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2016 DIGILAW 1366 (MAD)

R. Janakiraman v. S. Uma Rani

2016-03-30

V.M.VELUMANI

body2016
ORDER : V.M. Velumani, J. This memorandum of Civil Revision Petition has been directed against the fair and executable order dated 07.09.2015 made in I.A. No. 187 of 2015 in O.S. No. 83 of 2011 by the learned VI-Additional District Judge, Madurai. 2. The petitioner is the plaintiff and the respondents are the defendants. The petitioner filed a suit in O.S.No.83 of 2011, for declaration of title based on the Will dated 24.04.1995, recovery of possession and partition of ?th share of gold ornaments and for permanent injunction. The respondents filed written statement and two additional written statements and contesting the suit. At the time of trial, the petitioner filed I.A.No.187 of 2015 under Order 18, Rule 1 C.P.C. to direct the respondents/defendants to begin the case first on the ground that the burden of proof lies on the side of the respondents/defendants to prove the genuineness of the Will dated 11.11.1998, alleged to have been executed by their mother Kothai Nayagi. 3. According to the petitioner, he is claiming title over the property based on the registered Will dated 24.04.1995 executed by the mother of the petitioner and the respondents. The respondents admitted the Will dated 24.04.1995. But they are claiming right to the suit properties based on subsequent Will dated 11.11.1998 alleged to have been executed by their mother. 4. The respondent filed counter affidavit and submitted that though they have admitted the Will dated 24.04.1995, their contention is that Will did not come into effect and the petitioner did not come into possession of the suit property even at the time of filing of the suit in O.S. No. 194 of 2010 by the petitioner, on the file of the I-Additional District Munsif Court, Madurai. 5. The respondents have denied that their mother possessed gold jewels weighing 232 sovereigns and the said gold jewels were divided by their father, after the death of their mother. The respondents contended that they have not admitted all the averments made in the plaint. Therefore, it is for the petitioner/plaintiff to prove his claim and he only must begin and substantiate his case. The learned Judge considering the facts and materials on record, dismissed the application in I.A. No 187 of 2015, by order dated 07.09.2015. Against the said order of dismissal, the petitioner has come up with this Civil Revision Petition. 6. Therefore, it is for the petitioner/plaintiff to prove his claim and he only must begin and substantiate his case. The learned Judge considering the facts and materials on record, dismissed the application in I.A. No 187 of 2015, by order dated 07.09.2015. Against the said order of dismissal, the petitioner has come up with this Civil Revision Petition. 6. The learned counsel for the petitioner submitted that the learned Judge committed error of law in dismissing the application filed by the petitioner. The learned Judge failed to see that as the respondent have admitted the Will dated 24.04.1995 executed by their mother, but are claiming their right based on the subsequent Will dated 11.11.1998. It is for the respondents to prove their case by letting in evidence at first. The learned Judge failed to consider Order 18, Rule 1 C.P.C. and Sections 58,68,101 and 104 of the Indian Evidence Act, 1872 and Section 170 of the Indian Succession Act,1925. 7. The learned counsel for the petitioner has relied on the following judgments in support of his arguments; 1. In Krishnakumar and other v. Seethalakshmi and others reported in LNIND 2013 MAD 5285 wherein in paragraph no.7 it has been held as follows: "7. The case of the defendants is that, Narayana Asari did not die intestate and he executed a Will in favour of his son Subramaniam, viz., the father of the defendants. Therefore, as per the provisions of Order 18, Rule 1 of C.P.C., both the parties, viz., the plaintiffs and the defendants admitted the fact that the properties belonged to Narayana Asari and this fact has to be taken into consideration and the other denial, regarding the succession to the property cannot be taken into consideration to decide whether the defendants are admitting the case of the plaintiffs are not. If the arguments of the learned counsel for the revision petitioners is to be accepted, for attracting the provisions of Order 18, Rule 1, that the defendants ought to have admitted the facts, alleged in the plaint, then, there is no need for any trial and the Court can straightway pass a decree. What the order requires is, whether the defendants admitted the basis of the claim of the plaintiffs. In this case, the basis of the claim of the plaintiffs is that the property belonged to Narayana Asari. That fact admitted by the defendants. What the order requires is, whether the defendants admitted the basis of the claim of the plaintiffs. In this case, the basis of the claim of the plaintiffs is that the property belonged to Narayana Asari. That fact admitted by the defendants. If the defendants claimed that the property did not belong to Narayana Asari or Narayana Asari has no absolute estate over the property, in that case, it cannot be stated that the defendants have admitted the case of the plaintiffs. Therefore, having admitted the fact that the property belongs to Narayana Asari, the first condition, as stated in Order 18, Rule 1 has been satisfied and when the defendants pleaded right over the property, under the Will, they will have to prove the Will. Therefore, the Court below has rightly directed the defendants to lead evidence, in the first instance. In the judgment rendered in [Bajaj Auto Ltd., v. TVS Motor Company Ltd., referred to supra, it has been held by the Hon'ble Division Bench of this Court in para No.34, which reads thus:- "Burden of proof vis-a-vis onus of proof:- Burden of proof generally lies on a party, who asserts a particular fact. In other words, it would be on a party, whose suit would fail, if no evidence was let in. onus of proof by a party would cease the moment opposite party admits the transaction. Burden of proof on the pleadings of a party, never shifts to the other party. The initial burden of proving a particular fact is always on the party who asserts it. When he produces evidence in support of his statement, onus would shift on the opposite party to adduce rebutting evidence to meet the case made out by the other party. In civil cases, onus of proof is never fixed permanently, but it would fluctuate very frequently". 2. In Karpagam and another v. E. Purushothaman reported in 2010 (3) LW 282 wherein in paragraph no.21 it has been held as follows: 21. When the validity of Will has not been questioned by Defendants, question whether it is necessary to prove Will under Section 68 of Indian Evidence Act was considered by the Division Bench of Kerala High Court in AIR 1990 Kerala 226 [Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani and others] wherein, it was held as under:- "34. When the validity of Will has not been questioned by Defendants, question whether it is necessary to prove Will under Section 68 of Indian Evidence Act was considered by the Division Bench of Kerala High Court in AIR 1990 Kerala 226 [Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani and others] wherein, it was held as under:- "34. Order 8, Rule 5 of the C.P.C. provides that unless there is a specific denial of any allegation of fact made in the plaint, it shall be taken to be admitted. Section 58 of the Evidence Act provides that no fact need be proved in any proceedings, which by any rule of pleadings in force at the time, the parties are deemed to have admitted by their pleadings. In this case, in the absence of any denial in the written statement, the genuineness and the validity of the will Ext. A1 must be deemed to have been admitted by the law of pleadings, namely Order 8, Rule 5 , and therefore that fact was not required to be proved at the trial. Section 68 states that 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. The proviso to the Section which was introduced by the amending Act 31 of 1926 makes an exception in the case of any document, not being a will, which has been registered, unless its execution by the persons by whom it purports to have been executed, is specifically denied. The fact that the proviso is not applicable to wills, and that it does not make an exception in the case of registered wills, does not lead to any inference that a will cannot be acted upon or used as evidence, unless it has been proved by examining an attesting witness. The only effect of the proviso is that registration of the will by itself does not obviate the necessity of calling an attesting witness to prove it, if it is otherwise required to be proved. The proviso does not speak of a case where a will is not in dispute. Section 68 relates to those documents which require to be proved at the trial of a suit. The proviso does not speak of a case where a will is not in dispute. Section 68 relates to those documents which require to be proved at the trial of a suit. If by any rule of law or of pleadings, such proof is not required, Section 68 cannot operate to insist on formal proof by calling an attesting witness. Section 58 has to be read as overriding Section 68 and as obviating the necessity for calling an attesting witness, unless the execution of the will or the attestation is in dispute. In the absence of any such plea in the written statement, it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a will could be used as evidence. Phipson on Evidence 12th Edition (1976) explains the rationale behind examining an attesting witness as that he is the witness appointed or agreed upon by the parties to speak to the circumstances of its execution, "an agreement which may be waived for the purposes of dispensing with proof at the trial". In paragraph 1757, the learned author points out that proof of execution of documents required by law to be attested is dispensed with (although the attesting witness may be alive and in Court) "when the execution has been admitted for purposes of trial". Order 8, Rule 5, C.P.C. deems the execution of the will to be admitted in the absence of any denial thereof in the written statement. Examination of an attesting witness is therefore unnecessary when the parties have not joined issue on the validity or genuineness of the will." (underlining added) The above decision clearly lays down that when execution of Will has not been specifically denied, examination of attesting witness to a Will is unnecessary. This is all the more so, when execution of Will and signature of executant was admitted by 1st Defendant. Courts below rightly held that Ex. A1 is true and genuine and first substantial question of law formulated is answered against the Appellants." 3. In Kamalam v. Rukmani and others reported in 2009 (5)LW 775 wherein in paragraph Nos.9 to 25 it has been held as follows: "19. At this juncture, it would be more useful to look into the following provisions of law. 20. A1 is true and genuine and first substantial question of law formulated is answered against the Appellants." 3. In Kamalam v. Rukmani and others reported in 2009 (5)LW 775 wherein in paragraph Nos.9 to 25 it has been held as follows: "19. At this juncture, it would be more useful to look into the following provisions of law. 20. Order 8, Rule 3 of the Code of Civil Procedure 1908 (Act 85, 1908) reads as follows: "3. Denial to be specific.- It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth except damages. 21. Order 8, Rule 5(1) of the said Code says that "every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability". 22. From the cumulative reading of the said provisions, it is easily discernible that if a particular fact has been averred in the plaint, there must be a specific denial in the written statement and in the absence of specific denial, the fact in question is deemed to have been admitted by the defendant concerned. 23. Section 58 of the Indian Evidence Act, 1872 reads that "no fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings". 24. From the reading of provision of the said section, it is also made clear that admitted facts need not be proved. 25. In the instant case, as noted down earlier, in the amended pliant it has been clearly stated that the vendor under Ex.A1 viz., Chinniah Naicker is the brother of vendee under Ex.A2. But the said fact has not been specifically denied in the written statement. 25. In the instant case, as noted down earlier, in the amended pliant it has been clearly stated that the vendor under Ex.A1 viz., Chinniah Naicker is the brother of vendee under Ex.A2. But the said fact has not been specifically denied in the written statement. Therefore, as per the provisions of Order 8, Rule 3 and 5(1) of the Code of Civil Procedure and also as per the provision of Section 58 of the Indian Evidence Act, 1872 it is needless to say that the defendant has clearly admitted the fact to the effect that the vendor under Ex.A1 is the brother of the vendee under Ex. A2." 4. In Bama v. Rukiyal Bivi reported in 2004 (1) LW 433 wherein in paragraph no.6 it has been held as follows: "6. As a general rule, the plaintiff has to prove his claim by positive proof, but the Court has to see whether there is a proof of claim before it need enquire to the truth or otherwise of the defence. It is open to the plaintiff to say that although he has right to begin, he may rest content with relying upon the averments made in the written statement and may say that he does not propose to adduce further evidence. If the defendant admits material allegations in the plaint, the defendant may begin. However, the plaintiff must prima facie satisfy that there are reasons to believe that particular thing is within the knowledge of the defendant. If the denial by the defendant is without substance in view of the other admitted facts, the onus lies on the defendant and he must be directed to lead the evidence first." 8. The learned counsel for the respondents filed counter affidavit along with the vacate stay petition. According to the learned counsel for the respondents, the respondents have not admitted the entire case of the petitioner as alleged by him in the plaint. The respondents have denied that their mother owned 232 sovereigns of gold jewels and the Will dated 24.04.1995 did not come into force and the petitioner did not take possession of the suit property. They have denied the claim of the petitioner in the written statement and therefore, it is for the petitioner to begin and prove his case. 9. Heard the learned counsel on both side and perused the materials available on record. 10. They have denied the claim of the petitioner in the written statement and therefore, it is for the petitioner to begin and prove his case. 9. Heard the learned counsel on both side and perused the materials available on record. 10. From the materials it is seen that the petitioner is claiming two reliefs in the suit i.e., declaration that suit property belongs to him absolutely and the division of gold jewels weighing 232 sovereigns belonging to their mother. The petitioner's claim with regard to the property is based on the Will dated 24.04.1995. Even though, the respondents admitted the said Will, they claim that it has not come into force and the petitioner is not in possession of the suit property. They denied the existence of 232 sovereigns of gold jewels. In the circumstances, it can not be said that the respondents have admitted the claim of the petitioner, on the other hand, the respondents have alleged that the petitioner is not entitled to get relief as claimed by him. In view of this denial the judgments relied on by the learned counsel for the petitioner do not advance petitioner's case. The learned Judge considering all these facts and materials, dismissed the application. Hence, there is no irregularity or illegality in the said order warranting interference by this court. 11. Accordingly this Civil Revision Petition is dismissed. However, the Suit is of the year 2011, the VI-Additional District Judge, Madurai, is directed to dispose of the suit in O.S. No. 83 of 2011, as expeditiously as possible, in any event, not later than 31st day of October, 2016. No Costs. Consequently connected Miscellaneous Petitions are closed. Petition dismissed.