(Prayer :- Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 19.08.2016 passed in A.S.No.69 of 2013 on the file of the Subordinate Judge, Kuzhuthurai, reversing the judgment and decree dated 29.07.2013 made in O.S.No.132 of 2002 on the file of the I Additional District Munsif Court, Kuzhuthurai.)

1. The plaintiff, aggrieved by the reversal findings rendered by the first Appellate Court setting aside the decree passed by the trial Court and thereby dismissing the suit, is the appellant.

2. The second appeal was admitted by this Court on 17.02.2017 on the following substantial questions of law.

                     “a) Whether the lower Appellate Court is right in reversing the Judgment of the trial Court since the fourth defendant has admitted in the evidence that he has no objection in granting a decree for 19 ½ cents in favour of the plaintiff as per the Will?

                     b) Whether the first defendant is entitled to convey under Ex.B7 to fourth defendant pending suit more area what she has obtained under Ex.B.3 and B.4 from her husband Raj?

                     c) Whether the defendants 2 and 3 are right in setting aside the subdivision order, dated 06.04.1998 in the absence of any appeal by first defendant under Section 11 of the Tamil Nadu Survey and Boundaries Act, 1923?

                     d) Whether the subdivision effected on 08.02.2002 is right since the same is contrary to paragraph No.3 of the written statement of third defendant?”

3. I have heard Mr.C.Godwin, learned counsel for the appellant and Mr.K.N.Thampi, learned counsel appearing for the contesting respondents 5 to 7 and 9 to 13 and Mr.R.Ragavendran, learned Government Advocate for the respondents 3 and 4.

4. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

5. Brief facts that are necessary to adjudicate the present second appeal are as hereunder:

                     5.1. The plaintiff and the first defendant's husband are brothers, they being the sons of one Appavu Nadar. The said Appavu Nadar was the original owner of the property, which is the suit property, forming and part of a larger extent of land. The said Appavu Nadar had executed a Will dated 06.10.1969, in and by which he had bequeathed 11 1/2 cents on the southern side out of 54 cents to his son Rajamani, through his first wife; the middle portion measuring 19½ cents to the plaintiff viz., Thompson, who is the younger son of Appavu Nadar, the northern portion of 19 cents to the elder son, viz., Raj. The said Raj in and by a settlement deed dated 04.03.1974, settled the northern extent of 19 cents with a tiled building standing on the said land in favour of his wife, the first defendant, retaining a life interest in and by a subsequent release deed dated 16.08.1978, the life interest was also released in favour of his wife/first defendant. The father, Appavu Nadar died and according to the plaintiff, the two sons were in enjoyment of the respective properties gifted to them and in view of the settlement in favour of the first defendant, the first defendant took the share of the elder son Raj. Subsequently, the first defendant, in and by sale deed dated 10.08.2005 sold the property settled on her by her husband Raj, to the fourth defendant/Kasi Nadar. Pending the suit, the said Kasi Nadar passed away and his heirs were brought on record. Sub division was also effected by the Tahsildar.

                     5.2. The plaintiff contending that he is in possession of 19 cents bequeathed to him and the shops constructed on the said land, paying taxes for the said shops, aggrieved by the first defendant approaching the Collector with objections regarding sub divisions made by the Tahsildar and the Collector forwarding the objections of the first defendant to the Deputy Director, who in turn, set aside the earlier sub divisions, filed the suit to declare his right and entitlement of 19½ cents in the suit property, comprised in Re-survey No.35/9 (old S.No.2524), Killiyur village and also for recovery of possession and for permanent injunciton to restrain the defendants from carrying out any changes in revenue records.

                     5.3. The suit was resisted by the first defendant, contending that the father never intended to give any larger benefit to the plaintiff, to the detriment of his elder son Raj and that ultimately, there was a reduction of non availability of the actual land, viz., 54 cents and consequently, such reduced or unavailable land has caused hardship not only to the plaintiff, but also to the first defendant’s husband and the son of the first wife, viz, Rajamani, who was given 11½ cents. The first defendant also raised the plea of non joinder of said Rajamani. The first defendant also contended that the suit for declaration could not be maintained and a suit for partition alone had to be filed.

                     5.4. Based on the above pleadings, the parties went to trial. The trial Court accepted the case of the plaintiff and decreed the suit, interpreting the Will in a manner that Rajamani and the plaintiff were given definite and identified extents of property, whereas, the elder son/Raj was given only the balance lands and therefore, the reduction, if at all any, should be suffered only by the elder son/Raj.

                     5.5. Admittedly, the first defendant did not challenge the verdict of the trial Court. Having purchased the property from the first defendant, the fourth defendant preferred the first appeal. The first appellate Court, not agreeing with the interpretation given by the trial Court, set aside the findings of the trial Court and held that as the father Appavu Nadar intended to benefit both the sons equally, in such circumstances, the suit could not have been maintained for declaration, recovery of possession and permanent injunction as prayed for.

6. As against the said reversal findings, the present second appeal has been filed.

7.Arguments of Mr.C.Godwin, learned counsel for the appellant:

                     7.1. Mr.C.Godwin, learned counsel for the appellant, would take me through the contents of the settlement deed dated 04.03.1974 (Ex.B3) and the release deed dated 16.08.1978 (Ex.B4) and emphasising on the schedule mentioned therein, submitted that the first defendant's husband understood the intention of his father/Appavu Nadar under Ex.A2/Will, entitling him only to the balance portion of the northern side. However, the first defendant subsequent to Ex.B3 and Ex.B4 while selling the property to the fourth defendant in Ex.B7 has conveyed the property to which, neither she nor her husband were entitled to in the first place.

                     7.2. The learned counsel for the appellant Mr.C.Godwin, would further state that the Tahsildar had initially sub divided the properties into three, viz., 35/9A, being allotted to Rajamani, son through first wife, 31/9B, being allotted to the plaintiff and 31/9C being allotted to Raj/husband of the first defendant. He would state that the said sub divisions were effected after notice to the first defendant's husband, who was then alive as well as Rajamani and no statutory appeal was preferred against the said order of the Tahsildar, though provided under the Tamil Nadu Survey and Boundaries Act, 1923. He would further state that the first defendant directly made an objection to the Collector, regarding the sub divisions and in turn, the Collector had forwarded the said objection to the Deputy Director to conduct a fresh enquiry. Admittedly, the Deputy Director, after hearing the appellant, has cancelled the sub divisions made by the Tahsildar and effected fresh sub divisions. Though Mr.C.Godwin, learned counsel for the appellant would state that the said order of the Deputy Director was not appealed against, in view of the fact that the entire procedure adopted was contrary to the statutory provisions of the Tamil Nadu Survey and Boundaries Act, 1923, he would state that the sub divisions cannot bind the appellant and in any event, it is his contention that only after the cancellation of the sub divisions of the Tahsildar and a fresh sub divisions that a suit has been filed and in such circumstances, the civil Court alone can decide the dispute, since it relates to the title of the parties to the respective lands and also interpretation of the Will of Appavu Nadar. In this regard, the learned counsel for the appellant, has placed reliance on the decision of this Court in Rukkaiah Natchiar V. P.M.S. Mohamed Aamina Beevi reported in 2020-6-CTC-390.

                     7.3. Mr.C.Godwin, learned counsel for the appellant, would further state that though the plea of non joinder had been taken by the first defendant, that is not impleading Rajamani, who was allotted the southern portion of 11 1/2 cents, inviting my attention to the judgment of the trial Court, Mr.C.Godwin, learned counsel for the appellant, would contend that the said Rajamani, has taken out an application, for getting himself impleaded in the suit. However, the trial Court had dismissed the said application and the order also attained finality. In such circumstance, it is the submission of Mr.C.Godwin, learned counsel for the appellant that the plea of non joinder cannot be pressed into service after the dismissal of the impleading application filed by Rajamani himself. Additionally, Mr.C.Godwin, learned counsel for the appellant would contend that the suit property pertains only to the lands that were allotted under the Will to the plaintiff and in such circumstances, the presence of Rajamani was therefore not necessary at all.

                     7.4. Mr.C.Godwin, learned counsel for the appellant would also invite my attention to the exhibits filed on behalf of the appellant to establish that the taxes were being paid only by the plaintiff. Mr.C.Godwin, learned counsel for the appellant would further draw my attention to the Advocate Commissioner's report and the findings of the Advocate Commissioner with regard to the existence of basement, which was originally constructed by Appavu Nadar. It is relied on to fortify his argument that what was given under the Will and subsequently conveyed to the first defendant by way of settlement deed and release deed was only a 19 cents northern portion along with a tiled building [10 holes X 7 holes (1 hole= 2.5 feet)]. However, pointing out Ex.B7 sale deed, Mr.C.Godwin, learned counsel for the appellant, would submit that for the first time, the first defendant introduced four shops in the said property, which were never existing and found place either in the Will or in Ex.B3 and Ex.B4. It is therefore the submission of Mr.Godwin, learned counsel for the appellant, that when the plaintiff is in possession of the entire extent of 19½ cents comprised in S.No.35/9B, paying property tax for right from 1996, the first Appellate Court has mis-interpreted the Will and erroneously dismissed the suit. The learned counsel would therefore pray for the second appeal being allowed as prayed for.

8. Arguments of Mr.K.N.Thampi, learned counsel for the contesting respondents 5 to 7 & 9 to 13:

                     8.1. Per contra, Mr.K.N.Thampi, learned counsel for the contesting respondents, would at the outset state that the first appellate Court has alone interpreted Ex.A2 Will in a proper manner and it was the trial Court which had given a wrong interpretation to the Will of Appavu Nadar. In this regard, he would take me through the Will and also the schedule to the said Will, with specific reference to item No.5, which has been bequeathed to the plaintiff and the first defendant's husband. Mr.K.N.Thampi, learned counsel for the contesting respondents, would further state that the father did not differentiate between the two sons and bestowed benefit upon them equally and there is nothing in the Will to suggest that, he intended to prefer the younger son Thompson by giving him a larger share or that he was not happy that the elder son/Raj and therefore, he was given a lesser extent. In fact, it is also the contention of Mr.K.N.Thampi, learned counsel for the contesting respondents, that even in the Will, Appavu Nadar, dealt with the total available extent of 54 cents, however, as per the allotments made, the extent is only 50 cents and there is a reduction of 4 cents, even at the time of execution of the Will by Appavu Nadar. Further, relying on the Advocate Commissioner's report, Mr.K.N.Thampi, would state that actual available extent is only 35 cents, equally between the plaintiff and the first defendant, now the fourth defendant and the plaintiff cannot unilaterally claim 19½ cents as bequeathed to him, when there is admittedly a shortage of land on ground.

                     8.2. Mr.K.N.Thampi, learned counsel for the contesting respondents, relied on the judgment of the Hon'ble Supreme Court in Shyamal Kanti Guha(Dead) V. Meena Bose reported in 2008-8- SCC-115 in support of the submissions regarding the interpretation of the Will. As regards the reliance placed on the provisions of the Tamil Nadu Survey and Boundaries Act, 1923, Mr.K.N.Thampi, learned counsel for the contesting respondent, would state that though the first defendant did not prefer any appeal as provided under the Act, there is a revisional power available under Section 12 B, which can be exercised even suo-motu and admittedly, the cancellation of the subdivisions originally granted by the Thasildar, by the Deputy Director, after notice to the appellant and due enquiry ought to have been further taken up the matter in a manner known to law and having not doing so, it is the contention of Mr.K.N.Thampi, that the appellant cannot have any grievance and cannot challenge the order passed by the Deputy Director, cancelling the order of the Thasildar and effecting new subdivisions. Alternatively, it is also his submission that in view of the filing of the civil suit, the proceedings before the revenue authorities pale into insignificance and will have no material bearing on the dispute as ultimately, it is for the civil Court to settle the disputed questions between the parties.

                     8.3. As regards the payment of taxes for the entire seven shops, Mr.K.N.Thampi, learned counsel for the contesting respondents, would state that the respondents are also in possession of some of the shops and that was the reason why the appellant had taken out an application for interim injunction, pending the second appeal. Further, he would state that P.W1, in his cross examination, had even admitted that the payment of taxes made by him were only in respect of assessment still standing in the name of Appavu Nadar. It is therefore the contention of Mr.K.N.Thampi, learned counsel for the contesting respondents, that mere payment of taxes in the name of the father will not entitle the appellant to claim exclusive possession of the entire seven shops.

9. Arguments of Mr.R.Ragavendran, learned Government Advocate for the respondents 3 and 4:

Mr.R.Ragavendran, learned Government Advocate for the respondents 3 and 4 would state that the Collector had filed a written statement, being the third defendant in the suit and had stated that the initial sub division by the Tahsildar was at the instance of the plaintiff, without relevant records being perused and therefore, rightly the sub division was found to be irregular and the same was cancelled by the Deputy Director of Survey and Land Records. He would therefore state that the Deputy Director had passed the order after due enquiry, after notice to the parties and in such circumstances, the plaintiff cannot have any grievance with regard to the sub division. He would pray for dismissal of the second appeal.

Analysis:

10. I have carefully considered the submissions advanced by the learned counsel for the parties.

11. With regard to the non compliance of the statutory provisions of Tamil Nadu Survey and Boundaries Act, 1923, I do not see any serious prejudice being caused to both the parties, as sub divisions originally effected by the Tahsildar and subsequently, cancelled by the Deputy Director become irrelevant, in view of the very same issue being canvassed before the competent civil Court, especially, in a suit for title. In fact, the decision relied on by the learned counsel for the appellant, Mr.C.Godwin, in Rukkaiah Natchiar's case is also to this effect, where this Court held that boundaries determined in a survey operation under Section 13 of the Act, though become conclusive and even if correctness is not challenged, it will not be conclusive proof on issue of title, which can be decided only on holistic reading of pleadings and entire evidence, which can be done only by a competent civil Court.

12. In view of the above, since the plaintiff has approached the Court after the fresh sub division effected by the Deputy Director, cancelling sub division effected originally by the Tahsildar, I do not see any necessity for arguments being advanced or considered with regard to the legality of the proceedings initiated by the first defendant, without invoking the appeal remedy available under the Act.

13. The only germane issue that remains is interpretation of the Will of Appavu Nadar. The original copy of the Will in Malayalam has been marked as Ex.A1 and the translated copy of the said Will has been marked as Ex.A2. The execution of the Will by Appavu Nadar, is admitted all round. On a perusal of the said Will, I firstly find that Appavu Nadar has given an equal extent to both the sons, the plaintiff/ Thompson as well as the first defendant's husband /Raj. Merely because, the testator, Appavu Nadar has mentioned that the balance available on the northern side is to be taken by his elder son/Raj, it cannot imply that if there is any reduction in land available, then what ever remains will be taken by Raj, without disturbing the bequests made to the plaintiff and Rajamani. If there had been no mention about 19 cents being bequeathed to the first defendant's husband, then probably the arguments of Mr.C.Godwin, learned counsel for the appellant, will have some force. However, specifically the testator has mentioned about a bequest of 19 ½ cents in favour of the plaintiff and 19 cents in favour of the first defendant's husband.

14. For easy reference, the relevant portion of the Will referring to the suit property is extracted hereunder:





15. A perusal of the schedule clearly indicated that the testator had clearly bequeathed 19½ cents to the plaintiff and 19 cents to the first defendant's husband and mere use of the words 'ePf;fp kPjp' does not imply or indicate that the remaining portion, after factoring the bequest of 11 ½ cents in favour of Rajamani and 19 ½ cents in favour of the plaintiff, what ever remains should be taken by the first defendant's husband/ Raj. At best the reference to the word 'ePf;fp kPjp' can only be interpreted to mean that since already two parcels of lands have been bequeathed in favour of Rajamani/son through first wife and younger son/Thompson-the plaintiff, the remaining/balance lands measuring 19 cents on the northern side have been bequeathed to the first defendant's husband/Raj.

16. As held by the Hon'ble Supreme Court in Shyamal Kanti Guha's case, the Court while interpreting a testamentary instrument has to sit in the armchair of the testator and visualize the intention of the testator by the bequest made or words in employed in the Will. On a meaningful reading of the entire Will, no reasons being given in the body of the Will by the testator indicating to give a larger extent to the younger son/plaintiff/ Thompson and on the contrary, clearly mentioning the extent bequeathed to the plaintiff (19 ½ cents) and the first defendant's husband/Raj (19 cents), I do not see any other interpretation to be given to the intention of the testator, than to benefit both the sons equally. As already stated above, the body of the Will also does not compel the Court to draw any interpretation to the contrary. The first appellate Court had therefore rightly interpreted the Will to hold that equal benefit has been given to the plaintiff as well as the first defendant's husband and therefore, the suit for declaration, recovery of possession, and permanent injunction on a unilateral interpretation of the Will, by the plaintiff was not maintainable.

17. Even with regard to the claim of the plaintiff that he has been paying taxes for all the seven shops constructed in the property, the plaintiff as P.W.1 himself admitted to the fact that the taxes have been paid only in the name of the father. In such circumstances, I do not see how the plaintiff can claim exclusive right or title over 19 ½ cents, which is not available on ground. The Advocate Commissioner has also found that the available land is only 35 cents, after leaving out 11 ½ cents bequeathed to Rajamani. In the said 35 cents, the plaintiff is now attempting to retain a 19 ½ cents in entirety and passing of the remaining portion under the pretext that what ever remains alone has been bequeathed to his elder brother. Therefore, the trial Court was clearly in error in misinterpreting the intention of the testator and the schedule to the Will, which has been rightly set aside by the first Appellate Court.

18. Even with regard to the alleged admission of the fourth defendant that he has no objection for decreeing the plaintiff's 19 ½ cents, the evidence has to be read as a whole and not in isolation. If really the fourth defendant had admitted, then there was no necessity for the parties to even go ahead further with the trial and based on the fourth defendant's admission itself, the plaintiff would have pressed for a judgment on admission. In such circumstances, a strong statement in cross examination cannot be magnified and projected as an admission.

19. I do not see any perversity or illegality in the findings of the first Appellate Court, warranting interference under Section 100 CPC in the second appeal. Substantial questions of law are answered against the appellant and in favour of the respondents.

20. In fine, this Second Appeal is dismissed. However, considering the relationship between the parties, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.