(Prayer: Second Appeal filed Section 100 of the Code of Civil Procedure, to set aside the judgment and decree passed in A.S.No.25 of 2020 on the file of the Sub Court, Devakottai, dated 18.07.2024 reversing the judgment and decree passed in O.S.No.121 of 2015 on the file of the Additional District Munsif Court, Karaikudi, dated 14.02.2020 and allow the above second appeal.)
1. The defendants are the appellants and the respondent is the plaintiff.
2. For the sake of convenience, the parties will be referred to as per their ranks in the suit.
3. The plaintiff presented O.S.No.121 of 2015 on the file of the District Munsif Court at Karaikudi, seeking the following reliefs:-
Case according to the plaint:-
4. The plaintiff claimed that there was one Periyanna Nadar, son of Kaliyappa Nadar. The said Periyanna Nadar had two sons, Kaliyappa Nadar @ Kaliya Nadar and Subbaya Nadar. The plaintiff herein is Subbaya Nadar’s daughter. According to her, Kaliyappa Nadar @ Kaliya Nadar died issueless on 13.09.1967. Prior to his death, on 20.06.1964, he executed a “WILL” in favour of his brother Subbaya Nadar bequeathing the suit property to him. Thereafter, Subbaya Nadar executed a settlement deed, for the suit property, in favour of the plaintiff on 12.08.2014. The plaintiff claimed that, the defendants, who are her neighbours, have no right, title or interest in the suit property. Yet, they started claiming a right over the same. They attempted to dispossess the plaintiff. Hence, she came forward with the suit for the aforesaid reliefs.
5. Summons were served on the defendants. The defendants filed a written statement. According to them, the first defendant had been enjoying the suit schedule property pursuant to an oral sale from one Periyannan Nadar. He claimed that Kaliyappa Nadar @ Kaliya Nadar did not die issueless, but had left behind two sons and two daughters, namely
(i)Periyannan Nadar, who is currently residing in Karaikal;
(ii)Arumugam, who was not alive on the date of presentation of the plaint;
(iii)Kaliyammal, who is residing in the same village; and
(iv)Soundarammal, who is residing in Udumalaipettai.
6. He alleged that Periyannan Nadar, being the eldest son of Kaliyappa Nadar @ Kaliya Nadar, was allotted this property in the partition between the aforesaid four persons. Later on, he gave portions of his land to Rasu, Duraisamy, Subramani and 1st defendant. The defendants denied the “WILL” dated 20.06.1964 and claimed that, as the “WILL” itself is not a document borne out of facts, the settlement deed executed by Subbaya Nadar in favour of the plaintiff is equally worthless. They added the certificate enclosed along with the settlement deed is a forged document. The defendants further pleaded that on coming to know of the forgery, a complaint was lodged with the police in Keelapungodi Village. During the course of investigation, it came to light that the certificate, said to have been issued by the Village Administrative Officer, is a forged document and further prosecution of the plaintiff is underway. The defendants pleaded that, as the 1st defendant is in occupation of the property pursuant to the oral sale, the plaintiff is not entitled to make her claim and the suit has to be dismissed.
7. On the basis of these pleadings, the following issues were framed:-
“1)Whether the Plaintiff is entitled to the relief of Declaration as prayed for?
2)Whether the Plaintiff is entitled to the relief of Permanent Injunction as prayed for?
3)To what other relief?
8. The plaintiff entered the witness box as PW1. Her father, Subbaya Nadar was examined as PW2. Two other witnesses, one Pandiyan and Lakshmanan were examined as PW3 and PW4. The plaintiff marked Ex.A1 to Ex.A17. On the side of the defendants, the 2nd defendant entered the witness box as DW1. The son of the 1st defendant entered the witness box as DW2. One Madhuseran, a third party was examined as DW3. Jagajothi, the Village Administrative Officer was examined as DW4. On the defendants’ side, Ex.B1 to Ex.B4 were marked.
9. The learned Trial Judge came to the conclusion, as the plaintiff did not discharge the burden of proof that had been placed on her and since the patta for the suit property was still in the name of Kaliyappa Nadar @ Kaliya Nadar and no steps were taken to mutate the patta to the plaintiff’s name or earlier, to her father’s name, the plaintiff is not entitled to the relief of declaration and injunction. Consequently, the suit came to be dismissed.
10. Aggrieved by the same, the plaintiff preferred an appeal to the file of the Sub Court at Devakottai. This appeal was received in AS.No.25 of 2020.
11. The plaintiff urged that as Ex.A9 is a “WILL” of more than 30 years old, the presumption under Section 90 of the Indian Evidence Act applies to the “WILL” and therefore, the Court ought not to have dismissed the suit. One, Subbaya Nadar, the attesting witness to the “WILL” under Ex.A9 was no more. Hence, his signature had been proved by examination of his son, Pandiyan (PW3). It was further urged that though the defendants had alleged that Kaliyappa Nadar @ Kaliya Nadar has left behind legal heirs, none had been examined to prove the heirship.
12. The learned Appellate Judge took up the appeal for hearing and after a re-appreciation of the oral and documentary evidences, he came to the conclusion that the “WILL” dated 20.06.1964 has been proved. He relied upon Section 69 of the Indian Evidence Act for the said conclusion as two witnesses, Pandiyan and Lakshmanan, had deposed to the effect that they were aware of the signature of the attesting witnesses. He further held that the defendants have not discharged the burden of proof that Kaliyappa Nadar @ Kaliya Nadar had other legal heirs. He held that the dismissal of the suit on the ground that the legal heirs have not been impleaded is erroneous, since no evidence had been adduced by the parties before the Court to that effect. On the basis of these conclusions, the learned Appellate Judge allowed the appeal and decreed the suit as prayed for. Aggrieved by the same, the present second appeal.
13. This Court, after hearing both the parties, admitted the second appeal on the following substantial question of law on 14.07.2025:-
“1.Whether the lower appellate court was right in coming to the conclusion that the relationship between the parties and the Will in Ex.A9 is proved in accordance with law?”
14. While this appeal was pending, another suit came to the filed in O.S.No.99 of 2024 relating to the same property involved in this appeal. In that suit, the plaintiff herein was arrayed as a defendant. Immediately, she filed an application for rejection of that plaint. It came to be dismissed. Challenging the said order, she presented a revision in C.R.P.(MD).No.938 of 2026. While moving the revision for admission, Mr.Manikandan urged that as the plaintiff had succeeded in A.S.No.25 of 2020 before the learned Subordinate Judge, Devakottai, the subsequent suit in O.S.No.99 of 2024 is an abuse of process of law and is liable to be rejected.
15. Taking note of the plea, on 08.04.2026, this Court directed the Registry to tag the revision along with the second appeal and obtain orders from Hon’ble The Administrative Judge and list both the matters before one learned Judge. On 20.04.2026, Hon’ble The Administrative Judge, directed both the revision and second appeal to be listed before this Court.
16. After the papers were exchanged, this Court took up the second appeal for final disposal on 17.06.2026.
17. I heard Mr.D.Senthil for 1st appellant, Mr.A.Mohamed Haneef for 2nd appellant and Mr.S.Manikandan for the sole respondent.
18. The counsel made their arguments on the question of law originally framed as well as on the additional question of law, which is as follows:
“2.Whether the plaintiff is entitled for decree of declaration and injunction when the defendants have failed to prove their plea that Kaliyappa Nadar @ Kaliya Nadar had left behind legal heirs and when the plaintiff has further proved that Kaliyappa Nadar @ Kaliya Nadar had died issueless leaving behind his brother Subbaya Nadar as legal heir?”
19. The arguments of Mr.D.Senthil are as follows:-
(i)The “WILL” under Ex.A9 had not been proved in accordance with the Indian Evidence Act as the attesting witnesses have not given the evidence as required under Section 69 of the Indian Evidence Act.
(ii)The plaintiff had not proved her legal heir certificate that is said to have been issued by DW4.
(iii)The certificate that had been annexed to the settlement deed said to have been issued by the Village Administrative Officer, is a forged one and as a criminal case is pending, no settlement deed can be relied upon.
(iv)There is no proof that Pandiyan is the son of the attesting witness, Subbaya Nadar as his passport and the transfer certificate of PW3 Pandiyan had not been produced.
(v)Though PW2 claimed to have the legal heir certificate issued with respect to Kaliyappa Nadar @ Kaliya Nadar, he has not produced the same.
20. Mr.A.Mohamed Haneef argued that it is the admitted case of the plaintiff that the 2nd defendant is not interfering with the right of the plaintiff. When the plaintiff herself had deposed that there is no case against the 2nd defendant, the Court below erred in granting a decree against the 2nd defendant also.
21. Per contra, Mr.S.Manikandan, urged that the error committed by the Trial Court had been rectified by the lower appellate Court by relying upon the evidence of PW3 and PW4 and reached a conclusion that Ex.A9, “WILL” dated 20.06.1964 had been proved. He pointed out that there is no dispute as regards the relationship between Kaliyappa Nadar @ Kaliya Nadar and Subbaya Nadar. The claim of Subbaya Nadar as the heir of Kaliyappa Nadar @ Kaliya Nadar was sought to be defeated by projecting that Kaliyappa Nadar @ Kaliya Nadar had left behind four other children. This aspect of the case had not been proved by the defendants. Hence, he stated that the finding of the lower appellate Court is perfectly justified and does not require any interference in the exercise of the second appellate jurisdiction.
22. I have carefully considered the submissions made on both sides. I have also gone through the records.
23. The relationship between Kaliyappa Nadar @ Kaliya Nadar and Subbaya Nadar has not been disputed by the defendants. It has been conceded that both of them are the sons of Periyanna Nadar. It is the plea of the plaintiff that Kaliyappa Nadar @ Kaliya Nadar died issueless. It is the claim of the defendants that Kaliyappa Nadar @ Kaliya Nadar had left behind four legal heirs and one such legal heir had orally sold the property in favour of the 1st defendant.
24. In these circumstances, the burden of proof in the present case is sequentially divided between the plaintiff and the 1st defendant. The plaintiff bears the burden to prove that Subbaya Nadar was entitled to execute a settlement deed as the legal heir of Kaliyappa Nadar @ Kaliya Nadar. PW1 has specifically spoken about this issue. PW1 and PW2 have specifically spoken about the relationship between Kaliyappa Nadar @ Kaliya Nadar and PW2. PW1 could not have spoken about whether Kaliyappa Nadar @ Kaliya Nadar died issueless or not. This is for the reason though she happens to be his niece, she could not have directly said that Kaliyappa Nadar @ Kaliya Nadar had left behind any legal heirs or not since Kaliyappa Nadar @ Kaliya Nadar passed away on 13.09.1967 and the plaintiff was born later. PW2, the brother of Kaliyappa Nadar @ Kaliya Nadar has specifically deposed that his brother passed away issueless. Despite a detailed cross examination undertaken by the defendants, this aspect of PW2’s evidence had not been cross examined at all.
25. Right from the time of Browne Vs. Dunn, (1893) 6 R.67 H.L., it is settled that the essential and material case has to be put in cross examination to the deponent and in case, it is not so done, it must follow that the opponent believes the testimony given cannot be disputed at all. Let us now see the case law. Browne Vs. Dunn, arose under the following circumstances:-
25(i).A notice had been issued by Mr.Dunn for himself and others to Mr.Browne. The document indicated that the signatories, all of whom were residents of “The Vale”, Hampstead, had requested Dunn to apply for an order against Browne for disturbing the peace. This document came to the knowledge of Browne during the course of a Breach of Peace hearing. Immediately, Browne initiated libel proceedings against all parties. During that hearing, the document was not shown to any of the signatories by Browne while cross examining the witnesses. Being a plea in the Court of common law, the Judge was assisted by a Jury. The Jury returned a finding in favour of Browne and ordered damages of 20 shillings. Dunn appealed against the said order. The Court of Criminal Appeal set aside the judgment and dismissed the proceedings. Aggrieved by the same, an appeal was preferred by Mr.Browne to the House of Lords. The appeal was heard by Lord Chancellor Herschell, Lords Halsbury, Morris and Bowen. The Lord Chancellor held as follows:-
“Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”
25(ii).Lord Halsbury in a separate but concurring judgment, held as follows:-
“My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which the trial should be conducted. To my mind nothing would be more absolutely unjust than not to crossexamine witnesses upon evidence which they have given, so as to give them notice and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the Jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to their accuracy of the facts they have deposed to.”
26. The rule laid down by the House of Lords in this case has been explicitly approved by the Supreme Court in several cases. In Rajinder Pershad (dead) by LRS Vs. Darshana Devi, (2001) 7 SCC 69. The principle on failure to put relevant questions during cross examination was specifically referred to and approved. That case arose on account of a dispute between a landlord and tenant. Eviction petition had been filed on the grounds of wilful default. The landlord asserted that she had served the statutory demand notice on the tenant and the tenant had refused to accept the same. As a proof of service, the landlord examined the concerned Postman as a witness. In his chief examination, the Postman deposed that he had taken the notice to the tenant and that the tenant had refused to receive it. Though the Postman was presented for cross examination by the tenant, the learned counsel for the tenant did not confront or question the Postman on his statement regarding the refusal. However, it was argued before the Courts below as well as before the Supreme Court that the notice was never served and that the Postman was on leave on the date on which the notice is said to have been refused. The Supreme Court referring to the principle in Browne Vs. Dunn, (cited supra), held as follows:-
“There is an age old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to the part of it which is objected to as untrue, otherwise you cannot impeach his credit”.
27. This principle was following the precedent laid down in State of Uttar Pradesh Vs. Nahar Singh, (1998) 3 SCC 561. The Court held that this principle can be found acceptance in India, with reference to Sections 138 and 146 of the Evidence Act.
28. The Supreme Court in Rajinder Pershad’s case (cited supra) came to the conclusion that deposition of the Postman on the aspect of service and the refusal thereof having been left untouched during the cross examination, the tenant cannot argue that the Postman was not deposing the truth. This position makes it clear that in the absence of cross examination on a crucial aspect to the case, the evidence tendered by the witness during the chief examination remains unchallenged and should generally be accepted.
29. I should also point out this view of the Supreme Court has been recently reiterated by it in C.P.Francis Vs. C.P.Joseph and others, (2025) INSC 1071, and that the application of this principle by the Bombay and Delhi High Courts can be found in Yeshpal Jashbhai Parikh Vs. Rasiklal Umedchand Parikh, AIR 1955 Bom 318 and Shri Radha Kishan Aggarwal and others Vs. M/s.Network Ltd. And others, 2011 SCC OnLine Del 3896, also came to be approved.
30. The net result of this discussion is that PW2, not having been cross examined whether his brother had died issueless, bars the appellants from arguing that the evidence is not trust worthy.
31. Once the plaintiff had examined PW2 to substantiate the basic proof of her claim, the defendants could have still succeeded, had they proved that Kaliyappa Nadar @ Kaliya Nadar, in fact, left behind four legal heirs as urged by them. This is an assertion of a positive fact by the defendants. Under Section 103 of the Indian Evidence Act, the burden of proof as to any particular fact lies on that person, who wishes the Court to believe in its existence. The defendants could have brought Periyannan Nadar or Kaliyammal or Soundarammal to the witness box to substantiate their case. In fact, Kaliyammal is said to be residing in the very same village. This opportunity was not availed by the defendants.
32. It is a settled position of law that a party cannot be called upon to prove a negative fact. The claim of the plaintiff that Kaliyappa Nadar @ Kaliya Nadar passed away issueless is a negative fact. The plaintiff has given evidence in the form of PW2. Hence, the onus heavily lies on the defendants to prove the positive existence of the legal heirs to Kaliyappa Nadar @ Kaliya Nadar. That not having been done, the plea of Mr.D.Senthil must necessarily fail.
33. The next issue that I have to deal with is whether the “WILL” dated 20.06.1964 under Ex.A9 had been proved. PW3 and PW4 graced the witness box in order to substantiate the plea that the two attesting witnesses to Ex.A9 were no more. Therefore, it is not possible to prove the “WILL” by examination of the attesting witnesses. Hence, the plaintiff has relied upon Section 69 of the Indian Evidence Act as an alternate course to prove the attestation. While Section 69 relaxes the strict mandate as required by Section 68, it still places twin conditions in order to substantiate the requirements of proof of “WILL”. They are:
(i)The witness would have to speak on the handwriting of atleast one attesting witness and
(ii)The signature of the person who executed the document is that of his / her handwriting.
34. I have carefully perused the evidences of PW3 and PW4. While they speak about the signature of the attesting witness, they have not spoken that the signature found in the “WILL” is that of Kaliyappa Nadar @ Kaliya Nadar. In other words, the proof exists only for one portion and not for other part of Section 69. Hence, this Court would have to come to the conclusion that Section 69 has not been satisfied and Ex.A9 “WILL” has not been proved in the manner known to law. This conclusion finds support in Kasthuri Bai Vs. V.Ashok Kumar, 2017 (1) MWN Civil 764. The view laid down by The Hon’ble Mr.Justice N.Sathish Kumar in paragraph No.15 of the said judgment squarely applies to the facts of the present case. As the signature of the testator had not been proved as stipulated under Section 69, the “WILL” cannot be held to have been proved.
35. This takes me to the next aspect as to whether for the mere fact the “WILL” had not been proved, whether the suit has to fail. In the earlier portion of the discussion, I have pointed out that the plaintiff has successfully proved that Kaliyappa Nadar @ Kaliya Nadar passed away issueless, leaving behind her father Subbaya Nadar as his legal heir. Subbaya Nadar had executed a settlement deed dated 12.08.2014 under Ex.A5 in favour of the plaintiff. The settlement deed has not been challenged, nor can it be challenged by a stranger to the family. On the death of Kaliyappa Nadar @ Kaliya Nadar, Subbaya Nadar succeeded to his estate by virtue of the Hindu Succession Act. A reference to Section 8 read with Class II Category II (3) would suffice for this purpose.
36. That being the position, even without the “WILL”, Subbaya Nadar would be the legal heir of the deceased Kaliyappa Nadar @ Kaliya Nadar. Therefore, he would be entitled to execute a document as the legal heir of Kaliyappa Nadar @ Kaliya Nadar and not as the beneficiary under Ex.A9 “WILL”. Hence, even agreeing with Mr.D.Senthil that Ex.A9 has not been proved in the manner known to law, it does not help the case of the defendants.
37. Further, as against Ex.A1, Ex.A2 and Ex.A3 that prove the continuous possession of the grandfather of the plaintiff, Periyanna Nadar and subsequently of her paternal uncle, Kaliyappa Nadar @ Kaliya Nadar, all that the 1st defendant urges is that he has an oral sale from the alleged legal heir of Kaliyappa Nadar @ Kaliya Nadar namely one, Periyannan.
38. In terms of Section 54 of the Transfer of Property Act, an immovable property, valued Rs.100 or upwards, must be through a written document and the said document should be registered. We are not dealing with a case of a movable property, but a case of an immovable property. The oral sale has also not been proved by the defendants.
39. While inquiring into whether a fact is proved, the sufficiency of evidence is to be seen in the context of standard of proof, which in civil cases is by preponderance of probability. [See, Government of Goa Vs. Maria Julieta D’Souza, 2024 INSC 88]. Applying the principles of preponderance of probability, the plaintiff has a better title than the 1st defendant and necessarily would be entitled for a declaration. This is because, in terms of Section 35 of the Specific Relief Act, a declaratory relief operates in personam rather than in rem. The plaintiff, having shown she has a better title to the property, has to necessarily succeed.
40. Insofar as the second appellant is concerned, the plaintiff as well as PW1 and PW2 deposed that the 2nd defendant was not causing any interference or trouble to the plaintiff. That being the situation, there is no cause of action for the plaintiff as against the 2nd defendant. The learned Appellate Judge erred in decreeing the suit as prayed for. Hence, that portion of the decree alone requires to be interfered with.
41. The questions of law are answered as follows:-
(i)Whether the plaintiff not having proved the signature of the executant namely Kaliyappa Nadar @ Kaliya Nadar, by examination of witnesses as required under Section 69?
This question of law is answered in favour of the defendants and against the plaintiff.
(ii)The plaintiff is entitled for decree for declaration and injunction when the defendants have failed to prove her uncle, Kaliyappa Nadar @ Kaliya Nadar had left behind legal heirs and when the plaintiff has further proved that Kaliyappa Nadar @ Kaliya Nadar had died issueless, leaving behind his brother Subbaya Nadar as the legal heir. (iii)The plaintiff having proved that Subbaya Nadar is the legal heir of Kaliyappa Nadar @ Kaliya Nadar and the defendant having failed to prove that Kaliyappa Nadar @ Kaliya Nadar had left behind legal heirs, she is entitled to get a declaration even without the proof of the “WILL”.
42. In fine, this Second Appeal is partly allowed. The plaintiff will be entitled for declaration and injunction with respect to the suit schedule mentioned property against the 1st defendant. The suit in O.S.No.121 of 2015 on the file of the District Munsif Court at Karaikudi, will stand dismissed against the 2nd defendant. The plaintiff will be entitled to costs throughout from the 1st defendant. As the 2nd defendant has been unnecessarily dragged into this litigation, he will be entitled to cost throughout from the plaintiff. Consequently, the connected miscellaneous petitions are closed.
