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1990 DIGILAW 33 (KER)

Devassia Mathew v. Mathai

1990-01-23

PAREED PILLAY

body1990
Judgment :- 1. First defendant in O.S. 5 of 1981 of the District Court, Kottayam is the appellant. The first respondent-plaintiff filed O.P. 55 of 1980 under S.278 of the Indian Succession Act for the grant of Letters of Administration with the copy of the will annexed. As the petition became contentious it was converted into a suit. 2. The case of the plaintiff is that deceased Augusthy Thommen executed Ext.Al will on 24-12-1114 M.E. in the presence of attestors, that he died on 8-1-1115 M.E., that the will was subsequently registered in 1118 M.E. and that the plaintiff should be granted Letters of Administration with the copy of the will annexed. First defendant disputed the genuineness of the will. The District Judge granted Letters of Administration in favour of the plaintiff. 3. Ext.Al will was attested by four witnesses. Except Augusthy Antony, the first witness in Ext.Al other attesting witnesses are not alive. P.W.1 stated that the witness Augusthy Antony is aged 90 years, that he is unable to walk and that his power of speech has been impaired. Twice summons were taken to the witness. On the first occasion the summons was returned stating that the witness was not residing permanently in the place shown in the summons. On the second time the summons was returned stating that the witness had gone somewhere. Thus, it can be seen that the plaintiff had taken steps to examine the sole surviving witness. Contention of the defendant is that non-compliance of the mandatory requirements of S.68 of the Evidence Act disentitles the plaintiff to any relief in the suit. 4. S.68 of the Evidence Act provides that documents required by law to be attested shall not be used as evidence unless 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. 5. Counsel for the defendant submitted that the plaintiff ought to have taken out a commission to examine the witness Augusthy Antony and as nothing of that sort was done the Court below ought to have drawn necessary adverse inference against the plaintiff. Plaintiffs counsel argued that in view of the categoric admissions of the will in prior litigations defendant is estopped from adopting diametrically opposite posture. 6. Plaintiffs counsel argued that in view of the categoric admissions of the will in prior litigations defendant is estopped from adopting diametrically opposite posture. 6. O.S. 204 of 1951 was filed by the present plaintiff against Kathri (daughter of testator and mother of the first defendant) and wife of the testator. Ext. A3 is the certified copy of the written statement in that suit. In Para.4 of Ext.A3 they admitted the will and stated that the right of plaintiff is subject to the terms and conditions in the will. O.S. 4 of 1124 M.E. was filed by Kathri against the present plaintiff asserting her rights in accordance with the will. As per Ext.Al will Kathri was given life interest in the properties. Ext. A5 is the decree in O.S. 4 of 1124 M.E. The decree discloses that Kathri had filed the suit on the strength of the will executed by her father. O.S. 177 of 1975 is a suit filed by the plaintiff against the first defendant. In Para.3 of Ext.A2 written statement in the above suit appellant (first defendant) has admitted in unequivocal terms that he and his mother have been residing in the property and keeping possession of it in accordance with the will. Exts.A2, A3 and A5 would clearly establish the genuineness of Ext. Al will. As the existence of the will has been admitted in Exts.A2, A3 and A5 the plaintiffs failure to examine the sole surviving attesting witness cannot be held to be detrimental to his case. 7. The burden is on the propounder of the will to prove its due execution by examining at least one of the attesting witnesses. As the will is admitted by the defendant in prior judicial proceedings (Ext.A2) plaintiff's failure to examine the attesting witness can in no way be deleterious to his case. An admission is really a statement of fact which will have the effect of dispensing with the production of evidence by the opposite party. The Supreme Court in Thiru John v. Returning Officer (A.I.R. 1977 S.C.1724) held that a party's admission as defined in S.17 to 20 fulfilling the requirements of S.21 of the Evidence Act is substantive evidence proprio vigore. As there is unequivocal admission of the will in the prior litigation, the first defendant cannot turn around and impeach its genuineness at a subsequent stage. As there is unequivocal admission of the will in the prior litigation, the first defendant cannot turn around and impeach its genuineness at a subsequent stage. As the admission is found in the pleadings, it can be accepted and the plaintiffs case cannot be thrown out on the ground that he has to prove his case independently of the admission of the defendant. As the existence of the will is admitted by the defendant long prior to the present proceedings, it has to be presumed to be true particularly when no suspicious circumstances emerge in the evidence to doubt its genuineness. An admission made in a prior litigation cannot be straight away considered as one intended for that case only. If such an admission tantamounts to proof of a fact in a later litigation, certainly the adversary can rely on it and then the party who made the admission cannot merely contend that it was intended for an entirely different purpose. It is the settled position that admission in the pleadings in a former litigation if it is unambiguous and clear cannot be discarded on the ground that the matter admitted by the defendant has to be still proved by the opposite party. Such an approach is basically wrong. Unless such admission is explained away its importance cannot be sidelined. In Bharat Singh v. Bhagirathi (AIR 1966 S.C. 405) the Supreme court observed that admissions are substantive evidence by themselves in view of S.17 and 21 of the Evidence Act, though they are not conclusive proof of the matters admitted. 8. No attempt was made by the defendant to hold that the admission was mistakenly made or it is false. He merely stated that at the time when he filed Ext.A2 written statement his advocate had told him that it would not be possible to deny the validity of the will. Such a bald explanation is hardly sufficient to override the admissions in O.S.4 of 1124 M.E. and Ext.A3 and particularly his own admission in Ext.A2. It is settled law that a statement made by a defendant in his written statement amounting to unequivocal admission must be presumed to be true unless otherwise proved. In Nathoo Lal v. Durga Prasad (AIR 1954 S.C. 355) the Supreme Court held thus: "What is admitted by a party to be true must be presumed to be true unless the contrary is shown". 9. In Nathoo Lal v. Durga Prasad (AIR 1954 S.C. 355) the Supreme Court held thus: "What is admitted by a party to be true must be presumed to be true unless the contrary is shown". 9. Apart from the admissions in the prior litigations presumption under S.90 of the Evidence Act also can be drawn so far as Ext. Al is concerned. The object of S.90 is to do away with difficulties that may crop up in the matter of proving ancient documents. It may not be easy for a person to prove an ancient document by examining the attesting witnesses after lapse of considerable time as the witnesses may not be alive. Presumption under S.90 of the Evidence Act cannot be denied in the case of a 30 year old will on the ground that it has not been proved by examining at least one of the attesting witnesses as stipulated under S.68 of the Act. Presumption under S.90 extends to testamentary documents provided the Court entertains no suspicion about it due to any artificiality in its origin, interlineations, corrections or tamperings. In Mannalal v. Kashi Bai (AIR 1947 P.C.15) the Privy Council held: "The actual execution and attestation of a will more than 30 years old and produced from proper custody can be presumed under S.90". As the wife of the testator has admitted in Ext.A3 written statement in O.S. 204 of 1951 that the will was entrusted with the plaintiff, the defence contention that the will is of doubtful origin is devoid of merit. Though S.68 of the Evidence Act specifically provides for the mode of proving a will, S.90 gives presumption with regard to a will of more than 30 years old. Court can draw necessary presumption on the genuineness of a will of more than 30 years old when there are no suspicious circumstances about it. As the existence of the will has been admitted in prior proceedings and as presumption under S.90 of the Evidence Act is available, the defence contention that plaintiff failed to prove the will is devoid of merit. The judgment and decree of the trial Court are confirmed. The Appeal stands dismissed with no order as to costs. Dismissed.