R.Krishnammal v. K.G.Kantha Kumar (died)

The trial Court, after due discussion, decided the issues relating to the joint family nature of the suit properties and the right of management of the plaintiffs and the defendants 1 to 3 and the validity of the Will, dated 28.02.1995,in favour of the plaintiffs and granted the declaratory and injunction reliefs and preliminary decree for partition of theplaintiffs' due share in other properties. Aggrieved against the same, the defendants 1 to 3 preferred A.S.No.77 of 2004. 7. The lower appellate Court, on the basis of the pleadings, nature of the evidence found on both sides, findings of the Courtsbelow, memorandum of grounds raised in the appeal, framed the following points for determination in the appeal: https://hcservices.ecourts.gov.in/hcservices/ 41) fPH;ik ePjpkd; wj; jpd; jPh;g;g[k; jPh;g;ghiza[k; rl; lg; goepiyf; ff; Toajh>2) ,k;nky; KiwaPL mDkjpf; fg; glf; Toajh>3) nky; KiwaPl;lhsh; fSf;F fpl; Lk; ghpfhuk; ahJ>8.

The lower appellate Court reversed the judgment and decree of the trial Court mainly on the ground that the plaintiffs' side evidence is not sufficient enough to prove the joint family nature of the properties and the disputed Will are duly executed by him insound disposing state of mind and as per which, his two sons are entitled to all the properties and on the basis of such findings, the appeal was allowed and the suit was dismissed. Aggrieved against the same, the plaintiffs preferred Second Appeal No.182 of 2005 before this Court. The second appeal was admitted on the following substantial question of law: "Whether the first appellate Court is justified in not discussing all the issues, which are discussed by the trialCourt?"9. During the pendency of the second appeal, the first defendant in the suit/first respondent in the second appeal died and his legal heirs are impleaded as the respondents 8 to 13 as per order, dated12.06.2007, made in M.P.(MD).No.1 of 2007 by this Court.

While the second appeal is pending, the 10th respondent in the second appeal filed W.P.No.11093 of 2008, challenging the order of the DistrictElementary Educational Officer, Tirunelveli, dated 20.11.2008,thereby directing the writ petitioner and the second defendant, who are the descendants of late Ganesha Moorthi born through his first wife, to submit certain documents to prove their right of management over the educational institutions. 10. Originally the writ petition was filed against the respondents1 to 3, Educational Authorities and the second defendant in the suitis impleaded as the 4th respondent as per the order, dated10.12.2008, made in M.P.No.2 of 2008. When both the writ petition and the second appeal were ripe for hearing, both the writ petition and the second appeal were at the instance of the parties heard together and jointly disposed of by this Court by order, dated04.01.2011, thereby the second appeal was dismissed and the writ petition was allowed and the impugned order was set aside and the right to manage the school was devolved upon the legal heirs of the first defendant, as per the judgment and decree passed by the lower appellate Court in A.S.No.77 of 2004.

11. While doing so, our High Court concentrated more on the correctness of the finding regarding the genuineness, validity and execution of the Will and the burden of proof regarding execution of Will and arrived at a finding that late Ganesha Moorthi was in good physical condition and was holding the post of school Correspondentduring relevant point of time and his first son was chosen by him to run the school as he was teacher in the school and helping him in the school management and the Will is duly proved in the manner known to https://hcservices.ecourts.gov.in/hcservices/ 5law and the findings of the lower appellate Court in this regard warrants no interference and accordingly, the second appeal is dismissed and the writ petition is allowed.12. The appellants 1 to 5/plaintiffs have come forward with this review application mainly on the ground that the impugned judgment of this Court in the second appeal suffers an error apparent on the face of the record, as the same failed and omitted to decide the issue regarding the ancestral and joint family character of the suit properties based on the outcome of which the adjudication regarding the competency of Ganesa Moorthi to execute the Will in question and the genuineness and validity and due execution of the Will could be decided.

The other serious ground raised in the grounds for review isregarding gross failure on the part of this Court to consider the substantial question of law raised in the second appeal regarding the failure of the lower appellate Court to frame points for its determination and to consider all issues that were agitated beforeand decided by the trial Court. It is seriously contended that the lower appellate court being continuation of suit, fell in serious error in not independently discussing with and in agreeing or disagreeing with the finding of the trial Court by giving cogent reasons upon all issues.13. Heard the rival submissions made on both sides and perused the records.14. The review petitioners/appellants/plaintiffs 1 to 5 seek to review the judgment and decree of this Court mainly on the ground that this Court committed an error apparent on the face of the record by reason of its failure to duly consider the substantial questions of law raised in the second appeal and the circumstances which gave raise to such substantial questions of law.

This Court has in the foregoing paragraph referred to the relevant facts, as per which the main controversy in issue in the suit is as to whether the property in question in the hands of Ganasa Moorthi was ancestral or joint family in nature, thereby the plaintiffs and the defendants 1 to 3are entitled to get share in the same by survivorship, or as to whether the property has to be treated as self acquisition in the hands of late Ganasea Moorthi, he having inherited the same from his father who acquired the suit property by self acquisition and as to whether the Will in question in favour of the defendants is genuine and validly executed and the executant of the Will is competent to execute one such Will. 15. The perusal of the records would undoubtedly show that trialCourt framed proper issues in the suit regarding real controversy between parties and discussed each issue in the light of oral and documentary evidence adduced and rendered a specific finding and on the basis of such finding decreed the suit, whereas the lower appellate Court has not only failed to frame appropriate points for determination on each of the issues but also not discussed about the findings of the trial Court on each of the issues and failed to hold discussion on facts in the light of available evidence, either to https://hcservices.ecourts.gov.in/hcservices/ 6agree or disagree with the finding of the trial Court on each issue for independent reasons recorded in writing.

Though the trial Courthas reasonably discussed the issue and rendered findings on the basis of materials, the lower appellate Court failed to dispose of the appeal in the manner known to law, ie., as contemplated under Order41 Rule 33 C.P.C, as such, the outcome of such disposal is legallyunsustainable. 16. As a matter of fact, the only substantial question of law framed by this court is "whether the first appellant court is justified in not discussing all the issues, which are discussed by the trial court". Whereas, this court has, while disposing of the main second appeal along with writ petition commonly, fully concentrated on the correctness of the finding upon factual issues, such as, physical and mental health condition of the testator to execute the Will in question and legality and validity of execution of the Will and found physical and mental health condition of Ganesamoorthy to be good and execution of the will to be valid and this court, after having discussed the correctness of the finding regarding physical and mental health condition of Ganesamoorthy and the failure of the trial court to discuss all the material facts relating to valid execution of the will by the testator and absence of existence of suspicious circumstances, proceeded to say that no substantial question of law is involved herein and the finding of the lower appellate court deserves no interference.

17. As rightly argued by the learned counsel for the review petitioners, the finding of this court in the second appeal that no substantial question of law is involved, is absolutely misconceived and this court, while admitting the second appeal, rightly framed the substantial question of law. Whereas, this court, while disposing of the second appeal, failed to go into the same on merits and the same is gross error apparent on the face of the record committed by this court thereby calling for review of the finding of this court in the second appeal. On this score alone, the review application is bound to be decided in favour of the petitioners. 18. Though the learned counsel for the petitioners and the respondents cited catenna of judgments, regarding valid execution of the Will and the manner of proof of execution of Will and the limited power of this Court under review jurisdiction, the same are inapplicable to the present case in the given situation.