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2014 DIGILAW 870 (KER)

Santhakumari v. Raghavan Unni

2014-10-29

K.T.SANKARAN

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JUDGMENT K.T. SANKARAN, J. 1. The question which arises for consideration in this Original Petition is:- "Where a document purported to be a will, but not attested by any witness, is produced by the defendants, whether the court has jurisdiction to reject that document even before it is sought to be proved at the trial of the case." 2. The respondents filed O.S. No. 190 of 2010 on the file of the court of the Munsiff of Wadakkancherry for partition. The petitioner is the second defendant in the suit. The plaintiffs are the children of late Padmanabhan Nair in his first wife. The defendants are the second wife of Padmanabhan Nair and his six children born in the second marriage. The plaint schedule property belonged to Padmanabhan Nair. The plaintiffs claimed share in that property stating that Padmanabhan Nair died intestate. 3. Defendants 1 to 4, 6 and 7 filed a joint written statement and contended that Padmanabhan Nair had executed a Will in favour of his second wife and five children in her. The original will was not produced along with the written statement. Not even a copy of the will was produced by the defendants. The list of documents produced along with the written statement does not contain an entry regarding the will. 4. The plaintiffs averred in the plaint that Padmanabhan Nair did not execute any will as alleged by the defendants in the reply notice sent by them to the plaintiffs. 5. When the suit was listed for trial, the defendants filed I.A. No. 2526 of 2011 seeking to produce several documents including the will allegedly executed by late Padmanabhan Nair. That Will is an unattested and unregistered will. 6. The court below dismissed I.A. No. 2526 of 2011 on the ground that the documents could not be accepted in evidence. Since not even a list of documents was produced along with the written statement, the court below held that under Rule 1 of Order 13 of the Code of Civil Procedure, the documents could not be accepted. Sri Santhosh P. Poduval, the learned counsel for the petitioner relied on the decision in Bhanumathi vs. Sarvothaman, 2010 (4) KLT 809 and contended that the order passed by the court below is unsustainable. Sri Santhosh P. Poduval, the learned counsel for the petitioner relied on the decision in Bhanumathi vs. Sarvothaman, 2010 (4) KLT 809 and contended that the order passed by the court below is unsustainable. In Bhanumathi vs. Sarvothaman, 2010 (4) KLT 809 , a learned single Judge of this Court held that if the documents in the possession or power of the defendant on which he bases his defence or relies are not produced along with the written statement, the party has no right as such to produce those documents in evidence at the time of hearing, but in view of Sub Rule (3) of Rule 1 A of Order 8 C.P.C. the court has the power to receive such documents in evidence even at the time of hearing. It is submitted that in the light of the decision in Bhanumathi vs. Sarvothaman, 2010 (4) KLT 809 , the view taken by the court below is erroneous. 7. Sri N. Subrahmanian, the learned counsel appearing for the respondents submitted that even if the dictum in Bhanumathi's case is applied to the present case, the order impugned could be sustained on other grounds. The learned counsel submitted that the will in question was not executed and attested in accordance with law. Therefore, the defendants cannot insist that such a document should be accepted by the court. The counsel relied on the decisions in Chaganti Ventaka Bhaskar vs. C. Chandresekhar Reddy, AIR 2010 AP 155 , Sanjay Shrikishanji Somani & another vs. Vishnupant Shankarrao Shahane, AIR 2008 (NOC) 58 (Bombay), S. Kaladevi vs. V.R. Somasundaram and others, 2009 (2) MLJ 361 , Ranajit Kanungo vs. Ibcon Pvt. Ltd. AIR 1982 Karnataka 219, Mt. Sumitra Kuer vs. Ram Khair Chowbey, AIR 1921 Patna 61 and Dwijesh Chandra Roy vs. Naresh Chandra Gupta, AIR (32) 1945 Calcutta 492. 8. Section 63 of the Indian Succession Act provides for execution of un-privilege in Wills. Section 63 reads as follows: "63. Execution of unprivileged wills – Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) 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 seen some 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 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." 9. Section 68 of the Indian Evidence Act reads as follows: "68. 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 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. 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." 10. A will, to be a valid document, it shall be attested by two or more witnesses. How the attestation is to be made is provided in clause (c) of Section 63 of the Indian Succession Act. Without there being an attestor, there can be no valid Will. The requirement of each of the attesting witnesses signing the will in the presence of the testator is clear from Section 63 of the Indian Succession Act. To prove a will, whether registered or unregistered, at least one of the attesting witnesses should be called for the purpose of proving the execution. The requirement of each of the attesting witnesses signing the will in the presence of the testator is clear from Section 63 of the Indian Succession Act. To prove a will, whether registered or unregistered, at least one of the attesting witnesses should be called for the purpose of proving the execution. If no attesting witness can be found, the mode of proof is as provided in Section 69 of the Evidence Act. The propounder of a will can under no circumstances, seek to prove a Will which is not attested by the attesting witnesses. 11. Rule 3 of Order 13 of the Code of Civil Procedure provides that the court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection. The expression used in Rule 3 is may and not shall. That does not mean that the court has no power to exercise its jurisdiction under Rule 3 whenever it thinks fit to exercise in the facts and circumstances of the case. If a document is not at all a valid document, it is the duty of the court to reject that document, by exercising the jurisdiction under Rule 3 of Order 13. However, the court shall record the grounds of such rejection. If a document, which on the face of it is inadmissible or invalid, is admitted in evidence, it would cause prejudice to the opposite party. It would enable the party producing such document to lead irrelevant evidence at the time of trial of the case and the opposite party would be compelled to meet that evidence. The contention of the learned counsel for the petitioner that rejection of such document could be made only when it is sought to be marked, is unsustainable. Under Rule 3 of Order XIII C.P.C. the court has ample power to weed out such inadmissible document, or a document which is not a valid document at all in the eye of law. 12. In Chaganti Ventaka Bhaskar vs. C. Chandresekhar Reddy, AIR 2010 AP 155 and Sanjay Shrikishanji Somani & another vs. Vishnupant Shankarrao Shahane, AIR 2008 (NOC) 58 (Bombay), it was held that rejection of irrelevant or inadmissible documents can be at any stage of the suit, as provided under Rule 3 of Order 13 of the Code of Civil Procedure. 12. In Chaganti Ventaka Bhaskar vs. C. Chandresekhar Reddy, AIR 2010 AP 155 and Sanjay Shrikishanji Somani & another vs. Vishnupant Shankarrao Shahane, AIR 2008 (NOC) 58 (Bombay), it was held that rejection of irrelevant or inadmissible documents can be at any stage of the suit, as provided under Rule 3 of Order 13 of the Code of Civil Procedure. In S. Kaladevi vs. V.R. Somasundaram and others, 2009 (2) MLJ 361 , it was held that an unregistered sale deed is inadmissible in evidence for want of registration and none of its terms can be admitted in evidence. It was also held that the court would be justified in refusing to mark such a document as exhibit. In Ranajit Kanungo vs. Ibcon Pvt. Ltd. AIR 1982 Karnataka 219, it was held that even a document used during cross examination of witnesses for the purpose of testing his veracity must satisfy the rule of relevancy and admissibility. In Mt. Sumitra Kuer vs. Ram Khair Chowbey, AIR 1921 Patna 61, it was held that:- 13. In Dwijesh Chandra Roy vs. Naresh Chandra Gupta, AIR (32) 1945 Calcutta 492, the Calcutta High Court took the view that it is the duty of the court to exclude all irrelevant evidence, even if no objection is taken to its admissibility by the parties. 14. For the aforesaid reasons, the order passed by the court below, in so far as it relates to the rejection of the unattested document called will is upheld, though for different reasons. However, in view of the decision in Bhanumathi vs. Sarvothaman, 2010 (4) KLT 809 , all the other documents produced along with I.A. No. 2526 of 2011 are liable to be accepted and to that extent, the order passed by the court below is set aside. "It is clearly the duty of the Judge, apart altogether from any objection by the parties or their pleaders, to exclude all irrelevant evidence." The Original Petition is allowed in part as mentioned above. The court below shall allow I.A. No. 2526 of 2011, except in so far as the alleged will produced by the defendants. It is made clear that the plaintiffs and their witnesses, who were examined before stay was granted in the Original Petition, can be cross examined by the defendants. The defendants also would be entitled to adduce evidence on their side.