A. Selvam, J.@mdashChallenge in these second appeals is to the judgments and decrees passed in Appeal Suit Nos. 15, 16 & 17 of 1999 by the
Subordinate Court, Palani.
Second Appeal No. 1314 of 2003:
2. The appellants herein as plaintiffs have instituted Original Suit No. 507 of 1990 on the file of the District Munsif Court, Palani, for the reliefs of
declaration and perpetual injunction, wherein the present respondents have been shown as defendants 2 to 5.
3. The nubble of the averments made in the plaint filed in Original Suit No. 507 of 1990 can be stated like thus;
The plaintiffs are the sons of Palanisami Gounder of Kothaimangalam. The father of the plaintiffs has passed away on 05.01.1947, leaving behind
him, the plaintiffs as his legal heirs. The plaintiffs are the sons of Palanisami Gounder born through his second wife by name Velathal. The first wife
of Palanisami Gounder is Vanjakkal. The defendants are the sons of one Sivasubramania Gounder, brother of Vanjakkal. After the death of the
father of the plaintiffs, a tussle has arisen between the plaintiffs'' maternal uncle by name Murugana Gounder, the father of the defendants by name
Sivasubramania Gounder, the widows of Palanisami Gounder namely Vanjakkal and Velathal, and the grand mother of the plaintiffs'' by name
Devakkal, and subsequently, Original Suit No. 19 of 1947 has been filed on the file of the Subordinate Court, Dindigul and another suit in Original
Suit No. 52 of 1947 has also been filed in respect of estate of the deceased Palanisami Gounder and the parties therein have desired to settle the
matter amicably and due to that a compromise has been effected and subsequently, in Original Suit No. 19 of 1947 a compromise decree has
been passed. By virtue of compromise decree passed in Original Suit No. 19 of 1947, the first wife of Palanisami Gounder by name Vanjakkal has
been given certain properties with limited right to enjoy the same till her life time. Even though the said Vanjakkal has been given certain properties,
she has not enjoyed the same and the plaintiffs have alone been enjoying the same. During the year 1987, the defendants have poisoned the mind
of Vanjakkal and by exercising undue influence, the said Vanjakkal has been taken to the custody of the defendants and the defendants have
obtained sale deeds dated 04.06.1987, 10.06.1987 and 03.06.1987 in respect of the suit properties and the defendants have filed Original Suit
No. 131 of 1990 against the plaintiffs herein by showing them as defendants, for the reliefs of declaration and permanent injunction. The plaintiffs
have enjoyed the suit properties for more than a statutory period and thereby prescribed title to the same. During the pendency of the suit, the first
defendant by name Parivallal has passed away and his legal heirs have been impleaded as defendants 3 to 5. Since the defendants have denied the
title and interest of the plaintiffs over the suit properties, the plaintiffs have come forward with the present suit for the reliefs indicated supra.
4. It is averred in the written statement that it is true that a compromise decree has been passed in Original Suit No. 19 of 1947 and subsequently
Original Suit No. 22 of 1958 has been filed against the defendants'' father by name Sivasubramania Gounder, Vanjakkal and others, and the same
has been dismissed on 23.02.1971. Against the judgment and decree passed therein, an appeal has been preferred in Appeal Suit No. 187 of
1972 and the same has also been dismissed. It is false to say that the Vanjakkal has been given only limited interest. The suit properties and some
other properties have been given to Vanjakkal in pursuance of compromise decree passed in Original Suit No. 19 of 1947 in lieu of her
maintenance and as per Section 14(1) of the Hindu Succession Act, 1956, the limited interest of Vanjakkal has been converted into absolute
interest. The said Vanjakkal has sold the suit properties in favour of the defendants 1 & 2 under four sale deeds. It is false to say that the said
Vanjakkal has surrendered her possessory right in favour of the plaintiffs. The plaintiffs are not in possession and enjoyment of the suit properties.
Under the said circumstances, the plaintiffs are not entitled to get the reliefs sought for in the plaint and altogether the present suit deserves
dismissal.
Second Appeal No. 1315 of 2003:
5. The respondents herein as plaintiffs have instituted Original Suit No. 131 of 1990 on the file of the District Munsif Court, Palani for the reliefs of
declaration and permanent injunction, wherein the present appellants have been shown as defendants.
6. It is averred in the amended plaint that the defendants are the sons of deceased Palanisami Gounder born through his junior wife viz., Velathal.
One Vanjakkal is the senior wife of Palanisami Gounder and his mother name is Devakkal. One Sivasubramania Gounder is the brother of
Vanjakkal. The first defendant herein has filed Original Suit No. 19 of 1947 on the file of the Subordinate Court, Dindigul against Vanjakkal,
Devakkal and Sivasubramania Gounder for the relief of recovery of possession of the suit properties and some other properties mentioned therein.
In Original Suit No. 19 of 1947, a compromise decree has been passed on 27.11.1947. As per the compromise decree, the suit properties and
some other properties have been given to Vanjakkal in lieu of her maintenance. As per Hindu Succession Act, the limited interest given to
Vanjakkal has become absolute interest. The plaintiffs 1 & 2 are brothers. The said Vanjakkal has sold the suit properties in favour of the plaintiffs
and since then the plaintiffs are enjoying the suit properties as absolute owners. The defendants are not having any semblance of right over the suit
properties and now they are making hectic arrangements to disturb the peaceful possession and enjoyment of the plaintiffs by way of denying their
title. Under the said circumstances, the present suit has been instituted for the reliefs indicated supra.
7. It is averred in the written statement that as per the compromise decree passed in Original Suit No. 19 of 1947, the first wife of Palanisami
Gounder by name Vanjakkal has been given only limited interest. In the year 1977, the said Vanjakkal has voluntarily surrendered the properties
given to her to the defendants and the defendants are enjoying the suit properties openly and continuously. In the year 1987, the mind of the said
Vanjakkal has been poisoned by the sons of her brother and by exercising undue influence and coercion a will has also been obtained from
Vanjakkal. The defendants are in possession and enjoyment of the suit properties and therefore, the plaintiffs are not entitled to get the reliefs
sought for in the plaint and altogether the present suit deserves dismissal.
8. On the side of the plaintiffs, a reply statement has been filed, wherein all the averments made in the written statement have been refuted.
9. On the basis of the rival pleadings raised in Original Suit Nos. 507 of 1990 and 131 of 1990, the trial Court has framed necessary issues and
after contemplating both the oral and documentary evidence, has decreed the suit filed in Original Suit No. 507 of 1990 and dismissed the suit filed
in Original Suit No. 131 of 1990. Against the judgment and decree passed in Original Suit No. 507 of 1990, Appeal Suit No. 15 of 1999 has
been filed and likewise, against the judgment and decree passed in Original Suit No. 131 of 1990, Appeal Suit No. 16 of 1999 has been filed on
the file of the first appellate Court.
10. The first appellate Court, after reappraising the evidence available on record, has allowed both the appeals and consequently dismissed the suit
filed in Original Suit No. 507 of 1990 and decreed the suit filed in Original Suit No. 131 of 1990. Against the common judgments passed in
Appeal Suit No. 15 of 1999 & 16 of 1999, Second Appeal Nos. 1314 of 2003 & 1315 of 2003 have been filed.
11. At the time of admission of the Second Appeal Nos. 1314 & 1315 of 2003, the following substantial questions of law have been formulated
for consideration;
a) In view of the compromise decree made in O.S. No. 19 of 1947 on the file of Sub Court, Dindigul, confirmed by the decree and judgment of
this Hon''ble Court in A.S. No. 187 of 1972 subsequent to the passing of Act 30 of 1956, is the learned Subordinate Judge right in not dismissing
the suit on the ground of res judicata?p
b) Is not the first plaintiff estopped from claiming any right u/s 14(1) of the Act 30 of 1956 in view of her waiver and restricting her right under the
written statement filed in O.S. No. 22 of 1968 on the file of Sub Court, Dindigul?
S.A.No.1316 of 2003:
12. The respondents herein as plaintiffs have instituted Original Suit No. 132 of 1990 on the file of the District Munsif Court, Palani, for the reliefs
of declaration and permanent injunction, wherein the present appellants have been shown as defendants.
13. It is averred in the amended plaint that the first plaintiff is the senior wife of the deceased Palaisami Gounder. The defendants are the sons of
Palanisami Gounder, born through his junior wife by name Velathal. Devakkal is the mother of the Palanisami Gounder. The first defendant herein
has filed Original Suit No. 19 of 1947 for the relief of possession. The said suit has been compromised on 27.11.1947. As per the terms of
compromise first item of the suit properties and the properties comprised in Survey Nos. 131 & 132 have been allotted to the first plaintiff in lieu of
her maintenance. The mother of the plaintiff by name Velathal has filed Original Suit No. 59 of 1947 against the first plaintiff viz., Vanjakkal and
others, and the said suit has been compromised on 10.12.1947 as per compromise decree item No. 2 of the suit property has been allotted to the
share of the first plaintiff and since then the first plaintiff has been enjoying the suit properties. The first plaintiff out of love and affection has
bequeathed the suit properties to her brothers'' son by name Parivallal and second plaintiff by name Sundararajan under a registered will dated
20.09.1989. The said Parivallal and Sundararajan have been assisting the first plaintiff in cultivating the suit lands. The defendants have tried to
trespass into the suit properties on 27.01.1990 and their attempt has been restricted by the first plaintiff and her henchmen. As per Section 14 of
the Hindu Succession Act, 30 of 1956, the limited right given to the first plaintiff has become enlarged into an absolute interest. The first plaintiff has
executed another will dated 18.07.1994 and thereby bequeathed the suit properties to the plaintiffs 2 & 3 and the first plaintiff has passed away on
17.09.1995. After her death, the will dated 18.07.1994 has come into force and now the plaintiffs 2 & 3 are in possession and enjoyment of the
suit properties. The defendants have tried to interfere with the peaceful possession and enjoyment of the plaintiffs 2 & 3 by way of denying their
title. Under the said circumstances, the present suit has been instituted for the reliefs indicated supra.
14. In the written statement filed on the side of the defendants, it has been stated that the first defendant has instituted Original Suit No. 19 of 1947
on the file of the Subordinate Court, Dindigul and subsequently second defendant has been added. The said suit has been instituted by one
Murugana Gounder as the next friend of the defendants. The first plaintiff''s brother by name Sivasubramania Gounder has instigated one
Periyanatchimuthu so as to file O.P. No. 20 of 1947 on the file of the District Court, Madurai under the Guardian and Wards Act, stating that the
said Murugana Goudner is not a fit and proper person to act as the next friend of the defendants. The father of the defendants has passed away on
05.01.1947 and after his demise, so many disputes have come into existence with reference to the ancestral properties and under the said
circumstances, Original Suit No. 19 of 1947 has been filed. During the pendency of Original Suit No. 19 of 1947, mediation has taken place and
consequently a compromise decree has been passed in Original Suit No. 19 of 1947, wherein the first plaintiff has been given only limited interest
in respect of the suit properties. The first plaintiff has been given only the right of enjoying the suit properties till her life time and after her demise,
the defendants should get the same as absolute owners. Since the first plaintiff has had only limited interest in the suit properties, she cannot execute
the will in question in favour of the plaintiffs 2 & 3. The plaintiffs 2 & 3 are not having any semblance of right, title and interest over the suit
properties and they are not entitled to get the reliefs sought for in the plaint and under the said circumstances, the present suit deserves dismissal.
15. In the reply statement filed on the side of the plaintiffs, all the allegations made in the written statement have been denied.
16. In the additional written statement filed on the side of the defendants, it is stated that the defendants have not admitted the alleged cancellation
of earlier will alleged to have been executed by the first plaintiff and subsequently she executed another will dated 18.07.1994. The first plaintiff has
not possessed of sound and disposing state of mind at the time of executing the will dated 18.07.1994. The defendants are alone entitled to
succeed the properties obtained by the first plaintiff in pursuance of compromise decree passed in Original Suit No. 19 of 1947. There is no merit
in the suit and the same deserves dismissal.
17. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after contemplating both the oral and
documentary evidence, has dismissed the suit. Against the judgment and decree passed by the trial Court, the plaintiffs have filed Appeal Suit No.
17 of 1999 on the file of the first appellate Court. The first appellate Court, after hearing both sides and upon perusing the relevant records, has
allowed the appeal and thereby set aside the judgment and decree passed by the trial Court in Original Suit No. 132 of 1990 and ultimately
decreed the suit as prayed for. Against the judgment and decree passed in Appeal Suit No. 17 of 1999 by the first appellate Court, the present
second appeal No. 1316 of 2003 has been filed.
18. At the time of admission of the present Second Appeal No. 1316 of 2003, the following substantial questions of law have been formulated for
consideration;
a) In view of the compromise decree made in O.S. No. 19 of 1947 on the file of the Sub Court, Dindigul, confirmed by the decree and judgment
of this Hon''ble Court in A.S. No. 187 of 1972 subsequent to the passing of Act 30 of 1956, is the learned Subordinate Judge right in not
dismissing the suit on the ground of res judicata?
b) When the plaintiffs having not proved the will as required u/s 68 of the Evidence Act as well as the Section 62(c) of the Indian Succession Act,
is the learned Subordinate Judge right in holding that the plaintiffs have established the free will of the testatrix in execution of the will?
c) Is not the first plaintiff estopped from claiming any right u/s 14(1) of the Act 30 of 1956 in view of her waiver and restricting her right under the
written statement filed in O.S.No.22 of 1968 on the file of Sub Court, Dindigul?
19. Since common questions of law and facts are involved in all these second appeals, common judgment is pronounced.
20. Before perpending the rival submissions made by either Counsel, it cannot be forfended to perorate something about the relationship that exists
betwixt the parties and also the circumstances under which these suits have been filed.
21. The plaintiffs found in Original Suit No. 507 of 1990 are the sons of one Palanisami Gounder and he passed away on 05.01.1947. He married
two wives viz., Vanjakkal and Velathal, and his second wife viz., Velathal has given birth to the plaintiffs found in Original Suit No. 507 of 1990.
After the demise of the said Palanisami Gounder, a suit has been instituted in Original Suit No. 19 of 1947 by the plaintiffs found in Original Suit
No. 507 of 1990 and during the pendency of the said Suit, a compromise decree has been passed, wherein the properties mentioned as suit
properties in all the suits have been given to the senior wife of the deceased Palanisami Gounder viz., Vanjakkal. The senior wife of the deceased
Palanisami Gounder viz., Vanjakkal as absolute owner has executed the sale deeds in respect of the properties mentioned as the suit properties in
Original Suit No. 131 of 1990 in favour of the plaintiffs found in Original Suit No. 131 of 1990, wherein the plaintiffs found in Original Suit No.
507 of 1990 have been shown as defendants. The defendants found in Original Suit No. 131 of 1990 as plaintiffs have instituted Original Suit No.
507 of 1990 for the reliefs of declaration and permanent injunction, stating that after the demise of Vanjakkal (Senior wife of the deceased
Palanisami Gounder) all the properties given to her in lieu of her maintenance in Original Suit No. 19 of 1947, have reverted to the plaintiffs found
in Original Suit No. 507 of 1990. During the life lime of the said Vanjakkal, she has executed a will dated 18.07.1994 in favour of the plaintiffs 2
& 3 found in Original Suit No. 132 of 1990. On the strength of the said will dated 18.07.1994, the said Vanjakkal and the beneficiaries have filed
Original Suit No. 132 of 1990 for the reliefs of declaration and permanent injunction. The trial Court has conducted joint trial in Original Suit No.
507 of 1990 and 131 of 1990. The trial Court has dismissed the Original Suit No. 131 of 1990 and decreed Original Suit No. 507 of 1990. The
trial Court has also dismissed the Original Suit No. 132 of 1990. But, the first appellate Court, has allowed the Appeal Suit Nos. 15 to 17 of 1999
and ultimately decreed the suit as prayed for filed in Original Suit Nos. 131 & 132 of 1990 and dismissed the suit filed in Original Suit No. 507 of
1990.
22. The main points which involved in these second appeals are;
a) Whether the deceased Vanjakkal has derived absolute interest in respect of the properties given to her in lieu of her maintenance in pursuance of
the compromise decree passed in Original Suit No. 19 of 1947?
b) Whether the will dated 18.07.1994 alleged to have been executed by the Vanjakkal in favour of the plaintiffs 2 & 3 found in Original Suit No.
132 of 1990 is illegally valid?
23. As adverted to earlier, the trial Court has decreed Original Suit Nos. 131 of 1990 and 132 of 1990 mainly on the ground that even though the
deceased Vanjakkal has been given only limited interest in pursuance of the compromise decree passed in Original Suit No. 19 of 1947, as per
Section 14(1) of the Hindu Succession Act, the said Vanjakkal has derived absolute interest.
24. With these factual aspects, now the Court has to analyse the rival submissions made by either counsel.
25. The learned Counsel appearing for the appellants in all the appeals has emphatically contended that the plaintiffs found in Original Suit No. 507
of 1990 as plaintiffs have instituted Original Suit No. 19 of 1947 for the relief possession and during the pendency of the said suit, a compromise
has been effected and in pursuance of the same, a compromise decree has been passed and in which the properties involved in the present suits
have been given to said Vanjakkal in lieu of maintenance and she has been allowed to enjoy the same till her life time and after her demise, all the
properties which have been given to her, should revert to the plaintiffs found in Original Suit No. 507 of 1990 and the said Vanjakkal has passed
away and therefore, the plaintiffs found in Original Suit No. 507 of 1990 have derived valid title to all the properties mentioned in the suits and the
trial Court, after considering the rival contentions raised on either side, has rightly dismissed the Original Suit Nos. 131 & 132 of 1990, but, the
first appellate Court without applying the provision of Section 14(2) of the Hindu Succession Act, 1956, has erroneously decreed the suit filed in
Original Suit Nos. 131 & 132 of 1990 and therefore, the judgments and decrees passed by the first appellate Court are liable to be interfered
with.
26. Per contra, the learned Counsel appearing for the respondents in all the appeals has equally contended that the properties found in all the suit
have been given to the deceased Vanjakkal in lieu of her pre-existing right as per compromise decree passed in Original Suit No. 19 of 1947 and
as per the provision of Section 14(1) of the Hindu Succession Act, 1956 the limited interest given to her has become absolute interest and the trial
Court without applying the provision of law, has erroneously dismissed Original Suit Nos. 131 & 132 of 1990 and erroneously decreed the suit
filed Original Suit No. 507 of 1990, but the first appellate Court, after having thorough discussion and also after applying the correct provision of
law, has rightly decreed Original Suit Nos. 131 & 132 of 1990 and also rightly dismissed Original Suit No. 507 of 1990 and therefore, all these
second appeals are liable to be dismissed.
27. As culled out earlier, the first and foremost point involve in the present second appeals is;
Whether the deceased Vanjakkal has got absolute interest in view of Section 14(1) of the Hindu Succession Act, 1956 in respect of the properties
given to her as per the compromise decree passed in Original Suit No. 19 of 1947?
28. The entire argument advanced by the learned Counsel appearing for the appellants as well as the respondents are based upon Section 14 of
the Hindu Succession Act, 1956. Section 14 of the Hindu Succession Act, 1956 reads as follows;
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner
thereof and not as a limited owner.
(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a
decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a
restricted estate in such property.
29. As per Section 14(1) of the said Act, if any property possessed by a female Hindu, whether acquired before or after the commencement of the
said Act, has become her absolute property. As per Section 14(2) of the said Act, if any property given to a female Hindu, either by way of gift or
under a will or any other instrument, or under a decree or order of a civil Court or under an award where the terms of gift, will or other instrument
or the decree, order or award prescribed a restricted estate in such property, the same will not become as absolute property as per Section 14(1)
of the said Act.
30. The compromise decree passed in Original suit No. 19 of 1947 has been marked as Ex.A1 in Original Suit Nos. 507 of 1990 and 131 of
1990. For better appreciation and also for easy reference, it has become shunless to look into the terms of compromise in respect of the properties
given to the said Vanjakkal in lieu of her maintenance. In the compromise decree passed in Original Suit No. 19 of 1947 in Clause 3, it has been
mentioned like thus;
That the first defendant shall enjoy for her life the said ''C'' Schedule properties in lieu of her maintenance without encumbering the same in any
manner but paying the kist due thereon and shall reap the fruits therefrom and that after her death, the said properties shall belong to the minor
plaintiffs with full rights of ownership.
31. From the close reading of the terms of compromise decree given in favour of the said Vanjakkal, the Court can easily discern that ''C''
schedule properties mentioned therein have been given to her only in lieu of her maintenance with limited interest to enjoy the same and the plaintiffs
therein should get absolute interest after her death.
32. The learned Counsel appearing for the appellants has advanced his argument mainly on the basis of the restriction given in the terms of
compromise entered in Original Suit No. 19 of 1947. The learned Counsel appearing for the appellants in support of his contention has accited the
following decisions;
a) The first and foremost decision is reported in Kothi Satyanarayana Vs. Galla Sithayya and Others, wherein the Honourable Apex Court has
held that the properties settled on widow of brother with life interest with a condition to revert to settlor or to his heirs on death of widow, would
not come within the ambit of Section 14(1) of the Hindu Succession Act(30 of 1956).
In the decision referred to supra, a settlement has been executed so as to create a restricted estate in favour of the widow in question. Under the
said circumstances, the Honourable Apex Court has held that the right given to the widow in question would come within the purview of Section
14(2) of the said Act.
b) In K.S. Subramania Pillai and Others Vs. E.S.R. Packirisami Pillai, , this Court has held a life interest has been created in favour of the wife and
no recital in the deed has been mentioned that the said right has been given in recognition of her pre-existing right and no pleadings and proof are
existed to the effect that such right has been given in recognition of such right and therefore, right given to wife has not been enlarged u/s 14(1) of
the said Act.
c) In Bhura and Others Vs. Kashiram, , the Honourable Apex Court has held that a bequeath has been created in favour of the daughter of the
testator which clearly speaks of testator''s intention of only creating a life interest in her and nothing more, such estate could not be enlarged into an
absolute estate under provisions of the Hindu Succession Act.
d) In AIR 1997 SCC 83 (Himi and Anr. v. Hira Devi and Ors.), the Honourable Apex Court has held that if any property has been given not in
lieu of any pre-existing right, such right cannot be converted into absolute interest as per Section 14(1) of the Hindu Succession Act.
e) In Vankamamidi Venkata Subba Rao Vs. Chatlapalli Seetharamaratna Ranganayakamma, , the Honourable Supreme Court has held that a
widow obtained properties from her husband, prior to Hindu Succession Act (30 of 1956), in recognition of her pre-existing right to maintenance
and in subsequent documents relating to the said properties, she had acknowledged that what she obtained was a limited right with provision that
property would revert to her son. Under the said circumstances, the provision of Section 14(2) of the said Act would attract.
f) In Smt. Naresh Kumari (Dead) By Lrs. and Another Vs. Sh. Shakshi Lal (Dead) By Lrs. and Another, the Honourable Supreme Court has held
that a widow has sold the properties in question prior to coming into force of 1956 Act without legal necessity and therefore, the right of widow
does not become full ownership of property in view of Section 14(1) of the said Act.
g) In (Ram Vishal (dead) by LRs and Anr. v. Jagan Nath and Anr.) the Honourable Supreme Court has held that in order to invoke Section 14 of
the said Act, a pre-existing right is a sine qua non.
33. In order to rebut the entire argument advanced by the learned Counsel appearing for the appellants, the learned Counsel appearing for the
respondents has befittingly drawn the attention of the Court to the decision reported in AIR 1997 SC 1944 (Vaddeboyina Tulasamma and Ors. v.
Vaddeboyina Sesha Reddi (dead) by LRs), wherein the Full Bench of the Honourable Supreme Court has held that a Hindu female acquired
properties under compromise in lieu of satisfaction of her right of maintenance, she would become full owner of the property by virtue of Section
14(1) of the Hindu Succession Act (30 of 1956).
34. The Honourable Full Bench of the Supreme Court has followed the decision reported in Seth Badri Prasad Vs. Srimati Kanso Devi, wherein
also it has been explicitly held that mere fact that the partition was made by means of an award would not bring the matter within Section 14(2) of
the said Act, because the interest given to the widow was on the basis of a pre-existing right and not a new grant for the first time.
35. The Honourable Supreme Court in AIR 1997 SC 1944 (Vaddeboyina Tulasamma and Ors. v. Vaddeboyina Sesha Reddi (dead) by Lrs) has
further held that Section 14(2) of the said Act applies only where grant is not in lieu of maintenance or in recognition of pre-existing rights but
confers a fresh right or title for the first time and while conferring the said title certain restrictions are placed by the grant or transfer. Where,
however, the grant is merely in recognition or in implementation of a pre-existing right to claim maintenance, the case falls beyond the purview of
Section 14 and comes squarely within the explanation to Section 14(1) of the said Act.
36. It is not an adulation to say that the present legal position is nothing but similar to the legal position involved in the decision reported in in AIR
1997 SC 1944 (Vaddeboyina Tulasamma and Ors. v. Vaddeboyina Sesha Reddi (dead) by LRs).
37. At this juncture, it would be more useful to look into the necessary pleadings pleaded in Original Suit No. 19 of 1947. In the plaint filed in
Original Suit No. 19 of 1947, it has been mentioned as follows;
The suit properties and other agricultural lands are the ancestral properties belonging to the family of the plaintiff''s deceased undivided father,
Palanisami Gounder and this minor plaintiff. D1 is the senior wife without issue of the said Palanisami Gounder and D2 is his mother. 3rd defendant
is the brother of the 1st defendant. Palanisami, who was in possession and enjoyment of the suit properties and other properties belonging to the
joint family of himself and the plaintiff, died on 05.01.1947 leaving him behind his only undivided son, the plaintiff, his senior wife, the first
defendant, his junior wife, one Velathal, the mother of the plaintiff and his mother, the second defendant.
38. From the pleadings mentioned in the plaint filed in Original Suit No. 19 of 1947, the Court can easily cull out that all the properties involved in
the present suits and involved in Original Suit No. 19 of 1947 are ancestral properties of the erstwhile Hindu joint family consisted of Palanisami
Gounder and his two sons who have been arrayed as plaintiffs in Original Suit No. 507 of 1990. The deceased Vanjakkal is the senior wife of the
said Palanisami Gounder. Therefore, there is no dubitation in coming to a conclusion that the senior wife of Palanisami Gounder viz., Vanjakkal has
had pre-existing right of maintenance in respect of the erstwhile joint family properties.
39. It has already been expounded that as per the compromise decree passed in original Suit No. 19 of 1947, the properties found in the present
suites have been given to Vanjakkal only in lieu of her maintenance with a restriction that she should enjoy the same till her demise and after her
death, all the properties should be reverted to the plaintiffs found in Original Suit No. 507 of 1990 and they should enjoy the same as absolute
owners. Since the deceased Vanjakkal has had pre-existing right in all the properties belonging to the erstwhile Hindu joint family consisted of
Palanisami Gounder and his sons, it is needless to say that as per the terms of compromise her limited interest has become enlarged into absolute
interest in view of Section 14(1) of the Hindu Succession Act, 1956. In fact, the conditions for invoking Section 14(1) of the said Act are present
in the present cases and as per the dictum given by the Honourable Apex Court, for invoking the provision of Section 14(1) of the said Act the
sine quo non is the pre-existing right of a Hindu woman.
40. As explicated earlier, before passing of the compromise decree in Original Suit No. 19 of 1947 as the first wife of the deceased Palanisami
Gounder, the said Vanjakkal has had pre-existing right and further for the first time the deceased Vanjakkal has not been given the right of
maintenance under the compromise decree passed in Original Suit No. 19 of 1947. The Honourable Apex Court has held in various decisions that
in order to invoke Section 14(2) of the said Act a right should be created afresh for the first time. In the instant case, it has been stated in many
places that before passing compromise decree in Original Suit No. 19 of 1947, the deceased Vanjakkal has had pre-existing right. Therefore, the
Court can unflinchingly come to a conclusion that a limited right created in favour of the deceased Vanjakkal as per the compromise decree passed
in Original Suit No. 19 of 1947, has become absolute right as per Section 14(1) of the Hindu Succession Act (30 of 1956).
41. In the light of the foregoing narration of both the factual and legal premise, this Court has not found any valid force in the argument advanced
by the learned Counsel appearing for the appellants and whereas the argument advanced by the learned Counsel appearing for the respondents is
really having touching effect.
42. The learned Counsel appearing for the appellants has advanced his residual argument stating that the plaintiffs found in Original Suit No. 507 of
1990 as plaintiffs have instituted Original Suit No. 22 of 1968, wherein the said Vanjakkal has been shown as the second defendant and she filed a
written statement along with the first defendant, wherein it has not been specifically stated that she is entitled to get the benefit of Section 14(1) of
the Hindu Succession Act, (30 of 1956) and therefore, she has waived her right and under the said circumstances, the Court cannot come to a
conclusion that the said Vanjakkal has become absolute owner of the properties given to her as per the compromise decree passed in Original Suit
No. 19 of 1947, as per Section 14(1) of the said Act.
43. For analysing the residual argument advanced by the learned Counsel appearing for the appellants, it would be more useful to look into the
entire averments made in the written statement filed by the defendants 1 & 2 found in Original Suit No. 22 of 1968. The printed copy of the
judgment rendered in Original Suit No. 22 of 1968 has been marked as Ex.A18. In Original Suit No. 507 of 1990 and 131 of 1990, wherein it
has been mentioned like thus;
The 2nd defendant who is also entitled to the right of partition gave up her rights and accepted to hold a limited estate only in the properties. If only
she had opted to have rights of parties worked out in the suit she would have now become solely entitled to the said share under the provisions of
the Hindu Succession Act, 1956.
Therefore, it is quite clear that even in Original Suit No. 22 of 1968 the said Vanjakkal has taken a specific plea to the effect that the limited
interest given in favour of her as per compromise decree passed in Original Suit No. 19 of 1947, has become absolute interest in view of Section
14 of the Hindu Succession Act (30 of 1956) and therefore, the residual argument advanced by the learned Counsel appearing for the appellants
cannot be accepted.
44. The plaintiffs found in Original Suit No. 131 of 1990 has claimed their right by virtue of sale deeds alleged to have been executed by the
deceased Vanjakkal in their favour. The defendants therein have restricted the claim of the plaintiffs only by virtue of Section 14(2) of the Hindu
Succession Act, (30 of 1956). As per Section 14(1) of the said Act, it has already been held that the deceased Vanjakkal has become the
absolute owner of the properties which have been given to her in lieu of her maintenance in pursuance of the compromise decree passed in Original
Suit No. 19 of 1947. Since the said Vanjakkal has become the absolute owner of the properties given to her as per the compromise decree
passed in Original Suit No. 19 of 1947, it is very clear that the plaintiffs found in Original Suit No. 131 of 1990 are having absolute right title and
interest over the suit properties. The first appellate Court, after scrutinising all the evidence available on record and also by way of applying correct
provision of law, has decreed the Original Suit No. 131 of 1990.
45. The plaintiffs found in Original Suit No. 507 of 1990 has instituted the same mainly on the basis that the right given to the deceased Vanjakkal
as per the compromise decree passed in Original Suit No. 19 of 1947, would clearly come within the contour of Section 14(2) of the Hindu
Succession Act (30 of 1956) and after the demise of Vanjakkal, they have become absolute owners. Even at the risk of jarring repetition, the
Court would like to point out that the limited interest given in favour of the Vanjakkal under the compromise decree passed in Original Suit No. 19
of 1947, has become absolute interest by virtue of Section 14(1) of the said Act and the deceased Vanjakkal has had unfettered right to deal with
the properties given to her under the compromise decree passed in Original Suit No. 19 of 1947 and therefore, the plaintiffs found in Original Suit
No. 507 of 1990 are not having any iota of right over the suit properties found therein. The first appellate Court, after analysing all the aspects has
rightly dismissed the Original Suit No. 507 of 1990.
46. Now the Court has to analyse the second legal aspect involves in the present second appeals. The second legal point involve in the present
second appeals is;
Whether the will dated 18.07.1994 is legally valid?
47. The learned Counsel appearing for the appellants has contended with great vehemence that Original Suit No. 132 of 1990 has been initially
instituted by the deceased Vanjakkal as plaintiff and after her demise, the plaintiffs 2 & 3 have been impleaded and in the amended plaint, it has
been specifically stated that the deceased first plaintiff has executed the will dated 18.07.1994 in favour of the plaintiffs 2 & 3 and after her demise,
the plaintiffs 2 & 3 have become absolute owners of the suit properties and therefore, they are entitled to maintain the suit for the reliefs of
declaration and perpetual injunction and in fact the defendants have filed an additional written statement, wherein it has been specifically denied the
due execution of the will dated 18.07.1994 and in order to prove the due execution and attestation of the said will one Palanisami son of
Mariyappa Gounder has been examined as PW2 and he has not spoken anything about the due execution and attestation of the said will and the
first appellate Court without considering the bereft of legal aspect in the evidence of PW2, has erroneously decreed the suit and therefore, the
judgment and decree passed by the first appellate Court in respect of Original Suit No. 132 of 1990 are liable to be interfered with.
48. In order to remonstrate the argument advanced by the learned Counsel appearing for the appellants, the learned Counsel appearing for teh
respondents has also argued that the deceased first plaintiff viz., Vanjakkal has executed the will dated 18.07.1994 and the same has been marked
as Ex.A8 in Original Suit No. 132 of 1990 and in order to prove the due execution and attestation of Ex.A8, one Palanisami son of Mariyappa
Gounder has been examined as PW2 and he has clearly deposed about the due execution and attention of Ex.A8 and further no specific denial has
been made in the additional written statement filed in respect of the Ex.A8 and the first appellate Court, after considering all the surrounding
circumstances as well as the evidence of PW2 has rightly decreed the suit filed in Original suit No. 132 of 1990 and therefore, the argument
advanced by the learned Counsel appearing for the appellants is liable to be eschewed.
49. Basing upon the divergent submissions made by either Counsel, the Court has to look into as to whether a clear denial has been made on the
side of the defendants in respect of Ex.A8 and also as to whether Ex.A8 has been legally proved by the plaintiffs?
50. The entire case of the plaintiffs found in Original Suit No. 132 of 1990 is based upon Ex.A8. Ex.A8 is a will alleged to have been executed by
the deceased first plaintiff viz., Vanjakkal in favour of the plaintiffs 2 & 3. In fact, this Court has closely perused Ex.A8, wherein it has been clearly
stated that the deceased Vanjakkal has bequeathed the properties mentioned therein in favour of the plaintiffs 2 & 3. At this juncture, it would be
more useful to look into the averments made in the additional written statement, wherein it has been clinchingly stated that ""the defendants do not
admit the alleged cancellation of an earlier will alleged to have been executed by Vanjakkal and the execution of another will on 18.07.1994"".
51. In fact, in the additional written statement filed by the defendants the word ""denied"" is not found place. But, it has been specifically mentioned
that the defendants do not admit the alleged cancellation of an earlier will alleged to have been executed by Vanjakkal and the execution of another
will dated 18.07.1994. Therefore, from the words couched in the additional written statement, the Court can very well infer that there is a clear
denial with regard to execution of the will dated 18.07.1994. In Order 8 Rule 3 of the Code of Civil Procedure, it is stated like thus;
It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal
specifically with each allegation of fact of which he does not admit the truth, except damages.
52. Order 8 Rule 5(1) of the said Code reads as follows;
Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the
defendant, shall be taken to be admitted except as against a person under disability.
53. The provisions of Order 8 Rule 3 & 5(1) should be read together. From the conjoint reading of the said provisions, the Court can cull out the
following legal aspects;
a) There should not be a general denial of the grounds alleged in the plaint;
b) There must be a specific denial in respect of each allegation of the fact which the defendant does not admit the truth;
c) If every allegation of fact in the plaint if not denied specifically or by necessary implication, the same shall be taken as admitted.
54. In the instant case the specific averments made in the amended plaint is that Ex.A8 has been executed by the deceased first plaintiff in favour of
the plaintiffs 2 & 3. In the additional written statement, it has been specifically pleaded that the defendants do not admit the alleged cancellation of
earlier will as well as execution of the will dated 18.07.1994. Therefore, a clear and specific denial has been made on the part of the defendants
with regard to execution of Ex.A8. Since there is a clear and specific denial has been made on the side of the defendants with regard to execution
of Ex.A8, a primordial duty is cast upon the plaintiffs to prove the due execution and attestation of Ex.A8 by way of examining any one of the
attesting witnesses.
55. As rightly pointed out by the learned Counsel appearing for the appellants, one of the attestors of Ex.A8 by name Palanisami son of Mariyappa
Gounder has been examined as PW2 in Original Suit No. 132 of 1990. He has deposed in his evidence that the deceased Vanjakkal has executed
two wills earlier which have been marked as Exs.A5 & A6 and he put his signature in those wills as one of the attestors. Further he has deposed
that the said Vanjakkal has cancelled the earlier wills under Ex.A7 and subsequently executed Ex.A8. In fact, this Court has groped the entire
evidence given by PW2 and found that he has not stated that the deceased Vanjakkal has put her thumb impression in his presence and also in the
presence of other attesting witness by name Nataraj and further he has not stated that he and the said Nataraj have put their signatures in Ex.A8
and the same have been seen by the executant viz., Vanjakkal.
56. At this juncture, it would be more useful to look into Section 68 of the Evidence Act, 1872 and the same reads as follows;
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.
57. Section 3 of the Transfer of Property Act, 1882 deals with attestation and the same reads as follows;
...�attested�, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom
has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the
direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such
other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such
witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;
58. From the close reading of the provision of Section 68 of the Indian Evidence Act, 1872 as well as the provision of Section 3 of the Transfer of
Property Act, 1882, it is very clear that in order to prove the due execution and attestation of a will, one of the attestors must be examined and he
should say in his evidence that he and other attesting witnesses have seen the signature or thumb impression of the executant and further he would
say that the executant has seen his signature and the signature of other attesting witness.
59. In the instant case, as pointed out earlier, PW2 has not at all deposed in accordance with the legal requirements of Section 68 of the Evidence
Act, 1872 as well as Section 3 of the Transfer of Property Act, 1882. In fact, PW2 has given slipshod and ricketive type of evidence. Basing upon
the evidence of PW2, the Court cannot come to a conclusion that the plaintiffs found in Original suit No. 132 of 1990 has proved the due
execution and attestation of Ex.A8 and further on the side of the plaintiffs, the other attesting witness by name Nataraj has been examined as PW3
and he has also not stated anything about the legal requirements of the said Sections mentioned supra. Therefore, virtually Ex.A8 has not been
legally proved by the plaintiffs.
60. The learned Counsel appearing for the appellants in support of his contention with regard to Ex.A8 has relied upon the decisions referred to
infra;
a) In L. Bakthavatsalam and Others Vs. R. Alagiriswamy (died) and Others, , this Court has held that Validity of will to be proved in accordance
with law and not based on admissions or denial of any party.
b) In M. Kandiah Pillai (died) and six others Vs. S. Mehalingam and seven others, this Court has held that attestor to will deposing that he saw
testrix affixing her thumb impression only on last page of will and not in all pages of will. Presence of such attestors at the time of execution of will
was also not proved. Propounder failed to discharge burden cast on him. Provision of Section 63(c) not satisfied.
c) In AIR 1995 SC 346 (Girija Datt Singh v. Gangotri Datt Singh), the Honourable Supreme Court has held that in order to prove the due
attestation of the will the propounder of will has to prove that ''A'' and ''B'', the two witnesses saw the testator sign the will and they themselves
singed the same in the presence of the testator.
d) In N. Kamalam (Dead) and Another Vs. Ayyasamy and Another, the Honourable Supreme Court has held that there must be evidence to the
effect that the attestor would have animo attestandi or animus or intent to attest.
e) In Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, the Honourable Supreme Court has held that if attesting witness examined fails to prove
that besides his attestation other attestation was also made in accordance with legal requirement, then other available attesting witness must be
examined. Failure to do so will result in holding that execution of Will was not proved in law.
61. The learned Counsel appearing for the respondents has also relied upon the following decisions;
a) In 1998 (3) MLJ 361 (S. Kaliyammal and Ors. v. K. Palaniammal and Ors.) this Court has held that if execution of a will has been admitted,
the person relying upon the same need not let in evidence to prove execution.
b) In R. Vellingiri and Mrs. Gokila Vs. R. Kannaian and Others, this Court has held that the concerned will is not at all in issue, therefore, it is not
necessary to prove as contemplated u/s 68 of the Evidence Act.
c) In 2008 5 MLJ 500 (Minor Mani, rep. by next friend/mother Ramayi v. Ammakannu and Anr.) this Court has held that the execution of the will
has been admitted and therefore, no proof is necessary.
62. From the conjoint reading of the decisions cited on either side, the Court can easily discern the following aspects;
a) There must be a clear denial with regard to the execution of a will by a contesting party.
b) If there is a clear denial, one of the attesting witnesses of the will has to be examined on the side of the propounder of the will so as to prove the
due execution as well as attestation of the will as contemplated u/s 68 of the Evidence Act, 1872.
63. In the instant case as animadverted to earlier, both PWs.2 & 3 have not at all given evidence in consonance with the legal requirements as
contemplated u/s 68 of the Evidence Act, 1872. They simply stated in their evidence that Ex.A8 has been executed by the deceased Vanjakkal
and in fact their evidence is nothing but ricketive and also fragile. Basing upon their slipshod evidence, the Court cannot automatically come to a
conclusion that Ex.A8 has been proved by the plaintiffs found in Original Suit No. 132 of 1990 in accordance with the legal requirements. In fact,
the plaintiffs found in Original Suit No. 132 of 1990 have virtually failed to prove the due execution and attestation of Ex.A8. Therefore, it is
needless to say that the argument advanced by the learned Counsel appearing for the appellants in respect of the Original Suit No. 132 of 1990 is
really having attractive force and whereas the argument advanced by the learned Counsel appearing for the respondents is sans merit.
64. As stated earlier, Original Suit No. 132 of 1990 has been filed on the basis of Ex.A8 for the reliefs of declaration and perpetual injunction and
the plaintiffs therein have not at all proved the due execution and attestation of Ex.A8. Since Ex.A8 has not been proved in accordance with law, it
goes without saying that the reliefs sought for in the Original Suit No. 132 of 1990, cannot be granted in favour of the plaintiffs therein.
65. The trial Court has clearly found that Ex.A8 has not been legally proved and ultimately dismissed the suit, but the first appellate Court without
touching the legal requirements and also without touching the evidence of PWs.2 & 3 has erroneously found that Ex.A8 has been legally proved.
Therefore, the conclusion arrived at by the first appellate Court cannot be legally accepted. Under the said circumstances, the Original Suit No.
132 of 1990 is liable to be set aside.
66. In fine, Second Appeal Nos. 1314 & 1315 of 2003 deserve dismissal and accordingly are dismissed without costs. The judgments and
decrees passed in Appeal Suit Nos. 15 & 16 of 1999 by the first appellate Court are confirmed.
67. In fine, Second Appeal No. 1316 of 2003 is allowed without costs. The judgment and decree passed in Appeal Suit No. 17 of 1999 by the
first appellate Court are set aside and the judgment and decree passed in Original Suit No. 132 of 1990 by the trial Court are restored.
