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2014 DIGILAW 444 (AP)

Chintham Ramanaiah v. Yalagala Subbamma

2014-03-20

C.V.NAGARJUNA REDDY

body2014
ORDER C.V. Nagarjuna Reddy, J. 1. These two Civil Revision Petitions arise out of two Interlocutory Applications filed in a common suit between the same parties. Hence, they are heard and being disposed of together. 2. I have heard Sri K. Koteswara Rao, the learned counsel representing Sri I. Gopala Reddy, the learned counsel for the petitioners and Sri K. Sarvabhouma Rao, the learned counsel for respondent No. 1. 3. Respondent No. 1 filed O.S. No. 948 of 2007 in the Court of the learned Principal Junior Civil Judge, Ongole, for partition and separate possession of the suit schedule properties against the petitioners and respondent Nos. 2 and 3. After closure of the evidence of respondent No. 1-plaintiff, the petitioners have adduced oral evidence by examining D.Ws. 1 and 2. The suit was posted for arguments after closing the evidence on behalf of both the parties. Thereafter, the petitioners secured some adjournments and filed two I.As, namely, I.A. No. 1670 of 2013 for reopening the suit for adducing further evidence and I.A. No. 1671 of 2013, under Order XVI Rule 1(2) and Section 151 C.P.C., for summoning one Nagam Basweswaralingam, S/o Late Nagam Brahmanandam, a document writer. 4. In the affidavit, the petitioners have stated that they have been relying upon Ex. B-1-Will; that all the attestors of the said Will died; and that the scribe also died, leaving behind his son by name Nagam Basweswarallingam, who is also a document writer. The petitioners have, therefore, filed the abovementioned two I.As. These applications were opposed by respondent No. 1-plaintiff. The lower Court dismissed both the applications by separate orders, dated 27.12.2013. Assailing these two orders, the petitioners filed these Civil Revision Petitions. 5. A perusal of the order in I.A. No. 1671 of 2013 shows that the lower Court, considering the conduct of the petitioners in filing the applications at the stage of arguments, has drawn a presumption that the said applications have been filed only with a view to drag on the suit proceedings. 6. It is the case of the petitioners that as Ex. B-1-Will, set up by them, was executed 30 years back, the attesting witnesses as well as the scribe died and that therefore, they want to examine the son of the scribe, who is also stated to be a document writer. 7. 6. It is the case of the petitioners that as Ex. B-1-Will, set up by them, was executed 30 years back, the attesting witnesses as well as the scribe died and that therefore, they want to examine the son of the scribe, who is also stated to be a document writer. 7. I cannot understand as to how examining the son of the scribe will improve the case of the petitioners in view of the provisions of Section 68 of Indian Evidence Act, 1872 (for short 'the Act'), which envisages that if a document is required by law to be attested, it shall not be used as evidence, unless one attesting witness at least 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 giving evidence. 8. Under Section 69 of the Act, if no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. 9. Thus, under law, in order to succeed in proving Ex. B-1-Will, the petitioners have to examine at least one attesting witness and in case the attesting witnesses are not alive, they have to prove that the attestation of one attesting witness is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. 10. I am at a loss to know as to how by examining the son of the scribe, the petitioners can prove that the attestation of at least one attesting witness is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. 11. It is not stated in the affidavit of the petitioners that Ex. B-1 Will was scribed and attested in the presence of the son of the scribe who is proposed to be examined by the petitioner. Unless it was specifically averred that the proposed witness has witnessed the execution of Ex. B-1-Will, he is not expected to speak to the attestation of at least one attesting witness or confirm the handwriting of the executant of Ex. B-1-Will. Unless it was specifically averred that the proposed witness has witnessed the execution of Ex. B-1-Will, he is not expected to speak to the attestation of at least one attesting witness or confirm the handwriting of the executant of Ex. B-1-Will. In the absence of such an averment, it will be wholly unnecessary to summon the son of the scribe. Though the lower Court dismissed the I.As. only on the ground of delay, the aforementioned reasons constitute substantive grounds for dismissing the I.As. 12. For the above-mentioned reasons, I do not find any merit in these Civil Revision Petitions and they are accordingly dismissed. 13. As a sequel to the dismissal of the Civil Revision Petitions, C.R.P.M.P. Nos. 339, 340 and 777 of 2014 are dismissed as infructuous.