Bhuvaneswari v. Murahari (Died) — 1997 DIGILAW 330 (MAD)

Judgment : 1. Second defendant in O.S. 855 of 1978, on the file of the District Munsifs Court, Vridhachalam, is the appellant herein. 2. First respondent herein as plaintiff filed the above suit for declaration of title and recovery of possession. 3. Second respondent has purchased the properties of the first respondent pendente lite. As per orders passed on the memo filed by appellant, second respondent is recorded as the legal representative of the first respondent, who died after the filing of the Second Appeal. 4. Material facts in the plaint may be stated as follows:— ‘B’ schedule property is a portion of ‘A’ schedule property. The ‘B’ schedule property originally belonged to Ponnambalam Chetty by way of purchase. Ponnambalam Chetty executed a Will in favour of his adopted son Muthukumarasamy Chettiar in respect of B schedule and other properties. Muthukumarasamy died intestate leaving behind his brothers Subbaraya Chettiar, Somasundara Chettiar and Nagalingam Chettiar. The three brothers were in enjoyment of the same, and, after the death of Nagalingam Chettiar, Sub baraya Chettiar and Somasundara Chettiar were in enjoyment and they sold, the same to the plaintiff for a valuable consideration of Rs. 1,500/- under a registered sale deed dated 11.5.1964, and gave possession of the same. It is said that the first defendant has recently trespassed into a portion, and when demand was made asking him to surrender vacant possession, he denied the title. According to him, title was with the second defendant. Plaintiff further alleged that there was an earlier suit as O.S. 732 of 1964 filed by a third party claiming title over the plaint property. That suit was dismissed in favour of plaintiff. Since the first defendant refused to vacate in spite of demands, plaintiff filed the suit for the relief of declaration of title and recovery. 5. In the written statement filed by first defendant, he contended that he is doing firewood business in a portion of the property belonging to the second defendant, and the plaintiff has no title. 6. Theappellant (second defendant) filed a written statement denying the allegation that the property belonged to late Ponnambalam Chetty. The Will alleged to have been executed by him was also denied. He also said that neither Muthukumaraswami Chettiar for his brothers are entitled to any portion. 6. Theappellant (second defendant) filed a written statement denying the allegation that the property belonged to late Ponnambalam Chetty. The Will alleged to have been executed by him was also denied. He also said that neither Muthukumaraswami Chettiar for his brothers are entitled to any portion. The validity and binding nature of the judgment in O.S. 732 of 1964 was also disputed by the appellant: According to him, the property sought to be recovered is a Government poramboke and he has been in possession of the same for the last 30 years. It is under him, the first defendant is in possession. As a paramount title-holder, Government is also a necessary party. 7. In the additional written statement, he claimed that he Is in possession. There was an earlier proceeding between plaintiff and appellants mother as O.P. 13 of 1967 under the Rent Control Act. Subsequently, plaintiff withdrew that petition. It is said that the claim for mesne profits is also untenable. 8. From the above pleadings, trial Court raised issues regarding title to the property. It came to the conclusion that on the basis of Ex. A-1 Will dated 14.12.1903, plaintiff is entitled to succeed. It further came to the conclusion that there is no evidence to show that the property is a Government poramboke. On a comparison of the boundaries mentioned in the Will and also Ex. A-5 sale deed dated 7.5.1964, trial Court came to the conclusion that the plaintiff has title to the property. A decree was granted as prayed for. 9 Aggrieved by the judgment, second defendant preferred A.S. 286 of 1981, on the file of Subordinate Judge, Vridhachalam. Lower Appellate Court also accepted the case of plaintiff that he is the title holder and the appellant is liable to surrender possession to him. 10. It is against the concurrent judgments of both the Courts below, second defendant has preferred this Second Appeal. 11. The following substantial question of law was raised for consideration at the time of admission of Second Appeal:— “Whether the finding of the Appellate Court regarding the claim of title under the Will is not correct?” 12. The only point that was argued by learned counsel on both sides was, regarding the validity of the Will alleged to have been executed by late Ponnambalam Chetty. Ex. A-1 is only registration copy of the Will. The only point that was argued by learned counsel on both sides was, regarding the validity of the Will alleged to have been executed by late Ponnambalam Chetty. Ex. A-1 is only registration copy of the Will. Both the Courts below have relied on Ex. A-1 to come to the conclusion that Ponnambalam Chetty was the owner, and, on the basis of the Will, the property devolved on Muthukumaraswami Chettiar, and, on his death, the property was taken by his three brothers. 13. In so far as the proof of Ex. A-1 is concerned, no other evidence was let in except its production and the oral statement by plaintiff. None connected with Ex. A-1 has been examined. Both trial Court as well as lower Appellate Court are of the view that if the original is lost, reliance can be placed on registration copy by way of secondary evidence. Both the Courts below were of the view that under Sec. 65 of the Evidence Act, the same could be relied on. It is this finding that is challenged by learned counsel for the appellant. 14. According to me, the said contention has force. 15. Under S. 68 of the Indian Evidence Act, a document which requires attestation shall not be admitted in evidence, unless at least one attesting witness, if available, is examined. In this case, even the original is not before Court, and no attempt was made to examine the so called attestors of the Will. Of course, it was said that both the attestors are dead and, therefore, no other evidence was let in. Evidence Act also provides for such contingencies. S. 69 of the Evidence Act is one mode of proof when the attesting witness could not be found. S. 70 of the Evidence Act deals with the proof of a document required to be attested by a witness. Of course, in this case, that could not be had. S. 71 deals with a case where the attesting witness denies execution. According to me, under S. 69 of the Act, secondary evidence could be let in to prove execution. 16. Both the Courts below have relied on Section 90 of the Evidence Act to come to the conclusion that the document must be genuine and must have been executed in accordance with law. According to me, under S. 69 of the Act, secondary evidence could be let in to prove execution. 16. Both the Courts below have relied on Section 90 of the Evidence Act to come to the conclusion that the document must be genuine and must have been executed in accordance with law. Section 90 deals with ancient documents, i.e. , documents which came into existence 30 years prior to the institution of the suit. If reliance is placed on Sec. 90, then the original must be before Court. If the party has only a registration copy, there is no presumption of execution or attestation. Therefore, it cannot be said that Ex. A-1 was proved to have been executed by the original owner. 17. In an earlier decision of this Court, it was held that the presumption under Sec. 90 of the Act could be applied even in respect of registration copies. But, after the decision reported in AIR 1935 P.C. 132 (Basant Singh v. Brij Raj Saran ), the earlier decision of this Court is no longer good law. 18. In AIR 1935 P.C. 132 ( supra ), it was held thus:— “Section 90, Evidence Act, clearly requires the production to the Court of the particular document in regard to which the Court may make the statutory presumption. If the document produced is a copy, admitted under S. 65, as secondary, and it is produced from proper custody and is over thirty years old, then the signatures authenticating the copy may be presumed to be genuine, but it is not sufficient to justify the presumption of due execution of the original under S. 90” The said decision was followed in AIR 1954 SC 606 (Sital Das v. Sant Ram and others ) and AIR 1956 SC 305 ( Harihar Prasad Singh and another v. Deonarain Prasad and others). 19. In AIR 1954 SC 606 (supra), it was held thus:— “The language of Section 90 requires the production of the particular document in regard to which the Court is invited to make the statutory presumption. 19. In AIR 1954 SC 606 (supra), it was held thus:— “The language of Section 90 requires the production of the particular document in regard to which the Court is invited to make the statutory presumption. If the document produced is a copy, admissible as secondary evidence under S. 65 and is produced from proper custody and is over 30 years old, than only the signatures authenticating the copy may be presumed to be genuine; but production of a copy is not sufficient to raise the presumption of the due execution of the original.” 20. In AIR 1956 SC 305 (supra), it was held thus:— “The presumption enacted in S. 90 can be raised only with reference to original documents and not to copies thereof. Further if the document happens to be signed by the agent of the person against whom the presumption is sought to be raised and there is no proof that he was an agent, S. 90 does not authorise the raising of a presumption as to the existence of authority on the part of the agent to represent that person.” 21. In AIR 1968 SC 947 ( K.V. Subbaraju v. C. Subbaraju ), in paragraph 5 of the judgment, their Lordships said that if the document produced is a copy admitted under S. 65 as secondary evidence and it is produced from proper custody and is over 30 years old only the signatures authenticating the copy can be presumed to be genuine. The production of a copy therefore does not warrant the presumption of due execution of the original document. The Privy Council repelled the argument that where a copy of a Will has been admitted the Court is entitled to presume the genuineness of such Will which purports to be 30 years old. Relying on the words “where any document purporting or proved to be 30 years old’ in Section 90, the Privy Council held that the production which entitles the Court to draw the presumption as to execution and attestation is of the original and not its copy and that the decisions of the High Courts of Calcutta and Allahabad on which the argument was based were hot correctly decided.” 21. In (1970) II S.C.W.R. 585=AIR 1970 SC 2342 ( Shiv Lal & others ) v. Chet Ram and others ), the question was, whether the suit is barred by limitation. In (1970) II S.C.W.R. 585=AIR 1970 SC 2342 ( Shiv Lal & others ) v. Chet Ram and others ), the question was, whether the suit is barred by limitation. The acknowledgement was sought to be proved by production of a certified copy which was more than 30 years old, While considering the same, their Lordships said that “the production of a certified copy, of original cannot be proved, nor the presumption under S. 90 of the Evidence Act will apply in such cases.” Even the presumption under S. 114 of the Evidence Act was found to be not applicable in such cases. In that case, it was held thus:— “Prima facie, the suit is barred by time but it is said that in view of the acknowledgement made by mortgagors under the original of Ex. P-5 dated 22.6.1906, the suit is within time. There is no satisfactory material to show that Ex. P-5 relates to the mortgage in question. It is not necessary to go into that question in detail as it was impermissible for the courts below to rely on Ex. P. 5 for purpose of acknowledgement. Ex. P. 5 is a certified copy of a statement said to have been made in a mutation proceeding. Its original has not been produced. No witness has been examined to speak to the fact that the persons who are shown to have signed the original have in fact signed the same or those persons were the mortgagors or their representatives. The signature on the original cannot be proved by production of a certified copy. Nor can the courts raise any presumption under S. 90 of the Evidence Act in that regard. See Harihar Prasad Singh and another v. Must. of Munshi Nath Prasad and others. 1956 SCRI= AIR 1956 SC. 305 The Court and the 1st Appellate Court erroneously thought that they could presume that the persons mentioned as the executants in the copy have signed the original on the strength of S. 44 of the Punjab Land Revenue Act and S. 114 (e) of the Evidence Act. Section 44 of the Punjab Land Revenue Act deals with the presumption as regards an entry in the record of rights. This is not a case of an entry in the record of rights. It is the genuineness of the signature in the original of Ex. Section 44 of the Punjab Land Revenue Act deals with the presumption as regards an entry in the record of rights. This is not a case of an entry in the record of rights. It is the genuineness of the signature in the original of Ex. P-5 and the identification of the persons who signed it, that is important. Hence that Section affords no aid. Section 114(e) of the Evidence Act says that Court may presume that judicial and official acts have been regularly performed. Herein there is no such thing as the regularity of the performance of any official act. The identification of an executant or genuineness of a signature in a statement filed before an official has nothing to do with the regularity of his act unless it is shown t hat he had a duty to identify the person who signed it and further to take the signature in, his presence. Therefore, Ex. P-5 cannot serve as an acknowledgement of the mortgage. Therefore, Ex. P-5 cannot serve as an acknowledgement of the mortgage. Hence the plaintiffs claim to redeem the mortgage in respect of item No. 2 of the plaint must fail.” 22. In the earlier portion of the judgment, I said that the earlier view of this Court that the presumption can be raised even in respect of a registration copy is no longer good law. It was so held in A.I.R. 1950 Madras 634 (Venkata Ratnam v. Sitaramayya). A Division Bench consisting of Subba Rao and Panchapakesa Ayyar, JJ. as their Lordships then were, held thus:— “Where a copy more than 30 years old is produced, no presumption under S. 90 about the original document can be raised.” The Full Bench judgment of this Court reported in A.I.R. 1923 Madras 1 (Subrahmania Somayajulu v. Y. Seethayya) was held to be no longer good law. 23. Inview of this legal position, it cannot be doubted that the decisions of the Courts below, relying only on a registration copy of Ex. A-1 to prove the title of the plaintiff cannot be accepted. In fact, no attempt was made by plaintiff to adduce any other evidence to prove the execution of Ex. A-1. 23. Inview of this legal position, it cannot be doubted that the decisions of the Courts below, relying only on a registration copy of Ex. A-1 to prove the title of the plaintiff cannot be accepted. In fact, no attempt was made by plaintiff to adduce any other evidence to prove the execution of Ex. A-1. Being a document of more than 75 years old, even if evidence regarding actual execution and attestation .may not be necessary or not possible, collateral evidence could have been produced by summoning the production of the thumbimpression register and other connected documents available in the Sub Registrars Office. The mere statement that the attesting witness is not available or that they are dead, is not sufficient proof, as contemplated under law. If the original had been produced, the explanation offered by the plaintiff may be sufficient. 24. Learned counsel for the respondents submitted that apart from the Will, there is another litigation in respect of the very same property which ended in their favour. Reliance is placed on Exs. A-6 to A-8, judgment of the trial Court, lower Appellate Court and second Appellate Court. I do not think any reliance could be placed on those documents when the decisions are not inter partes. It is now settled law that if the judgment is not between inter partes, it is of no evidentiary value. 25. In (1983) 3 SCC 118 ( State of Bihar v. Radha Krishna Singh and others ), their Lordships said that where there is a specific provision covering the admissibility of a document, it is not open to the Court to call in aid other general provisions in order to make a particular document admissible. If a judgment is not admissible as not falling within the ambit of Ss. 40 to 42, it must fulfill the conditions of S. 43, otherwise it cannot be relevant under S. 13 of the Evidence Act. The words “other provisions of the Act” cannot cover Section 13 because this Section does not deal with judgments at all. Therefore, Section 13 cannot be used to aid the admissibility of a judgment as coming under the provisions of Section 43. The words “other provisions of the Act” cannot cover Section 13 because this Section does not deal with judgments at all. Therefore, Section 13 cannot be used to aid the admissibility of a judgment as coming under the provisions of Section 43. Their Lordships further said as follows:— “A judgment in rem like judgments passed in probate, insolvency, matrimonial or guardianship or other similar proceedings, is admissible in all cases whether such judgments are inter partes or not But a judgment in personam which is not inter partes is inadmissible in evidence except for the limited purpose of proving as to who the parties were and what was the decree passed and the properties which were the subject-matter of the suit.” 26. If this is the evidentiary value of Exs. A-6 to A-8, the same also cannot have any binding force so far as the appellant is concerned. If these three documents are eschewed from evidence, plaintiff has to fail, for, he has not proved the antecedent title. Naturally, Ex. A-5 sale deed in his favour also will have to be discarded. The reasoning of the Courts below that because the Will was executed, sometime in 1903, the genuineness is to be presumed, is not a reasoning which could be accepted by a Court of law. The question of law is, therefore, found in favour of the appellant, and consequently, the judgments of the Courts below are liable to be set aside. 27. Inthe result, the decisions of the Courts below are set aside, by allowing the Second Appeal. Suit O.S. No. 855 of 1978, on the file of District Munsifs Court, Vridhachalam, will stand dismissed. There will be no order as to costs.