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2010 DIGILAW 1790 (MAD)

Chinnapaiyan @ Shanmugam v. P. P. Subramani

2010-04-15

M.JAICHANDREN

body2010
Judgment :- This civil revision petition has been filed against the order, dated 18.6.2009, made in unnumbered interlocutory application, in I.A.No. of 2009 (Court Fee Register No. 1548/2009) in O.S.No. 07 of 2001, on the file of the District Munsif Court, Sankari. 2. The petitioner in the present Civil Revision Petition is the 12th defendant in the suit filed by the respondent, in O.S.No.07 of 2001. The respondent had filed the said suit for partition and separate possession of a share in the suit property and for certain other reliefs. 3. The petitioner had filed an interlocutory application before the trial Court, invoking Order XVI Rule 6 of the Civil Procedure Code, 1908, praying for the issuance of summons to the Sub Registrar, Edapaddi, directing him to produce the certified Xerox copy of the Will, dated 6.9.1974, and the original of the said Will, registered as Document No.27/1974. The trial Court, by its order, dated 18.6.2009, had rejected the interlocutory application filed by the petitioner. 4. Against the said order, dated 18.6.2009, the petitioner has preferred the present civil revision petition stating that the Court below had erred in dismissing the application filed by the petitioner, without appreciating the facts and the circumstances of the case and without giving an opportunity of hearing to the petitioner. The trial Court had failed to note that the respondent had taken a stand that the Will propounded by the petitioner is a forged document and therefore, the onus is on the petitioner to prove the genuineness of the Will. The existence and the genuineness of the Will had to be proved only by marking the certified copy of the Will and by comparing the signature of the testator. It had also been stated that the learned District Munsif, Sankari, had failed to note that the petitioner was to satisfy the Court about the veracity of the Will, under Section 68 of the Indian Evidence Act, 1872. 5. On behalf of the respondent it has been stated that the relief sought for by the petitioner, in the interlocutory application, cannot be granted by the trial Court, since a certified copy of the alleged Will had already been marked, as Ex.B-4, by the petitioner. 5. On behalf of the respondent it has been stated that the relief sought for by the petitioner, in the interlocutory application, cannot be granted by the trial Court, since a certified copy of the alleged Will had already been marked, as Ex.B-4, by the petitioner. The trial Court had also held that the petitioner had already examined himself, as a witness during the trial and he had also marked the certified copy of the Will, dated 6.9.1974, alleged to have been executed by his grand father Palaniappa Bakthar. It was also noted that the cross examination had also been completed. At that stage, the petitioner had filed the interlocutory application, when the trial was at the stage of completion. 6. The learned counsel appearing on behalf of the respondent had relied on the following decisions in support of his contentions: 6.1. In Lakhi Baruah V. Padma Kanta Kalita ( AIR 1996 SC 1253 ), it has been held as follows: "Section 90 of the Evidence Act is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the document in question is produced from proper custody. It is, however, the discretion of the Court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons. Presumption under Section 90 does not apply to a copy or a certified copy even though thirty years old; but if a foundation is laid for the admission of secondary evidence under Section 63 of the Evidence Act by proof of loss of destruction of the original and the copy which is thirty years old is produced from proper custody, then only the signature authenticating the copy may under Section 90 be presumed to be genuine." 6.2. In Bharpur Singh V. Shamsher Singh ( 2009(3) SCC 687 ), the Supreme court had held that the presumption regarding documents, which are 30 years old, is not applicable to a Will, as it has to be proved in terms of Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872. In case the said provisions cannot be complied with, Section 69 and 70 of the Indian Evidence Act, 1872, would be attracted. It had also been held that, when the Will is surrounded by suspicious circumstances it would not be treated as the last testamentary disposition of the testator. Its proof ceases to be a simple lis between the plaintiff and the defendant. An adversarial proceeding in such cases becomes a matter of courts conscience and the propounder of the will has to remove all suspicious circumstances to satisfy that the Will was duly executed by the testator, where for, cogent and convincing explanation of suspicious circumstances shrouding the making of the Will, must be offered. 6.3. In P.Mani Alias P.Balasubramaniam V.P.Viswanathan (2008-2-L.W. 196), the Division Bench of this Court had held as follows: "It is to be noted that any and every circumstance is not a suspicious circumstance, in our considered view. However, a circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal individual. As a matter of fact, if a Will is surrounded by suspicious circumstances, the removal of which is the burden of the propounder. No presumption can be drawn that the Will in dispute is the last Will of the testatrix where there are suspicious circumstances, the Court would naturally expect all legitimate suspicion should be totally removed before the document is accepted as lost Will of the testatrix. It is to be borne in mind that one must adduce evidence to explain all suspicious circumstances in order to remove any doubt that is likely to linger in the mind of Court." 7. In view of the averments made on behalf of the petitioner, as well as the respondent and in view of the decisions cited above, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the reliefs, as prayed for by the petitioner in the present civil revision petition. 8. In view of the averments made on behalf of the petitioner, as well as the respondent and in view of the decisions cited above, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the reliefs, as prayed for by the petitioner in the present civil revision petition. 8. The trial Court had rightly held that there was no necessity to summon the Sub Registrar of Edapaddi, to produce a certified Xerox copy of the Will, dated 6.9.1974, as well as the original Will, as prayed for by the petitioner, in view of the fact that a certified Xerox copy of the said document had already been marked, as Ex.B-4, during the trial in the suit, in O.S.No.07 of 2001, on the file of the District Munsif Court at Sankari. Further, the trial Court had held that the interlocutory application filed by the petitioner is not maintainable in view of the fact that it had been filed when the trial in the suit was at the stage of its completion. As such, the Civil Revision petition is devoid of merits. Hence, it is dismissed. No costs. Consequently, connected miscellaneous petition is closed.