Madras High Court
Sarada @ Nagammal vs Dhanasekaran on 7 January, 2021
C.M.A.No.1993 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.01.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.1993 of 2012
M.P.No.1 of 2012
1.Sarada @ Nagammal
2.Rajamani
3.Selvambal
4.Maheswari ..Appellants
Vs.
1.Dhanasekaran
2.Dhanalakshmi
3.Malathi
4.Balu
5.Raju @ Varadaraja Pillai
6.Pappayi
7.Amudha @ Boopathi
8.Vasantha ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Order 43 Rule 1 (u)
of CPC, to set aside the judgment and decree dated 30.09.2011 in
A.S.No.9 of 2011 on the file of the Additional District Court (Fast
Track Court No.1) Salem, and remand back setting aside the
judgment and decree dated 23.07.2010 in O.S.No.367/2003 on the
file of the Principal Sub-Court, Salem.
1/12
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C.M.A.No.1993 of 2012
For Appellants : Mr.R.Meenal
For Respondents : Mr.P.Jagadeesan for R1 to R5
No Appearance for R6
JUDGMENT
The Judgment and Decree passed in A.S.No.9 of 2011 dated
30.09.2011 is sought to be set aside in the Civil Miscellaneous
Appeal.
2. The appellants are the plaintiffs, who instituted a suit for
declaration and recovery of possession based on the three Wills
marked as documents in the suit. The suit was decreed in favour of
the appellants by the trial Court and in the first appeal, the
Appellate Court remanded the matter back to the trial Court for
verification of the thumb impression of the executor of the three
Wills.
3. The learned counsel for the appellants reiterated that the
appellants had established the genunity of the Will before the trial
Court and the signature of the executants were also verified and a
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C.M.A.No.1993 of 2012
decree was passed in favour of the appellants. Thus, the first
Appellate Court has committed an error in remanding the matter
back to the trial Court for verification of the signature of the
executor of the Will. The learned counsel for the appellants further
contended that the signature was admitted during the trial and the
suit was decreed in favour of the appellants. While so, there is no
valid reason for the first Appellate Court to remand the matter back
to the trial Court.
4. The learned counsel for the appellants is of the opinion
that even if a doubt arises in respect of the signature of the
executor, the first Appellate Court itself would have verified the
signature instead of remanding the matter back to the trial Court.
5. The learned counsel for the respondents objected the said
contention by stating that the three Wills were executed by way of
an impersonation and serious doubts are raised by the defendants
even before the trial Court. The trial Court, without considering the
grounds raised by the defendants, decreed the suit in favour of the
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C.M.A.No.1993 of 2012
appellants. The first Appellate Court rightly arrived a conclusion
that there is a doubt in respect of the signature of the executor of
the Will and therefore, there is no reason to interfere with the
judgment and the Civil Miscellaneous Appeal is liable to be
dismissed.
6. It is relevant to consider the findings of the first Appellate
Court for remanding the matter back to the trial Court to verify the
signature of the said Chinnammal. The findings of the trial Court
are that "Ex.B13 to Ex.B15 Wills are registered Wills and the
Testatrix died merely 7 years after the execution of Ex.B15 Will.
The exclusion of the plaintiffs in the Will cannot be considered as
unnatural, because of the fact that the first plaintiffs was the rival
of Chinnammal and plaintiffs 2 to 4 are the children of the rival
through her husband. Therefore, the natural inclination to
bequeath the properties should be only in favour of the children
born through her natural sister. It is admitted fact that D.W.1 and
D.W.2 are the children of the natural sister of Chinnammal. If
really the defendants 1 and 2 wanted to create the Will, they could
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C.M.A.No.1993 of 2012
have stopped with a single Will. Nobody would trouble themselves
with the creation of three Wills. Ex.B13 to Ex.B15 Wills are prior to
Ex.A14 Will. However, there is no mention about the Ex.B13 to
Ex.B15 Wills in Ex.A14 Will. It is admitted by the plaintiffs that the
defendants 1, 2 and 10 to 12 are in actual and constructive
possession of the suit properties, thereby meaning they were
enjoying the suit properties in pursuance of Ex.B13 to Ex.B15
Wills. However, these factors are not considered by the trial Court.
The Trial Court also found in agreement with the suggestion
of the plaintiffs that some one might have impersonated
Chinnammal in the execution of Ex.B13 to Ex.B15 Wills. Therefore,
this Court is of the considered view that the apprehension that
some one might have impersonated Chinnammal should be
removed while proving these Wills. As already stated that the
appellants/defendants 1, 2 and 10 to 12 filed I.A.No.319/11 for
comparing the disputed thumb impression in Ex.B13 to Ex.B15 with
admitted thumb impression of Chinnammal. In the facts and
circumstances of this case, I.A.No.319/11 is allowed and with a
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C.M.A.No.1993 of 2012
view send the disputed thumb impression of Chinnammal in Ex.B13
to Ex.B15 to the finger print Expert to compare with admitted
thumb impression of Chinnammal and give an opportunity to prove
Ex.B13 to Ex.B15 Wills on the basis of scientific evidence. The
Judgment and decree of the trial Court passed in this suit is set
aside and the case was remanded to the trial Court for sending
Ex.B13 to Ex.B15 Wills along with the documents containing
admitted thumb impression of Chinnammal (to be produced by the
defendants 1,2, 10 to 12) for the comparison of Finger Print Expert
and to decide the matter accordingly".
7. This Court is of the considered opinion that the doubt
raised by the respondent before the first Appellate Court was
rightly considered by the first Appellate Court. Even a semblance of
doubt with reference to the signature in a Will is to be verified and
if necessary, through scientific methods, in view of the fact that the
three different Wills were executed and based on the Will, the suit
for declaration and possession is filed. Therefore, it is necessary
that the genunity of the Will is of paramount importance to confer
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C.M.A.No.1993 of 2012
the right on the plaintiff regarding the suit properties. Thus, the
signature in a Will must be established beyond any pale of doubt.
In the present case, a doubt has been raised by the defendants
even before the trial Court. However, the trial Court though
verified, has not scientifically proved the thumb impression of the
said Chinnammal and arrived a conclusion that the Will is a genuine
document. The first Appellate Court has rightly gone to those
documents and made a finding that the thumb impression of the
said Chinnammal is to be verified through an Expert. When there is
a doubt regarding the thumb impression, the option would be
available to send the same to the opinion of the Expert so as to
arrive a conclusion that the Will is a genuine document. The
allegation of impersonation was raised by the respondents before
the trial Court. Under these circumstances, the cogent finding
arrived by the first Appellate Court is in accordance with law and
the genunity of the Will is to be verified and the same was not done
by the trial Court, while passing the Judgment and decree in favour
of the appellant.
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C.M.A.No.1993 of 2012
8. The learned counsel appearing on behalf of the appellant
raised an objection mainly on the ground that the respondents had
filed an application before the first Appellate Court in order to
prolong and protract the issues. In the event of remanding the
matter back to the trial Court, parties has to suffer as dismissal of
the suit and again filing an appeal would cause prejudice and will
take long time.
9. There is a force in the arguments advanced in this regard
by the learned counsel appearing on behalf of the appellant. It is
relevant that under Section 107 CPC, the first Appellate Court
empowered to take additional evidence or to require such evidence
to be taken. Sub Clause (d) of Section 107 CPC is unambiguous in
this regard. Therefore, the first Appellant Court itself is empowered
to refer the signature to the handwriting expert and if necessary
take evidence and decide the issues. Even under Sub Clause-3, the
first Appellate Court can frame the additional issues for the purpose
of deciding the dispute between the parties to the first appeal. This
being the powers conferred on the first Appellate Court regarding
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C.M.A.No.1993 of 2012
the examination of further evidences or scrutinization of the
documents. This Court is of the considered opinion that lapses can
be filled by the first Appellate Court itself. Order 41 Rule 33 CPC is
clear in this regard that the first Appellate Court could be exercising
the powers of the trial Court and it is in continuation of the original
suit filed.
10. This being the principles, this Court is of the considered
opinion that exercise of sending the disputed signature for
verification through handwriting expert and examination of
witnesses and evidences if necessary shall be done by the first
Appellate Court itself and by framing additional issues if necessary.
Under these circumstances, instead of remanding the matter back
to the trial Court, the first Appellate Court is directed to complete
the exercise of the process of verification of the signature and
thumb impression in the disputed Will as well as examine the
witnesses if necessary by providing opportunity to all the parties to
cross examine etc., and decide the issues on merits and in
accordance with law and dispose of the first appeal on merits.
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C.M.A.No.1993 of 2012
11. Accordingly, the judgment and decree dated 30.09.2011
passed in A.S No.9 of 2011 is set aside and the matter is remanded
back to the first Appellate Court for disposal of the appeal on merits
and in accordance with law. The first Appellate Court is requested
to dispose of the appeal as expeditiously as possible and preferably
within a period of six months from the date of receipt of a copy of
this judgment. The parties to the appeal suit are directed to co-
operate for the earlier disposal. Unnecessary adjournments are to
be rejected by the Court. Adjournments on genuine grounds can
be granted by recording the reasons for such an adjournment.
12. In the result, the Civil Miscellaneous Appeal stands
allowed. No costs. Consequently, connected miscellaneous petition
is also closed.
07.01.2021
ssb/uma
Index: Yes/No
Internet:Yes/No
Speaking order/Non-Speaking Order
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C.M.A.No.1993 of 2012
To
1. The Additional District Court (Fast Track Court No.1) Salem.
2. The Principal Sub-Court, Salem.
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C.M.A.No.1993 of 2012
S.M.SUBRAMANIAM, J.
ssb/uma
C.M.A.No.1993 of 2012
M.P.No.1 of 2012
07.01.2021
https://www.mhc.tn.gov.in/judis/
