he has stated that the 2nd respondent is the adopted son of Rukmani and he had discharged the usufructuary mortgage executed by Rukmani with his own funds and was enjoying the properties in his own right. The fact that Exhibit B-1 had not been referred to in Exhibit A-2 will also in a way improbabilise the 2nd respondent's case regarding the genuineness of Exhibit B-1. The aforesaid difference in the signature of the executant of Exhibit B-1 and the admitted signatures in Exhibits B-5, 6 and 24 and the fact that the will had not seen the light of day for about 11 years after its alleged execution, and it is stated that it had been kept as' a secret even from the 2nd respondent in whose favour it has been executed and that it had been written by D.W. 4, a karnam of Punkanur village for 20 years and attested by D.W. 3, who was formerly an attender in the taluk office at Sirkali and also by D.W. 2, who is the son of a former Pattamaniam of the village and the 2nd respondent is a revenue official who had worked as Sub-Treasury Officer in the Taluk Office at Sirkali for some years and belongs to Sirkali and also the fact that it has not been written by any independent person, and is not attested by persons who can be stated to be independent witnesses, create strong suspicion in the mind of the Court about the genuineness of Exhibit B-1. The evidence of D.Ws. 1 to 4 is not in my opinion, sufficient to dispel this strong suspicion.

18. The learned Counsel for the 2nd respondent submitted that the Courts below have found concurrently that Exhibit B-1 is genuine and this Court in second appeal has no jurisdiction to go into that question and come to a different conclusion on the matter. The learned Counsel for the appellants, however, submits that the lower appellate Court could have considered the cumulative effect of the various circumstances and held that Exhibit B-1 could not be genuine. In this connection he relied upon the decision in Meenakshi Mills, Madurai v. Commissioner of Income-tax, Madras : [1956]1SCR691 , where it was observed that the soundness of a conclusion based on a number of facts found on evidence must be judged by the cumulative effect of all the facts and it is altogether a wrong approach to Consider them individually in an isolated manner in order to explain them and show that inferences other than those drawn by the Tribunal could be drawn from them. The learned Subordinate Judge has, not considered the cumulative effect of the facts brought out before him but has disposed of them one by one observing that it is not sufficient to show that the will could not be genuine. The learned Counsel for the appellants relied on another decision of the Supreme Court, Mehta Parikh and Co. v. Commissioner of Income-tax, Bombay : [1956]30ITR181b(SC) , where it is observed:

The High Court treated the finding of the Tribunal as a mere finding of fact. The position in regard to all such findings of fact, as to whether they can be questioned in appeal; is thus laid down by the House of Lords in Cameron v. Prendergast Inspector, of Taxes (1940) 8 I.T.R. 75 : (1940) A.C. 549 : 23 T.C. 122:

Inference from facts stated by the Commissioners are matters of law and can be questioned on appeal. The same; remark is true as to the construction of documents. If the Commissioners stated the evidence and held upon that evidence that certain results follow, it is open to the Court to differ from such a holding.To the same effect are the observations of the House of Lords in Bomford v. Osborne (H.M. Inspector of Taxes) (1940) 10 I.T.R. 27 : (1941) 2 All. E.R. 426:

No doubt there are many cases in which Commissioners, having had proved or admitted before them a series of facts, may deduce therefrom further conclusions which are themselves conclusions of pure fact. But in such cases the determination in point of law is that the facts proved or admitted provide evidence to support the Commissioner's conclusions.The latest pronouncement of the House of Lords on this question is to be found in Edwards (Inspector of Taxes) v. Bairstow and Anr. (1955) 28 I.T.R. 579 : (1955) 3 W.L.S. 410 : (1955) 3 All E.R.48, where Viscount Simonds observed at page 586:

For it is universally conceded that, though it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think fairly summarised by saying that the Court should take that course if it appears that the Commissioners have acted without any evidence or Upon a view of the facts which could not reasonably be entertained.and Lord Radcliffe expressed himself as under at page 592:

If the case contains anything ex facie which is bad law and which bears upon the determination, it is obviously erroneous in point of law. But without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the Court must intervene.It follows, therefore, that facts proved or admitted may provide evidence to support further conclusion to be deduced from them, which conclusions may themselves be conclusions of fact and such inferences from facts proved or admitted could be matters of law. The Court would be entitled to intervene if it appears that he fact-finding authority has acted without any evidence or upon a view of the facts, which could not reasonably be entertained or the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination in question.

19. Having regard to these decisions, I agree with the learned Counsel for the appellants that the Courts below have acted upon a view of the evidence which could not be said to be reasonable and that this Court has therefore jurisdiction to go into the question of fact in second appeal. The second appeal is allowed with costs, throughout payable by the 2nd respondent. There will be a decree declaring the appellants' title to the suit properties and for recovery of possession of those properties, subject to the rights of the 1st respondent who has been found to be the cultivating tenant. No leave.


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