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2000 DIGILAW 940 (MAD)

Rakku v. Cooriyayee and another

2000-09-21

K.GNANAPRAKASAM

body2000
JUDGMENT: The first defendant in O.S.No.94 of 1983 on the file of the District Munsif Court, Paramakudi, has preferred this Appeal, against the decree and judgment dated 30.11.1987 made in A.S.No.26 of 1987 on the file of the learned Subordinate Judge, Ramanathapuram at Madurai. 2. The first respondent/ plaintiff filed the suit for declaration and injunction restraining the defendants from interfering with the plaintiff’s possession and enjoyment of the suit properties. The plaintiff contended that she was the only daughter of Coori Konar and thereby become entitled to the suit properties. But the appellant/ first defendant herein contended that she is entitled to the entire item 1 and half share in items 2 to 5 of the suit properties, being the daughter of the same mother Rakkayee Ammal through Sathappan. The appellant herein relied upon a Will dated 10.1.1958 marked as Ex.B-1. Though the Will was exhibited and marked without any objection, it was not duly proved by the defendant about the execution and attestation of B-1. Though the Will is a registered document, the due execution, attestation and registration of the three different acts, one follows the other. Sec.68 of the Evidence Act reads as under: “Proof of execution of document required by law to be attested: If a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast 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 going evidence. ”(Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied).“ Proviso states that it is not necessary to call the attesting witness in proof of execution of any document, if the same has been registered in accordance with the provisions of Indian Registration Act, 1908, unless its execution is specifically denied. Even the said exemption is not available in the case of Will as the execution and attestation have got to be proved. 3. Even the said exemption is not available in the case of Will as the execution and attestation have got to be proved. 3. The word”attested“is defined under Sec.3 of the Transfer of Property Act which reads as under: ”3 “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person and each of whom has signed the instrument in the presence of the executant, but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.“ Admittedly, the deed of Will is one of such document which necessarily required by law to be attested. In Kashibai and another v. Parwatibai and others, (1995)6 S.C.C. 213 , Thier Lordships of the Supreme Court state that there can be no valid execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of no avail. Sec.63 of the Indian Succession Act, 1925 also prescribes certain rules with regard to the execution of unprivileged Wills. 4. Sec.63(C) of the Indian Succession Act reads as under: ”The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been same other person sign the Will, in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." The appellant had not chosen to prove the Will in the manner known to law, as set-forth above though it had been marked. Bearing this in mind only, the appellant has filed the application before the lower appellate Court in C.M.P.No.223 of 1987 in A.S.No.26 of 1987 on the file of the Sub Court, Ramanathapuram, for reception of additional written statement. But, however, the lower appellate Court dismissed the said application, and the appeal as well, which necessitated the filling of this appeal. 5. The appellant had raised several substantial questions of law, but the appeal was admitted on the following substantial question of law, "Whether the lower appellate Court is right refusing to consider Ex.B-1 for deciding the rights of the parties?" 6. The appellant has also filed an application under O.41, Rule 2, C.P.C. to raise the additional grounds in this appeal, wherein they made a specific ground that the "lower appellate Court was not correct in holding that the additional written statement could not be received in the appeal stage and thereby erred in dismissing the C.M.P.No.223 of 1987 in A.S.No.26 of 1987." The appellant sought to file additional written statement only when the facts were not set forth in the written statement filed before the trial Court and therefore the lower appellate Court should have received the additional written statement and instead of allowing the petition, the lower appellate Court dismissed the petition. 7. On going through the decree and judgment of the lower appellate Court and the additional grounds raised by the appellant, the substantial questions of law raised in the Appeal and in the additional grounds of Appeal I feel that the observation of the lower appellate Court is not correct. The additional written statement sought to be filed by the appellant should have been allowed to meet the ends of justice. Further, the Will dated 10.2.1958 Ex.B-1 was not proved in the manner known to law. In the said circumstances, the decree and judgment passed by the lower appellate Court in A.S.No.26 of 1987 should also be set aside and the matter has got to be remanded back to the trial Court to establish whether the Will dated 10.2.1958 was duly executed, attested and registered. 8. In the said circumstances, the decree and judgment passed by the lower appellate Court in A.S.No.26 of 1987 should also be set aside and the matter has got to be remanded back to the trial Court to establish whether the Will dated 10.2.1958 was duly executed, attested and registered. 8. In the result, the order passed by the lower appellate Court in C.M.P.No.223 of 1987 in A.S.No.26 of 1987 and the decree and judgment in A.S.No.26 of 1987 is hereby set aside and the petition in C.M.P.No.223 of 1987 is allowed and the additional written statement filed by the appellant/ defendant is taken on file and the matter is remanded back to the trial Court and the parties are at liberty to 1et in evidence in respect of the Will dated 10.2.1958 Ex.B-1. In other respects the findings of the lower appellate Court are hereby confirmed. No costs. 9. It is represented as this stage that the suit is of the year 1983 and early disposal of the case is requested. The trial Court is directed to dispose of the case within six months from the date of receipt of the records. 10. Judgement: The matter is posted today for being mentioned. It is represented that in para.8 of the judgment, in line 2 the words commencing from ‘and’ and ending with ‘A.S.No.26 of 1987’ is superfluous, and it is ordered to be deleted.