Research › Search › Judgment

Madras High Court · body

2017 DIGILAW 3287 (MAD)

Rosal v. Selvaraj (Died)

2017-10-09

S.S.SUNDAR

body2017
JUDGMENT : 1. The first defendant in the suit in O.S.No.12 of 1986 is the appellant in the above appeal. 2. The first respondent herein is the plaintiff in the suit in O.S.No.12 of 1986 on the file of the Sub Court, Padmanabhapuram. The first respondent, as plaintiff, filed the suit for declaring that the document gift deed dated 27.04.1982 alleged to have been executed by Late Ponniah Nadar, is void or alternatively to set aside the said document dated 27.04.1982. 3. The case of the plaintiff is that the suit property is the ancestral property of the plaintiff and his father Late Ponniah Nadar. It is the further case of the plaintiff that he had filed a suit earlier in O.S.No.381 of 1976 on the file of the District Munisif Court, Padmanabhapuram, for partition of the joint family properties including the suit properties and that the suit was decreed for partition of his ½ share in the properties described as “A” and “B” schedule in the earlier suit. 4. The specific case of the first respondent is that his father was old and sick and that he was completely under the influence of the first defendant and her husband before his death. It is stated by the first respondent that he was constrained to file a second suit in O.S.No.344 of 1982 on the file of the District Munsif Court, Padmanabhapuram for permanent injunction since the first defendant and her husband were committing acts of waste in the suit properties by cutting down the valuable trees, etc. The plaintiff stated further that he came to know about the gift deed alleged to have been executed by Late Ponniah Nadar in favour of the first defendant only from the counter affidavit filed by the first defendant in the interim application filed by the plaintiff/first respondent for injunction in the second suit. The plaintiff described the gift deed dated 27.04.1982 as a piece of fabrication, brought into existence by impersonation. The plaintiff pleaded that the document was registered by playing fraud. The mental capacity of the plaintiff's father also was disputed by the plaintiff in the plaint. 5. The suit was contested by the first defendant. The plaintiff described the gift deed dated 27.04.1982 as a piece of fabrication, brought into existence by impersonation. The plaintiff pleaded that the document was registered by playing fraud. The mental capacity of the plaintiff's father also was disputed by the plaintiff in the plaint. 5. The suit was contested by the first defendant. It is to be noted that the plaintiff admitted the decree for partition in O.S.No.381 of 1976 on the file of the District Munsif Court, Padmanabhapuram and that the right of the plantiff's ½ share in the suit properties. Though the gift deed alleged to have been executed by the plaintiff's father in favour of the first defendant is in respect of the whole properties, the first defendant contended that the gift deed executed by Ponniah Nadar in favour of the first defendant is real and valid at least to the extent of ½ share in respect of the property of Late Ponniah Nadar. The second defendant appears to have entered into a sale agreement with the first defendant in respect of the plaint item No.3 of the suit property. Since the second defendant obtained a sale deed through Court pursuant to the decree for specific performance, obtained as against the first defendant, the second defendant claimed right as owner in the suit third item. The third defendant also claimed that he had entered into an agreement of sale with the first defendant prior to the suit filed by the second defendant. He also claimed certain rights in the suit property but the third defendant, however, admitted that the second defendant had taken possession of the suit property through Court and that he is entitled to get back the money from the first defendant which he had paid earlier as part of sale consideration. The defendants 2 and 3 also in their written statement contended that the settlement deed is valid and binding on the plaintiff. 6. The trial Court framed specific issues with regard to the validity of the gift deed dated 27.04.1982. The trial Court also framed an issue as to whether Late Ponniah Nadar was competent to execute the gift deed in respect of the whole of the suit property. The other issue was whether the gift deed is liable to be set aside. The plaintiff examined himself as P.W.1 and examined one Manoharadoss as P.W.2. First defendant examined himself as D.W.1. The other issue was whether the gift deed is liable to be set aside. The plaintiff examined himself as P.W.1 and examined one Manoharadoss as P.W.2. First defendant examined himself as D.W.1. D.W.2 is a photographer who has given evidence to prove few photographs marked as Ex.B17 to B19. D.W.3 is the Sub Registrar who was examined to prove that the Will was registered before him. D.W.4 is the Doctor who was examined to show that the father of D.W.1 was in his sound disposal state of mind. D.W.5 is the second defendant in the suit. Since the second defendant claimed title to ½ share in the suit property, he has stated that the properties purchased by him through Court was divided between himself and the third defendant in equal share. The evidence of D.W.5 is contrary to the written statement filed by defendants 2 and 3 in the suit. The trial Court after holding that the settlement deed produced as Ex.36 is the original settlement deed alleged to have been executed by Late Ponniah Nadar in favour of the first defendant. The trial Court after considering the fact that the settlement deed was produced before the Court at the fag end of the trial and that the long delay in registering the document was not properly explained, entertained certain doubts as to the genuineness of the gift deed under Ex.B36. Since no attestor who attested the document was examined, the trial Court also held that the execution of the document Ex.B36 by Ponniah Nadar is not proved in the manner known to law. Having regard to the totality of the circumstances, the trial Court has recorded a finding that the gift deed under Ex.B36 could not have been executed by Late Ponniah Nadar. Hence, the suit was decreed as prayed for. Aggrieved by the same, the first defendant has preferred the above appeal. 7. It is to be noted that the defendants 2 and 3 who claimed to have purchased the property from the appellant/first defendant have not filed any independent appeal as against the judgment and decree of the trial Court decreed in the suit setting aside the gift deed dated 27.04.1982 under Ex.B36. 7. It is to be noted that the defendants 2 and 3 who claimed to have purchased the property from the appellant/first defendant have not filed any independent appeal as against the judgment and decree of the trial Court decreed in the suit setting aside the gift deed dated 27.04.1982 under Ex.B36. Having regard to the specific pleadings on both sides and the issues framed by the trial Court for consideration, this Court is of the view that the only issue that arise for consideration before this Court is about the truth and validity of the gift deed under Ex.B36. 8. The learned counsel appearing for the appellant strenuously argued that the findings of the trial Court are not valid, since the trial Court failed to consider certain important documents and the material circumstances. According to the learned counsel for the appellant, the father of the plaintiff, Late Ponniah Nadar, was not cordial with the plaintiff and that several suits filed by the plaintiff as against the father would show that the father had no inclination to give any share in the suit property to him. Pointing out certain instances and the fact that the plaintiff had not even attended the funeral of his father and that the plaintiff and his father, never maintained good relationship, the learned counsel appearing for the appellant submitted that it is quite natural to expect the father to execute a gift deed in favour of his daughter excluding the plaintiff. It was the legal submission of the learned counsel for the appellant that the evidence of D.W.2 namely the Sub Registrar ought to have been accepted by the trial Court as the Document Ex.B36 has been registered and the registering authority has conducted an enquiry as to the identity of the executant, namely, the father Ponniah Nadar. Though the learned counsel for the appellant admitted that no attestor of the document Ex.B36 was examined, contended that the execution of the document namely the gift deed can be established even without examining the attesting witnesses. The learned counsel appearing for the appellant relied upon a judgment of this Court in D. Venkatapathy v. D. Jegapathy reported in (2016) 2 MLJ 647 . The learned counsel appearing for the appellant relied upon a judgment of this Court in D. Venkatapathy v. D. Jegapathy reported in (2016) 2 MLJ 647 . Relying upon the said judgment, it is submitted by the learned counsel appearing for the appellant that the matter can be remitted back to the trial Court for fresh disposal so as to enable the first defendant to prove the attestation of the document Ex.B36 in accordance with law. The learned counsel appearing for the appellant relied upon paragraphs 25 and 26 of the judgment which read as follows: “25. The learned counsel for the appellant would submit that since three vital documents namely, registered partition deed, registered cancellation deed of settlement and the registered Will in questions have not been properly proved in accordance with law, the appellant/1st defendant has been put into disadvantageous position. He would submit that an opportunity may be afforded to the appellant to prove these documents by letting in addition evidence. 26. I find force in the said argument. Apart from the above, as I have already pointed out, the respondent/plaintiff should also be afforded an opportunity to prove that the settlement deed under Ex.A.1 was acted upon. In order to do justice between the parties, in my considered view, the matter requires reconsideration by the trial court. For that purpose, I am inclined to set aside the preliminary decree and judgment of both the courts below and remit back the matter to the trial court for fresh disposal. Accordingly, I answer both the questions of law.” 9. In the present case, the only issue that arose for consideration before the trial Court was regarding the truth and validity of the document Ex.B36. When the genuineness of the Will was the main issue, the appellant ought to have been vigilant in calling upon at least one of the attestors of the document to prove the due execution of the document, as the burden lies on him to prove the gift deed and to satisfy the requirements of Section 68 of the Indian Evidence Act. 10. The learned counsel appearing for the appellant then relied upon a judgment of the Single Judge of this Court in A. Gomathi v. A. Sangeetha reported in AIR 2015 Mad 288 wherein it was held as follows: “19. 10. The learned counsel appearing for the appellant then relied upon a judgment of the Single Judge of this Court in A. Gomathi v. A. Sangeetha reported in AIR 2015 Mad 288 wherein it was held as follows: “19. As per Section 63(c) of the Indian Succession Act, 1925, the Testator and attesting witnesses must sign the Will in the presence of each other and all being present at the same time. Section 63(c) of the Indian Succession Act, 1925, reveals that when attesting witness puts his signature in the Will, based on the personal acknowledgement of Testator about his signature in the Will, then the attestation is valid attestation, even though the attesting witness has not seen the Testator signing the Will. This proposition has been approved by the Judgments referred to above. 20. Ex.P4 is a registered Will. A Division Bench of this Court in the Judgment reported in 2005 (1) MLJ 357 (supra) has held in paragraph 25 that "... Where there is proof of signature, everything else is implied till the contrary is proved." Hence, the conclusion of the learned Judge that the appellant failed to prove the Will is contrary to law, as per well settled judicial pronouncements referred to above.” 11. The above judgment has no application to the facts of this case. Here in this case, none of the attestor of the document was examined to prove the due execution but in the case above referred to, it was the factual finding that based on the personal acknowledgement of the testator about his signature in the Will, the attestor can validly attest the document even if the attesting witnesses had not seen the testator signing the Will. This Court has accepted the above proposition in several judgments, however, in a case where no attesting witness is examined, despite a specific denial of execution the judgment cited before by the learned counsel for the appellant has no application. The learned counsel appearing for the appellant then relied upon a judgment of a Division Bench of Calcutta High Court in the case of Goutam Bhowmick alias Bhuiya v. Shrimati Sabitri Bhuiya reported in AIR 2012 Cal 57 . The Division Bench of the Calcutta High Court has held as follows: “24. Moreover, this Will is a registered Will. The Will was executed on January 22, 1979 and the testatrix died on January 13, 1981. The Division Bench of the Calcutta High Court has held as follows: “24. Moreover, this Will is a registered Will. The Will was executed on January 22, 1979 and the testatrix died on January 13, 1981. The executor and the executrix named and appointed in the Will are the parents of the propounded It is an admitted position that the propounder was minor at the time of the execution of the Will. Therefore, his parents were entrusted to obtain probate and look after the property till the legatee attains majority. 25. The disputed Will is a registered one. An illiterate woman executed it. Before registration of the Will the Registrar must have satisfied himself that the testatrix had knowledge of the contents of the Will at the time of its execution. 26. The learned Additional District Judge was unnecessarily suspicious about the delay. Under the Limitation Act, 1963, no period is prescribed within which an application for probate or letters of administration is to be filed. Although long delay may be a ground to allege suspicious circumstances and the Court may take that in consideration for determining the question of genuineness of the Will. However, mere delay by itself is not a suspicious circumstance to refuse probate. It is now settled law that it may be filed at any time after the death of the testator. In this case the Will was a registered one.” 12. In the case before the Division Bench of Calcutta High Court, the facts are different and paragraph 15 of the said judgment should be read to know the background of the case and the factual details for appreciating the principle laid down in the said judgment. For convenience, it is extracted as follows: “15. Narayan Chandra Das was one of the attesting witnesses to the Will. He stated that the executrix was mentally alert and physically fit when she executed the Will. He, further, stated that the Will was read over and explained to the testatrix and, thereafter, on understanding the contents thereof, she put her left thumb impressions in every page of the Will. The Will was drafted by one mohorar of Howrah Court, namely, Kali Kumar Sarkar, according to the instructions of the testatrix. The scribe read over and explained the contents of the Will and the left thumb impressions of the testatrix were identified by Mihir Kumar Basu. The Will was drafted by one mohorar of Howrah Court, namely, Kali Kumar Sarkar, according to the instructions of the testatrix. The scribe read over and explained the contents of the Will and the left thumb impressions of the testatrix were identified by Mihir Kumar Basu. Rabin Nath Das, Sufal Chandra Santra, and Kali Kumar Sarkar, the scribe of the Will, were the other attesting witnesses of the Will. He categorically stated that the testatrix put her left thumb impressions in his presence and the said Mihir Kumar Basu identified the said impressions in his presence. The Will was registered at Howrah Registry Office. The testatrix herself presented the Will for registration. After the said will was registered, the testatrix, by putting her left thumb impression on the reverse side of the registration receipt, handed over the same to the executor, namely, Pashupati Bhuiya. He stated that excepting him all other attesting witnesses, namely, Kali Kumar Sarkar, Rabin Nath Das, Sufal Chandra Santra and Mihir Kumar Basu, were dead.” 13. The mandatory requirement of Section 68 of Indian Evidence Act cannot be dispensed with in this case in view of the position expressed by this Court and the Hon'ble Supreme Court in umpteen number of judgments. Plain reading of Section 68 of Indian Evidence Act makes the position clear and the due execution of the gift deed has to be proved by examining at least one of the attesting witnesses. 14. The question whether the registering authority can replace the attesting witnesses is considered by the Hon'ble Supreme Court in the case of M.L. Abdul Jabbar Sahib v. H. Venkata Sastri and sons and others reported in AIR 1969 SC 1147 . The Hon'ble Supreme Court after referring to Section 3 of the Transfer of Property Act, has held as follows: “8. The Hon'ble Supreme Court after referring to Section 3 of the Transfer of Property Act, has held as follows: “8. Section 3 of the Transfer of Property Act gives the definition of the word "attested" and is in these words :- "Attested", in relation to an instrument, means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his- signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present it the same time and no particular form of attestation shall be necessary." It is to be noticed that the word "attested", the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under s. 3 are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has. signed the instrument in the presence of the executant. It is essential that the witness should have- put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.” 15. The Hon'ble Supreme Court in the case of Rosammal Issetheenammal Fernandez and others v. Joosa Mariyan Fernandez and others reported in 2001 1 L.W. 574 has interpreted Section 68 of the Indian Evidence Act in unmistakable terms in the following manner: “10. Section 68 of the Indian Evidence Act: 68. The Hon'ble Supreme Court in the case of Rosammal Issetheenammal Fernandez and others v. Joosa Mariyan Fernandez and others reported in 2001 1 L.W. 574 has interpreted Section 68 of the Indian Evidence Act in unmistakable terms in the following manner: “10. Section 68 of the Indian Evidence Act: 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 at 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, XVI of 1908 unless its execution by the person by whom it purports to have been executed is specifically denied. 11. Under the proviso to Section 68 the obligation to produce at least one attesting witness stands withdrawn if the execution of any such document, not being a will which is registered is not specifically denied. Therefore, everything hinges on the recording of this fact of such denial. If there is no specific denial, the proviso comes into play but if there is denial, the proviso will not apply. In the present case as we have held, there is clear denial of the execution of such document by the plaintiff, hence the High Court fell into error in applying the said proviso which on the facts of this case would not apply. In view of this the very execution of the gift deed Exhibit B-1 is not proved. Admittedly in this case none of the two attesting witnesses has been produced. Once the gift deed cannot be tendered in evidence in view of the non-compliance of Section 68 of the Indian Evidence Act, we uphold that the plaintiff has successfully challenged its execution. The gift deed accordingly fails and the findings of the High Court contrary are set aside. In view of this no right under this document accrue to the concerned respondent over Schedule A property which is covered by this gift deed.” 16. The gift deed accordingly fails and the findings of the High Court contrary are set aside. In view of this no right under this document accrue to the concerned respondent over Schedule A property which is covered by this gift deed.” 16. In this case, it is not in dispute that the plaintiff has described the gift deed under Ex.36 as a concocted one fraudulently created by impersonation. The Will was also challenged on other grounds, namely, fraud, undue influence, etc., When execution of the document is specifically denied by other side, the propounder of the settlement deed or gift deed cannot prove the due execution without examining at least one of the attesting witnesses. Since the plaintiff has successfully challenged the execution of the gift deed under Ex.B36 and the first defendant has failed to prove the execution of the gift deed by examining one of the attesting witnesses, this Court has no other option but to hold that the execution of the gift deed is not proved. 17. Apart from failure to examine one of the attesting witnesses, the trail Court also found that the original Will came to be filed only after the completion of evidence by the plaintiff side and that there was no explanation for the long delay in registering the document under Ex.B36 after it was allegedly executed by the father Ponniah Nadar. In view of the specific finding with regard to the suspicious circumstances and the proof regarding the due execution of the document, this Court has no reason to interfere with the findings of the trial Court. 18. As a result, the above appeal is dismissed and the judgment and decree of the trial Court in O.S.No.12 of 1986 on the file of the Sub Court, Padmanabhapuram, dated 19.04.1990 is confirmed. In view of the fact that the contesting parties, namely, the appellant and the first respondent are close relatives, there is no order as to costs.