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Madras High Court · body

2014 DIGILAW 2818 (MAD)

S. Chandrasekaran v. V. T. Shanmugam

2014-08-22

R.MALA

body2014
Judgment 1. The present Civil Revision Petition has been filed challenging the impugned order dated 31.01.2014 made in I.A. No. 24 of 2012 in O.S. No. 18 of 2007 on the file of the Subordinate Court, Sankari, wherein the application filed under Section 137 of the Indian Evidence Act, for receiving the C.D. discussion as evidence to play the same before the open Court to confront DW2 with his own admission made in the televised discussion held on 21.12.2011 to establish his case, came to be dismissed. 2. Heard the learned counsel appearing for the petitioner and the learned Counsels appearing for the respondents 2 and 3. 3. The petitioner herein as plaintiff has filed the suit in O.S.No.18 of 2007 on the file of the Subordinate Judge, Sankari for the following reliefs: (a) To divide the suit properties into three equal shares and allote one such share to the Plaintiff by putting him in separate possession by appointment of Commission making provisions for passing final decree, taking into consideration the good and bad nature of soil and situation. (b) To restrain the 2nd defendant from any way in any manner alienating specific portions of suit properties in favour of third parties by way of permanent injunction till final decree is passed. (c) To award costs of the suit to the Plaintiff; and (d) To grant other relief or reliefs as the Court thinks fit under the circumstances of the case and thus render justice. 4. It is the case of the petitioner/plaintiff that the first defendant had two wives. The second defendant is the son born through his first wife Kalavathi. The said Kalavathi died 35 years ago leaving behind her husband, the first defendant and Son, the second defendant. After the death of Kalavathi, the first defendant married one Annapoorani as his second wife and the petitioner/plaintiff was born through the second wife Annapoorani. So, the plaintiff and the defendants 1 and 2 constitute a joint Hindu family. The suit scheduled properties are ancestral properties of Thandavaraya Padayachi who is the father of the first defendant and grandfather of the plaintiff and the second defendant. So, the petitioner/plaintiff is entitled to share in the suit properties. 5. While so, the said Thandavaraya Padayachi died at the age of 87. The suit scheduled properties are ancestral properties of Thandavaraya Padayachi who is the father of the first defendant and grandfather of the plaintiff and the second defendant. So, the petitioner/plaintiff is entitled to share in the suit properties. 5. While so, the said Thandavaraya Padayachi died at the age of 87. During his life time, Thandavaraya Padayachi had executed a will dated 24.01.1982 in favour of the first defendant plaintiff, second defendant stating that they are entitled to equal share in the suit properties. Hence, the petitioner herein as plaintiff has filed the suit for the reliefs stated above. 6. In the said suit, the second defendant filed written statement and contested the same, stating that as per the Will dated 24.01.1982, the total extent of the property available is only 9.91 acres, but the petitioner/plaintiff is seeking partition of 12.38 acres of land as per the plaint schedule property. It was further stated therein that 2.47 acres of the suit property is the self acquired property of one Angayammal, who is the wife of the Thandavaraya Padayachi and mother of the first defendant and grant mother of the plaintiff and the second defendant. The said Angayammal had executed a registered a Will dated 15.06.1992 in favour of the second respondent/second defendant regarding her 2.47 acres of self acquired properties. She died on 11.06.1995. So, only the second respondent/second defendant has got the legacy to get the 2.47 acres of self acquired property of Angayammal. The second respondent/second defendant also got patta in respect of the said 2.47 acres and later, he mortgaged the property in favour of the third respondent/third defendant. It was further stated that they constituted a joint family along with their grandfather and so, the will executed by Thandavaraya Padayachi is valid only upto the share of the said Thandavaraya Padayachi in the joint family properties and the second respondent/second defendant prayed for dismissal of the suit. 7. The petitioner/plaintiff filed reply statement stating that the will executed by Thandavaraya Padayachi is true and valid. However, he denied the Will dated 15.06.1992 alleged to be executed by Angayammal in favour of the second respondent/second defendant. It was further submitted that the mortgage deed is forged and fabricated by taking advantage of the forged Will. The attestor of the Will dated 15.06.1992, namely Selvam was examined as D.W.2. However, he denied the Will dated 15.06.1992 alleged to be executed by Angayammal in favour of the second respondent/second defendant. It was further submitted that the mortgage deed is forged and fabricated by taking advantage of the forged Will. The attestor of the Will dated 15.06.1992, namely Selvam was examined as D.W.2. The said Selvam/D.W.2 was examined in chief on 20.12.2011 and the case was adjourned to 04.01.2012 for cross-examination of D.W.2. Thereafter, on the same day at 2.40 p.m., D.W.2/Selvam discussed various aspects of the case in the presence of his brother-in-law Vijayaraghavan at this rice mill premises. The said discussion that took place between the D.W.2/Selvam and his brother-in-law has been videographed by the petitioner/plaintiff. 8. Thereafter, the petitioner/plaintiff filed an application in I.A. No. 24 of 2012 to receive the said C.D. discussion as evidence to confront D.W.2 with his own admission made in the televised discussion held on 20.12.2011. In the said application, the second respondent/second defendant filed a counter stating that the alleged C.D. is nothing but absolutely tampered one by morphing and other technical methods for wrongful and illegal gain and the said C.D. is not admissible in evidence. 9. The Trial Court after hearing the arguments advanced by both sides had dismissed the application preferred by the petitioner/plaintiff, against which the present Civil Revision Petition has been preferred. 10. The learned counsel appearing for the petitioner/plaintiff would submit that the C.D. is admissible in evidence, after the proviso to Section 65-A and 65-B of the Indian Evidence Act has been inserted by way of amendment made as per Act 21 of 2000. To substantiate his argument, the learned counsel for the petitioner relied upon the decision reported in 2012 (4) CTC 743 , Essaki Ammal @ Chitra v. Veerabhadra @ Kumar. 11. Resisting the same, the learned counsel for the second respondent would submit that the document sought to be received viz., the C.D is a concocted one. The averment made in the affidavit in support of the application filed to receive the said document would show that the same has been obtained by force and by morphing. There is no evidence to show that it was recorded from D.W.2/Selvam. D.W.2 is also not a party to the application and so, the document made by this witness will not bind the party to the proceedings. There is no evidence to show that it was recorded from D.W.2/Selvam. D.W.2 is also not a party to the application and so, the document made by this witness will not bind the party to the proceedings. To substantiate his argument, the learned counsel for the respondent relied on the following decisions reported in – 1. AIR 1974 Supreme Court 117, Biswanath Prasad and Others v. Dwarka Prasad and Others. 2. 2005-1-L.W. 444, Sri Varadharaja Perumal Temple, Thiruppapuliyur v. Jeyakumar. and prayed for the dismissal of the Civil Revision Petition. 12. Considered the rival submissions made by both sides and perused the typed set of papers. 13. The petitioner herein as plaintiff has filed the suit for partition and separate possession of 1/3 share in the suit property against his father and step brother, stating that the properties are owned by his grandfather Thandavaraya Padayachi. The said Thandavaraya Padayachi had executed a will dated 24.01.1982 bequeathing the properties in favour of the first defendant, plaintiff, second defendant and later, he died. So, the first defendant, plaintiff and the second defendant are entitled to equal share in the property. Hence, the petitioner/plaintiff filed the suit. The second defendant filed written statement stating that as per the Will dated 24.01.1982, the total extent of the property available is only 9.91 acres, but the petitioner/plaintiff is seeking partition of 12.38 acres of land as per the plaint schedule property. It was further stated therein that 2.47 acres of the suit property is the self acquired property of one Angayammal, who is the wife of the Thandavaraya Padayachi and mother of the first defendant and grant mother of the plaintiff and the second defendant. The said Angayammal had executed a registered a Will dated 15.06.1992 in favour of the second respondent/second defendant regarding her 2.47 acres of self acquired properties. She died on 11.06.1995. So, only the second respondent/second defendant is the absolute owner of the said property. To prove the Will, the attestor of Will, one Selvam was examined as D.W.2. He was examined in chief on 20.12.2011. Thereafter, on the same day at 2.40 p.m., D.W.2/Selvam discussed various aspects of the case in the presence of his brother-in-law Vijayaraghavan at this rice mill premises. The said discussion was videographed by the petitioner/plaintiff. Hence, to prove this case, the petitioner/plaintiff seeks to receive the said CD. He was examined in chief on 20.12.2011. Thereafter, on the same day at 2.40 p.m., D.W.2/Selvam discussed various aspects of the case in the presence of his brother-in-law Vijayaraghavan at this rice mill premises. The said discussion was videographed by the petitioner/plaintiff. Hence, to prove this case, the petitioner/plaintiff seeks to receive the said CD. But, admittedly the said document is a post litem motam document. After the chief-examination of D.W.2 has been recorded and when the matter was adjourned to 04.01.2012 for cross-examination, the petitioner/plaintiff had recorded the incident. 14. So, it is appropriate to incorporate paragraph 5 of the affidavit in I.A. No. 24 of 2012. “5. I state, that, after DW2 Selvam was examined in chief he discussed with various aspects of the case on 20/12/2011 at 2.40 p.m. in the presence of his brother in law Vijayaraghavan at his rice mill premises. I state, that, bonafide I caught DW2 Selvam one of the attestors to still in the television camera and such C.D is produced before this Hon’ble Court for the purpose of his cross examination on 4/1/2012 confronting with him the televised discussion to established my case. Hence, I submit that C.D. television discussion between me DW2 Selvam and his brother in law Vijayaraghavan held on 20/12/2011 as evidence to confront DW2 with admissions made by him in the televised discussion to establish my case. I state, that, televised CD is legal evidence and the same may be received for the purpose of cross examination of DW2 at the stage in the interest of justice otherwise I will be put to irreparable loss and hardship.” 15. A perusal of the above extract would clearly show that the petitioner/plaintiff with a view to create the document has recorded the same. At this juncture, the learned counsel for the second respondent would submit that without impleading D.W.2/Selvam, the application filed by the petitioner/plaintiff to receive the C.D as evidence is not maintainable. According to the petitioner/plaintiff, he has recorded the statement of D.W.2/Selvam. So, he is the competent person to speak about the same. But, he is not a party to this petition. 16. Now, it would be appropriate to consider the decision relied on by the learned counsel for the petitioner reported in 2012 (4) CTC 743 , Essaki Ammal @ Chitra v. Veerabhadra @ Kumar. So, he is the competent person to speak about the same. But, he is not a party to this petition. 16. Now, it would be appropriate to consider the decision relied on by the learned counsel for the petitioner reported in 2012 (4) CTC 743 , Essaki Ammal @ Chitra v. Veerabhadra @ Kumar. It would be appropriate to incorporate paragraphs 9 and 13 of the said decision: “9. Before admitting the tape- recording of the alleged telephonic conversation between the Revision Petitioner and Respondent, it is for the Petitioner to prove by competent witness, the time, place and accuracy of the said tape-recordings and the voice must be properly identified. At this juncture, it is relevant to refer to the Observations made by the Honourable Supreme Court reported in Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 (SC) 147 , that the Court must be satisfied beyond reasonable doubt that the record has not been tampered with, because of the facility of erasure and reuse of the recording medium. It is held as below: “If a statement is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence must be received with caution. The Court must be satisfied beyond reasonable doubt that the record has not be tampered with.” … … 13. In the light of the discussions made above, this Civil Revision Petition is disposed of with the following directions: 1. The impugned order is set aside. 2. The Trial Court shall call upon the Respondent to produce the cell phone in which the alleged conversation was recorded and on ascertaining from the Respondent whether he has recorded the conversation in the cell phone or in the memory card, appropriate orders can be passed by the Trial Court directing him to produce the memory card. In case if the Respondent recorded the conversation in the memory card immediately along with the cell phone, which recorded the conversation in the memory card. 3. In case if the Respondent recorded the conversation in the memory card immediately along with the cell phone, which recorded the conversation in the memory card. 3. The Trial Court shall call upon the Petitioner to allow the tape-recording of her voice which has to be taken in the Court and such tape recorded voice can be compared by an expert and after such comparison, the Court can come to the conclusion whether the recorded voice in Ex.P.7 Compact Disc is the voice of the Revision Petitioner. 4. If the Revision Petitioner does not submit to tape-recording of her voice in the Court to provide a standard recording of her voice, the Court may draw adverse inference against her.” But the above citation is not applicable to the facts of the present case on hand because the in the above decision, the petition has been filed for divorce on the ground of cruelty. In order to prove the guilt, the tape recording of the alleged telephonic conversation between the Husband and the Wife is sought to be marked. Though the Trial Court allowed the said application and marked the CD as Ex.P.7, it was set aside by this Court. In such circumstances, the above citation is not applicable. 17. At this juncture, it is pertinent to note that Section 17 to Section 31 of the Indian Evidence Act deals with “Admission”. It is appropriate to incorporate Section 18 of the Act. 18. Admission by party to proceeding or his agents:- Statements made by a party to the proceeding, or by an agent to any such party, whom the court regards, under the circumstance of the case, as expressly or impliedly authorized by him to make them, are admissions. By suitor in representative characters:- Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them that character. By suitor in representative characters:- Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them that character. Statements made by:- Party interested in subject-matters:- Persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested, or Person from whom interest derived:- Persons from whom the parties in the suit have derived their interest in the subject matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements.” Thus, the statement given by a living person is admissible in evidence. But, as per Section 23 of the Act, in civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstance from which the Court can infer that the parties agreed together that evidence of it should not be given. 18.1 The learned counsel for the second respondent relied upon the decision reported in AIR 1974 Supreme Court 117, Biswanath Prasad and Others v. Dwarka Prasad and Others, wherein it was held that admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. It is appropriate to incorporate, paragraph 8 of the said decision: “8. There is no merit even in the contention that because these three statements- Exs. G, G2 and H-had not been put to the first plaintiff when he was in the witness box or to the eighth defendant although he had discreetly kept away from giving evidence, they cannot be used against him. Counsel drew our attention to s. 145 of the Indian Evidence Act. There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement. In the former case. An admission by a party is substantive evidence if it fulfill the requirements of s. 21 of the Evidence Act; in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former case. An admission by a party is substantive evidence if it fulfill the requirements of s. 21 of the Evidence Act; in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore: in the later case the court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless. It has been put to him, as required by s. 145 of the Evidence Act, This distinction has been clearly brought out’ in the ruling in Bharat Singh v. Bhagirathi (1). This Court disposed of a similar argument with the following observations: “Admissions are substantive evidence by themselves, in view of ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or and whether that party when appeared as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under s. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.” 18.2. The learned counsel for the respondent also relied upon the decision reported in 2005-1-L.W.444, Sri Varadharaja Perumal Temple, Thiruppapuliyur v. Jeyakumar, wherein it was held that admission must be made by a party to the proceeding or his agent or by suitor in representative capacity. Only then, the admissions are relevant and they could be considered to decide the facts in issue. It is appropriate to incorporate paragraph 16 of the said decision: “16. Only then, the admissions are relevant and they could be considered to decide the facts in issue. It is appropriate to incorporate paragraph 16 of the said decision: “16. Section 17 of the Indian Evidence Act defines ‘Admission, which reads: “An admission is a statement, oral or documentary, or contained in electronic form which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons, and under the circumstances, hereinafter mentioned.” If the definition for admission has to be applied in this case, it should be shown that it is an admission by a party to the proceeding or his agent or by suitor in representative character or by party interested in subject matter or by person from whom interest derived. If the admission is made by the above category or persons, and proved, those admission are relevant, they could be considered to decide the facts in issue.” 19. Considering the facts of the present case in the light of the above citations, after the chief-examination, of D.W.2 was over and when the matter was adjourned for his cross-examination, some document by way of videographing the conversation of D.W.2/Selvam with his brother-in-law was created for the specific purpose of supporting his case. Hence, the said conversation is not admissible in evidence. 20. Further, a reading of paragraph 5 of the affidavit in I.A.No.24 of 2012 would show that after seeking adjournment for cross-examination, the petitioner/plaintiff has taken D.W.2/Selvam and obtained the statement to support his case. Hence, I am of the view that the CD in which the discussion between D.W.2 and his brother-in-law has been recorded is not admissible in evidence. The said document has been concocted only for the purpose of the case, by abusing the process of court, after obtaining adjournment for cross-examination. Furthermore, the petitioner/plaintiff has not revealed any details about the person who recorded the video. 21. Considering all the above facts and circumstances, I am of the view that the plea made by the petitioner/plaintiff for receiving the C.D discussion as evidence cannot be acceded to, as the same is not admissible in evidence. The Trial Court has considered the same in proper perspective and the order of the Trial Court does not warrant interference by this Court. 22. In fine, the Civil Revision Petition stands dismissed as devoid of merits. The Trial Court has considered the same in proper perspective and the order of the Trial Court does not warrant interference by this Court. 22. In fine, the Civil Revision Petition stands dismissed as devoid of merits. Consequently, connected miscellaneous petition is closed. However, no order as to costs.