IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED:
19. .02..2013 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA S.A. No.1160 of 2010 Dhanalakshmi .. Appellant Vs. 1.Karuppusamy 2.P.Maheshkumar 3.R.Rajeswari .. Respondents Second appeal preferred against the judgment and decree dated 4.1.2010 passed by the Additional District Court/Fast Track Court not II, Gobichettipalayam, confirming the judgment and decree dated 28.8.2008 passed by the First Additional Sub-Court Gobichettipalayam, in O.S.No.110 of 2002. For Appellant : Mr.N.Manokaran For Respondents : No appearance JUDGMENT This second appeal is filed by the plaintiff animadverting upon the judgement and decree dated 4.1.2010 passed by the Additional District Court/Fast Track Court not II, Gobichettipalayam, confirming the judgement and decree dated 28.8.2008 passed by the First Additional Sub-Court Gobichettipalayam, in O.S.No.110 of 2002, which is one for partition.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. The warp and woof of the gername fact absolutely necessary for the disposal of this second appeal would run thus: (i) The original deceased plaintiff-Karupayal filed the suit for partition as against her son-D1-Ponnusamy and D2-Karuppusamy-the purchaser of suit property from D1-Ponnusamy. (ii) The gist and kernel of the averments in the plaint would be to the effect that the suit property originally belonged to Palanisamy-the husband of Karupayal and father of D1-Ponnusamy. The said Palanisamy died intestate during the year 1995; whereupon, his wife Karupayal and son-Ponnusamy became the class-I heirs, entitled to equal shares in the suit property. (iii) While so, D1-Ponnusamy disregarding and violating the right of the plaintiff, alienated the entire suit property in favour of D2, so as to defraud the share of the plaintiff. Hence, the suit for partition.
4. Pending trial itself, Karupayal died. Whereupon her legalee, namely, Dhanalakshmi-the present second appellant herein, who also happened to be the estranged wife of Ponnusamy, got herself impleaded on the strength of the unregistered Will dated 2.7.2003 executed by Karupayalh in favour of Dhanalakshmi.
5. D1 remained ex-parte.
6. Refuting and challenging, inveighing and contradicting the averments/allegations in the plaint, D2 filed the written statement, which could tersely and briefly be set out thus: (i) The said Karupayal, during her life time relinquished her right over the suit property and in fact, in addition to the suit property, various other items of properties also were sold by D1-Ponnusamy in favour of various persons but those sales were not challenged. (ii) The principle of estoppel would be operatring as against Karupayal. (iii) D2 also filed the additional written statement contenting that the 'Will' relied on by the second appellant herein was not genuine and it is a forged and fabricated one. Accordingly D2 would pray for dismissal of the suit. (iv) Up went the trial, during which, the second plaintiff-Dhanalakshmi examined herself as P.W.1 along with P.Ws.2 and 3 and Exs.A1 to A9 were marked on the plaintiffs' side. On the defendants' side, the second defendant-Karuppusamy was examined as D.W.1 along with one Saravanakumar as D.W.2 and Exs.B1 to B29 were marked on their side. (v) Ultimately the trial Court dismissed the suit. Whereupon the said Dhanalakshmi preferred appeal on various grounds. (vi) Pending appeal, the said D1-Ponnusamy died. Whereupon, his legal heirs-R2 and R3 in this appeal, were impleaded. (vii) The first appellate Court ultimately dismissed the appeal, confirming the judgement and decree of the trial Court.
7. Chellenging and impugning the judgements and decrees of both the Courts below, this second appeal has been focussed on various ground and also suggesting substantial questions of law.
8. Despite printing the name of the respondents, no one appeared and there is no representation also.
9. Heard the learned counsel for the appellant, who would pyramid his arguements, which could succinctly and precisely be set out thus: (i) The Courts below even though held in favour of Karupayal that she being one of the legal heirs of Palanisamy, inherited the property of Palanisamy, yet they disbelieved the unregistered Will-Ex.A9 without any basis whatsoever and that too, belittling and slighting, ignoring and pooh-poohing the evidence of the attesting witnesses, namely, P.W.2-Ponnusamy and P.W.3-Mani. (ii) Strictly in accorance with Section 68 of the Indian Evidence Act, the second appellant herein, namely, Dhanalakshmi, sedulously and meticulously adduced evidence, but for no good reasons, their evidences were rejected, warranting interference in second appeal. (iii) The circumstances are such that Karupayal-the deceased mother of D1 did not want, during her life time itself, that her son-Ponnusamy should take away her share and because of that alone, she filed the suit for partition; While so, the preponderance of probabilities were in favour of the genuineness of the 'Will'. Accordingly, the learned counsel for the appellant would pray for setting aside the judgements and decrees of both the Courts below and for decreeing the suit in avour of Dhanalakshmi, allotting half share in the suit property.
10. Considering the pro et contra, the following substantial question of law is framed: Whether the Courts below were justified in disbelieving the 'Will'-Ex.A9 purely on conjectures and surmises and that too, on the grounds that all the properties of Palanisamy were not included in Ex.A9, that the title deed of Palanisamy was not referred to before executing the Will and that the attesting witnesses happened to be the relatives oblivious of the circumstances involved in this case? 11. Indubitably and indisputably, the suit property happened to be the self-acquired property of deceased Palanisamy, who died during the year 1995, leaving behind his widow-the original plaintiff Karupayal and D1-Ponnusamy-his son; Wherefore as per Section 8 read with schedule-I of the Hindu Succession Act, the widow and the son were entitled to half share each.
12. In fact, D1 during his life time itself remained ex-parte and his legal heirs were impleaded and they also remained ex-parte. However D2-the purchaser of the suit property alone filed the written statement and additional written statement resisting the suit.
13. The plea of D2 is too big a pill to swallow. He would wax eloquence by narrating as though the said Karupayal, during her life time, orally relinquished her right over all the properties of Palanisamy in favour of her son-Ponnusamy as well as Ponnusamy's son Maheshkumar.
14. Law is crystal clear and it is also quite obvious and axiomatic that a share in immovable property cannot be relinquished without any registered document. Relinquishment by the plaintiff is the only plea of D2. It is therefore clear from the very plea of D2 that he waged a last ditch battle by dishing out the said plea which is obviously and axiomatically untenable and it is not even worth the paper on which it is found written.
15. Fortunately both the Courts below disbelieved the version of D2 on that aspect of release. But the Courts below took a tangent view to the effect that the unregistered 'Will' was not proved. The trial Court went to the extent of doubting the genuineness of the 'Will' on the ground that the sid 'Will' was scribed without even referring to the original title deed relating to the suit property.
16. There is no knowing of the fact as to how such a retiocination could be adhered to by the trial Court for disbelieving the 'Will'. Law zealously and jealously protects the rights of a widow. It is quite obvious that Karupayal was an illeterate widow at the relevant time of executing the 'Will'.
17. One cannot expect such an illeterate widow to have in her possession the title deed of her husband and that too, when already D1 sold away the property in favour of D2. In such a case, the trial Court's expectation was quite antithetical to preponderance of probabilities as well as realities.
18. At times, parties might not be able to see the wood for trees but still the court has to do justice cutting across technicalities. I recollect the legal adage that every trial is a voyage, in which quest for truth is the goal as found highlighted in the following precedents of the Hon'ble Apex Court: (i) 2012(1) MWN (Civil) 840 (S.C.) [Maria Margarida Sequeria Fernandes and others vs. Erasmo Jack de Sequeria (dead) through L.Rs.] Certain excerpts from it would run thus: "36. In Ritesh Tiwari and another vs. State of Uttar Pradesh and others,2010(10) SCC 677.this court reproduced often quoted quotation which reads as under: "Every trial is voyage of discovery in which truth is the quest".
37. This court observed that the power is to be exercised with an object to sub-serve the cause of justice and public interest and for getting the evidence in aid of a just decision and to uphold the truth.
38. Lord Denning, in the case of Jones v. National Coal Board, 1957 (2) QB 5.has observed that: "In the system of trial that we evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of the society at large, as happens, we believe, in some foreign countries." 39. Certainly, the above, is not true of the Indian Judicial System. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest." In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.
51. In the administration of justice, judges and lawyers play equal roles. Like Judges, lawyers also must ensure that truth triumphs in the administration of justice.
52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth." (ii) 2010(10) SCC 67.[Ritesh Tiwari and another vs. State of Uttar Pradesh and others]. Certain excerpts from it would run thus: "37. Section 165 of the Evidence Act, 1872 empowers the court to ask questions relevant, irrelevant, related or unrelated to the case to the party to ascertain the true facts. The party may not answer the question but it is not permitted to tell the court that the question put to him is irrelevant or the facts the court wants to ascertain are not in issue. Exercise of such a power is necessary for the reason that the judgment of the court is to be based on relevant facts which have been duly proved. A court in any case cannot admit illegal or inadmissible evidence for basing its decision. It is an extraordinary power conferred upon the court to elicit the truth and to act in the interest of justice. A wide discretion has been conferred on the court to act as the exigencies of justice require. Thus, in order to discover or obtain proper proof of the relevant facts, the court can ask the question to the parties concerned at any time and in any form. "Every trial is voyage of discovery in which truth is the quest". Therefore, power is to be exercised with an object to subserve the cause of justice and public interest, and for getting the evidence in aid of a just decision and to uphold the truth. The purpose being to secure justice by full discovery of truth and an accurate knowledge of facts, the court can put questions to the parties, except those which fall within exceptions contained in the said provision itself (vide Jamatraj Kewalji Govani v. State of Maharashtra and Zahira Habibulla H.Sheikh vs. State of Gujarat].
19. The first appellate Court went to the extent of expecting that all the properties of deceased Ponnusamy should have been found specified in the 'Will' and in the absence of such inclusion of all properties of deceased Palanisamy, the Court looked askance at the Will. Inasmuch as only the suit property is found specified in the 'Will'-Ex.A9, the first appelalte Court doubted the genuineness of the 'Will'.
20. The learned counsel for the second appellant appropriately and appositely, legally and convincingly would put forth his arguements that as on the date of filing of the suit itself, all the properties of Palanisamy were sold, including the suit property and that Karupayal being a widow and illeterate lady could only focus her attention on the suit property and try to get her share in it and in such a case, the first appelalte Court was not justified in looking askance at the 'Will' and observing that all the properties of deceased Palanisamy were not included in the 'Will'.
21. Had Karupayal been in cordial terms with D1, then the suit for partition itself would not have emerged. The bare fact that the suit was filed for partition be speaks, and be tokens, projects and displays that the mother and son were at logger heads and they were not in talking terms. There was no lovelost between them. In such a case, in all probabilities Karupayal might not have intended to die the death intestate, so as to facilitate her estranged son D1 to take away her share.
22. Relating to attestation of Will is concerned, in matters of this nature, it is but natural for the relatives to attest the Will. An illeterate lady cannot be expected to go and search for some strangers to attest her 'Will'. There is nothing to exemplify and dictate that the attesting witnesses were inimical towards D1 or D2.
23. At the outset itself I would like to fumigate my mind with the following decisions of the Honourable Apex Court and this Court relating to Will:
1. 1994 (5) SCC 13.(Bhagwan Kaur vs. Kartar Kaur and others 2. 2003 (12) SCC 3.(Bhagat Ram and another vs. Suresh and others) 3. 2006 (13) SCC 44.(B.Venkatamuni vs. C.J.Ayodhya Ram Singh and others) A perusal of the aforesaid judgments would cumulatively reveal that the propounder of a Will has to prove the due execution of the Will by the testator as per Section 63 (c) of the Indian Succession Act r/w Section 68 of the Indian Evidence Act. There could be no quarrel over the proposition that a Will has to be proved strictly in accordance with those aforesaid provisions of law. (i) 2005(1) SCC 4.[Daulat Ram and other vs. Sodha and others] (ii) 2005(1) SCC 28.[Meenakshiammal (Dead) through LRs. and others vs. Chandrasekaran and another] (iii) 2005(1) CTC 44.[Sridevi and others vs. Jayaraja Shetty and others] (iv) 2005(1) L.W.455 [Janaki Devi vs. R.Vasanthi and 6 others] (v) 1989 (1) L.W.396 [Nagarajan and 3 others vs. Annammal] (vi) AIR 198.SC 13.[Smt.Indu Bala Bose and others vs. Manindra Chandra Bose and another] (vii) AIR 198.SC 50.[Satya Pal Gopal Das vs. Smt. Panchubala Dasi and others] (viii) AIR 199.Bom. 148 [Asber Reuben Samson and others v. Eillah Solomon and others] (ix) 2008(2) MLJ 11.[M.Anandan and others vs. A.Dakshinamoorthy] (x) 2006(4) L.W.942 [Gurdev Kaur & others vs. Kaki & others] (xi) 2008(1) MLJ 133.SC [Savithri and others vs. Karthyayani Amma and others] (xii) 2007(3) L.W.916 [1. J.Mathew (died) 2. J.Damien and 3 others vs. Leela Joseph] (xiii) (1990) 1 SCC 26.(Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur vs. Smt.Chhoti and others) (xiv) (1990) 3 SCC 36.(Ram Piari vs. Bhagwant and others) (xv) (1962) II Madras Law Journal Reports (Supreme Court) 27 (Rani Purnima Debi and another vs. Kumar Khagendra Narayan Deb and another) (xvi) 1976 STPL (LE) 8415 SC (Smt.Jaswant Kaur vs. Smt.Amrit Kaur and others) (xvii) 1984 (II) MLJ 13.(M.Krishnan vs. Ramaswami and others) (xviii) 2004 (1) CTC 61.(SC) (P.S.Sairam and another vs. P.S.Rama Rao Pisey and others) (xix) (2008) 8 MLJ 64.(Thayammal vs. Ponnusamy and another) Among the aforesaid decisions, the decision of this Court reported in 2001(3)CTC 28.[Corra Vedachalam Chetty and another vs. G.Jankiraman] is on the point that the Court while analysing the Will is acting as a Court of conscience. An excerpt from the above said decision would run thus: "26. This need for caution, cannot be exploited by unscrupulous caveators who choose to cull out imaginary suspicions with a view to prevent the legatees under the Will from claiming the benefit thereunder and to render the last Will of the deceased wholly ineffective. In this context, the conduct of the persons who raise the alleged ground for suspicion is also to be looked at, to know as to how credible are the grounds for suspisions sought to be raised by such persons. In this case, the suspicion is sought to be raised by a person who is keenly interested in making the Will ineffective and whose conduct is far from one which would inspire confidence in truthfulness of his statements." As such, the cited precedent would also highlight that the Court should not attach undue importance to imaginary suspicions. All these aforesaid decisions are on the point that the Court should not at the time of analysing the validity of the Will proceed on the hypothesis that the Will is an invalid one.
24. At this juncture, my mind is reminiscent and redolent of one other decision reported in 2003(1)CTC 30.[ Janki Narayan Bhoir vs. Narayan Namdeo Kadam]. An excerpt from it would run thus: "8. To say will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witness has to sign the Will in the presence of the testator.
9. It is thus clear that one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory.
10. Section 68 of the Evidence Act speaks as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least 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 an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of the proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of the clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in this evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act 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. Where one attesting witness is examined and he fails to prove the attestation of the Will by other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act." 25. A mere running of the eye over those precedents would unambiguously and unequivocally highlight and spotlight the fact that the Court has to take a holistic view of the matter while evaluating the genuineness of a 'Will'.
26. 'Witnesses might lie but the circusmtances would not do so. Both the Courts below failed to take note of the fact that the very Will Ex.A9 was executed by Karupayal not to any stranger but to her own daughter-in-law-Dhanalakshmi, who happened to be the estranged wife of D1-Ponnusamy. To put it differently, Ponnusamy not only estranged his mother Karupayal but also his wife Dhanalakshmi-the appellant herein.
27. Had any busybody approached the Court, on the death of Karupayal, taking undue advantage of the situation, with some unregistered Will purportedly executed by Karupayal, obviously that has to be looked askance at, invoking the maxim 'In dubiis non praesumitur pro testamento' In doubtful cases, there is no presumption in favour of the Will.
28. The learned counsel for the second appellant would fittingly advance his arguement by highlighting and spotlighting that Dhanalakshmi the second appeallant herself was a lady in distress and it is also an undeniable and incontrovertible fact that the testator was another lady in utter helplessness and in such a case, the expectation of getting registered the Will would be a far fetched one on the part of the Court.
29. Ex.A9 was scribed by a licenced document writer and it was attested by the relatives of the family of deceased Palanisamy and by stock witnesses. These are all circumstances which both the Courts below should have taken note of. But they failed to do so. Glaringly and palpably the circumstances were such that even for all the world and for all tea in China, Karupayal (the plaintiff) might not have desired that her share should go to D1 on her death. Wherefore this strong circumstance lends support to P.W.1 the legatee.
30. The cumulative effect of the evidence of the attesting witnesses P.Ws.2 and 3 would connote and denote, convey and portray that the said testator, after understanding the contents of the Will having been read out to her, put her left thumb impressions on the two sheets of Ex.A9-the Will, in the presence of the witnesses and in her presence the attesting witnesses attested the Will. As such, in all fours the depositions of P.Ws.2 and 3 satisfy the ingredients of Section 68 of the Indian Evidence Act. Hence in these circumstances both the Courts below were not justified in doubting the genuineness of the Will.
31. The first appellate Court's observation that the scribe of the Will was not examined is neither here nor there. Nowhere under Section 68 of the Indian Evidence Act, examination of the scribe is contemplated. If at all the attesting witnesses are not available, then while invoking Section 69 of the Indian Evidence Act, such examination of the scribe can be expected by the Court. But in this case, the witnesses P.Ws.2 & 3, who are not stock witnesses or procured witnesses, narrated extensively the scribing of the Will by the licenced document writer and also the factum of the execution of the testament by the testator concerned.
32. In fact, the sale deed was executed by D1 and his son, in favour of D2. In my considered opinion since the suit property belonged to Palanisamy, on his death only D1-Ponnusamy and Karupayal were entitled to half share each and the minor son of D1 was not entitled to any share as per the settled legal position enunciated in AIR 198.SC 55.[Yudhishter vs. Ashok Kumar]. Certain excerpts from it would run thus:
10. This question has been considered by this Court in CWT v. Chander Sen5 where one of us (Sabyasachi Mukharji, J.) observed that under the Hindu law, the moment a son is born, he gets a share in father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as karta of his own undivided family but takes it in his individual capacity. At p. 577 to 578 of the Report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn., pp. 924-26 as well as Mayne's Hindu Law, 12th Edn. pp. 918-19. Shri Banerji relied on the said observations of Mayne on Hindu Law, 12th Edn., at p. 918-19. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn., p.
919. In that view of the matter, it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-`-vis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house.
11. But as mentioned hereinbefore, even if we proceed on the assumption that the respondent was a member of the HUF which owned the ancestral house, having regard to his share in the property and having regard to the need of other sons of the father who were living in the ancestral house along with their families, the appellate authority was still right in holding that the need of the respondent was bona fide.
33. The averments in the written statement would simply aver as though D1-Ponnusamy and his son Maheshkumar sold the property in favour of D2. In fact, the said sale deed in favour of D2 has not been produced and exhibited. However, Ex.B6-the encumbrance certificate would refer to the details, which would exemplify and demonstrate that on 26.04.2001 D1 and his son sold the suit property in favour of D2 and proceeding under Section 47-A(i) of the Stamp Act was pending, at that time. However, on the very same day, it appears, the said D2 entered into an agreement to sell with regard to the suit property in favour of one Kuppusamy and on 7.8.2006 that agreement was cancelled. As such, on the date of sale by D1 and his son in favour of D2, D2 entered into an agreement to sell with one other person which was subsequently cancelled and these facts also should have been taken note of by the lower Court. Some attempts were made by D2 to keep the very property itself away from the clutches of the other co-sharer- Karupaya. There is no knowing of the fact as to why D2 who projects himself as a bona fide purchaser of the suit property did not choose to obtain the signature of Karupayal (the original plaintiff) and that too when D2 independently in the written statement had contended that Karupayal even though had her share, she released it orally in favour of D2's vendors.
34. Accordingly the substantial question of law is answered as under: The Courts below were not justified in disbelieving the 'Will'-Ex.A9 purely on conjectures and surmises and that too, on the sole grounds that all the properties of Palanisamy were not included in Ex.A9, that the title deed of Palanisamy was not referred to before executing the Will and that the attesting witnesses happened to be the relatives, oblivious of the circumstances involved in this case.
35. Hence in these circumstances, the second appeal is allowed, setting aside the judgements and decrees of both the Courts below and the original suit is decreed declaring one half share in the suit property in favour of the second apellant herein and the remaining half share in favour of the defendants and it is for D2 Karuppusamy to work out his equity, if any, with the other defendant and accordingly, the preliminary decree shall follow. However, there is no order as to costs. Msk To 1. The Additional District Court / Fast Track Court not II, Gobichettipalayam.
2. The First Additional Sub Court Gobichettipalayam