High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated.: 05.09.2007CORAM:THE HONOURABLE MR. JUSTICE K.MOHAN RAMSecond Appeal No.828 of 2007and M.P.No.1 of 20071. R.Vellingiri2. Mrs. Gokila.. Appellants/Ist & II Defendants-Vs-1. R.Kannaian2. R.Lakshmi3. R.Jayalakshmi4. R.Samraj5. C.R.Sounderrarajan6. R.Thulasiammal7. R.Kamatchi8. S.P.Narasimhulu Naidu Estate Trust having their office at 86 Mill Road, Coimbatore - 641 001.. Respondents/1 to 5Plaintiffs & 3 to 5DefendantsAPPEAL filed under Section 100 of the Code of Civil Procedureagainst the judgment and decree in A.S.No.126 of 2006 dated21.11.2006 on the file of the First Additional Subordinate Judge,Coimbatore, affirming the judgment and decre dated 13.04.2005 madein O.S.No.1024 of 2004 on the file of the I Additional DistrictMunsif, Coimbatore.For appellants : Mr. R.RamarathinamFor Respondents: Mr. P.Saravana Sowmiyan, for R-1 to R-5 (caveator)J U D G M E N TThe unsuccessful defendants 1 and 2 in O.S.No.1024 of 2004 onthe file of the First Additional District Munsif, Coimbatore, arethe appellants in the above second appeal. For the sake ofconvenience, the parties are referred to as per their ranking inthe suit.2. The brief facts that are necessary for the disposal of the https://hcservices.ecourts.gov.in/hcservices/ above second appeal are set-out below:-The plaintiffs filed a suit for declaration and possession todeclare that they are the absolute owners of the suit propertiesand for directing defendants 1 to 4 to deliver vacant possession ofthe suit property to the plaintiffs and for a further directiondirecting respondents 1 to 4 to pay future mesne profits.According to the plaintiffs, the first defendant is their brother;their father-Rangasamy Naidu took a vacant land on lease fromS.P.Narasimmalu Naidu Trust, the fifth defendant, for ground rentand put up a super-structure thereon with his own funds; RangasamyNaidu on his free will and violation, executed a Registered Will on19.08.1988 bequeathing the suit property in favour of his wife-Ponnammal absolutely; Ponnammal is the mother of the plaintiffsand the first defendant; in 1990, Rangaswamy Naidu died andPonnammal became the absolute owner of the suit property; in orabout 1994, the first defendant became a tenant of Ponnammal inrespect of a portion of the suit property; the first defendantpaid rents up to January 1997 irregularly and committed defaultfrom February 1997 and he also sublet the portions to defendants 3and 4; the second defendant claims the property by virtue of aWill said to have been executed by Ponnammal in her favour in theyear 1995, but the said Will is not enforceable as the same shouldbe treated as cancelled by the Registered Sale Deed executed byPonnammal in favour of the plaintiffs on 30.07.1997 for a saleconsideration of Rs.65,000/-; from 30.07.1997 the plaintiffs havebecome the absolute owners of the suit property and paying groundrent to the fifth defendant-trust; the plaintiffs filed RCOP No.6of 1998 on the file of the District Munsif and Rent Controller,Coimbatore, for eviction against the first defendant and the sub-tenants from the property; the defendants took up a plea that byvirtue of the Will executed by Ponnammal in favour of the seconddefendant the defendants are entitled to remain in possession andthey are not tenants; by an order dated 31.01.2001 passed in RCOPNo.6 of 1998 the Rent Controller held that since title is indispute between the plaintiffs and the defendants the proper Forumto decide title is only the Civil Court and not the RentController, hence the above suit.3. Defendants 1 to 4 remained exparte and no written statementwas filed; the fifth defendant alone contested the suit by filinga written statement; the fifth defendant admitted the tenancy infavour of Rangasamy Naidu and the factum of putting up the super-structure over the lease hold property by Rangasamy Naidu; theexecution of the Will, dated 19.02.1988, by Rangasamy Naidu, hasalso been admitted by the fifth defendant; but it was contended bythe fifth defendant that Rangasamy Naidu gave only life interest toPonnammal and after her demise, the property will go to the seconddefendant herein. https://hcservices.ecourts.gov.in/hcservices/

4. After framing appropriate issues, the suit was taken up fortrial and during trial, the fifth plaintiff was examined as P.W.1and Exs.A-1 to A-16 have been marked. On the side of thedefendants neither oral nor documentary evidence were adduced. Thetrial court on a consideration of the oral and documentary evidenceadduced in the case has pointed out that the fifth defendant hadadmitted the leasehold right in favour of Rangasamy Naidu and heldthat as per the Will-Ex.A-2 executed by Rangasamy Naidu, Ponnammalhad been given absolute right over the suit property and as suchPonnammal has got a right to execute Ex.A-1-sale deed in favour ofthe plaintiffs in respect of the super-structure after the death ofRangasamy Naidu. The trial court has also held that in view ofEx.A-1-sale deed, dated 30.07.1997, the Will executed by Ponnammalin favour of the second defendant stood cancelled. Sincedefendants 1 to 4 remained exparte and no written statement wasfiled, the trial court decreed the suit as prayed for. Beingaggrieved by that defendants 1 and 2 alone filed an appeal inA.S.No.126 of 2006 before the First Additional Sub-Court,Coimbatore. The lower appellate court on an independentconsideration of the evidence on record and the reasonings of thetrial court has concurred with the findings of the trial court anddismissed the appeal. Being aggrieved by that defendants 1 and 2are before this Court in the above second appeal.5. In the memorandum of grounds of second appeal, thefollowing question of law has been framed as substantial questionof law:"Whether the Ex.A-2-Will has not been proved as perlaw laid down in Section 68 of the Indian EvidenceAct, 1972, and in view of the decision reported inA.I.R. 1976 Madras and A.I.R.1969 S.C.1147 andwhether the lower appellate court is right in notconsidering the position of law as laid down inSection 68 of the Indian Evidence Act, 1872?"6. Heard Mr.R.Ramarathinam, learned counsel for the appellantsand Mr.P.Saravana Sowmiyan, learned counsel forcaveator/respondents 1 to 5.7. Learned counsel for the appellants submitted that Ex.A-2-Will has not been proved in accordance with the provisions ofSection 68 of the Indian Evidence Act and in the absence of properproof the Courts below have committed an error of law in holdingthat Ponnammal had become the absolute owner of the suit propertyand she had the right to execute Ex.A-1-sale deed. In support ofhis contentions the learned counsel for the appellants relied upona decision in the case of Purna Bai Vs. Ranchhoddas and reported inA.I.R.1992 Andhra Pradesh 270 and in that decision in paragraph 24 https://hcservices.ecourts.gov.in/hcservices/ it is observed as follows:-"24. ..... There is absolutely no dispute with theproposition of law that no proof is required in theface of an admission. But the question is whetherthe admission of execution of a particular documentextends to the execution of another document recitedin the former document. Firstly in the case on handthere is no evidence except that of D.W.1 to showthat Ex.B-1 was filed before the Income-taxAuthorities in Madhya Pradesh. Even taking that itwas so filed, still the admission of the signatureon Ex.B-1 by P.W.2 cannot be said to be extendingeven to Ex.B-4, the Will referred to in Ex.B-1. Asalready commented supra, the attestations to theWill Ex.B-4 are not proved. In Girijadutt Vs.Gangori Dutt, AIR 1955 SC 347, it is held that inorder to prove due attestation of the Will thepropounder of the Will has to prove that the twowitnesses saw the testator signing the Will and thatthey themselves signed the Will in the presence ofthe testator. Inasmuch as the attestation is notproved and that the admission cannot extend to theexecution of the Will, the Court below has rightlyexchewed the Ex.B-4 Will from consideration."Basing reliance on the above said decision, the learned counsel forthe appellants submitted that simply because the defendants havenot filed a written statement that does not mean that they haveadmitted the due execution of Ex.A-2-Will and irrespective of thenon-filing of written statement by defendants 1 and 2 the dueexecution of Ex.A-2-Will ought to have been proved by examiningatleast one of attestors of Ex.A-2-Will. Except the above saidsubmission, no other submission was made by the learned counsel forthe appellants.8. Learned counsel for the caveator/respondents 1 to 5submitted that since defendants 1 to 4 remained exparte and theyhave not filed any written statement questioning the validity andgenuineness of Ex.A-2-Will no triable issue arose in respect of thevalidity of Ex.A-2-Will and when the execution of Ex.A-2 is not anissue it is not necessary that Ex.A-2 should be proved ascontemplated in Section 68 of the Indian Evidence Act.9. I have carefully considered the submissions made by thelearned counsel on either side, the materials available on recordand the judgments of the Courts below.10. It is pertinent to point out that defendants 1 to 4remained exparte and no written statement has been filed and https://hcservices.ecourts.gov.in/hcservices/ therefore the genuineness and validity of Ex.A-2-Will was not atall in issue. The question to be decided is even when the validityof Ex.A-2-Will had not been questioned by the defendants, yet,whether it is necessary to prove Ex.A-2 as contemplated underSection 68 of the Indian Evidence Act. In this context it will beuseful to refer to a Division Bench decision of the Kerala HighCourt in the case of Thayyullathil Kunhikannan Vs. ThayyullathilKalliani reported in A.I.R.1990 Kerala 226 wherein in paragraph 34of the said decision, it is laid down as follows:-"34. Order 8 Rule 5 of the C.P.C. provides thatunless there is a specific denial of any allegationof fact made in the plaint, it shall be taken to beadmitted. Section 58 of the Evidence Act providesthat no fact need be proved in any proceedings,which by any rule of pleadings in force at the time,the parties are deemed to have admitted by theirpleadings. In this case, in the absence of anydenial in the written statement, the genuineness andthe validity of the will Ext.A1 must be deemed tohave been admitted by the law of pleadings, namelyOrder 8 Rule 5, and therefore that fact was notrequired to be proved at the trial. Section 68states that if a document is required by law to beattested, it shall not be used as evidence until oneattesting witness at least has been called for thepurpose of proving its execution, if there be anattesting witness alive. The proviso to the Sectionwhich was introduced by the amending Act 31 of 1926makes an exception in the case of any document, notbeing a will, which has been registered, unless itsexecution by the persons by whom it purports to havebeen executed, is specifically denied. The factthat the proviso is not applicable to wills, andthat it does not make an exception in the case ofregistered wills, does not lead to any inferencethat a will cannot be acted upon or used asevidence, unless it has been proved by examining anattesting witness. The only effect of the provisois that registration of the will by itself does notobviate the necessity of calling an attestingwitness to prove it, if it is otherwise required tobe proved. The proviso does not speak of a casewhere a will is not in dispute. Section 68 relatesto those documents which require to be proved at thetrial of a suit. If by any rule of law or ofpleadings, such proof is not required, S.68 cannotoperate to insist on formal proof by calling anattesting witness. Section 58 ha to be read as https://hcservices.ecourts.gov.in/hcservices/ overriding S.68 and as obviating the necessity forcalling an attesting witness, unless the executionof the will or the attestation is in dispute. Inthe absence of any such plea in the writtenstatement, it will be the height of technicality andwaste of judicial time to insist on examination ofan attesting witness, before a will could be used asevidence. Phipson on Evidence 12th Edition (1976)explains the rationale behind examining an attestingwitness as that he is the witness appointed oragreed upon by the parties to speak to thecircumstances of its execution, "an agreement whichmay be waived for the purposes of dispensing withproof at the trial". (paragraph 1751). In paragraph1757, the learned author points out that proof ofexecution of documents required by law to beattested is dispensed with (although the attestingwitness may be alive and in Court) "when theexecution has been admitted for the purposes oftrial". Order 8 Rule 5 C.P.C. deems the executionof the will to be admitted in the absence of anydenial thereof in the written statement.Examination of an attesting witness is thereforeunnecessary when the parties have not joined issueon the validity or genuineness of the will".A reading of the above said decision clearly shows that theexamination of an attesting witness to a will is unnecessary whenthe parties have not joined issue on the validity or genuineness ofthe Will. As pointed out above, the validity and genuineness ofEx.A-2-Will was not at all in issue in the above suit. Therefore,as laid down in the above said decision, the examination of one ofthe attesting witness to Ex.A-2-Will is not necessary.11. In the decision reported in the case of S.Kaliyammal Vs.K.Palaniammal and reported in A.I.R.1999 Madras 40 a learned Judgeof this Court in paragraph 15 of the judgment has observed asfollows:-"I am of the opinion that, only when the executionof the Will is denied by a party, then the burden ison the party who relies upon the Will to prove theexecution of the same. When the execution is notdenied, it is unnecessary to compel the person whorelies upon the document to let in evidence toestablish the execution, since the admitted factsneed not be proved"Therefore, the substantial question of law that has been formulatedin the memorandum of grounds of appeal is answered against theappellants. https://hcservices.ecourts.gov.in/hcservices/

12. In the decision reported in A.I.R.1992 Andhra Pradesh 270(referred to supra), which was relied upon the learned counsel forthe appellants, the question that arose for consideration iswhether the admission of execution of a particular document extendsto the execution of another document recited in the formerdocument. While considering that question, the Division Bench hasheld that inasmuch as the attestation is not proved, the admissioncannot extend to the execution of the Will, but the facts of thiscase are totally different from the facts of the case cited supraand therefore the above said observation of the Division Bench isnot applicable to the facts of this case. 13. For the above said reasons, the second appeal fails andthe same is dismissed. However, there will be no order as tocosts. Consequently the connected MP is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsrkTo1. First Additional Subordinate Judge, Coimbatore2. First Additional District Munsif, Coimbatore.+1cc to Mr.P.Saravana Sowmiyan,Advocate Sr 55507+1cc to Mr.T.S.Ramarathinam, Advocate Sr 55785GG (CO)km/20.9.S.A.No.828 of 2007 and M.P.No.1 of 2007