Allowed

K.Palanisamy v. Ganapathi Gounder(Died)

Madras HC24 Sept 2019SA/1450/2000

Case brief

AI extract

What is this about?

The High Court of Madras allowed the second appeal, setting aside the first appellate judgment. The Court held the 1989 Will in favour of the appellants was duly proved and effective. The claimed subsequent 1993 Will in favour of the respondents was held unproven and rejected due to suspicious circumstances, including the testator's advanced age, poor eyesight, lack of local witnesses, and procedu

What did the court decide?

The second appeal allowed; 1989 Will upheld as valid; 1993 Will rejected; suit decreed with declaration of title and permanent injunction; lower appellate judgment set aside.

K.Palanisamy Vs Ganapathi Gounder(Died) — Succession and Inheritance | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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JUDGMENT RESERVED ON : 29.08.2019

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JUDGMENT DELIVERED ON : 24.09.2019

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CORAM

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THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

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S.A.No.1450 of 2000

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1.K.Palanisamy

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...Appellant1 /Respondent1/ Appellant 1

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Gnanambigai ... Appellants2 /Respondent2

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Appellant 2

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...Versus...

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1.Ganapathi Gounder (Died)

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2.Shanmuga Kumar ...Respondent2/Appellant3/Respondent3 3.Nagarathinam ...Respondent3/Appellant4/Respondent4

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4.Amutharani

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5.Sakthivel

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[RR4 and 5 brought on record as LRs of the deceased R1 viz., Ganapathi Gounder vide Order of Court dated 23.07.2019 made in C.M.P.No.4812/2018 in S.A.No.1450 of 2000 (TKRJ)]

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... Respondents

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PRAYER:This Second Appeal has been filed under Section 100 of C.P.C., against the judgment and decree in A.S.No.82 of 1999 dated 18.08.2000 on the file of the Court of the Subordinate Judge, Udumalpet, reversing the judgment and decree made in O.S.No.645 of 1997 dated 15.10.1999 on the file of the District Munsif, Pollachi.

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For Appellants:: Mr.T.P.Manoharan, Senior Counsel for M/s.D.Kamakshi

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For R1 to R4 :: Mr.E.Sampath Kumar

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J U D G M E N T

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The unsuccessful plaintiffs are the appellants herein.

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For the sake of convenience, the parties are referred to as per ranking before the Trial Court.

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The plaintiffs have filed O.S.No.645 of 1997 on the file of the District Munsif Court, Pollachi against the respondents 1 & 2 herein and the other son being the respondent 3 herein, for a declaration of the title over the suit properties and for Permanent Injunction.

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After Trial, the suit was decreed and on appeal filed by the defendants/respondents, the First Appellate Court allowed the appeal and hence, the Second Appeal by the plaintiffs.

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The above Second Appeal has been admitted on 24.11.2000 on the following Substantial Questions of Law:-

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(1) Whether in view of the fact that under Ex.B7 Peria Subbae Gounder had cancelled only his earlier Will dt.9.9.88 executed in favour of the 2nd appellant alone and thereafter, he executed Ex.A1 Will on the same day in favour of both the appellants in respect of the suit property, the Court below was right in proceeding and holding that under Ex.B7 (registered as D.No.56/89), he had cancelled Ex.A1 (registered as D.No.57/89) and hence, the suit filed on the basis of Ex.A1 is not sustainable and consequently, the said mistake had not brought in serious infirmities in its judgment and vitiated it ?

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(2) Whether the present suit filed by the appellants based on Ex.A1, Will dt.30.11.1989 is not bound to be decreed as prayed for, when (i) they have proved its genuineness and correctness and (ii) the respondents, who challenged it only on the ground that it was obtained by compulsion, had failed to adduce even an iota of evidence to prove such compulsion ?

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(3) Whether the case of the respondents based solely on Ex.B2 is not liable to be

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rejected, when (i) a plain perusal Ex.B2 is not liable to be rejected, when (ii) a plain perusal of the Ex.B2 with reference to the very old age and poor eye-sight of Peria Subbae Gounder and the place of its execution and registration would prove that it is a false, incorrect and invalid document and also establish that it was fabricated by the 1st respondent by adopting mala-fide and fraudulent methods and (iii) the respondents, who propounded it, had failed to prove its genuineness, correctness and validity ?

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(4) Whether the Court below was right in ignoring the facts, pleadings and materials on record, repeating its apparent incorrect findings arrived by misconstruing Ex.A1 and B.7 and B.2 several times in its judgment and allowing the A.S and setting aside the well considered judgment and decree made by the trial Court and consequently, the said mistakes had not made its judgment perverse and vitiated ?

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It is seen from the Lower Court records that pending suit in O.S.No.645 of 1997 on the file of the District Munsif Court, Pollachi, the appellants/plaintiffs had the benefit of injunction in Interlocutory Application No.1820 of 1997 and the same was confirmed. Subsequently, an appeal in C.M.A.No.26 of 1997 followed by the Civil Revision Petition by this Court wherein, both appeal and revision against the grant of injunction order, pending trial is in favour of appellants/plaintiffs.

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During the pendency of the suit, at the instance of the respondents/defendants, appeal was filed along with I.A.No.606/1999 praying to stay the operation of the decree of the trial Court and the said I.A. was taken along with suit and after the allowing of the appeal, it appears that the appellants/plaintiffs filed C.M.P.13597/2000 before this Court and by order dated 19.12.2000, the injunction granted was made absolute by this Court and the appellants/plaintiffs are in possession of the property. Consequently, it is stated by the learned counsel for the appellants that the appellants are entitled for permanent injunction as prayed for.

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Mr.T.P.Manokaran, learned Senior Counsel appearing for the appellants has made submissions in support of the

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substantial questions of law and Mr.Sampath Kumar, learned counsel appearing for the respondents/defendants has made submissions in support of the Judgment of the Lower Appellate Court.

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After hearing the rival submissions and also after perusing the documents filed before Courts below, it is seen that the suit properties were the self-acquired properties of one Peria Subbae Gounder by virtue of Ex.B1-sale deed dated 20.05.1957. From the said date, he was in possession and enjoyment of the same as its absolute owner. The second appellant and the first respondent are his children. The first appellant married the second appellant and they are living along with Peria Subbar Gounder in his house as one family and enjoying the suit property(ies). Apart from the suit properties, Peria Subbae Gounder was also owning ancestral agricultural lands, measuring about 4 acres and situated just opposite to the suit properties i.e., on the Eastern side of the CoimbatorePollachi Main Road. After the first appellant's marriage, Peria Subbae Gounder constructed a house in the said agricultural lands and allowed the first respondent to live in the said house and cultivate and enjoy the said lands.

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The first respondent is cultivating the very valuable ancestral agricultural lands and also living in the house constructed therein with a bona-fide intention to make some provision for the welfare and comfortable living of his daughter viz., the second appellant also, Peria Subbae Gounder had originally executed a Will dated 9.9.88, registered as D.No.338-19-46/88 on the file of the Sub-Registrar, Kinathukadavu, bequeathing the suit property(ies) absolutely in her favour, subsequently, by also taking into consideration the fact that the first appellant is living along with him and spending all his time and energy for over 17 years and with an intention to safeguard his interest also. Under Ex.B7-Deed of cancellation, dated.30.11.89 and registered as D.No.56/89 on the file of the Sub-Registrar, Kinathukadavu, he had cancelled the Will dated 9.9.88. Thereafter, on the same day, he executed Ex.A1 Will dated 30.11.89 and registered as D.No.57/89 i.e., as a next document on the file of the same Sub-Registrar, bequeathing the suit property(ies) both to the first appellant and the second appellant absolutely. Thereafter, Peria Subbae Gounder had lived for 8 years and died only on 19.04.1997 and Ex.A1 had come into force.

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According to the appellants/plaintiffs, on the strength of Ex.A1 Will executed in their favour, it is stated by them that they are the exclusive owners of the property(ies) and are

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in possession and when the defendants were trying to interfere with their possession, the appellants/plaintiffs have filed above said O.S.No.645 of 1997.

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The second plaintiff and the first defendant are sisters and brother being born to one Periya subbiya Gounder who owned lot of properties and the subject matter of the suit property (ies) is 4 acres having purchased by the said Periya Subbiya Gounder under Ex.B1-sale deed dated 14.04.1997.

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The plaint proceeds on the basis that initially, the Periya Subbiya Gounder had executed a Will in Book No.3 volume No.38, Document No.46 of 88 on 09.09.1988 bequeathing the suit property(ies) in favour of his only daughter, the second plaintiff herein. Thereafter, he cancelled the same under Ex.B7 Deed of cancellation on 30.11.1989 and on the very same day, he has executed Ex.A1-Will, which is registered as next document, namely Document No.57/89 in the Sub-Registrar office, Karur bequeathing the suit property(ies) to both the plaintiffs 1 & 2, who are husband and wife.

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Per contra, in the written statement, the first defendant, who is the brother of the second plaintiff, contended that subsequent to Ex.A1-Will dated 30.11.1989, the father Periya Subbiya Gounder had executed a registered Will Ex.B2 dated 27.08.1993 at Karur, bequeathing the properties in favour of the first defendant's son and the grandson born through first defendant and hence, by virtue of Ex.B2-Will. Ex.A1-Will was superseded and consequently, they prayed for dismissal of the suit.

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On behalf of the plaintiffs, the first plaintiff has examined himself as P.W.1 and marked Exhibits 1 to 5 and the attester of Ex.A1 Will were examined as P.W.2 and P.W.3. While the first defendant has examined himself as D.W.1 and marked Exhibits B1 to B7 and also examined D.W.2 and D.W.3 who are scribe and attesting witness of Ex.B2. The photo negatives dated 16.08.1999 were marked as Exs.X-1 to X-6.

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On a perusal of the order passed by the Lower Appellate Court, it is seen that under Ex.B7, Peria Subbae Gounder had cancelled only his earlier Will dt.9.9.88 executed in favour of the second appellant alone and thereafter, he executed Ex.A1, Will on the same day, bequeathing the suit properties in favour of both the appellants. Contrary to the same, it has incorrectly proceeded and held that under Ex.B7 (registered as D.No.56/89), he had cancelled Ex.A1 (registered as D.No.57/89) and hence, the

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suit filed on the basis of Ex.A1 is not sustainable. The said mistake had brought in serious infirmities.

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The first appellant as P.W.1 and two witnesses to Ex.A1 as P.W.2 & 3 have proved the genuineness and correctness of Ex.A1,Will dt.30.11.1989. Apart from the same, the first respondent himself has admitted in his evidence as D.W.1 to the effect that Peria Subbae Gounder was in a sound and disposing state of mind, and he went to the Sub-Registrar's office, Kinathukadavu on 30.11.1989 and he executed Ex.A1. The Ex.B2 relied upon by the respondents/defendants in support of their defence would prove that the suit properties were the self-acquired properties of Peria Subbae Gounder.

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It is further seen that the respondents have admitted the execution of Ex.A1 by Peria Subbae Gounder. But, they have disputed Ex.A1 only on the ground that the same was obtained by compulsion. Therefore, the onus of proving the said contention was on their shoulders. However, they have not produced any iota of evidence and failed to discharge the said onus.

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Since the appellants viz., son-in-law and daughter were living along with him for over 17 years by spending all their time and energy, with a bona-fide intention to make some provision for their welfare and comfortable living, Peria Subbae Gounder had executed Ex.A1 in their favour in respect of the suit property(ies). By executing Ex.A1, he had made the dispositions of his properties in favour of his son and daughter equally. Thus, this Court finds that the reason assigned by the Lower Appellate Court to dislodge the case of the plaintiffs is that under Ex.B7, Ex.A1 Will was cancelled, does not have legs to stand.

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As discussed supra, what was cancelled under Ex.B7-Deed of cancellation is the document registered as Doc.No.56/89, wherein a Will which was executed in favour of the daughter alone as stated supra, after cancellation under the Doc.No.56/89 on the very same day under Ex.A1 was registered as Doc.No.57/89 and hence, the finding rendered by the Lower Appellate Court regarding the alleged cancellation of Ex.A1 is liable to be vacated. Accordingly, the same is vacated.

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Now, let us consider that whether Ex.A1 has been proved in the manner known to law.

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As stated supra, P.W.2 and P.W.3 are the attesting

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witnesses who deposed in support of Ex.A1 and the execution, attestation and registration of Ex.A1 were duly admitted by none other than the D.W.1 in the cross-examination, which also assumes significance.

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In the decision reported in 2005 (2) SCC 784 [Sridevi and others Vs. Jayaraja Shetty and others], it was held is as follows:-

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"11. It is well settled proposition of law that mode of proving the Will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of the Court before the Will can be accepted as genuine. Proof of either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. ... .. "

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Admittedly, though the defendants have admitted the execution of Ex.A1 Will, however, they could take a specific plea that the same was obtained by coercion and force.

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As per the ratio laid down in the decision of the Supreme Court cited supra, the onus of proving said plea of force or coercion in executing Ex.A1 Will, lies upon the respondents/defendants. Admittedly, they had not adduced any evidence to that effect.

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At this juncture, it is relevant to state that in order to prove the Will, the plaintiff has examined the attestors of Ex.A1-Will, namely P.W.2 and P.W.3 and to prove the due execution of the Will, it has to satisfy Section 68 of the

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Indian Evidence Act read with Section 63 of the Indian Succession Act. In this regard, it is useful to refer the decision of the Supreme Court reported in 2010 (14) SCC 266 (Gopal Swaroop Vs. Krishna Murari Mangal), relied by the learned counsel appearing for the respondents, wherein, the Apex Court held as follows:

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"17. A careful analysis of the provisions of Section 63 would show that the proof of execution of a Will would require the following aspects to be proved:-

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(1) That the testator has signed or affixed his mark to the Will or the Will has been signed by some other person in the presence and under the direction of the testator.

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(2) The signature or mark of the testator or the signature of the persons signing for him is so placed has to appear that the same was intended thereby to give effect to the writing as a Will.

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(3) That the Will has been attested by two or more witnesses each one of whom has signed or affixed his mark to the Will or has been seen by some other person signing the Will in the presence and by the direction of the testator or has received from the testator a personal acknowledgement of the signature or mark or the signature of each other person.

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... ... All that needs to be examined is whether the requirements stipulated in Section 63 and distinctively enumerated above have been satisfied in the instant case by the appellant propounder of the Will.

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Our answer to that question is in the affirmative. ...."

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In view of the clear and cogent evidence of P.W.2 and P.W.3, in the absence of anything worthwhile to discredit their evidence and also taking note of the fact that D.W.1 has admitted the execution and registration of Ex.A1 Will in his

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cross-examination, coupled with the above reasoning, this Court is of the considered view that the plaintiffs have successfully demonstrated the execution and attestation of Ex.A1 Will in the manner known to law and hence, the Substantial Questions of Law (i) and (iv) are answered in the affirmative and in favour of the appellants herein.

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Substantial Questions of Law (ii) & (iii) :-

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It is the definite case of the first respondent/first defendant, the brother of the second plaintiff, that, after execution of Ex.A1 Will, his father had executed Ex.B2-Will which was registered before the Sub-Registrar, Karur, whereby, the suit property(ies) are bequeathed in favour of the first defendant and he has mainly relied upon the other defendants to substantiate the due execution and attestation of the Will and D.W.3 scribe.

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The Hon'ble Supreme Court in the decision reported in 1992 (2) SCC cases 507 [Guro (Smt) v.Atma Singh and others) has held as follows:-

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"3. With regard to proof of a Will the law is well settled that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Where, however there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit. The presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before

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the document can be accepted as the last Will of the testator (S.Venkatachala Iyengar Vs. B.N.Thimmajamma (1959 Supp (1) SCR 426 : AIR 1959 SC 443), Rani Poornima Devi Vs. Kumar Khagendra Narayan Dev (1962 (3) SCR 195 : AIR 1962 SC 567) and Jaswant Kaur Vs. Amrit Kaur (1977 (1) SCC 369 : 1977 (1) SCR 925)."

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Further, in the decision reported in 2009 (3) SCC 687 [Bharpur Singh and others v.Shamsher Singh], the Apex Court has held as follows:-

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"34. There are several circumstances which would have been held to be described (sic) by this Court as suspicious circumstances:-

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(i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;

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(ii) when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;

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(iii) where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit" (See H.Venkatachala Iyengar Vs. B.N.Thimmajamma (AIR 1959 SC 443) and T.K.Ghosh's Academy Vs. T.C.Palit (1974 (2) SCC 354 : AIR 1974 SC 1495). "

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Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:-

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(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.

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(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time

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(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of

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adequate provisions for the natural heirs without any reason.

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(iv) The disposition may not appear to be the result of the testator's free will and mind

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(v) The propounder takes a prominent part in the execution of the Will

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(vi) The testator used to sign blank papers

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(vii) The Will did not see the light of the day for long.

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(viii) Incorrect recitals of essential facts.

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The circumstances narrated herein before are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the Will had been duly proved or not. It may be true that the Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the Will need not be complied with.

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Admittedly, the suit properties are situated within the jurisdiction of the Office of the Sub-Registrar, Kinathukadavu. Further, 3 more offices of Sub-Registrars are situated near by i.e., at Negamam, Pollachi and Madukarai. The respondents have not given any reason as to why Peria Subbae Gounder even at his very old age of 86 years, with the poor eye sight, had avoided all the said four offices and travelled alone to an unknown place viz., Karur, situated more than 150 kms. away and executed and registered the Will with the help of strangers.

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All the persons, viz., the scribe and the two witnesses to Ex.B2 belonged to Karur and are strangers. In fact, one of the said witness who was examined as D.W.2 has admitted that (a) he made arrangements for drafting, execution and registration along with the retired Sub-Registrar, (b) Peria Subbae Gounder was not known to him earlier and he came to know that the person, who executed Ex.B2 as Peria Subbae Gounder only when he signed so in it and (c) he was not able to identify Peria Subbae Gounder in Exs.X1 to X6, photographs (negatives) shown to him.

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The respondents, who propounded Ex.B2 Will, had failed to prove its genuineness and correctness. Without appreciating the same, it was not right in simply accepting Ex.B2 in toto.

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Thus, in view of the above ratio laid down by the Hon'ble Supreme Court and taking into consideration the fact that at the time of the alleged execution and registration of Ex.B2 Will, the attester Periya Subbiah Gounder was aged 86 years, suffering from poor eye-sight and he was not in a position to travel anywhere, that too, alone and further, admittedly nobody known to him was living at Karur, in such circumstances, the claim of the respondents that he travelled alone from Solavampalayam (Pollachi) to Karur i.e., more than 150 kms away and got the Will drafted, verified, executed and registered with the help and in the presence of strangers, are improbable and untenable. The actual position as discussed supra is that the scribe and witness to Ex.B2 will belonged to the Karur, are strangers.

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Thus, in view of the above discussion, this Court finds that the suspicious circumstances surrounding Ex.B2-Will are not dispelled by the defendants in the manner known to law.

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Admittedly, at the time of the execution of Ex.B2, the testator is 86 years old and as admitted by the D.W.1, the jurisdictional Sub-Registrar is within 3 Kms of the suit properties and there is no reason as to why he had travelled 150 kms away to get the same registered before the Sub-Registrar, Karur, that apart, there are 3 more offices of Sub-Registrars situated near the suit properties and on the point of attestation, the attester and the scribe of the document, both are totally strangers to the testator and they are not personally known to the testator as admitted by D.W.2 also, assumes significance.

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Neither the D.W.2 nor D.W.3 was able to identify the photograph-negatives of the testator Periya Subbae Gounder, which are marked as Exs.X1 to X6. When they have been confronted in the cross-examination and furthermore had they accompanied the testator Periya Subbae Gounder for registering Ex.B2, they could have easily identified the testator when the photograph-negatives were shown to them during the crossexamination.

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Furthermore, it is admitted by D.W.2 that for the first time, he had seen the testator at the time of registration only, 12/12

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which also assumes significance on the ground of advanced age of testator in the unknown place thereon at Karur, so is the evidence of D.W.3. Furthermore, it is also seen that even assuming without admitting that Peria Subbae Gounder himself went to Karur, executed Ex.B2 and appeared before the SubRegistrar therein for registration, he was not personally known to the said Sub-Registrar. Therefore, as per Rule 60(i) of the Tamil Nadu Registration Rules, the Sub-Registrar ought to have got his left thumb impression affixed both in the Register of thumb impressions maintained in the said office as well as when Ex.B2-Will was presented for registration. However, at the dismay, on left thumb impression of testator, is not found in Ex.B2 Will which also assumes relevance.

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On the above factual matrix of the case, the contention of the learned Senior Advocate appearing for the appellants that if the left thumb impression of the person, who forged the signatures of Peria Subbae Gounder in Ex.B2, is affixed in the said Register as well as in Ex.B2, the fabrication of Ex.B2 would easily be found out and thus they have avoid it, is found to have force. The further contention is that the respondents with the connivance of the then Sub-Registrar of Karur West, mala-fidely and fraudulently got the document registered without affixing the left thumb impression and the same is in violation of Rule 60(i) of the Tamil Nadu Registration Rules, which was also found to be acceptable. Thus, this Court finds that such a violation had rendered Ex.B2 to sink in sea of suspicion.

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Though on the date of the registration, the relevant provision relating to registration of document only says that it may get the thumb impression of the testator at the time of the registration and therefore, violation of Rule 60(i) of the Tamil Nadu Registration Rules, as it stood before the amendment, any failure to get the thumb impression in the document may not render the document Ex.B2 Will invalid. But, it is appears to be yet another suspicious circumstances as to why the thumb impression of the testator was not obtained by the registering authority under Rule 60(i) of the Tamil Nadu Registration Rules and hence, in the background of the actual position as extracted above, taking into consideration the cumulative effect of the factors discussed supra, namely that the advanced age of the testator (aged 86 years) who suffered from poor eye-sight, not in a position to travel anywhere outside the home and the jurisdictional Sub-Registrar office being is situated within 3 Kms from the place of his residence and 3 more offices of Sub-Registrars are situated nearby, coupled with the fact that Ex.B2 Will was registered in the Sub-Registrar office of the Karur, which is admittedly 150 km away from the place of his

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ordinary residence and both attesting witnesses as well as the scribe are totally strangers, coupled with the admitted position that neither D.W.2 nor D.W.3 were able to identify the photos of the alleged testator and on a cumulative analysis of the above facts, this Court is of the considered view that the suspicious circumstances as narrated above, create a strong suspicion as to the truth and genuinity of Ex.B2 Will and accordingly, this Court has no hesitation to hold that the ratio laid down by the Hon'ble Apex Court cited above are not satisfied, besides the plaintiffs during the cross-examination have successfully elicited the above suspicious circumstances which are strong enough to compel this Court to hold that Ex.B2 Will is not a true and genuine document. Accordingly, the Substantial Questions of Law (ii) and (iii) are answered in the affirmative and in favour of the appellants/plaintiffs.

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In fine,

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(i) This Second Appeal is allowed.

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(ii) Ex.A1-Will in favour of the plaintiff dated 30.11.1989 is held to be proved in the manner known to law.

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(iii) Ex.B2-Will dated 27.08.1993 in favour of the defendants are not proved in the manner known to law.

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(iv) Hence, the appellants/plaintiffs are entitled for declaration of their title and for permanent injunction and they are also entitled for injunction. Accordingly, the suit in O.S.No.645 of 1997 is decreed as prayed for.

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(v) Consequently, the judgment and decree passed by the lower appellate Court in A.S.No. 82/99 are set aside and that of the judgment and decree passed by the trial Court are restored.

(vi) No costs.

Asst.Registrar

/true copy/

Sub Asst. Registrar

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