(Prayer: This Second Appeal has been filed under Section 100 of the Civil Procedure Code to set aside the Judgment and Decree of the Subordinate Judge’s Court, Kallakurichi, dated 19.11.2004 in AS.No.127 of 2002, partly reversing and modifying the Judgment and Decree of the II Additional District Munsif Court, Kallakurichi, dated 12.03.2002 in OS.No.914 of 1996.)

1. This Second Appeal has been preferred as against the decree and judgment passed by the Subordinate Judge, Kallakurichi in A.S.No.127 of 2002.

2. The appellant is the plaintiff in the main suit, who filed a suit in O.S.No.914 of 1996 on the file of the II Additional District Munsif Court, Kallakurichi, for the relief of declaration and for permanent injunction in respect of the suit property. The said suit was decreed in favour of the plaintiff through decree and Judgment dated 12.03.2002. Aggrieved by the said Decree and Judgment, the defendants have preferred an appeal in A.S.No.127 of 2002 on the file of the Subordinate Judge, Kallakurichi. The first appellate court allowed the appeal by modifying the decree and judgment passed by the trial court. Aggrieved by the said decree and judgment, the present appeal has been preferred by the plaintiff.

3. The case of the plaintiffs before the trial court is that originally suit property belonged to one Sellammal-wife of Ramalinga Udayar and she was in possession and enjoyment of the property. The plaintiff is her brother’s daughter-in-law and out of love and affection, the said Sellammal executed the registered settlement deed dated 09.12.1961 with regard to 0.24 cents in the suit property and other properties to the plaintiff. In fact, Sellammal had intended to execute the gift deed of the entire suit property, but on account of mistake committed by the document writer, they only mentioned the extent of property as 0.24 cents. After knowing about the mistake, the said Sellammal executed an unregistered Will dated 30.12.1961 bequeathing the entire suit property to the plaintiff. Thereafter, Sellammal died and on her death, the plaintiff became entitled to the entire suit property and the plaintiff is in lawful possession and enjoyment of the suit property for more than 35 years. Patta also transferred in the name of the plaintiff and he is paying the kist to the suit property. While so, the defendants who are third parties to the suit properties trying to interfere with the plaintiff’s possession and enjoyment of the plaintiff and thereby the plaintiff filed this suit.

4. The case of the defendants before the trial court is that the suit is not maintainable and hence, the same is liable to be dismissed. The allegations against the plaintiffs are defined as false and the execution of the gift deed dated 09.12.2061 is denied. The Sellammal is not the owner of the entire suit property and there is no mention about the trace of title to the Sellammal to the suit property. In fact, Sellammal had right only 1/3 share in the suit property. So she had competence to convey only 1/3 share in the suit property. The Will dated 30.12.1961 is totally false and fabricated. In fact, the suit property belonged to Sellammal, Raju Udayar who is the predecessor of the first defendant and one Kumaran who is the predecessor of the second defendant. Therefore, each of them had 1/3 share over the suit property. The old patta No.330 was in the name of all the three persons. At the time of UDR scheme, the plaintiff had fraudulently got patta in her name. Therefore, the claim of the plaintiff is untenable and devoid of merits. Therefore, the suit is liable to be dismissed.

5. Based on the aforesaid pleadings and after hearing both sides, the trial court has framed the following issues for trial.

                   a) Whether the plaintiff is entitled for declaration in the extent of suit property?

                   b) Whether the settlement deed dated 09.12.1962 is true and valid?

                   c) Whether the Will dated 30.12.1961 is genuine and acted upon?

                   d) Whether the plaintiff is entitled for permanent injunction in respect of the suit property?

                   e) Whether the suit has cause of action? And

                   f) to what relief, the plaintiff is entitled to?

6. Before the trial court, on the side of the plaintiff, they examined PW1 and PW2 and marked Ex.A1 to Ex.A11. On the side of the defendants, they examined DW1 to DW3 and marked exhibits as Ex.B1 to Ex.B14.

7. The trial court after hearing both sides and perusing the records, decreed the suit as prayed for. Aggrieved by the said decree and judgment, the defendants have preferred an Appeal before the Subordinate Court, Kallakurichi in A.S.No.127 of 2002 on various grounds.

8. The first appellate court has framed the following points for determination.

                   1 . Whether the plaintiff is entitled for declaration and permanent injunction?

                   2. To what other relief, if any?

9. Thereafter, the first appellate court allowed the appeal by setting aside the decree and judgment and modified the decree and judgment and granted relief in respect of the undivided 0.24 cents.

10. Aggrieved by the said decree and judgment, the present Second Appeal has been preferred by the appellants/plaintiffs.

11. This court at the time of admitting the Second Appeal, framed the following substantial questions of law:-

                   1. When Ex.A10 Will has been proved in accordance with Section 68(c) of the Succession Act read with Section 68 of the Evidence Act by examining the attesting witness as P.W.3 and also the scribe has been examined as P.W.2 and there is cogent evidence regarding the valid execution of the Will, whether the Lower Appellate Court is correct in law in not upholding Ex.A10 Will?

                   2. Whether the Lower Appellate Court is correct in law in brushing aside Ex.A1 Settlement Deed, Ex.A2 Patta, Exs.A3 to A9 Kist Receipts, Ex.A10 Will and Ex.A.11 Adangal which would clinchingly establish the possession and title of the appellant?

                   3. Whether the Lower Appellate Court is correct in law in reversing the judgment of the Trial Court without specifically adverting to and setting aside the findings rendered by the Trial Court, in contravention of the law declared by the Hon’ble Apex Court?

12. Learned counsel for the appellant would submit that the plaintiff is the absolute owner of the suit property by virtue of the settlement deed dated 19.12.1961 and Will dated 30.12.1961 executed by Sellammal. The plaintiff is the brother’s daughter-in-law of the said Sellammal. Therefore, due to and out of love and affection, she executed a settlement deed and thereafter, executed the Will, immediately after the execution of the settlement deed and after the demise of the said Sellammal, the plaintiff has been in exclusive possession and enjoyment of the property. While so, the defendants attempted to interfere with the plaintiff’s possession and enjoyment of the suit property and thereby filed this suit. The defendants also claimed the suit property stating that Sellammal, Raju Udayar who is the predecessor of the first defendant and Kumaran who is the Predecessor of the second defendant are joint owners and they are all jointly entitled to the suit property and each of them had 1/3 share and thereby Sellammal had only 1/3 share over the suit property and she cannot execute the settlement deed for the entire property. However, the defendants have not proved their case whereas the plaintiff has proved his case through the oral and documentary evidences. When the plaintiff examined the attesting witnesses of the Will, and they categorically deposed about the Will. The defendants have not denied the execution of the settlement deed and only they denied the Will as in order to prove the Will, she examined the attesting witness namely P.W.3 and also examined the other two witnesses and thereby she proved the Will in the manner known to law.

                   12.1. The trial court also after analysing the evidences, came to the conclusion that the plaintiff proved the execution of the settlement deed and the Will by producing sufficient witnesses. The plaintiff also proved the possession by producing the revenue records and thereby, the trial court correctly decreed the suit. However, the first appellate court without appreciating the facts and evidences in a proper and perspective manner, erroneously modified the decree and judgment of the trial court by declaring the property obtained through the settlement deed dated 19.12.1961. In fact, the first appellate court failed to consider the documents filed by the plaintiff to prove the possession and examination of PW3 as witness to the Will and thereby proved the Will in accordance with law. The defendants are claiming joint patta. But the said patta has not been produced. The first appellate court failed to consider the evidences of PW2 and PW3 who had deposed about the execution of Will and registration of the Will and erroneously held that the plaintiff failed to prove the case for the entire property and only granted the decree for 0.24 cents as common. Therefore, the aforesaid findings of the trial court are unsustainable and the same are liable to be set aside by allowing the Second Appeal.

13. Learned counsel for the respondents would submit that the plaintiff has filed a suit for declaration and permanent injunction claiming that the suit property belonged to one Sellammal and Sellammal executed the settlement deed dated 19.12.1961 and thereafter, again, executed a Will dated 30.12.1961. The said Sellammal had no right to execute the Will in respect of the entire property and in fact, the suit property belonged to Sellammal and Raju Udayar and Kumaran. The Raju Udayar is the first defendant’s predecessor and the Kumaran is the second defendant’s predecessor and each of them had 1/3 share over the suit property. While so, Sellammal had executed the settlement deed only in respect of her share and she has no right to execute the Will in respect of the entire property. Even in the settlement deed, Sellammal had categorically mention only the extent of 0.24 cents in common. Therefore, after execution of the settlement deed, Will was created in order to grab the property. The defendants have produced the revenue records of the Ex.D1 to Ex.D14 and also examined the defendants 1 to 3 and through their evidences, they established that Sellammal had no independent right to execute Will in respect of the entire property. The defendants also having 2/3rd share over the suit property. However, the trial court without considering the same, erroneously decreed the suit as if the plaintiffs have proved the case and Sellammal had right over the entire suit property. The first appellate court has correctly held that the plaintiffs failed to prove that the entire property was belonged to Sellammal and there are no records to show that how Sellammal acquired the entire suit property. However, the defendants themselves admitted that Sellammal had 1/3 share of the suit property and thereby they decreed the suit in respect of the property settled through the settlement deed and decreed the suit only in respect of the undivided share of 0.28 cents. Therefore, the first appellate court has correctly allowed the appeal by modifying the decree and judgment passed by the trial court. Therefore, the second appeal is liable to be dismissed.

14. This court heard both sides and perused the records.

15. In this case, the plaintiff has filed a suit for declaration in respect of the suit property in Re-survey No.1.27/9 to an extent of 0.26.5 Ares claiming that he acquired the property through the settlement deed dated 19.12.1961 to an extent of 0.24 cents and the remaining extent entitled through the Will dated 30.12.1961. Therefore, according to the plaintiff, the entire property, belonged to Sellammal and thereby, he is entitled to the suit property.

16. The defendants denied the right of Sellammal to the entire suit property. According to the defendants, the suit property originally belonged to Sellammal, Raju Udayar and Kumaran and Sellammal is only entitled to 1/3 share. The said Raju Udayar and Kumaran, who are the predecessors of the defendants 1 and 2 are each entitled to 1/3 share. Therefore, Sellammal had settled only her 1/3 share in common and thereafter, the plaintiff created the Will dated 19.12.1961 as if Sellammal executed the Will for the entire property. Since the defendants denied the right of Sellammal for the entire suit property and they had admitted that Sellammal is entitled to only 1/3 share of the suit property, it is for the plaintiff to prove that Sellammal had right over the entire suit property. Admittedly, Sellammal had executed settlement deed in favour of the plaintiff on 19.12.1961 in respect of only 0.24 cents. In the settlement deed itself, Sellammal mentioned that she had only common share. Therefore, the intention of Sellammal is to settle the property to an extent of 0.24 cents. Since the remaining property belongs to the defendants’ predecessors, she had only executed the settlement deed in respect of her share.

17. While so, the plaintiff created the Will dated 30.12.1961 alleging that there is a correction in the previous settlement deed in respect of the extent of the suit property, Sellammal had intention to execute the settlement deed in respect of the entire property, however, the extent was wrongly mentioned and thereby executed the Will dated 30.12.1961. In order to prove the Will dated 30.12.1961, they examined PW3 who is the attesting witness and PW2 who is the Scribe of the Will and they deposed about execution and attestation of the Will.

18. Before going to the genuinenity of the Will, since the defendants denied the right of the said Sellammal to execute the Will in respect of the entire property, this court has to see whether Sellammal had any right over the property to execute the Will in respect of the entire property. The defendants have examined the DW1 to DW4 and marked Ex.B1 to Ex.B14. Ex.B1 is the patta dated 18.11.1996 and Ex.B2 to Ex.B13 are kist receipts; Ex.B14 receipt is the Chitta.

19. On careful perusal of the abovesaid documents, it is clear that in the property, the predecessor of the defendants also having interest over the property and they are the joint pattadars and they also paid kist to the properties. Since the suit is filed by the plaintiff for the relief of declaration, she has to prove the case through proper evidence but the plaintiff has not filed any document to show that Sellammal had right over the entire property. Moreover, at the time of execution of settlement deed/Ex.A1 Sellammal had categorically mentioned about her common share and she only settled the property to the extent of 0.24 cents.

20. The contention of the plaintiff is that Sellammal wanted to settle the entire property, but due to typographical error, extent has been wrongly mentioned. Had Sellammal is owner of the entire property and intended to settle the entire property to the plaintiff and any error crept in the document, Sellammal should have executed correction deed for the extent of property instead of execution of the Will but no such kind of document has been executed and thereby the contention of the plaintiff is not acceptable. Though the plaintiff has examined the attested witnesses of Ex.A10, there are no records to show that Sellammal had right over the entire property. Therefore, the plaintiff failed to prove that Sellammal had right over the entire extent of the property to execute the Will in respect of the entire suit property.

21. In this context, the trial court while discussing the case, observed that the defendants admitted 1/3 share of Sellammal without the documents, Ex.A10 is the 30 years old document and the execution of the Will has been proved by the plaintiff and also produced the Chitta and Adangal and therefore, the plaintiff proved her case. Whereas the documents filed by the defendants are subsequent to the suit and not related to the suit property and thereby decreed the suit. The trial court failed to consider that the suit is filed for declaration and permanent injunction. While so, the plaintiff has to prove the case and plaintiff failed to prove that Sellammal had right over the entire suit property and in the settlement deed, Sellammal categorically stated about her share and extent and thereby rendered erroneous findings.

22. The first appellate court in the judgment elaborately discussed that Ex.A1 is the copy of the gift deed dated 19.12.1961 and it contains only undivided 0.24 cents, out of the total extent of 0.66 cents, which is the suit property. So under Ex.A1, title can pass only to 1/3 share of the suit property and the original documents have not been produced; only certified copy has been produced as secondary evidence without any reason. The Ex.B14 Chitta is prior to Ex.A2 and Ex.A2 and UDR patta issued on 29.07.1985 and Ex.B14 /chitta is issued for 1981-1984. The learned Trial Judge has given adverse judgment against the defendants for their non-production of the old patta which is in the name of the Raju Udayar and Kumaran, who are the predecessors of the defendants. Whereas the plaintiff has to plead and prove by satisfactory evidence in respect of the title and possession. The defendants also specifically denied the title of the plaintiff, while so, it is the duty of the plaintiff to prove how Sellammal is entitled to the entire property when no patta was filed in the name of Sellammal. Further, in the Ex.A10/Will the entire extent of 0.66 cents have been mentioned, once Sellammal settled the 0.24 cents, remaining 42 cents alone would reflect in the Will whereas the extent of 0.66 cents is reflected and also Ex.B1 patta is dated 19.11.1996 the suit was filed on 20.11.1996 and the Ex.D1 was obtained just before the patta/Ex.B2. Therefore, the first appellate court set aside the judgment and decree passed by the trial court modifying that the plaintiff is only entitled to the declaration of title of the Undivided Share of 0.24 cents.

23. The above said findings of the first appellate court are based on the oral and documentary evidences. Once the plaintiff filed the suit for declaration, it is the duty of the plaintiff to explain as to why Sellammal had not executed the settlement deed in respect of the entire property and as to why she mentioned her share as 0.24 cents in common. Further, the plaintiff failed to prove that Sellammal had right over the entire suit property through sufficient evidence. Therefore, the first appellate court had correctly come to a fair conclusion and hence, the same warrants no interference.

24. As far as the substantial questions of law framed by this court are concerned, the plaintiffs relying upon Ex.A10 and to prove the same, he examined the PW2/ scribe of the document and PW3/attesting witness and they have also deposed about the execution and attestation of the Will. However, the plaintiff failed to establish that Sellammal had absolute right over the entire suit property. Mere execution of the Will and proving the attestation is not sufficient to hold that the plaintiff proved the title of the property. When Sellammal herself admitted that she had only common share over the entire property and executed the settlement deed in favour of the plaintiff, the plaintiff also accepted the settlement deed and after accepting the settlement deed, he is estopped from denying the same in respect of the extent of the settled property. If at all, any error crept in the settlement deed in respect of the extent, then Sellammal should have executed the correction deed instead of the execution of the Will. Therefore, the first appellate court is right in not upholding the Will/Ex.A10 as there is no proof that Sellammal had right to execute the Will after settlement deed executed by her.

25. Though the plaintiff has filed the documents Ex.A1/settlement deed and Ex.A2/patta and Ex.A3 to Ex.A9/kist receipts and Ex.A10/Will and Ex.A11/Adangal to prove the title and possession, there are no documents to show that Sellammal had right over entire property, but the availed evidence show that she had only 1/3 share over the suit property and the same has been clearly mentioned in the settlement deed/Ex.A1. Therefore, the title can be passed only to the extent mentioned in the settlement deed Ex.A1. It is well settled law that the plaintiff who filed the suit for declaration has to prove his case through proper evidence and he cannot take advantage of weakness of the defendants’ case. In this case, the plaintiff has failed to prove that the entire extent of the suit property belongs to Sellammal and she had given property to the plaintiff. Even in the Ex.A10/Will, there is no mention about the error in the extent but she only stated that her right of the property has been wrongly mentioned as common and in fact, the entire property belongs to her. Once Sellammal executed the settlement deed by accepting her common share through registered document, the same cannot be denied through unregistered document in the form of Will. Therefore, the contention of the plaintiff is not acceptable.

26. Therefore, the lower appellate court is correct in law in discussing about the plaintiffs’ side evidences and conclusions made thereon. The lower appellate court had discussed about the findings of the trial court. The first appellate court after discussing about the findings of the trial court, set aside the decree and judgement and modified the decree and judgement and granted declaration in respect of undivided 0.24 cents as per Ex.A1/settlement deed. Therefore, there is no any perversity or illegality in the order passed by the first appellate court. Therefore, the substantial questions of law are answered as against the appellant and in favour of the respondents and this Second Appeal has no merits. Accordingly, the Second Appeal is dismissed. No costs.