THIRUVANANTHAPURAM v. B.SUNIL

petitioner/plaintiff and the respondents/ defendants. O.P(C) No.2479/2023 2

3. Three suits were consolidated for joint trial. The first is O.S No.563 of 2010, preferred by the first respondent herein against the father of the petitioner herein, seeking to declare that a cancellation deed executed by the petitioner's father, cancelling a settlement deed in favour of the first respondent herein, is null and void. The second suit, O.S No.107 of 2017, was preferred by the petitioner herein, seeking declaration of title on the strength of an oral gift, claimed to have been executed by her father, and also for recovery of possession and injunction. The third one is O.S No.38 of 2018 preferred by the first respondent herein, again for declaration of title on the strength of an oral gift, claimed to have been executed in his favour by his father and also for consequential injunction. The petitioner herein is the daughter; the first respondent, the son; and the second respondent is the wife of one O.P(C) No.2479/2023 3 Dr.Basheer, who passed away on 20.04.2017. The subject Interlocutory Applications were preferred in O.S No.107 of 2017, preferred by the daughter, for declaration of title.

4. The trial commenced on 29.03.2021. The plaintiff mounted the box as PW1 and wanted to mark a compact disc containing a conversation between the petitioner/plaintiff and a document writer(PW6), which pertains to the alleged entrustment of certain documents by Dr.Basheer to PW6, for the purpose of executing a proper settlement deed in favour of the petitioner/ plaintiff. This application was opposed for want of a certificate under Section 65B of the Evidence Act. In such circumstances, the original source, namely a mobile phone, in which the conversation was recorded, was produced, along with an application for accepting the same, which was allowed. Ext P7 is the Order allowing the said O.P(C) No.2479/2023 4 application and Ext P8 speaks of the modalities for accepting the same in evidence. Thereupon, the first respondent/son preferred I.A No.26 of 2021 to know the contents of the recording contained in the mobile phone, as also in the compact disc, so as to enable him to effectively cross-examine the witness. The mobile phone and the compact disc were sent to Forensic Science Laboratory. Ext P12 is the report of the Forensic Science Laboratory. It is the contention of the petitioner/plaintiff that the mobile phone and the compact disc were not before the court at the time when PW6/document writer was examined and hence, the plaintiff could not confront him with his voice clip contained in the mobile phone. PW6 turned hostile to the plaintiff. It was in such circumstances, that the subject Interlocutory Applications I.A Nos.43 of 2023 and 46 of 2023 were filed with the reliefs afore referred. As O.P(C) No.2479/2023 5 already mentioned, both applications were dismissed vide Ext P18, finding that the fact sought to be proved, to the effect that the voice clip contained in the mobile phone is that of PW6, will not improve the plaintiff's case; that it cannot constitute substantive evidence; that the oral gift claimed by the petitioner/plaintiff has to be proved independently and a conversation which took place between the plaintiff and the document writer subsequent to the gift as regards the act/intention of the person who made the oral gift cannot be used to prove the oral gift; and that the fact which is sought to be proved is not relevant for the adjudication of the case.

5. Learned counsel for the petitioner assailed the said findings, pointing out that the intention of the petitioner's father to execute a pucca settlement deed in favour of the petitioner/plaintiff is a relevant fact to prove O.P(C) No.2479/2023 6 the oral gift in favour of the plaintiff, as also, to disprove the oral gift claimed by the first respondent/son. If it is established by virtue of the conversation made by the petitioner/plaintiff and the document writer/PW6 that the petitioner's father had entrusted all relevant title deeds to PW6 for the purpose of executing a settlement deed in favour of the plaintiff/petitioner, then, the oral gift claimed by the first respondent/son will become a thorough improbability and hence, the fact sought to be established is quite relevant, is the submission of the learned counsel.

6. Per contra, these submissions were seriously disputed by the learned counsel for the respondents. It was pointed out that nineteen witnesses were examined on the part of the plaintiff and DW1 and DW2 on the part of the defendants. Seven more witnesses are to be examined on the part of the defendants. It was O.P(C) No.2479/2023 7 emphatically pointed out that the voice clip contained in the conversation is not generated during the course of a phone call, in which case, the call data report would be available to substantiate the same. Instead, the so claimed conversation is one clandestinely recorded by the petitioner/plaintiff, without the knowledge of PW6, when she conversed with PW6/document writer. The conversation is by and between two persons who are still living; and not a conversation made by late Dr.Basheer. There is no pleading, whatsoever, in the plaint with respect to any conversation plaintiff/petitioner and PW6/document writer. All what is pleaded in the plaint is that Dr.Basheer had an intention to execute a settlement deed in favour of the petitioner/plaintiff, for which purpose, he entrusted certain documents to the document writer. Neither the name of the document O.P(C) No.2479/2023 8 writer, nor the time and place at which such entrustment took place is pleaded in the plaint. According to the learned counsel, the pleadings falls short of the requirements of Order VI, Rule 1. The settled legal position that any amount of evidence in respect of a fact, which was not pleaded, will be of no avail, was also pressed into service. According to the learned counsel for the respondents, the mobile phone and the compact disc were available at the time when PW6 was examined. No question, whatsoever, was put to PW6 as regards the so claimed conversation between the petitioner and PW6. It was also pointed out that the plaintiff/petitioner had not made any request to have the voice compared at the time when the mobile phone and the compact disc were sent to the Forensic Science Laboratory. On such premise, learned counsel for the respondents seeks to sustain Ext P18 Order, without any interference O.P(C) No.2479/2023 from this Court. 9

6. Having heard the learned counsel on both sides, this Court finds considerable force in the submissions made by the learned counsel for the respondents. At the outset, it requires to be noticed that the suit is one for declaration of title, on the strength of an oral gift claimed to have been made by the petitioner's father in favour of the petitioner/daughter. The contours and parameters in proof of a Mohammedan oral gift is settled and defined. The present attempt of the petitioner/plaintiff is to prove a conversation between herself and PW6, the document writer. According to the plaintiff, her father Dr.Basheer had an intention to execute a pucca settlement deed in her favour, even after making the oral gift, for which purpose, he entrusted certain documents to PW6. The petitioner could extract this fact from PW6, when she went to his O.P(C) No.2479/2023 10 office and conversed with him. The conversation was recorded in her mobile phone. By proving the audio file in the mobile phone to be the voice of PW6, the petitioner/plaintiff wants to prove such conversation and thereby, the intention of her father. As rightly found by the learned Sub Judge, a Mohammedan gift has to be proved in accordance with law by examining the persons, who have witnessed such oral gift; and not by proving a conversation between the petitioner/plaintiff and a witness, PW6. Even if it is proved that late Dr.Basheer had an intention at some point of time to execute a settlement deed in favour of the petitioner, the same cannot be decisive, so long as the oral gift claimed by the petitioner is not proved satisfactory. It is important to note that the suit is not one based on a Will so as to probe into the intention of the executant. Instead, both the plaintiff and the first defendant are O.P(C) No.2479/2023 11 claiming two oral gifts respectively in their favour, which are transfer inter – vivos, which took effect during the life time of the person who made the gift, wherefore, his subsequent intention hardly matters, unless it ripens to an action in fulfillment of such intention.

7. This Court is of the opinion that the rights of parties in a civil suit cannot be left to be decided based on the so claimed conversation between one of the parties (petitioner herein) and a third party(document writer). The conversation is sought to be proved by adducing evidence regarding a voice clip, containing the so claimed conversation. It is pertinent to note that the attempt to prove the voice clip is done after the document writer was summoned and examined as PW6. As pointed out, no question is seen put to PW6 as regards the contents of the conversation between himself and the petitioner/plaintiff. The whole O.P(C) No.2479/2023 12 idea and exercise to prove the voice clip appears to be of no use, since it cannot impact the core of the case set up by the rival claimants. In view of the above discussion, this Court is not entering into the larger issue, as to whether a voice clip recorded allegedly in a deceitful manner, without the permission of PW6, can be permitted to be let in evidence and also the question, whether PW6 can be compelled to give a voice sample etc., since the resolution of the said issues does not appear to be quite essential for the disposal of the instant original petition. In the above referred facts and circumstances, this Original Petition fails and the same will stand dismissed. Sd/- C.JAYACHANDRAN, JUDGE PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 Exhibit P9 Exhibit P10 Exhibit P11 Exhibit P12 Exhibit P13 APPENDIX OF OP(C) 2479/2023 A TRUE COPY OF THE PLAINT IN OS NO. 107/2017 ON THE FILES OF SUB COURT THRUVANANTHAPURAM DATED 10.07.2017 A TRUE COPY OF THE WRITTEN STATEMENT OF RESPONDENTS IN OS NO. 107/2017 ON THE FILES OF SUB COURT THRUVANANTHAPURAM DATED 03.04.2019 A TRUE COPY OF THE PLAINT IN OS NO. 38/2018 ON THE FILES OF SUB COURT THIRUVANANTHAPURAM DATED 28.02.2018 A TRUE COPY OF THE WRITTEN STATEMENT OF PETITIONER IN OS NO. 38/2018 ON THE FILES OF SUB COURT THIRUVANANTHAPURAM DATED 05.11.2019 A TRUE COPY OF THE PLAINT IN OS NO. 563/2010 ON THE FILES OF SUB COURT THIRUVANANTHAPURAM17.05.2010 A TRUE COPY OF THE WRITTEN STATEMENT OF DR. BASHEER IN OS NO. 563/2010 ON THE FILES OF SUB COURT THIRUVANANTHAPURAM 29.11.2010 A TRUE COPY OF ORDER IN IA NO. 18/2021 IN OS NO. 107/2017 ON THE FILES OF SUB COURT THIRUVANANTHAPURAM DATED 09,08.2021 A TRUE COPY OF ORDER IN IA NO. 19/2021 IN OS NO. 107/2017 ON THE FILES OF SUB COURT THIRUVANANTHAPURAM DATED 12.08.2021 A TRUE COPY OF THE ORDER IN IA NO. 26/2021 IN OS NO. 107/2017 ON THE FILES OF SUB COURT THIRUVANANTHAPURAM DATED 31.01.2022 TRUE COPY OF THE REQUISITION FORM ISSUED BY THE SUB COURT THIRUVANANTHAPURAM TO THE DIRECTOR ,STATE FORENSIC SCIENCE LABORATARY VAZHUTHKAD THIRUVANANTHAPURAM DATED 25.03.2022 A TRUE COPY OF THE TREASSURY CHALLAN EVIDENCING REMITTANCE OF FEES FOR THE EXAMINATION OF THE MOBILE PHONE AND THE COMPACT DISC BY THE COUNSEL FOR THE PETITIONER BEFORE THE TRIAL COURT DATE 11.03.2022 CERTIFIED COPY OF THE REPORT OF THE STATE FORENSIC SCIENCE LABORATORY DATED 08.12.2022 A TRUE COPY OF IA NO. 43/2023 IN OS NO. 107/2017 IN OS NO. 107/2017 ON THE FILES OF SUB COURT THIRUVANANTHAPURAM DATED 21.07.2023 APPENDIX OF OP(C) 2479/2023 2 Exhibit P14 Exhibit P15 Exhibit P16 Exhibit P17 Exhibit P18 A TRUE COPY OF THE STATEMENT OF OBJECTION FILED ON BEHALF OF THE FIRST RESPONDENT IN IA NO. 43/2023 IN OS NO. 107/2017 ON THE FILES OF SUB COURT THIRUVANANTHAPURAM DATED 08.10.2023 A TRUE COPY OF IA NO. 46/2023 IN OS NO. 107/2017 ON THE FILES OF SUB COURT THIRUVANANTHAPURAM DATE 16.10.2023 A TRUE COPY OF THE STATEMENT OF OBJECTION FILED ON BEHALF OF THE FIRST RESPONDENT IN IA NO. 46/2023 IN IN OS NO. 107/2017 ON THE FILES OF SUB COURT THIRUVANANTHAPURAM DATED 17.10.2023 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER IN IA NO. 46/2023 IN IN OS NO. 107/2017 ON THE FILES OF SUB COURT THIRUVANANTHAPURAM DATED 18.10.2023 CERTIFIED COPY OF THE COMMON ORDER PASSED BY THE TRIAL COURT IN DISMISSING I.A NO. 43/2023 & I.A NO. 46/2023 IN OS NO. 107/2017 ON THE FILES OF THE PRINCIPAL SUB COURT THIRUVANANTHAPURAM DATED 28.10.2023