Is a close relative having an interest in the property who attests a document presumed to know its contents, unless the contrary is shown?

Feeling aggrieved by the Judgment and Decree dated March 9, 1995 passed by 'the learned Subordinate Judge, Villupuram' ['First Appellate Court' for convenience] in A.S. No. 41 of 1993, wherein and whereby the Judgment and Decree dated January 19, 1993 passed in O.S. No. 805 of 1978 by the 'learned District Munsif, Tirukoilur' ['Trial Court' for convenience] was reversed, the plaintiffs 2 and 1 in the Original Suit who are the respondents 1 & 2 respectively in the Appeal Suit, have come up with this Second Appeal.

For the sake of convenience, the parties will hereinafter be referred to as per their array in the Original Suit. Trajectory:

Before getting into the facts, this Court proposes to set out the trajectory this matter has taken so far. The plaintiffs namely Veerangipuram Dhandapaniswami Koil represented by its Dharma Kartha (first plaintiff - Temple) and Ramasamy Udayar (second plaintiff) filed the present Original Suit viz., O.S. No. 805 of 1978 on the file of the Trial Court, which after hearing either side, decreed the Suit in favour of the plaintiffs except for the relief of mesne profits vide Judgment and Decree dated March 31, 1980, assailing which the defendants appealed vide A.S. No.127 of 1980 before the Sub Court, Cuddalore, which Court after hearing either side remanded the matter to the Trial Court for a fresh consideration vide Judgment and Decree dated March 14, 1981, assailing which the plaintiffs preferred the Civil Miscellaneous Appeal in C.M.A. No.392 of 1981 before this Court, which ended in dismissal on July 14, 1987 and consequently, the matter was remanded to the Trial Court, whereafter additional witnesses namely P.W.10 and P.W.11 were examined on the side of the plaintiffs and D.W.4 was examined on the side of the defendants who marked Ex-B.32 to Ex-B.40, whereafter the Trial Court after hearing side decreed the Suit as prayed for vide Judgment and Decree dated January 19, 1993, assailing which the defendants preferred the present first appeal in A.S. No.41 of 1993 before the First Appellate Court, which Court after hearing either side allowed the appeal and dismissed the Original Suit vide Judgment and Decree dated March 9, 1995, assailing which the present Second Appeal has been filed at the instance of the plaintiffs. Plaint Averments:

Case of the plaintiffs is that Kootha Gounder had four sons namely Poongavana Gounder, Perumal Gounder, Annamalai Gounder and Adhimoola Gounder. 4 Acres 1 Cent in Survey No.74/4 of V.Pudhupalayam Village is the Suit 'A' schedule property herein. The Suit 'A' schedule property was purchased by Poongavana Gounder vide Sale Deed dated March 22, 1944 in his capacity as the eldest son / manager of the joint family using the income derived from the joint family & its properties for the benefit of the joint family.

Thereafter, on April 05, 1950, an oral partition took place among the sons of Kootha Gounder. Whereunder, (i) 1 Acre on the western side of Suit 'A' schedule property was allotted to Poongavana Gounder and the portion allotted to him has been described as the Suit 'B' schedule property; (ii) eastern 1 Acre adjoining Poongavana Gounder's allotted portion was allotted to Perumal Gounder and the same has been described as Item No.1 of Suit 'C' schedule property; (iii) similarly, eastern 1 Acre adjoining Perumal Gounder's allotted portion was allotted to Annamalai Gounder and the same has been described as Item No.2 of Suit 'C' schedule property; and (iv) the easternmost portion was allotted to Adhimoola Gounder and the same has been described as Item No.3 of Suit 'C' schedule property.

Their further case is that Poongavana Gounder sold the eastern half (measuring 50 Cents) of the property allotted to him i.e., Suit 'B' schedule property, along with his wife and daughter, to Sengazhani Gounder under Sale Deed dated June 05, 1963. The said eastern half is described as Suit 'D' schedule property. Sengazhani Gounder and his sons later conveyed the said property to the second plaintiff under Sale Deed dated August 27, 1977.

Their further case is that legal heirs of Perumal Gounder sold the portion allotted to Perumal Gounder viz., Item No.1 of Suit 'C' schedule property to Kalyana Sundara Udayar by Sale Deed dated June 20, 1957. Thereafter, Kalyana Sundara Udayar remained in possession and enjoyment of the said property and after his lifetime, his legal heirs conveyed the same to the first plaintiff - Temple under Gift Settlement Deed dated August 29, 1977. 7.1. Annamalai Gounder sold his allotted portion viz., Item No.2 of Suit 'C' schedule property, along with his son - Vasudevan Gounder to the first plaintiff - Temple under Sale Deed dated August 27,1977. 7.2. Adhimoola Gounder sold his allotted portion viz., Item No.3 of Suit 'C' schedule property, along with his son - Vishwalingam Gounder to Sengazhani Gounder under Sale Deed dated March 30, 1961. Notably, Poongavana Gounder has attested in the said Sale Deed. Sengazhani Gounder thereafter enjoyed the property as his self-acquired property and sold it to the first plaintiff - Temple under Sale Deed dated August 27, 1977. 7.3. Thus, according to the plaintiffs, all three items constituting the suit 'C' Schedule property were validly conveyed to the first plaintiff.

According to the plaintiffs, the first defendant and his sons viz., defendants 2 to 4 began asserting that the entire Suit 'A' Schedule property exclusively belonged to Poongavana Gounder and attempted to interfere with the plaintiffs' possession on Septemper 26, 1977. In connection with the dispute, proceedings were initiated before the Revenue Divisional Officer (R.D.O.) at the instance of the first defendant. The R.D.O., by proceedings dated July 31, 1978, erroneously found that the first defendant was in possession of the Suit 'B' schedule property. On the strength of the R.D.O.'s Order, the defendants acquired possession of the Suit 'C' and 'D' schedule properties on the same day viz., July 31, 1978. As there exist no conflict of interest between the plaintiffs with regard to Suit 'C' and 'D' schedule properties, the plaintiffs have jointly instituted the present Original Suit seeking declaration of title [first plaintiff - Temple's title in respect of Suit 'C' schedule property and second plaintiff's title in respect of Suit 'D' schedule property] and recovery of possession along with mesne profits and costs. Written Statement:

The first defendant filed a written statement, which was adopted by defendants 2 to 4. The defendants denied that the Suit 'A' schedule property was purchased by Poongavana Gounder as karta of the joint family or for the benefit of the joint family. They also denied the alleged oral partition pleaded in the plaint. They claimed that the Sale Deeds relied upon by the plaintiffs are not true and valid, and the executants thereof had no transferable interest in the suit properties. 9.1. According to the defendants, the entire Suit 'A' schedule property originally belonged to Kootha Gounder, who sold the same to Singaravelu Udayar under Sale Deed dated October 31, 1935. Thereafter, Singaravelu Udayar remained in possession and enjoyment of the same and sold it to Kootha Gounder's son namely Poongavana Gounder under Sale Deed dated March 22, 1944. 9.2. Their further case is that, even before the purchase of the Suit 'A' schedule property by Poongavana Gounder, the joint family properties of Poongavana Gounder and his brothers had already been alienated. The brothers were residing separately at various different places. Consequently, the Suit 'A' schedule property constituted the self-acquired and separate property of Poongavana Gounder. In support of this contention, reliance was placed on various transactions, namely: (i) Settlement Deed dated February 23, 1957 executed by Poongavana Gounder in favour of his brother's daughter - Kamakshi and her husband - Parasuraman in respect of 1 Acre 1 Cent; (ii) Sale Deed dated January 09, 1959 executed by Parasuraman in favour of Poongavana Gounder's then minor daughter - Govindammal in respect of aforementioned extent of 1 Acre and 1 Cent; (iii) Sale Deed dated June 05, 1963 executed by Poongavana Gounder and his wife - Pachaiammal along with their then minor daughter - Govindammal in favour of Sengazhani Gounder in respect of 50 Cents out of the aforesaid 1 Acre and 1 Cent; and (iv) Sale Deed dated November 30, 1967 executed by Poongavana Gounder in favour of first defendant in respect of 1 Acre 50 Cents. (v) Sale Deed dated December 8, 1967 executed by Poongavana Gounder along with his daughter in favour of first defendant in respect of 1 Acre 51 Cents. (vi) Sale Deed dated June 7, 1968 executed by Poongavana Gounder in respect of 1 Acre in favour of first defendant. 9.3. According to the defendants, these transactions clearly establish that Poongavana Gounder dealt with the property as its absolute owner. As shown in above transactions, the entire Suit 'A' schedule property was purchased by the first defendant. In addition, the first defendant obtained Release Deed dated June 7, 1968 in respect of a portion of Suit 'A' schedule property from Kamakshi, wife of Parasuraman and daughter of Perumal Gounder, in order to avoid disputes. On and after these Deeds, the defendants are in possession and enjoyment of the entire Suit 'A' schedule property. The plaintiffs have no right and or title thereto. Further, the proceedings initiated by the first defendant before the R.D.O. was ordered in his favour. Therefore, the plaintiffs are not entitled to the reliefs sought in the Suit. If at all the first defendant's title suffers from any defect, the same would be of no harm to the defendants as they have perfected title by adverse possession as well. Trial Court:

On the basis of these pleadings, the Trial Court on July 25, 1979 framed the following issues: "1. Whether the Plaint 'A' Schedule property is a joint family property of Poongavana Gounder and his brothers? 2. Whether the gift deed dated August 29, 1977 and the sale deeds dated March 30, 1961 and August 27, 1977 relied on by the 1st plaintiff are true and valid? 3. Whether the 1st plaintiff is entitled to declaration and recovery of possession of plaint 'C' schedule properties? 4. Whether the sale deeds dated June 05, 1963 and August 27, 1977 relied on by the 2nd plaintiff are true and valid ? 5. Whether the 2nd Plaintiff is entitled to declaration and recovery of possession of plaint 'D' schedule property? 6. Whether the alleged trespass by the defendants on July 31, 1978 as pleaded in the plaint is true? 7. Whether the suit 'A' Schedule property is a self-acquired property of Poongavana Gounder as alleged by the 1st Defendant? 8. Whether the 1st defendant has perfected title to the plaint 'A' schedule property by adverse possession? 9. Whether the boundaries given for the suit itself are not correct as contended by the 1st defendant? 10. Whether this court has no jurisdiction to try the suit? 11. To what relief are the plaintiff's entitled? " 10.1. Further, the following additional issue was framed on November 9, 1992: "1. Whether the 4th Plaintiff is trustee of the 1st plaintiff's temple?"

At trial, originally, on the side of the plaintiff, P.W.1 to P.W.9 were examined and Ex-A.1 to Ex-A.42 were marked and on the side of the defendants, D.W.1 to D.W.3 were examined and Ex-B.1 to Ex-B.29 were marked. Upon the matter being remanded to the Trial Court as elaborated above, the plaintiffs additionally examined P.W.10 and P.W.11 while the defendants' additionally examined D.W.4 and Ex.B.30 to Ex-B.40 were marked.

After hearing both sides after the remand, the Trial Court concluded that the Suit 'A' schedule property is a joint family property which was purchased in the name of Poongavana Gounder qua kartha of the joint family and later orally partitioned as pleaded in the plaint, whereafter the plaintiffs purchased the Suit 'C' and 'D' schedule properties vide the Sale Deeds in their favour. Hence, the plaintiffs' Sale Deeds are true and valid. As there is no evidence for the defendants' plea of adverse possession, the same is not acceptable. Accordingly, the Suit was decreed as prayed for. First Appeal:

Feeling aggrieved by the Judgment and Decree passed by the Trial Court, the defendant preferred an appeal in A.S. No.41 of 1993 before the First Appellate Court. The First Appellate Court, after hearing both sides, held that the Suit 'A' schedule property is a self-acquired property of Poongavana Gounder and the alleged oral partition is not proved. Further, revenue records stood in the name of Poongavana Gounder. The Trial Court failed to appreciate the character of the Suit 'A' schedule property in the right perspective based on the available evidence and erred in decreeing the Suit as prayed for. Accordingly, the Appeal Suit was allowed, the Judgment and Decree of the Trial Court was set aside and the Original Suit was dismissed. Second Appeal:

Feeling aggrieved by the Judgment and Decree passed by the First Appellate Court, the plaintiffs have preferred this Second Appeal, which was admitted September 17, 1996 on the following Substantial Question of Law: "Whether Poongavanam is not estopped from contending that the suit property is his self-acquired property in view of his attesting in Ex-A.11 [sic, ought to be Ex-A.12] ?" Arguments:

Mr.V.Ragavachari, learned Senior Counsel, appearing for the appellants, would reiterate the plaint averments and submit that the Suit 'A' schedule property was purchased by Poongavana Gounder in his capacity as the eldest son and kartha of the joint family. Elaborating on the same, he drew attention to Ex-B.1 and Ex-A.4. Under Ex-B.1 - Sale Deed dated October 31, 1935, the Suit 'A' schedule property was sold in favour of Singaravelu Udayar who had obtained a Mortgage Decree against Kootha Gounder and his family. Under Ex-A.4 - Sale Deed dated December 9, 1943, an extent of 7 Acres 37 Cents was sold in favour of P.W.2 - Devaraya Gounder by Kootha Gounder, his sons and some of his grandchildren as well. This shows that the Kootha Gounder family had ancestral and joint family properties. Moreover, the recitals in Ex-A.4 inter-alia read that the said extent of 7 Acres 37 Cents was sold in order to purchase some other property. Shortly after Ex-A.4 - Sale Deed, the Suit 'A' schedule property was purchased back by the family. Considering the old age of Kootha Gounder, the property was purchased in the name of Poongavana Gounder qua kartha of the joint family. Therefore, the Suit 'A' schedule property was purchased for the benefit of the joint family in and out of the sale price obtained by the sale of joint family property under Ex-A.4 - Sale Deed. 15.1. He would further submit that, thereafter, Poongavana Gounder and his brothers entered into an oral partition among themselves around 1950, whereby each of them were allotted about 1 Acre adjacent to each other in the Suit 'A' schedule property as elaborated in Paragraph No.5 hereinabove. After oral partition, the brothers, who were in separate possession and enjoyment of their respective shares, executed Sale Deeds as elaborated in Paragraph No.6 and 7 hereinabove. He would submit that, in one of those Sale Deeds, namely Ex-A.12 - Sale Deed dated March 30, 1961 executed by Adhimoola Gounder and his son - Vishwalingam Gounder in favour of Sengazhani Gounder in respect of the portion of Suit 'A' schedule property allotted to Adhimoola Gounder under the aforesaid oral partition measuring 1 Acre 1 Cent, Poongavana Gounder has signed as an attesting witness. He would point out that the description of property thereof would describe the said extent as 'property having in the name of Poongavana Gounder which was then partitioned in favour of Adhimoola Gounder's branch'. 15.2. He would submit that this clearly shows that the Suit 'A' schedule property is a joint family property that was purchased in name of Poongavana Gounder qua kartha of the joint family which was later partitioned. This proves the plaintiffs' case qua character of property and oral partition. As Poongavana Gounder himself has attested in Ex-A.12, he is estopped from contending otherwise. The Trial Court rightly appreciated the evidence available on record and decreed the Suit as prayed for. The First Appellate Court erroneously reversed the same. Accordingly, learned Senior Counsel would pray to allow the Second Appeal, set aside the Judgment and Decree of the First Appellate Court and restore those of the Trial Court.

Per contra, Mr.P.Dinesh Kumar, learned Counsel appearing for the respondents 3 and 10 to 14, would submit that mere attestation does not mean knowledge of contents and would not attract the doctrine of estoppel. He would contend that the attestation has to be seen in the backdrop of the fact that Poongavana Gounder was an illiterate and rustic person. Poongavana Gounder was not aware of the contents of Ex-A.12 - Sale Deed and he merely affixed his signature as an attesting witness, which would not be sufficient to attract the doctrine of estoppel. In this regard, he would rely on Tmt.Sinnammal -vs- Muthuramalingam, reported in 1987- 100-L.W.688 as well as on K.A.Selvanachi -vs- Dr.S.R.Sekar, reported in 2003 (1) CTC 745. 16.1. He would further argue that, while so, the burden of proof lies upon the plaintiffs to prove that the Suit 'A' schedule property is a joint family property and not a separate or self-acquired property in the hands of Poongavana Gounder. But the plaintiffs have miserably failed to prove the character of the Suit 'A' schedule property. In this regard, he would seek support from Backiammal -vs- C.Vasantha, reported in 2022-4-L.W.860. 16.2. Referring to the transactions listed out under the heading "written statement" hereinabove, he would go on to submit that, the defendants' side documents prove that the Suit 'A' schedule property was a separate and self-acquired property of Poongavana Gounder vide Ex-B.2 - Sale Deed dated March 22, 1944. Vide Ex-B.3 - Mortgage Deed dated August 16, 1944, Poongavana Gounder executed an usufructuary mortgage in respect of a portion of Suit 'A' schedule property in favour of one Kesava Gounder who later made it over to Ramasamy Maistri under Ex- B.4 - Mortgage Assignment Deed dated April 9, 1945. The recitals contained in Ex-B.3 would show that the mortgage was for Rs.85/- which was required by Poongavana Gounder to purchase a property. It talks about Poongavana Gounder in his individual capacity as there is no mention of any joint family in it, nor it could be reasonably understood from the recitals or context that it was in his alleged capacity as kartha of the joint family or for the benefit of joint family. 16.3. He would further submit that under Ex-B.5 - Mortgage Deed dated March 11, 1954, Poongavana Gounder executed another usufructuary mortgage in respect of 50 Cents in Suit 'A' schedule property in favour of one Veeramal, who made it over under Ex-B.6 dated December 16, 1964 in favour of Sengazhani Gounder. Further, Poongavana Gounder under Ex-B.7 - Gift Settlement Deed dated February 23, 1957, gifted an extent of 1 Acre in Suit 'A' schedule property in favour of his brother's daughter - Kamakshiammal and her husband - Parasuraman, both of whom in turn sold the same to Poongavana Gounder's daughter - Govindammal vide Ex-B.8 - Sale Deed dated January 9, 1959. Further, Poongavana Gounder had executed yet another usufructuary mortgage vide Ex-B.9 - Mortgage Deed dated November 23, 1958 in favour of one Muthaiya Udayar who in turn assigned the same in favour of one Manickammal under Ex-B.10 - Mortgage Assignment Deed dated April 5, 1963. All these documents were executed in the personal capacity of Poongavana Gounder. These documents show that ever since the purchase under Ex-B.2 - Sale Deed dated March 22, 1944, Poongavana Gounder has been enjoying the Suit 'A' schedule property as his absolute and separate property. Furthermore, when majority of the Suit 'A' schedule property was under usufructuary mortgage, it could not have been partitioned as alleged. 16.4. Further he would submit that, in the proceedings initiated by the first defendant under Section 145 of the Code of Criminal Procedure, 1973 in M.C. No.2 of 1977 in respect of the Suit 'A' schedule property against the plaintiffs and others, the R.D.O. arrived at a factual finding after inquiry that the first defendant is in possession and enjoyment of a portion thereof and accordingly ordered in favour of the first defendant. The Trial Court failed to appreciate the evidence available on record in the right perspective and erred in dismissing the Suit. Whereas, the First Appellate Court rightly appreciated the evidence available on record and rightly considered the facts and circumstances of the case and went on to allow the appeal and dismiss the Original Suit. There is no warrant to interfere with the same. Accordingly, the learned counsel would pray for dismissal of the Second Appeal. Discussion:

This Court has considered the submissions made on either side and perused the materials available on record in light of the Substantial Question of Law.

The plaintiffs' claim that the Suit 'A' schedule property belonged to Poongavana Gounder in his capacity as the kartha of the joint family consisting of Kootha Gounder and his sons. From Ex-A.12 - Sale Deed dated March 30, 1961, it could be seen that Adhimoola Gounder along with his two sons - Vishwalingam Gounder and Kannan (then minor) sold a portion of Suit 'A' schedule property in favour of Sengazhani Gounder and Poongavana Gounder has affixed his signature in it as an attesting witness. The description of property thereof describes the property as originally belonging to Poongavana Gounder and obtained by Adhimoola Gounder's family in partition. Relevant portion reads thus: “///flYhh ; o/ mufz;ley;Yhh ; rg;of;Fs;gl;l tp/g[Jg;ghisak; fpuhkj;jpy; g{';fhtd ft[z;lh; nghpy; gl;lhtha[k ; mjpy ; v';fSf;F ghfkha[k ; eh';fs; mDgtpj;J tug;gl;l. mad; g[v{;ir epy hp/rh;nt 74- 4 4/1/y; xilf;F (bj) KUnfr cilahh; epyj;jpw;F (nk) Fkhurhkp Kjypahh ; epyj;jpw;F (t) mz;zhkiy ft[z;lh ; epyj;jpw;F (fp) ,jd; kj;jpapy ; v';fs ; ghfk ; Vf;fh ; 1/0 xd;W kl;oy; fpiuak ; nkw;go rh;ntapy ; cs;s epyj;jpy ; ehd;fpy; xU ghfKk;/ tha;f;fhy; ghj;jpaKk; nkw;go rh;ntapy; cs;s kutifahwf;fspy ; ehd;fpy ; xU ghfKk; fpiuak;/ jdf;fhft[k; jd; ikdh;f;fhft[k; ,e;j fpiuak;/ T/MjpK:y ft[z;lh; (ifdhl;L). fPuy; tp!;typ';f ft[z;lh; (ifdhl;L) rhl;rpfs; 1/ T/g{';fhtdft[z;lh; S/o Tj;jf;ft[z;lh;. tP/g[Jghisak;/ 2/ mz;zhkiy S/o.ehuhazd;. nkw;goa{h;/ [Emphasis supplied by this Court]

Now the question is whether attestation gives rise to a presumption of knowledge of contents of the attested document and whether the same can act as estoppel against the attestor. Learned Senior Counsel appearing for the appellants / plaintiffs would contend that Poongavana Gounder, as he has some interest in Suit 'A' schedule property, his attestation gives a presumption as to contents and he and his successors-in-title are therefore estopped from contending against the recitals contained in the document relating to his interests. Learned Counsel appearing for the respondents 3 and 10 to 14 would place reliance on Sinnammal's Case and K.A.Selvanachi's Case, both of which have been cited supra and contend that attestation does not mean knowledge of contents and hence, there is no question of estoppel. In Sinnammal's Case, a learned Single Judge of this Court, held that attestation does not impute knowledge of contents and estoppel would not apply unless there was a specific issue framed on that aspect. In K.A.Selvanachi's Case, a Hon'ble Division Bench of this Court held attestation cannot be taken to presume knowledge of contents of the attested document unless there is some intrinsic evidence in the attested document itself to show that the attestor was aware of the contents thereof.

This Court respectfully disagrees with both the afore-cited Judgments. The reason that this Court intends to assign for the same has been captured, in an extensive manner, by a learned Single Judge of this Court in their Judgment in Rangasamy Pillai -vs- Gowri Ammal, reported in 2026 SCC OnLine Mad 5425 and hence, this Court considers it appropriate to reproduce the relevant portions thereof rather than restating the substance thereof. Relevant extract reads as hereunder: "55. … As a general principle, mere attestation of a document does not operate as an estoppel. An attesting witness is concerned primarily, to verify the fact of execution. That is to say, they stand before the Registering Authority, to state that the signature of the executant had been made in their presence. Such an attestation does not certify nor can be treated as consenting to the contents of the documents itself. 56. This general rule has certain exemptions. The earliest of the case where attestation of a document was used as estoppel was in Kandasami Pillai v. Rangasami Nainar (died), (1912) 23 MLJ 301. 57. This case was dealt with by a Division Bench consisting of Sundara Aiyar and Sadasiva Aiyar, JJ. No less than a person Mr. Seshagiri Aiyar, later on a Judge of this Court and the head of the Civil Bar, had argued against the proposition. The case arose under the following circumstances:— 57 (i). The plaintiff had purchased the property from the second defendant. Earlier to the sale, the first defendant had purchased the same property in a Court auction sale. It was urged by the plaintiff that the first defendant was a benamidar and the real owner of the property was the second defendant. The first defendant resisted the suit asserting his own title to the property. It was argued that Section 317 of the Code of Civil Procedure (then prevalent, not the 1908 Code) bars the suit as Section 317 prohibited any civil action against auction purchasers on the ground that the purchase was made by them on behalf of another. 57 (ii). It was pointed out by the plaintiff that the first defendant had attested the sale deed that had been executed by the second defendant in his favour. The first defendant had urged that he had attested the document without any knowledge of the contents thereof. Relying on the judgment in Sarat Chunder Dey v. Gopal Chunder Laha, ILR (1887) 11 Mad 234 (PC), Justice Sundara Aiyar, held that the attestation made by the first defendant was intended to re-assure the plaintiff while taking a sale deed from the second defendant that he is not objecting to the transfer of title. On these grounds, the Court held that he is estopped from going back on the same. Justice Sadasiva Aiyar went a step further and held that, having regards to the ordinary course of conduct of Indians in the Madras Presidency, attestation by a person who has or claims any interest in the property covered by the document must be treated prima facie as a representation by him that the title and other facts relating to title recited the document are true and will not be disputed by him as against the obligee under the document. Having held so, Justice Sadasiva Aiyar agreed to the view of Justice Sundara Aiyar and held that the attestation was binding. 58. I should point out here that, while sitting with Sankaran Nair, J., Sadasiva Ayyar, J. reiterated this view in Narayana Aiyar v. Rama Aiyar, ILR (1915) 38 Mad 396. This view found acceptance in the hands of another illustrious Judge, Justice C.V. Kumaraswami Sastri in Nayakammal v. Munuswami Mudaliar, (1924) 20 LW 222. Justice Kumaraswami Sastri observed, “I have rarely come across a case where a person having an interest present or contingent in the property has attested the deed without enquiring into its contents.” 59. The Privy Council, while calling upon this practice of attestation be given up, did not overrule the view taken by the Madras High Court. This was in Banga Chandra Dhur Biswas v. Jagat Kishore Acharjya Chowdhuri, (1916) 31 Mad LJ 563. 60. Justice M.M. Ismail (as he then was), after a detailed survey of all the precedents, came to a conclusion that the positions laid down by these verdicts have to be followed. This was in Ramaswamy Gounder, Chinnasami Gounder v. Ananthapadmanabha Iyer, 1967 SCC Online Mad 269. The view taken by Justice Ismail was found acceptance in the hands of another Division Bench of this Court in Jagannatham Pillai v. Kunjithapatham Pillai, AIR 1972 Mad 390 and in Kanagavalli Ammal v. Ulaganatha Pillai, 1977 TLNJ 174. 61. At this stage, I should point out that another Division Bench in K.A. Selvanachi v. Dr. S.R. Sekar, (2003) 1 CTC 745 (DB) referred to the aforesaid verdicts and took a view that mere attestation of a document does not by itself impute knowledge of the contents thereof and does not create an estoppel. 62. A careful perusal of Selvanachi's case shows that in paragraph 9 of the said judgment, the Division Bench had taken a view as if the verdicts rendered by Sadasiva Ayyar, J. in Kandasamy's case and Narayana's case were so done sitting singly. However, as pointed out earlier, both the judgments were of Division Benches, which were subsequently followed by the learned Single Judge and in turn, approved by anther Division Bench. To make it clear, Kandasamy's case was rendered by the Division Bench of Sundara Ayyar, J. and Sadasiva Ayyar, J. and Narayana's case was rendered by Division Bench of Sankaran Nair, J. and Sadasiva Ayyar, J. 63. To complete the narration, I will now refer to the judgment reported in Parasuram Mudaliar v. Devaki Bai, 1979 TNLJ 326. This judgment was rendered by another eminent Single Judge of this court, Justice Sathiadev. 64. Let us look at the case in detail. It was a case where the property belonged to a lady ‘K’. She and her husband begot four children, three daughters and a son. On her death, her husband executed a settlement deed in favour of the son. The daughters attested the deed. 65. Two contentions were placed before Justice Sathiadev. One was that the property belonged to K's husband and not to K. Secondly, as the three daughters had attested the settlement deed, they had surrendered their rights in favour of their brother, the beneficiary under the settlement deed. (a) On the first aspect, His Lordship came to a conclusion that, since the settlement deed itself conceded the right of K, the plea that the settlor, K's husband was the owner of the property has to be rejected. (b) On the plea of attestation acting as an estoppel, the learned Judge did not dissent from the view that the law on estoppel would operate in case of attestation. He noted, on facts, that the attesting witness was examined as a witness and she had stated that she had signed the document without being aware of the contents. This is clear from the penultimate paragraph of the notes at Page No. 328, wherein he held that when the attesting witness satisfactorily explains to the Court as to why she attested the document, there is no scope for legal inference. It was a case where the presumption was explained on facts. 66. The attention of the Division Bench in Selvanachi's case had not been drawn to the view taken by the Supreme Court in Badri Narayanan v. Rajabhagyathammal, (1996) 7 SCC 101. The Supreme Court had referred to the views taken by Justice Sadasiva Ayyar and of the one taken by Justice Sathiadev in the aforesaid cases. The Supreme Court had approved the view of Justice Sathiadev. The Court did not overrule the view taken by Justice Sadasiva Ayyar but held that the attestation amounts to presumption of fact, whose efficacy and evidentiary value depends on the facts of the given case. Hence, the law on presumption that has been laid down in Kandasami Pillai's case continues to be in force. 67. Hence, the consistent view right from 1912 downwards is that, where a person has admittedly a tangible interest in the property, affected by a deed, attests a document, a presumption arises that he knew of its contents and consented to the same. It is always open to a party to let in evidence to show why that presumption would not apply to his case. 68. The situation that arises when attestation is made by one brother in a document executed by another brother was a subject matter of consideration in Matadeen Roy v. Mussodun Singh, (1868) 10 WR (CR) 293. The Calcutta High Court specifically dealt with the effect of attestation. The Court held:- “when the plaintiff put his name as a witness to his brother's signature to a deed conveying the whole of the property, the Court might reasonably infer that he knew that his brother was selling the whole of the property. If he knew that his brother was selling the whole of the property as his own, and allowed him to do so without objection, it would be an evidence against him either that the whole of the property did belong to his brother or that he was acquiescing in his brother's act of selling the whole”. 69. Therefore, the attestation made by closely knit relative to a document executed by another relative cannot be given the same treatment as a document which is attested by utter strangers." [Emphasis supplied by this Court]

As it could be seen from the above, the learned Single Judge rightly did not regard K.A.Selvanachi's Case as a binding precedent for its proposition of law on whether attestation binds the attestor to the contents of the attested document, as the Judgment of Hon'ble Supreme Court in Badri Narayanan -vs- Rajabhagyathammal, reported in (1996) 7 SCC 101 was not considered in K.A.Selvanachi's Case. It is made clear that the reliance of this Court is not primarily placed on the Judgment of the learned Single Judge but rather on the authorities of higher precedential value than Sinnammal's Case and K.A.Selvanachi's Case referred to by the learned Single Judge. In other words, this Court is not following a Single Judge to disapprove the view of a Division Bench but relying on the higher authorities cited by the Single Judge to do so.

From Rangasamy Pillai's Case and the various authorities cited therein, the law is clear that whether attestation imputes knowledge of contents of the attested document varies on the unique facts of every case, and in a case where a close relative, having some interest in the property attests the document, it shall generally be presumed that the attestor was aware of the contents thereof and the attestor shall be estopped from contending otherwise, unless the contrary is shown. Applying the legal principle to the present case, Poongavana Gounder who has interest in the Suit 'A' schedule property has signed Ex-A.12 - Sale Deed dated March 30, 1961 executed by his brother - Adhimoola Gounder and his brother's son - Vishwalingam Gounder in respect of a portion thereof and the description of property in Ex-A.12 states that the property covered thereunder was partitioned in favour of Adhimoola Gounder's branch. Poongavana Gounder's signature in Ex-A.12 was not specifically denied by the defendants. Further, among the four sons of Kootha Gounder, Poongavana Gounder is the only signatory, that is to say, he is only one among them who affixes his signature while others affix their thumb impression only. What could be inferred from this is that, if someone is relatively educated among the four brothers, it is none other than Poongavana Gounder. Hence, Poongavana Gounder cannot be regarded as an illiterate or rustic person in this context. Therefore, Poongavana Gounder and his successors-in-title are bound by the attestation and would be estopped from contending that the Suit 'A' schedule property is Poongavana Gounder's separate and self-acquired property.

Yet another reason for this conclusion regarding estoppel, is the description of property contained in Ex-A.2 - Sale Deed dated June 5, 1963. Ex-A.2 was executed by Poongavana Gounder in favour of Sengazhani Gounder in respect of 50 Cents in the Suit 'A' schedule property. The subject property thereunder is described as lying on the west of the Sengazhani Gounder's property. The property covered under Ex-A.2 is not the eastern most portion of Suit 'A' schedule property, to contend that 'west of Sengazhani Gounder's property' referred to his property in any adjacent survey number. In these circumstances, it could be understood that Sengazhani Gounder even according to Poongavana Gounder owned some portion of Suit 'A' schedule property. Admittedly, Sengazhani Gounder did not own any property in Suit 'A' schedule property originally and the entire Suit 'A' schedule property did not belong to any third party. Given the sale under Ex-A.12 executed by Adhimoola Gounder and his son in favour of Sengazhani Gounder, it could only mean that Poongavana Gounder was referring to the property purchased by Sengazhani Gounder under Ex-A.12. Thus, Poongavana Gounder is approving Ex-A.12 - Sale Deed in the subsequent Sale Deed executed by him in Ex-A.2. From this, it could be inferred that Poongavana Gounder was aware of the contents of Ex-A.12 wherein he had attested. Estoppel applies on this ground as well. Relevant extract from Ex-A.2 - Sale Deed executed by Poongavana Gounder in favour of Sengazhani Gounder reads as hereunder: “///mad; g[v[{;ir epy hp/rh;nt 74-4 4/1?y; Xilf;F (bj) j';fs ; fpiua epyj;Jf;F (nk) Fkhurhkp Kjypahh ; epyj;jpw;F (t) vd ; epyj;jpw;Fk ; (fp) kj;jpapy ; 0/50/ brz;L vd;gJk ; ,jpy ; cs;s fpzj;jpy; vl;oy; xU ghfKk; tha;f;fhy; ghj;jpaKk; kutifwhf;fspy ; vl;oy ; xU ghfKk ; nky ; fz;l brhj;Jf;fSf;F Rj;jfpiuak;////” [Emphasis Supplied by this Court]

Moreover, under Ex-B.1 - Sale Deed dated October 31, 1935, the Suit 'A' schedule property measuring 4 Acres 1 Cent was sold in favour of Singaravelu Udayar in lieu of the Mortgage Decree he had obtained against Kootha Gounder and his family. Thereafter, under Ex-A.4 - Sale Deed dated December 9, 1943, an extent of 7 Acres 37 Cents was sold in favour of a third party by Kootha Gounder, his sons and some of his grandchildren as well. These Sale Deeds having been executed by Kootha Gounder and his family members up to two degrees, shows that the properties covered thereunder are joint family properties. The purchaser under Ex-A.4 namely Devaraya Gounder has been examined as P.W.2. He has deposed that he purchased the 7 Acres 37 Cents for a consideration of Rs.300/-; that the vendors sold the said property for purchasing some other property; that the vendors entrusted the entire consideration amount with him; that the Suit 'A' schedule property was purchased vide Ex-B.2 - Sale Deed dated March 22, 1944 in the name of Poongavana Gounder qua eldest son owing to Kootha Gounder's old age; that he paid Rs.200/- to the vendor under Ex- B.2, further paid for registration, stamp and writing chargers for Ex-B.2 and paid the remaining balance of Rs.100/- to the parties. His deposition shows that the Suit 'A' schedule property was purchased in the name of Poongavana Gounder vide Ex-B.2 only in his capacity as kartha of the joint family using joint family funds i.e., funds derived from sale of joint family property. This is further supported by the recitals in Ex-A.4 – Sale Deed, which show that the sale thereunder for the sale price of Rs.300/- was for the purpose of buying some other property. Relevant extract from Ex-A.4 reads thus: :“...eh';fs; ntW epyk; fpiuak; th';Ftjw;fhf j';fsplk; buhf;fk; bgw;Wf;bfhz;l U:gha; 300-? /// ”

The version of P.W.8 - Adhimoola Gounder that the Suit 'A' schedule property was purchased in the name of Poongavana Gounder despite the presence of their father - Kootha Gounder owing to their father's old age, coupled with the fact that Kootha Gounder passed away soon thereafter in or about 1945, that is to say, about one year after the purchase under Ex-B.2 in the name of Poongavana Gounder, corroborates the version of P.W.2. Further, P.W.6 - Annamalai Gounder has also deposed supporting the case of the plaintiffs.

Further, the Headman of the Suit Village namely Kumarasamy Mudhaliar has been examined as P.W.3. He has deposed that after purchase of the Suit 'A' schedule property in the name of Poongavana Gounder under Ex-B.2, the brothers remained joint for a year whereafter there arose some issues in the family due to which they orally partitioned the same after measuring it. His version supports the case of the plaintiffs qua oral partition.

Furthermore, Perumal Gounder's wife and daughter executed Ex- A.5 - Sale Deed dated August 20, 1957 in respect of a portion of Suit 'A' schedule property measuring 1 Acre 1 Cent as well as a house property. The description of property in that Sale Deed, describes the said portion of Suit 'A' schedule property as a property allotted in their favour (in favour of their family) and enjoyed by them [“ v';fSf;F ghfk ; fpilj;J eh';fs; mDgtpj;J tUk ; m/g[/r/be/74-4 ? 4?1y ; bghJtpy ; 4y ; 1f;F v ';fs ; ghfk; 1 1-4k; ,jpypUf;Fk;////”]. This aspect supports the case of the plaintiffs qua oral partition. Further, while describing the four boundaries of the house property, it has been stated that the house property lies on the western side of Poongavana Gounder's property, eastern side of Annamalai Gounder's property, northern side of a street and southern side of one Manangatti Udayar's property. From the description of the four boundaries of the house property, it appears that the house properties were also partitioned among the brothers. This also probablizes the case of the plaintiffs qua oral partition.

As stated supra, in the facts and circumstances of this case and also on the strength of the recitals in Ex-A.2, this Court is of the view that Poongavana Gounder was aware of the contents of Ex-A.12 - Sale Deed while attesting it and hence, he is bound by the sale thereunder and consequently, he is estopped from contending otherwise. The Substantial Question of Law framed in this Second Appeal is answered accordingly in favour of the plaintiffs. The evidence of P.W.2, P.W.4, P.W.6 and P.W.8 as well as the documentary evidence in Ex-B.1, Ex-A.4, Ex-A.2 and Ex- A.12 are sufficient to show that the Suit 'A' schedule property was a joint family property purchased in the name of Poongavana Gounder qua kartha of the joint family using the consideration derived from the sale of joint family properties.

As regards the contentions of the learned Counsel for Respondents - 3 & 10 to 14 that Poongavana Gounder was dealing with Suit 'A' schedule property separately, as elaborated in "Arguments" section, he would place reliance on the Mortgage Deeds in Ex-B.3, Ex-B.5, Ex-B.9 and the Gift Settlement Deed in Ex-B.7. As the transactions under these Deeds as stated in detail already, this Court does not find the need to repeat them here. This Court is not inclined to accept the said contention on four main grounds. Firstly, as stated above, Poongavana Gounder and successors-in-title are estopped from contending otherwise in view of his attestation in Ex-A.12, more so when he has confirmed the recitals in Ex- A.12 with his recitals in Ex-A.2 as stated above. Secondly, as stated above, the evidence of P.W.2, P.W.4, P.W.6 and P.W.8 show that the Suit 'A' schedule property was a joint family property. Thirdly, Ex-B.5 - Mortgage Deed executed by Poongavana Gounder refers to his ownership of Suit 'A' schedule property under Patta No.80. Ex-A.7 - Kist Receipts show that Annamalai Gounder has paid kist for Fasli Years 1361 to 1367 [1951 to 1958] inter-alia in respect of Patta No.80. Similarly, Ex-A.8 - Kist Receipts show that Annamalai Gounder paid kist for Fasli Years 1368 [1952] and 1371 [1955] inter-alia in respect of Patta No.80. Fourthly, none of the mortgagees or the persons claiming through them were examined nor was it proved that they were in actual possession of the allegedly mortgaged portions. There is some oral evidence available on record to show that some of the alleged mortgagees are alive [See oral evidence of D.W.2, relevant portion of which is extracted at the end of this paragraph]. These four grounds coupled together would show that these mortgages could not have been validly executed by Poongavana Gounder in his personal capacity. These transactions appears to be colourable transactions intended by Poongavana Gounder to defeat the rights of his brothers. Hence, the documents in Ex-B.3, Ex-B.5, Ex-B.7 and Ex-B.9 do not prove separate dealing and enjoyment by Poongavana Gounder. Relevant portion of D.W.2 reads as hereunder: “...tPuk;khs; capUld; ,Uf;fpwhh;/ nfhtpe;jk;khs; fhkhl;rp guRuhkd; Mfpnahh; ,Uf;fpwhh;/ Kj;jg;ght[k; capUld; ,Uf;fpwhh;/// khzpf;fk;khs; ,we;J 4tUlkhfpwJ//////”

As regards Ex-A.3 - Order passed by R.D.O. in favour of first defendant under Section 145 of the Code of Criminal Procedure, 1973, it does not conclusively determine the rights of the parties. The very nature of the proceedings under the said Section 145 is to maintain law and order and prevent breach of peace by maintaining one or other of the parties in possession [Vide Judgment of Hon'ble Supreme Court in Chandu Naik -vs- Sitaram B. Naik, reported in (1978) 1 SCC 210 and the Judgment of a learned Single Judge of this Court passed in Sri.Ramamoorthy -vs- Sub Divisional Magistrate reported in 2022 SCC OnLine Mad 10270. It is merely a temporary arrangement and does not decide title or even lawful right of possession. The proceedings thereunder is no doubt, subject to the decision of the Civil Court.

As regards the plea of adverse possession, the defendants claim that they acquired title and possession over the Suit 'A' schedule property under Ex-B.11 - Sale Deed dated November 30, 1967, Ex-B.14 - Sale Deed dated June 07, 1968 and Ex-B.6 - Release Deed dated June 07, 1968. The present Original Suit was filed on October 23, 1978, that is to say, the present Original Suit was filed on October 23, 1978, which is within 12 years. Hence, the defendants' plea of adverse possession is not tenable.

In light of the foregoing narrative, this Court is of the view that the plaintiffs have proved their case that the Suit 'A' schedule property is a joint family properties purchased in the name of Poongavana Gounder as kartha of the joint family and that of oral partition, by way of preponderance of probabilities, while the defendants' have failed to satisfactorily establish their case. Hence, the Sale Deeds executed by Poongavana Gounder's brothers / their legal representatives in respect of their respective allotted portion under the oral partition viz., Suit 'C' and 'D' schedule properties are valid and binding upon Poongavana Gounder. The total extent of Suit 'A' schedule property being 4 Acres 1 Cent and the total extent of Suit 'C' and 'D' schedule properties being 3 Acres 50 Cents, the defendants' Sale Deed are valid in respect of only 51 Cents. Hence, the defendants are thereunder entitled only to 51 Cents in Suit 'B' schedule property. Consequently, the plaintiffs are entitled to declaration of title, recovery of possession as well as mesne profits in respect of Suit 'C' and 'D' schedule properties. The Trial Court rightly decreed the Suit as prayed for. The First Appellate Court failed to appreciate the evidence available on record in the right perspective and erroneously dismissed the Original Suit. The Judgment and Decree of the First Appellate Court are liable to be set aside. The Judgment and Decree of the Trial Court are to be restored. Conclusion:

In the result, the Second Appeal is allowed. The Judgment and Decree of the First Appellate Court are set aside. The Judgment and Decree of the Trial Court are restored. Considering the facts and circumstances of the case, there shall be no order as to costs. 11-09-2026