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2012 DIGILAW 3570 (MAD)

T. N. Sivadevan v. S. Balasaraswathi

2012-08-14

R.S.RAMANATHAN

body2012
Judgment :- 1. The plaintiffs in O.S.No.251 of 2007 on the file of the II Additional Sub Judge, Erode are the revision petitioners. 2. The plaintiffs filed the suit for declaration of title in respect A, B and C schedule properties and also prayed for injunction. Before the commencement of trial, the plaintiffs/revision petitioners filed application under Order XVIII Rule 3(A) of the Code of Civil Procedure seeking permission of the court to examine the attesting witnesses before the examination of the plaintiffs. That application was dismissed and aggrieved by the same, this revision is filed. 3. It is submitted by the learned counsel for the revision petitioners that the plaintiffs/revision petitioners relied upon two Wills dated 20.3.1995 executed by the father and mother separately and the Will dated 25.6.1977 executed by one Thangammal in favour of the revision petitioners and therefore, the plaintiffs based their claim only on those Wills and without marking the Will, the case cannot be proceeded further and the Will can be marked by examination of the attesting witnesses and for that purpose, the application was filed for examination of the attesting witnesses before the examination of parties and that was not properly appreciated by the court below. The counsel for the revision petitioners relied upon the judgments reported in GOVINDARAJU (DIED) v. RATHINAMMAL ( 2004(3) CTC 9 ), G.K.RAO v. A.HENRY (AIR 1987 MADRAS 178), RAMASAMY GOUNDER AND OTHERS v. MUTHAYAMMAL AND ANOTHER (AIR 1999 MADRAS 363), SAMIDURAI v. KANAKAYAL ( 1996(II) CTC 429 ) and RAVI & ANOTHER v. RAMAR (2008-1-LW 1055) in support of his contention. He further submitted that though in the cause of action paragraph, the Wills were not mentioned, the same was mentioned in the pleading and therefore, the whole reading of the plaint would make it clear that the plaintiffs are relying upon the Wills for getting the declaration and therefore, the examination of attesting witnesses is necessary and once the Wills are proved by examination of attesting witnesses, they can be relied on by the petitioners to give evidence and without appreciating the same, the court below dismissed the application. 4. I am unable to accept the contention of the learned counsel for the revision petitioners. 4. I am unable to accept the contention of the learned counsel for the revision petitioners. In the judgment reported in 2008-1-LW 1055, the law has been discussed in detail and after referring to various judgments of this High Court, the Honourable Division Bench held as follows:- "Keeping in view the principle that procedural rules are normally considered as directory unless the consequence of not following the procedure is specifically indicated, it would be appropriate to hold that the Court can give permission to the party to examine himself at a later stage even if no such permission had been sought for at the very threshold. As a matter of fact, save and except in one or two decisions of the single Judges of the Madras High Court, most of the High Courts, including many of the Judges of Madras High Court, have preferred to follow a more liberal path of laying down the proposition that even where such permission has not been sought for at the threshold, such permission can be granted for relevant reasons at a later stage. This is not to suggest that as and when such petition is filed the Court is bound to grant such permission merely for the asking. Obviously, the Court is required to consider the matter in its proper perspective and is required to find out as to why the party could not examine himself at the beginning and also as to why the application for seeking such permission was not filed at the threshold. If the Court finds that the party deliberately held himself back with a view to fill-up the lacunae in the evidence at a later stage, obviously such permission is to be refused irrespective of the fact whether permission is sought for at the threshold or at a later stage. If convinced on such aspects, the Court may permit the party to examine himself as a witness at a later stage. What is important is recording of reasons and obviously it means reasons which are germane to the matter, that is to say, relevant for the purpose." 5. In the judgment reported in 2004(3) CTC 9 , the Honourable Division Bench held that to prove the Will, attesting witnesses are to be examined. But, in that case, the Honourable Division Bench did not deal with the provisions of Order XVIII Rule 3(A) of the Code of Civil Procedure. In the judgment reported in 2004(3) CTC 9 , the Honourable Division Bench held that to prove the Will, attesting witnesses are to be examined. But, in that case, the Honourable Division Bench did not deal with the provisions of Order XVIII Rule 3(A) of the Code of Civil Procedure. As held by the Honourable Division Bench in 2004(3) CTC 9 , in order to prove a Will, attesting witnesses are to be examined before other witnesses. But, that depends upon the nature of the pleadings in each case. In this case, in the cause of action paragraph, the revision petitioners/plaintiffs did not mention anything about the Wills dated 20.3.1995 and 25.6.1977 and the declaration was sought for without reference to the Wills in the cause of action paragraph. 6. Further, in para 6 of plaint, it is alleged that the first plaintiff was very much interested in the cultivation of the lands and therefore, his father thought it fit and gave the cultivable lands measuring 9.26 acres described in A schedule property to the first plaintiff and the first plaintiff is in enjoyment of the same in his own right and that was confirmed by the father in his Will dated 20.3.1995. It is further stated that in the said Will, the father confirmed the distribution of the assets in the year 1990-1991 among his sons by bequeathing A schedule properties described thereunder to the first plaintiff, B schedule properties described thereunder to the third defendant and C schedule properties described thereunder to the fourth defendant. Therefore, even on the basis of the plaint allegations, the Will was set as a corroborative material to prove the earlier allotment of properties by the father in favour of his sons and on a reading of cause of action paragraph, it is made clear that the plaintiffs are relying upon the division of properties by the father in the year 1990-1991 to base their claim rather than relying upon the Will executed by the father in respect of the suit properties. Therefore, in such circumstances, the evidence of the parties are to be let in at the first instance and before the examination of parties, the petitioners cannot seek for permission of the court to examine the attesting witnesses to the Wills to prove the Wills. Therefore, in such circumstances, the evidence of the parties are to be let in at the first instance and before the examination of parties, the petitioners cannot seek for permission of the court to examine the attesting witnesses to the Wills to prove the Wills. In other words, a reading of the plaint would make it clear that the plaintiffs are relying upon the earlier partition to base their claim for declaration and therefore, the they will have to prove the facts in the first instance and the Wills can be proved by examining attesting witnesses. Hence, the court below has rightly dismissed the application and I do not find any reason to interfere with the order of the court below. However, it is open to the revision petitioners to examine the attesting witnesses to prove the Wills stated in the plaint after examining the plaintiffs in the first instance. In the result, the civil revision petition is dismissed. No costs. The order of interim stay granted in M.P.No.1 of 2011 is vacated and the petition is dismissed. M.P.No.1 of 2012 is allowed.