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2022 DIGILAW 3117 (MAD)

Lakshmi v. Ponnusamy

2022-09-02

SATHI KUMAR SUKUMARA KURUP

body2022
JUDGMENT (Common Prayer: These Civil Revision Petitions had been filed under Article 227 of Constitution of India to set aside the fair and decreetal order in I.A.Nos.216 & 217 of 2020 in O.S.No.169 of 2019 on the file of the learned Subordinate Judge, Palladam dated 17.03.2020.) 1. These Civil Revision Petitions had been filed under Article 227 of Constitution of India to set aside the fair and decreetal order in I.A.Nos.216 & 217 of 2020 in O.S.No.169 of 2019 on the file of the learned Subordinate Judge, Palladam dated 17.03.2020. 2. The Suit is filed by the sister against the brother for the relief of partition. The Defendant contested the Suit, issues framed and trial commenced. The Plaintiff side let in evidence, marked evidence. After evidence of the Plaintiff was closed the Defendant side let in evidence. At that stage, Defendant No.1 in his evidence marked the Will alleged by the Defendant No.1 to have been executed by the father of the Plaintiff and the Defendant. The Will was marked on 06.02.2020. The attester to the Will was examined as D.W.2. After marking of the Will by the Defendant, the Plaintiff side had filed I.A.No.216 of 2020 in O.S.No.169 of 2019 seeking to re-open the Plaintiff evidence. Also, another I.A.No.217 of 2020 in O.S.No.169 of 2019 was filed to re-call the Plaintiff as Plaintiff witness for the purpose of verifying the signature of the father of the Plaintiff and the Defendant in the alleged Will. Therefore, the Plaintiff had sought summoning all the witnesses from the Banks where the father of the Plaintiffs and Defendants had maintained Savings Bank account and also from the co-operative bank regarding admitted signatures of the Plaintiff's and Defendant's father found in the documents of the Banks, also to summoning the document from the Bank containing admitted signature of the father of Plaintiff and the Defendants so as to compare the alleged signature of the father of the Plaintiff and the Defendant in the alleged Will. The Petition filed by the Plaintiff to re-open the Plaintiff side evidence and to re-call the Plaintiff side witness was resisted by the Defendant. After due enquiry the learned Sub Judge, Palladam dismissed the applications in I.A.No.216 of 2020 in O.S.No.169 of 2019, and I.A.No.217 of 2020 in O.S.No.169 of 2019. Aggrieved by the same, the Plaintiff had approached this Court by way of Civil Revision Petition. 3. After due enquiry the learned Sub Judge, Palladam dismissed the applications in I.A.No.216 of 2020 in O.S.No.169 of 2019, and I.A.No.217 of 2020 in O.S.No.169 of 2019. Aggrieved by the same, the Plaintiff had approached this Court by way of Civil Revision Petition. 3. The learned Counsel for the Petitioner invited the attention of this Court to the alleged Will marked from the evidence. The Petition to re-open and re-call was filed by the Plaintiff on 07.03.2020. The learned Counsel for the Revision Petitioner invited the attention of this Court to Order XVIII and Rule 3 of the C.P.C, wherein it is stated that after closing of the evidence parties are entitled to prove their contention, order passed in I.A.No.216 of 2020 in O.S.No.169 of 2019 and I.A.No.217 of 2020 in O.S.No.169 of 2019 is to be set aside. 4. The learned Counsel for the Respondent submitted that the Suit was filed in the year 2012 by the Petitioner herein. The Respondent as Defendant had filed Written Statement in the year 2013. In the Written Statement it was clearly stated that the father of the Plaintiff and the Defendant had executed the Will in favour of the Defendant in the Suit, the Respondent in the Civil Revision Petition. While so, the Plaintiff had not disputed the Will during the trial. After closure of the Plaintiff evidence, when the Defendant deposed as witness, he had marked the original Will executed by his father in his favour. The Will was executed in the year 1999 and it was marked during the trial on 06.02.2020. After completion of the Defendant's witness, the Plaintiff had filed two Petitions in I.A.No.51 and 52 of 2020 seeking summoning of witness from the Bank and witness from the Electricity Board to summon documents containing admitted signature of the father of the Plaintiff and Defendant to be sent to the Forensic Department to verify the signature of the father of the Plaintiff and Defendant. 5. The learned Counsel for the Respondent submitted that to prove the Will, the party who relies on the Will has to mark it. The Will came into existence after the death of the father of the Plaintiff and Defendant. Therefore, attesting witness to the Will has to be examined as per the Indian Succession Act. That is the requirement to prove the Will. The Will came into existence after the death of the father of the Plaintiff and Defendant. Therefore, attesting witness to the Will has to be examined as per the Indian Succession Act. That is the requirement to prove the Will. The burden to prove the Will is on the Defendant and Defendant had marked the Will as per Section 68 of the Indian Evidence Act. The Defendant had accordingly, proved the Will. When that be the case, only to delay the trial, the Petitioner herein as Plaintiff in the Suit had filed I.A.No.51 and 52 of 2020 seeking to re-open of the Plaintiff side evidence and to re-call witness on the Plaintiff side. Therefore, the learned trial Judge had rightly dismissed this Petition. While comparing the signature of the father of the Plaintiff and the Defendants, the attempt of the Plaintiff in seeking admitted signatures from the Bank as well as from the Electricity Board authorities will not help as the Will was executed in the year 1999. The signature cannot be compared after lapse of 2 years. When a signature of the person is to be compared it should be from the date when it is executed 2 years prior or 2 years after. Here, the contention of the Plaintiff is to summon documents to compare signatures of the party which was in vogue. Therefore, it will not help the Forensic experts to arrive at conclusion, whether this was the genuine signature or not. The Defendant has proved it as per law. 6. The learned Counsel for the Petitioner in Civil Revision Petition by way of re-joinder submitted that the Plaintiff had sought partition by filing the Suit. The Plaintiff is not benefited by delaying the trial. The Plaintiff also wants early disposal of the Suit. The contention of the learned Counsel for the Respondent who is the Defendant in the Suit is that the Written Statement filed in 2013, whereas I.A.No.217 of 2020 to compare signature was filed in the year 2020 is unacceptable. Considering Order XVIII Rule 3 of the C.P.C, when the Defendant side evidence was closed, only at that stage, the original Will has to be produced in Court. At the time of filing of the Written Statement, the Photostat copy of the Will was presented. Considering Order XVIII Rule 3 of the C.P.C, when the Defendant side evidence was closed, only at that stage, the original Will has to be produced in Court. At the time of filing of the Written Statement, the Photostat copy of the Will was presented. The Plaintiff cannot come to the conclusion based on the Photostat copy and compare the signature in the photostat copy. Only when the original Will is produced the Plaintiff has opportunity to inspect the Will. Since, the Plaintiff establishes the signature on the Will, it is the duty of the Plaintiff as the burden to dis-prove the Will is on the Plaintiff as per Order XVIII Rule 3 of C.P.C. In support of his submission, the learned Counsel for the Petitioner relied on the decision of this Court in M.Gnanasekaran Vs.Mothi Periyakaruppan @ M.Maharajan and another reported in (2017) 5 LW 854 , the same is extracted as under: “2. The first respondent herein filed O.S.No.11 of 2014 on the file of V Additional District Judge, Madurai seeking the relief of partition in respect of A,B and C schedule properties and for declaration that he is the Trustee of the suit Trust by enjoying the D schedule properties. The plaintiff as well as the defendants are sons of late Mothi Ayyan Ambalam, who passed away on 02.11.2013. The second defendant who is the appellant herein filed his written statement contending that a suit for partition will not lie in view of execution of a registered Will dated 02.03.2007 in his favour by Mothi Ayyan Ambalam. After the plaintiff examined himself and another witness on his side and closed his evidence, the appellant as the propounder of the Will dated 02.03.2007 examined himself and two of the attestors. When the matter was posted for arguments, the plaintiff filed I.A.Nos.729 to 731 of 2016 for re-opening the case for further evidence, for recall of P.W.1 and for reception of additional documents. The learned trial Judge allowed I.A.No.729 of 2016 in O.S.No.11 of 2014 on 16.12.2016. However, in paragraph No.14 of the said order, it was held that there is no provision contemplated in law to enable the plaintiff to adduce evidence rebutting the evidence of P.Ws.2 and 3. Therefore, the prayer for rebutting the evidence of D.Ws.2 and 3 with regard to the execution and attestation of Ex.B2 Will was rejected. 3. However, in paragraph No.14 of the said order, it was held that there is no provision contemplated in law to enable the plaintiff to adduce evidence rebutting the evidence of P.Ws.2 and 3. Therefore, the prayer for rebutting the evidence of D.Ws.2 and 3 with regard to the execution and attestation of Ex.B2 Will was rejected. 3. Aggrieved by the denial of the right to lead rebuttal evidence, the plaintiff filed I.A.No.87 of 2017 for reviewing the order dated 16.12.2016 made in I.A.No.729 of 2016 in O.S.No.11 of 2014. The review petition was allowed on 05.04.2017. Aggrieved by the said order, this civil miscellaneous appeal has been filed. 4. The learned counsel for the appellant contended that the second defendant, who is the appellant herein is the propounder of Ex.B2 Will. Therefore, the onus to prove the same lies on him. In view of Section 68 of the Evidence Act, a special mode of proof is contemplated in the case of Wills. He has to examine atleast one of the attestors. Will being a special kind of document, it has to be proved to the satisfaction of the Court. Therefore the question of leading rebuttal evidence in the case of Wills cannot arise. He also pointed out that the plaintiff had closed his side and did not reserve his right to lead rebuttal evidence. More than anything else, there was no error apparent on the face of the record and a petition for review would not lie. In support of his contention, he relied on the decisions rendered by the High Court of Punjab and Haryana, particularly the one reported on AIR 2007 Punjab 1 ? (Surjith Singh Vs. Jagtar Singh). The Division Bench of the Punjab and Haryana High Court held that the plaintiff has to exercise his option to reserve the right to lead evidence of rebuttal at the time of the close of his evidence. The last stage for exercising option to reserve the right of rebuttal can well be before the other party begins its evidence. The learned counsel for the appellant contended that in this case, the plaintiff having failed to reserve his right at the appropriate stage cannot be allowed to file an application for leading rebuttal evidence after the defence has closed their side. 5. The learned counsel for the appellant contended that in this case, the plaintiff having failed to reserve his right at the appropriate stage cannot be allowed to file an application for leading rebuttal evidence after the defence has closed their side. 5. Rebutting the arguments advanced by the learned counsel for the appellant, Thiru.V.Meenakshisndaram, learned counsel appearing for the contesting respondents relied on the decision reported in AIR 1992 AP 97 (DB) (Nalajala Narasayya V. Nalajala Sitayya). He contended that the option to reserve the right of rebuttal need not always be express, but, it can also be implied from the facts of the case. In this case, the plaintiffs cannot be faulted for having adduced evidence first in view of the decision of this Court reported in 2017(1) CTC 305 ? (P.Lingasamy V. B.Premavathy). Order 18 Rule 3 of C.P.C. specifically enables the party beginning to produce evidence by way of rebuttal. The trial Court erroneously held that there was no provision providing for rebuttal evidence when it passed the order dated 16.12.2016 in I.A.No.729 of 2016. This was an error apparent on the face of record. Therefore, the said order was rightly reviewed. The learned counsel also pointed out that as per the decision reported in AIR 2004 Delhi 136, even after the evidence of defendant is closed and the case is posted for final argument, an application under Order 18 Rule 3 for producing evidence in rebuttal can be filed. 6. I carefully perused the entire materials on record. I also went through the various case laws arising out of Order 18 Rule 3 C.P.C. 7. The learned counsel for the contesting respondents is right in his submission that the application for review is maintainable. The trial Judge was not right in originally holding that the other party to the suit cannot rebut the evidence adduced by the propounder of the Will on the ground that the onus lies only on the propounder in terms of Section 68 of Indian Evidence Act. Order 18 Rule 3 of C.P.C. is applicable in such cases also and its existence was originally lost sight of. When the said error which is apparent on the face of the record was pointed out, the trial Judge rightly referred to the said provision and corrected the error. All of us are falliable. Order 18 Rule 3 of C.P.C. is applicable in such cases also and its existence was originally lost sight of. When the said error which is apparent on the face of the record was pointed out, the trial Judge rightly referred to the said provision and corrected the error. All of us are falliable. When the error committed by the concerned Court is pointed out, a duty is cast on the Court to correct the same. Of course, the parameters laid down in Order 47C.P.C. will have to be borne in mind. Omission to take into account the relevant statutory provision is certainly an error apparent on the face of record. I sustain the submission of Thiru.V.Meenakshi Sundaram in this regard. The learned counsel is equally right in his submission that the option to reserve the right of rebuttal need not always be express. It can very well be implied in a case, where the counsel for the party makes a statement that he is closing the evidence of his party in the affirmative only. 8. But the real question in this case is not whether the plaintiff reserved the right to adduce rebuttal evidence. It is whether he is entitled to do so? As already pointed out, the suit was one for partition of A, B and C items and declaration in respect of D schedule item. In order to defeat the suit claim, the appellant herein relied on the alleged execution of Ex.B2 Will dated 02.03.2007. Since the appellant has chosen to propound a Will in support of his claim, the onus lies entirely on him to prove the genuineness and due execution of the said Will. Since the appellant took such a plea in his written statement, the plaintiff filed his reply statement denying such execution. He also further pleaded that the father Mothi Ayyan Ambalam was not in a sound disposing state of mind. 9. Even though the plaintiff led the evidence first, the option to reserve his right to let in rebuttal evidence would have been available to him only if he had abstained from leading evidence on this issue where the burden of proof lay only on the defendant. For this proposition, I place reliance on the decision of this Court reported in AIR 1996 Mad 152 ? (T.R.S.Mani V. T.R.Suryanarayanan). For this proposition, I place reliance on the decision of this Court reported in AIR 1996 Mad 152 ? (T.R.S.Mani V. T.R.Suryanarayanan). The said interpretation of Order 18 Rule 3 of C.P.C. finds place in MULLA's Code of Civil Procedure (18th Edition at Page 2225). In this case, the plaintiff examined himself as P.W.1. His deposition has been enclosed by the counsel for first respondent. As per paragraph 9 of the proof affidavit filed by the plaintiff, he has deposed that no such Will dated 02.03.2007 as propounded by the second defendant was executed and that during the said period, their father was not in a proper mental condition. The plaintiff also examined one 77 year old Deenadhayalan as P.W.2 to depose to the effect that Mothi Ayyan Ambalam was physically ill from January 2007 onwards and that as a result, his mental condition was impaired. The said witness was examined since he claimed that he was acquainted with the plaintiff's family for generations. Thus, the plaintiff chose to let in positive evidence on the issue relating to the genuineness of the suit Will. If the plaintiff had not let in such evidence in the first instance on the issue regarding the genuineness of the suit Will since the burden lay only on the second defendant, then, he would certainly have had the right to adduce rebuttal evidence. In this case, on account of his own conduct, the plaintiff had forfeited his right to lead such a rebuttal evidence. 10. I therefore set aside the order dated 05.04.2017 granting application of the review petition in I.A.No.87 of 2017 in I.A.No.729 of 2016 in O.S.No.11 of 2014 on the file of V Additional District Judge, Madurai. This civil miscellaneous appeal stand allowed. No costs. Consequently, connected miscellaneous petitions are closed.” 7. Further,the learned Counsel for the Petitioner submitted that the Will was marked on 06.02.2020, the Petition was filed by the Plaintiff on 07.03.2020, within the reasonable time. So, there is no delay when the Defendant had proved the Will as per Defendant contention. It is for the Plaintiff to dis-prove as per burden to prove the Plaintiff contention returns to the Plaintiff. By delaying trial Plaintiff is not benefited. Therefore, this Civil Revision Petition has to be allowed. 8. So, there is no delay when the Defendant had proved the Will as per Defendant contention. It is for the Plaintiff to dis-prove as per burden to prove the Plaintiff contention returns to the Plaintiff. By delaying trial Plaintiff is not benefited. Therefore, this Civil Revision Petition has to be allowed. 8. The learned Counsel for the Respondent relied on rulings reported in 2020 SCC Online Mad 6235 in the case of P.Indiran Vs. M.Balakrishnan and ors which was relied by the learned Single Judge of this Court while disposing of a similar case in C.R.P.No.850 of 2017 for contemporaneous, which was relied by the learned Counsel for the Respondents and he also relied on the order of the learned Single Judge in the paragraph 8 and 9 which are extracted hereunder: “8. As rightly pointed out by the learned counsel appearing for the petitioners, to prove the Will in question it has to be proved as per the requirements of the law under Section 63 of the Indian Succession Act and under Sections 68 to 71 of the Indian Evidence Act. In this regard, the learned counsel appearing for the respondent relied upon the judgment reported in (2018) 5 LW 370 in the case of Periathal and Ors. vs. Gomathi and Ors., which reads as follows : “9. In this connection, he placed reliance upon the decision reported in : 1988 (2) Ker L.J. 512 (R. Saraswathy Vs. Bhavathy Ammal & another). Accordingly, on a perusal of the abovesaid decision, as outlined therein, the opinion of the expert as to the identity of the signature of the testator in the Will is not relevant and the position of law on the above aspects had been detailed in the abovesaid authority as follows: “Evidence Act, 1872, Sections 45, 68, 69, 70 and 71~Will~Execution~Expert opinion~Opinion of an expert as to the identity of signature of the testator inn the Will is not relevant.“ “7. It is in this backdrop the question whether the opinion of an expert as to the identity of the signature of the testator in the will is relevant to decide the issue, whether the will in dispute has validity been executed. When would the opinion of an expert be relevant, is stated in Section 45 of the Evidence Act. It is in this backdrop the question whether the opinion of an expert as to the identity of the signature of the testator in the will is relevant to decide the issue, whether the will in dispute has validity been executed. When would the opinion of an expert be relevant, is stated in Section 45 of the Evidence Act. It provides that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to the identity of handwriting or finger~impressions, the opinions upon that point, of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger~impressions are relevant facts. The expert must necessarily be one who has acquired certain special knowledge, skill or experience in any science or art or profession. The opinion of an expert therefore is not relevant where the subject~matter of enquiry is not one pertaining to any of the matters enumerated under the sect ion. In other words an expert witness may not be asked to state his opinion upon a question of fact which is the very issue that requires decision on other evidence, the production whereof is controlled by the other provisions of the Evidence Act. For instance an expert cannot be allowed to give his opinion upon the construction of documents because this, being a matter of law, is a question solely for the court to decide. Concisely stated: “It is only where the matter inquired of lies within the range of the peculiar skill and experience of the witness, and is one of which the ordinary knowledge and experience of mankind does not enable them to see, what inference should be drawn from the facts, that the witness may supply opinion as a guide“. Kennedy v. People, 39 NY 245 That means, the opinion of experts is not admissible in regard to matters upon which the court can form a judgment from other evidence and circumstances. 8. In regard to the execution of a will, the Court has to form a judgment from the evidence, the propounder may let in following the procedure prescribed under Sections 68, 69 and 71 of the Evidence Act. 8. In regard to the execution of a will, the Court has to form a judgment from the evidence, the propounder may let in following the procedure prescribed under Sections 68, 69 and 71 of the Evidence Act. Even at the risk of repetition I would in this context refer to Section 63(a), according to which the first stage in the execution of the will can be accomplished by signing the will by adopting any one of the three methods namely, (1) the testator putting his signature, (2) the testator putting his mark or some other person putting his signature in the presence of the testator and under his direction. That means in order to say that a will has validly been executed it is not necessary that it should contain the signature of the testator; but on the other hand it is enough if the testator affixes his mark or some other person signs the document in the presence of the testator and under his direction. And therefore, in a case where the expert opines that the signature seen on the will is not that of the testator but at the same time the execution has validly been proved, can the Court still hold that the will is not valid relying on the opinion of the expert in preference to the uncontroverted evidence proving the execution of the will? My answer is no, because as already noted, under law to hold that a will is valid, it is the execution of the will within the meaning of Section 63, Succession Act that is required to be proved unlike in the case of an ordinary document where under Section 67, Evidence Act the signature should be proved. It may in this context be relevant to note that a propounder can possibly contend that the signature which is opined to be not that of the testator by the expert, in fact is not his signature but only a mark put by him within the meaning of Section 63(a), Succession Act. The Court therefore has no need to form an opinion on the question as to identity of the signature of the testator. This being the position in law, in my judgment, the opinion of the expert as to the identity of the signature of the testator in a will is not a relevant fact. 9. The Court therefore has no need to form an opinion on the question as to identity of the signature of the testator. This being the position in law, in my judgment, the opinion of the expert as to the identity of the signature of the testator in a will is not a relevant fact. 9. The learned counsel for the petitioner however, argues that the opinion of the expert may be relevant at least, to test the veracity of the testimony of the attestors. What the attestors are expected to speak under Section 68, Evidence Act is only the factum of execution of the will within the meaning of Section 63, Succession Act. They are not obliged under law to testify the identity of the signature of the testator. There is therefore no substance in this argument and hence rejected.“ 10. In the light of the abovesaid factors, when the revision petitioners being the propounders of the Will owe the duty to establish the genuineness of the Will in question as per the requirements of law as provided under Sections 63 of the Indian Succession Act and 68 to 71 of the Indian Evidence Act, it is found that the opinion of the expert as such may not tilt the scales in arriving at that conclusion as to the authenticity of the Will in question. The same could only be firmly adjudicated based upon the evidence to be adduced by the revision petitioners as per the requirements of law. In such view of the matter, it is found that as rightly argued by the petitioners- counsel, the endeavour of the first respondent/plaintiff in subjecting the Will in question for expert-s scrutiny may not loom large in determining the issues involved between the parties as regards the proof of the Will in question.“ The Will is required to be proved under Section 63 of Indian Succession Act and Sections 68 to 71 of the Indian Evidence Act. A propounder can possibly contend that the signature which is opined to be not that of the testator by the expert, in fact is not his signature but only a mark put by him within the meaning of Section 63(a), Succession Act. Therefore it has no need to form an opinion on the question as to identity of the signature of the testator. Therefore it has no need to form an opinion on the question as to identity of the signature of the testator. This being the position in law, the opinion of the expert as to the identity of the signature of the testator in a will is not a relevant fact. Therefore, the expert-s opinion is no way useful to prove the Will. 9. In the above judgment, this Court held that the propounder of the Will owe the duty to establish the genuineness of the Will in question as provided under Section 63 of the Indian Succession Act and Sections 68 to 71 of the Indian Evidence Act. It is found that the opinion of the expert as such may not tilt the scales in arriving at that conclusion as to the authenticity of the Will in question. The experts opinion of the Will may not loom large in determining the issues involved between the parties as regards the proof of the Will in question. Therefore, the expert opinion for the disputed signature in the Will dated 10.09.2000 is not required and it is useful to prove the same as per the law under Succession Act as well Indian Evidence Act. Therefore, the judgment relied upon by the learned counsel appearing for the respondents is not helpful to the case on hand. Therefore, the order passed by the trial Court is perverse and liable to be set aside.” 9. Considering the rival submissions and the rulings cited by both the parties, the reported ruling of the Madurai Judgment in the case of M.Gnanasekaran Vs.Mothi Periyakaruppan @ M.Maharajan and another reported in (2017) 5 LW 854 is found applicable and acceptable to the facts of this case. As per Order XVIII Rule 3 after closure of the Plaintiff, Defendant evidence, the Plaintiff had rightly filed Petitions to recall and re-open regarding the genuineness of the Will. Even if the forensic experts gives an opinion it is only an opinion, it is not evidence. Evidence has to be let in by the parties in the Suit. Therefore, the Defendant in the Suit is no way prejudiced. 10. Even if the forensic experts gives an opinion it is only an opinion, it is not evidence. Evidence has to be let in by the parties in the Suit. Therefore, the Defendant in the Suit is no way prejudiced. 10. In the light of the above, the Petitioner has to be given a chance to re-open the Plaintiff evidence by summoning witnesses as pointed out in the order passed by the learned Single Judge Justice.G.K.Ilanthiraiyan based on the Hon'ble Supreme Court, the signature for the relevant period contemporaneous alone can be subjected to the comparison 2 years prior or 2 years after 1999 and not other period. In the result, these Civil Revision Petitions are allowed. The order passed by the learned sub Judge, Palladam in I.A.Nos.216 & 217 of 2020 in O.S.No.169 of 2019 is set aside. The learned trial Judge is directed to proceed with the trial by granting opportunity to both parties and dispose of the Suit within a reasonable period of three months from the date of receipt of copy of this order. No costs. Consequently connected miscellaneous Petition is closed.