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Dr. K. Natarajan v/s The Special Tahsildar (LA), Tamil Nadu Road Sector Project, Vridhachalam

    A.S. No. 11 of 2019

    Decided On, 21 January 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE T. RAJA & THE HONOURABLE MR. JUSTICE G. CHANDRASEKHARAN

    For the Appellant: K. Chandrasekaran, Advocate. For the Respondent: ---



Judgment Text

(Prayer: This Appeal is filed under Section 54 of Land Acquisition Act against the order and decreetal order dated 06.10.2017 in LAOP No.461 of 2013 on the file of the Special Subordinate Judge for LAOP Cases, Cuddalore.)

G. Chandrasekharan, J

1. This Appeal is directed against the judgment of learned Special Subordinate Judge for LAOP Cases, Cuddalore in LAOP No.461 of 2013 dated 06.10.2017.

2. A reference was made under Section 22(3) of the Tamil Nadu Highways Act, 2001 read with Section 30(2) of Land Acquisition Act, 1894 to determine the ownership with regard to the land acquired for the purpose of forming a bye-pass road concerned in Award No.17/2008 dated 12.02.2009 to the Special Subordinate Judge for LAOP Cases, Cuddalore. It is seen from the claim statement filed by the claimant that the property in T.S.No.71/3B to the extent of 0.10.95 Hectares and other properties belong to Pavunammal, W/o.Thiyagarajan pillai were acquired for the purpose of forming bye-pass road in Chidambaram. That was inherited by her son Kuppusamy pillai and he executed a Power of Attorney on 11.10.1989 in favour of one Sakunthala, W/o.Balakrishnan in respect of property in T.S.No.71/1 to the extent of 10924 sq.ft out of 13080 sq.ft and the property in T.S.No.71/3 to the extent of 15787 sq.ft, in which 0.10.95 Hectares had been acquired. On 05.05.1993 Sakunthala, W/o.Balakrishnan executed a registered Power of Attorney in favour of claimant to make encumbrances of any kind and to receive the amount etc., regarding the aforesaid properties. The claimant has been in possession and enjoyment of the said properties. The Government had classified the property in T.S.No.71/1 and 71/3 as house sites in G.O.No.664 dated 16.03.1974. Therefore, the compensation should have been given on square feet basis and not on the basis of Hectares as done by the Acquisition Officer. The compensation amount of Rs.1,42,755/- as per Award No.17/2008 is very meagre and the acquired property is situated in an important location surrounded by Temples, Government Offices, Court Complex, Registration of Sub- Registry, Treasury, Schools and Markets. Therefore, the claimant sought to enhance the compensation at the rate of Rs.750/- per sq.ft.

3. As already stated, this claim petition was referred to determine the ownership with regard to the land acquired. The learned Special Subordinate Judge, on considering the oral and documentary evidence produced before the Court, found that the claimant had not established his title to the lands acquired and dismissed the claim and ordered that

(i) the claimant herein has no right, title or interest over the acquired lands in T.S.No.71/3B - 0.10.95 Hectares of Chidambaram Town, relating to the Award 17/2008 dated 12.02.2009 passed by the Special Tahsildar (Land Acquisition) Road Sector Project, Vridhachalam;

(ii) the compensation amount deposited in the reference shall be invested in purchase of other lands as per Section 32(a) of Land Acquisition Act, 1894;

(iii) there is no order as to cost.

Against the said judgment, the claimant has preferred this Appeal.

4. Learned counsel appearing for the claimant/appellant vehemently argued that the judgment of lower Court is contrary to law and evidence available in support of the case of the appellant. The appellant had examined himself and two other attestors to prove the Ex.P9-Will, on the basis of it he traces his title to the lands acquired. The finding that the testator was a patient with the appellant and on that ground entertaining suspicion with regard to the genuineness of the Will is not correct, especially, the attesting witnesses have clearly supported the execution of Will. Prior to the execution of Will, there were two General Power of Attorney Deeds in the form of Exs.P4 and P5 executed. The Power of Attorney executed in favour of the appellant clearly proves that he has every right to claim the award amount. The appellant produced the Will at the earliest possible opportunity before the Court and proved the Will. Without considering the unassailable evidence in support of the claim of the appellant, the learned Special Subordinate Judge wrongly dismissed the appellant's claim and passed the impugned order.

5. We have given our anxious consideration to the submissions made by the learned counsel for the appellant.

6. From the materials produced before us, it can be gathered that the petitioner originally staked his claim to the award amount on the basis of the registered Power of Attorney said to have been executed by one Sakunthala in his favour on 05.05.1993. Prior to this Power of Attorney, one Kuppusamy Pillai, who was the son of erstwhile owner Pavunammal said to have executed the Power of Attorney on 11.10.1989 in favour of Sakunthala. The claimant filed a claim statement mainly on the basis of Ex.P5- Power of Attorney said to have been executed by Sakunthala in his favour on 05.05.1993. During the course of enquiry, it is seen that the appellant had set up title to the acquired property in himself by virtue of Ex.P9-unregistered Will said to have been executed by Kuppusamy Pillai in his favour on 15.03.2002. It is reported that Kuppusamy Pillai died on 25.09.2013 and the Will had come into force. Now the claim of the petitioner before the learned Special Subordinate Judge is two fold. One is on the basis of registered General Power of Attorney Deed dated 05.05.1993 and another is based on the unregistered Will dated 15.03.2002.

7. A perusal of the order of the learned Special Subordinate Judge shows that the appellant had not filed any additional claim statement or additional proof affidavit for his new claim of title for the acquired lands on the basis of unregistered Will dated 15.03.2002. Without filing additional claim statement or filing additional proof affidavit, it seems that he has just produced the Will and claimed title over the acquired lands. To prove the Will, the appellant had examined himself as PW.1, in addition thereto, PW.2-Rajamanickam and PW.3- Arulselvi, who are the attestors to the Will, were also examined. The Will has to be proved in terms of Section 63(c) of Indian Succession Act read with Section 68 of Indian Evidence Act. Section 63(c) of Indian Succession Act and Section 68 of Indian Evidence Act read as follows:-

"Section 63(c) of Indian Succession Act:-

63. Execution of unprivileged Wills. —Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:—

a) .....

(b) .....

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. "

AND

" Section 68 of Indian Evidence Act:-

68. Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

8. The above provisions vividly show that the Will has to be attested by two or more witnesses. Each of the attestor, who had seen the testator signing the Will or affixing his mark to the Will in his presence, should depose before the Court to prove the execution of the Will. These stringent conditions are imposed, obviously for avoiding any kind of exercise of undue influence on the testator and to avoid the creation of forged and fabricated Will. It is seen that PWs.1 to 3 contradict among themselves while giving evidence with regard to the execution of Will. It is the evidence of PW.1, the appellant herein, that he was not present at the time of execution of Will and he was unaware of its execution. It is the evidence of PW.2 that the Will was written in the hospital of the appellant, when the testator was taking treatment under the appellant. He would further state that the Will was drafted by one Rajamanickam. However, PW.3 stated that the Will was drafted by one Sivaraman. Her evidence falsifies the evidence of PW.1 with regard to his presence at the time of execution of the Will. We found from the evidence of PW.1 that he was not present at the time of execution of the Will, which was contradicted by PW.3 by stating that the appellant was also present at the time of execution of the Will and the testator handed over the Will to him immediately after the execution. The Will is said to have been executed on 15.03.2002. Thus, according to the evidence of PW.3, PW.1 - the appellant herein was also present at the time of the alleged execution of Ex.P9-Will while the testator was a patient under his treatment in his hospital. There is nothing more required to conclude that the Will was executed by exercising undue influence taking advantage of the relationship of patient and Doctor.

9. The patients are always at the mercy of Doctors to go out of the hospital alive. The testator trusted the appellant for cure of whatever the disease he was suffering from. It was a sort of a fiduciary relationship between the patient and Doctor. However, the appellant had taken undue advantage of the situation, exercised undue influence on the testator Kuppusamy Pillai and somehow managed to get the Will created.

10. It may be highlighted herein that though appellant came to possess the Will on the date of alleged execution of Will as seen from the evidence of PW.3, the appellant claims that he came to know about the Will only after the death of testator on 25.09.2013. This is again a false case of the appellant as exhibited from the evidence of PW.3. This Will came to light only on 09.06.2015, when he produced the Will before the Court. The Will is shrouded with strong suspicious circumstances with regard to its execution. As already indicated and found from the evidence of PW.1 to PW.3, there are material contradictions in their evidence with regard to the execution of the Will. It was clear that the Will was executed when the testator was taking treatment. The beneficiary was present at the time of execution of the Will. The testator was the patient under the Doctor beneficiary.

11. One another disturbing feature is that the appellant has not taken any effort to bring it to the notice of the Court as to whether the testator Kuppusamy Pillai left any surviving wife or children. It seems that he has not produced any legal heir certificate of testator Kuppusamy Pillai and no evidence whatsoever was presented before the Court to enlighten the Court as to the existence or non-existence of the legal heirs of Kuppusamy Pillai. The Will was not produced before the Referring Officer. There, the claim was based only on the basis of Ex.P9-General Power of Attorney Deed. Referring all these aspects, the learned Special Subordinate Judge found that the Will was not proved in accordance with law. The findings of the learned Special Subordinate Judge was reached on the basis of proper appreciation of oral and documentary evidence, therefore, we do not find any reason to interfere with the findings that Ex.P9-Will is not true and we have no hesitation to confirm this finding.

12. That apart, it seems that the appellant had filed only xerox copy of the General Power of Attorney Deed said to have been executed by Sakunthala in his favour. The learned Special Subordinate Judge found that there was no specific recitals in Ex.P4-Power of Attorney Deed stated to have been ex

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ecuted by Kuppusamy Pillai in favour of Sakunthala giving her powers to execute a Power of Attorney Deed in favour of some other person. Therefore, it was found that the alleged execution of Ex.P5 - Power of Attorney Deed by Sakunthala in favour of the appellant to the detrimental interest of principal has not been established in the manner known to Section 63 of the Indian Succession Act and Section 68 of Evidence Act. It was also found that in the absence of acceptable reasons for the non-production of original Power of Attorney Deed, the appellant cannot claim any compensation on the acquired land on the basis of xerox copy of General Power of Attorney Deed dated 05.05.1993. Thus, the claim of the appellant on the basis of Ex.P5- Power of Attorney Deed and Ex.P9-Will setting up title to the acquired lands was negatived by the learned Special Subordinate Judge by giving cogent, convincing and acceptable reasons. This Court also finds no reason to interfere with the well considered Judgment of the learned Special Subordinate Judge, hence, we confirm the order of the learned Special Subordinate Judge in LAOP No.461 of 2013 dated 06.10.2017 and dismiss the Appeal. 13. In the result, this Appeal is dismissed and the Judgment and decreetal order of the learned Special Subordinate Judge for LAOP Cases, Cuddalore in LAOP No.461 of 2013 dated 06.10.2017 are confirmed. No costs.
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