Madras High Court
Dr.K.Natarajan vs The Special Tahsildar (La) on 21 January, 2021
A.S.No.11 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.01.2021
CORAM:
THE HONOURABLE MR. JUSTICE T.RAJA
and
THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN
A.S.No.11 of 2019
Dr.K.Natarajan ... Appellant
..vs..
The Special Tahsildar (LA)
Tamil Nadu Road Sector Project
Vridhachalam. ... Respondent
This Appeal is filed under Section 54 of Land Acquisition Act
against the order and decreetal order dated 06.10.2017 in LAOP No.461
of 2013 on the file of the Special Subordinate Judge for LAOP Cases,
Cuddalore.
For Appellant : Mr.K.Chandrasekaran
For Respondent : No appearance
1/15
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A.S.No.11 of 2019
JUDGMENT
(Judgment of the Court was delivered by G.CHANDRASEKHARAN, J.,)
This Appeal is directed against the judgment of learned Special
Subordinate Judge for LAOP Cases, Cuddalore in LAOP No.461 of 2013
dated 06.10.2017.
2. A reference was made under Section 22(3) of the Tamil
Nadu Highways Act, 2001 read with Section 30(2) of Land Acquisition
Act, 1894 to determine the ownership with regard to the land acquired
for the purpose of forming a bye-pass road concerned in Award
No.17/2008 dated 12.02.2009 to the Special Subordinate Judge for
LAOP Cases, Cuddalore. It is seen from the claim statement filed by the
claimant that the property in T.S.No.71/3B to the extent of 0.10.95
Hectares and other properties belong to Pavunammal, W/o.Thiyagarajan
pillai were acquired for the purpose of forming bye-pass road in
Chidambaram. That was inherited by her son Kuppusamy pillai and he
executed a Power of Attorney on 11.10.1989 in favour of one Sakunthala,
W/o.Balakrishnan in respect of property in T.S.No.71/1 to the extent of
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A.S.No.11 of 2019
10924 sq.ft out of 13080 sq.ft and the property in T.S.No.71/3 to the
extent of 15787 sq.ft, in which 0.10.95 Hectares had been acquired. On
05.05.1993 Sakunthala, W/o.Balakrishnan executed a registered Power
of Attorney in favour of claimant to make encumbrances of any kind and
to receive the amount etc., regarding the aforesaid properties. The
claimant has been in possession and enjoyment of the said properties.
The Government had classified the property in T.S.No.71/1 and 71/3 as
house sites in G.O.No.664 dated 16.03.1974. Therefore, the
compensation should have been given on square feet basis and not on the
basis of Hectares as done by the Acquisition Officer. The compensation
amount of Rs.1,42,755/- as per Award No.17/2008 is very meagre and the
acquired property is situated in an important location surrounded by
Temples, Government Offices, Court Complex, Registration of Sub-
Registry, Treasury, Schools and Markets. Therefore, the claimant sought
to enhance the compensation at the rate of Rs.750/- per sq.ft.
3. As already stated, this claim petition was referred to
determine the ownership with regard to the land acquired. The learned
Special Subordinate Judge, on considering the oral and documentary
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A.S.No.11 of 2019
evidence produced before the Court, found that the claimant had not
established his title to the lands acquired and dismissed the claim and
ordered that
(i) the claimant herein has no right, title or interest over the
acquired lands in T.S.No.71/3B - 0.10.95 Hectares of Chidambaram
Town, relating to the Award 17/2008 dated 12.02.2009 passed by the
Special Tahsildar (Land Acquisition) Road Sector Project, Vridhachalam;
(ii) the compensation amount deposited in the reference shall be
invested in purchase of other lands as per Section 32(a) of Land
Acquisition Act, 1894;
(iii) there is no order as to cost.
Against the said judgment, the claimant has preferred this Appeal.
4. Learned counsel appearing for the claimant/appellant
vehemently argued that the judgment of lower Court is contrary to law
and evidence available in support of the case of the appellant. The
appellant had examined himself and two other attestors to prove the
Ex.P9-Will, on the basis of it he traces his title to the lands acquired.
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A.S.No.11 of 2019
The finding that the testator was a patient with the appellant and on that
ground entertaining suspicion with regard to the genuineness of the Will
is not correct, especially, the attesting witnesses have clearly supported
the execution of Will. Prior to the execution of Will, there were two
General Power of Attorney Deeds in the form of Exs.P4 and P5 executed.
The Power of Attorney executed in favour of the appellant clearly proves
that he has every right to claim the award amount. The appellant
produced the Will at the earliest possible opportunity before the Court
and proved the Will. Without considering the unassailable evidence in
support of the claim of the appellant, the learned Special Subordinate
Judge wrongly dismissed the appellant's claim and passed the impugned
order.
5. We have given our anxious consideration to the submissions
made by the learned counsel for the appellant.
6. From the materials produced before us, it can be gathered
that the petitioner originally staked his claim to the award amount on the
basis of the registered Power of Attorney said to have been executed by
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A.S.No.11 of 2019
one Sakunthala in his favour on 05.05.1993. Prior to this Power of
Attorney, one Kuppusamy Pillai, who was the son of erstwhile owner
Pavunammal said to have executed the Power of Attorney on 11.10.1989
in favour of Sakunthala. The claimant filed a claim statement mainly on
the basis of Ex.P5- Power of Attorney said to have been executed by
Sakunthala in his favour on 05.05.1993. During the course of enquiry, it
is seen that the appellant had set up title to the acquired property in
himself by virtue of Ex.P9-unregistered Will said to have been executed
by Kuppusamy Pillai in his favour on 15.03.2002. It is reported that
Kuppusamy Pillai died on 25.09.2013 and the Will had come into force.
Now the claim of the petitioner before the learned Special Subordinate
Judge is two fold. One is on the basis of registered General Power of
Attorney Deed dated 05.05.1993 and another is based on the unregistered
Will dated 15.03.2002.
7. A perusal of the order of the learned Special Subordinate
Judge shows that the appellant had not filed any additional claim
statement or additional proof affidavit for his new claim of title for the
acquired lands on the basis of unregistered Will dated 15.03.2002.
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A.S.No.11 of 2019
Without filing additional claim statement or filing additional proof
affidavit, it seems that he has just produced the Will and claimed title
over the acquired lands. To prove the Will, the appellant had examined
himself as PW.1, in addition thereto, PW.2-Rajamanickam and PW.3-
Arulselvi, who are the attestors to the Will, were also examined. The
Will has to be proved in terms of Section 63(c) of Indian Succession Act
read with Section 68 of Indian Evidence Act. Section 63(c) of Indian
Succession Act and Section 68 of Indian Evidence Act read as follows:-
"Section 63(c) of Indian Succession Act:-
63. Execution of unprivileged Wills. —Every
testator, not being a soldier employed in an expedition or
engaged in actual warfare, [or an airman so employed or
engaged,] or a mariner at sea, shall execute his Will
according to the following rules:—
(a) .....
(b) .....
(c) The Will shall be attested by two or more
witnesses, each of whom has seen the testator sign or
affix his mark to the Will or has seen some other person
sign the Will, in the presence and by the direction of the
testator, or has received from the testator a personal
acknowledgment of his signature or mark, or the
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A.S.No.11 of 2019
signature of such other person; and each of the witnesses
shall sign the Will in the presence of the testator, but it
shall not be necessary that more than one witness be
present at the same time, and no particular form of
attestation shall be necessary. "
AND
" Section 68 of Indian Evidence Act:-
68. Proof of execution of document required by
law to be attested.—If a document is required by law to
be attested, it 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 evidence:
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a Will, which has been registered in
accordance with the provisions of the Indian Registration
Act, 1908 (16 of 1908), unless its execution by the person
by whom it purports to have been executed is specifically
denied. "
8. The above provisions vividly show that the Will has to be
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A.S.No.11 of 2019
attested by two or more witnesses. Each of the attestor, who had seen the
testator signing the Will or affixing his mark to the Will in his presence,
should depose before the Court to prove the execution of the Will. These
stringent conditions are imposed, obviously for avoiding any kind of
exercise of undue influence on the testator and to avoid the creation of
forged and fabricated Will. It is seen that PWs.1 to 3 contradict among
themselves while giving evidence with regard to the execution of Will.
It is the evidence of PW.1, the appellant herein, that he was not present at
the time of execution of Will and he was unaware of its execution. It is
the evidence of PW.2 that the Will was written in the hospital of the
appellant, when the testator was taking treatment under the appellant.
He would further state that the Will was drafted by one Rajamanickam.
However, PW.3 stated that the Will was drafted by one Sivaraman. Her
evidence falsifies the evidence of PW.1 with regard to his presence at the
time of execution of the Will. We found from the evidence of PW.1 that
he was not present at the time of execution of the Will, which was
contradicted by PW.3 by stating that the appellant was also present at the
time of execution of the Will and the testator handed over the Will to him
immediately after the execution. The Will is said to have been executed
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on 15.03.2002. Thus, according to the evidence of PW.3, PW.1 - the
appellant herein was also present at the time of the alleged execution of
Ex.P9-Will while the testator was a patient under his treatment in his
hospital. There is nothing more required to conclude that the Will was
executed by exercising undue influence taking advantage of the
relationship of patient and Doctor.
9. The patients are always at the mercy of Doctors to go out of
the hospital alive. The testator trusted the appellant for cure of whatever
the disease he was suffering from. It was a sort of a fiduciary
relationship between the patient and Doctor. However, the appellant had
taken undue advantage of the situation, exercised undue influence on the
testator Kuppusamy Pillai and somehow managed to get the Will created.
10. It may be highlighted herein that though appellant came to
possess the Will on the date of alleged execution of Will as seen from the
evidence of PW.3, the appellant claims that he came to know about the
Will only after the death of testator on 25.09.2013. This is again a false
case of the appellant as exhibited from the evidence of PW.3. This Will
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came to light only on 09.06.2015, when he produced the Will before the
Court. The Will is shrouded with strong suspicious circumstances with
regard to its execution. As already indicated and found from the
evidence of PW.1 to PW.3, there are material contradictions in their
evidence with regard to the execution of the Will. It was clear that the
Will was executed when the testator was taking treatment. The
beneficiary was present at the time of execution of the Will. The testator
was the patient under the Doctor beneficiary.
11. One another disturbing feature is that the appellant has not
taken any effort to bring it to the notice of the Court as to whether the
testator Kuppusamy Pillai left any surviving wife or children. It seems
that he has not produced any legal heir certificate of testator Kuppusamy
Pillai and no evidence whatsoever was presented before the Court to
enlighten the Court as to the existence or non-existence of the legal heirs
of Kuppusamy Pillai. The Will was not produced before the Referring
Officer. There, the claim was based only on the basis of Ex.P9-General
Power of Attorney Deed. Referring all these aspects, the learned Special
Subordinate Judge found that the Will was not proved in accordance with
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law. The findings of the learned Special Subordinate Judge was reached
on the basis of proper appreciation of oral and documentary evidence,
therefore, we do not find any reason to interfere with the findings that
Ex.P9-Will is not true and we have no hesitation to confirm this finding.
12. That apart, it seems that the appellant had filed only xerox
copy of the General Power of Attorney Deed said to have been executed
by Sakunthala in his favour. The learned Special Subordinate Judge
found that there was no specific recitals in Ex.P4-Power of Attorney
Deed stated to have been executed by Kuppusamy Pillai in favour of
Sakunthala giving her powers to execute a Power of Attorney Deed in
favour of some other person. Therefore, it was found that the alleged
execution of Ex.P5 - Power of Attorney Deed by Sakunthala in favour of
the appellant to the detrimental interest of principal has not been
established in the manner known to Section 63 of the Indian Succession
Act and Section 68 of Evidence Act. It was also found that in the
absence of acceptable reasons for the non-production of original Power
of Attorney Deed, the appellant cannot claim any compensation on the
acquired land on the basis of xerox copy of General Power of Attorney
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A.S.No.11 of 2019
Deed dated 05.05.1993. Thus, the claim of the appellant on the basis of
Ex.P5- Power of Attorney Deed and Ex.P9-Will setting up title to the
acquired lands was negatived by the learned Special Subordinate Judge
by giving cogent, convincing and acceptable reasons. This Court also
finds no reason to interfere with the well considered Judgment of the
learned Special Subordinate Judge, hence, we confirm the order of the
learned Special Subordinate Judge in LAOP No.461 of 2013 dated
06.10.2017 and dismiss the Appeal.
13. In the result, this Appeal is dismissed and the Judgment and
decreetal order of the learned Special Subordinate Judge for LAOP
Cases, Cuddalore in LAOP No.461 of 2013 dated 06.10.2017 are
confirmed. No costs.
(T.R.J.,) (G.C.S.J.,)
mra 21.01.2021
Internet: Yes
Index : Yes/No
Speaking/Non speaking order
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A.S.No.11 of 2019
To
1. The Special Subordinate Judge for LAOP Cases,
Cuddalore.
2. The Special Tahsildar (LA)
Tamil Nadu Road Sector Project
Vridhachalam.
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A.S.No.11 of 2019
T.RAJA, J.,
and
G.CHANDRASEKHARAN, J.,
mra
A.S.No.11 of 2019
21.01.2021
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