Andhra Pradesh High Court - Amravati
K.Seetha Ramudu 3 Others vs Kistammagari Chinna Venkata Swamy on 11 December, 2020
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
HONOURABLE SRI JUSTICE M. SATYANARAYANA MURTHY
Civil Revision Petition No.3449 of 2014
ORDER:
The Civil Revision Petition under Article 227 of the Constitution of India is filed by the defendants in O.S.No.194 of 2007 questioning the docket order dated 21.07.2014 passed by the Junior Civil Judge, Nandikotkur, Kurnool District, declaring the witness- PW.5 as hostile permitting the petitioner therein that is the respondent herein to cross-examine his own witness, who did not support him to some extent.
2. It appears from the record that during the cross-examination, the witness was summoned and examined in part as PW.5, who is the attestor of gift deed marked as Ex.A.1, since his claim based on Ex.A.1 gift deed. During the course of examination-in-chief, the witness specifically stated as follows:
"I do not know the plaintiff and his family. Even I do not know the father of plaintiff Kistanna. The signature of witness on Ex.A.1 is belongs to me. It is true that I have signed as witness in Ex.A.1 gift deed. I just signed on Ex.A.1 without reading the contents. I do not know who is the scribe of Ex.A.1".
Thus, the witness admitted his signature on Ex.A.1 as an attestor. Ex.A.1 is a gift deed, which is compulsorily attestable document and to prove the execution of Ex.A.1, PW.5, one of the attestor, was examined. Undisputedly, PW.5 admitted his signature on Ex.A.1. Section 3 of the Transfer of Property Act, 1882 defines the term "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the 2 MSM,J C.R.P.No.3449 of 2014 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 acknowledgement 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;
In view of the definition of the term "attested" signing on the document or affixing his thumb mark to the instrument or receipt personal acknowledgement of the executant about the signature or the mark on the document is sufficient to constitute an attestation. In the present case, PW.5 admitted his signature on Ex.A.1 gift deed, but the witness has possessed animus attestandi as a witness or not is a question of fact, which can be decided, based on the evidence on record. Therefore, the witness-PW.5 did not resile from his earlier statement to declare him as a hostile or grant of permission to cross- examination to the counsel for the plaintiff who summoned him as PW.5 to prove execution of Ex.A.1. Therefore, there is absolutely no necessity to prove the execution by examining one of the witnesses by declaring him as hostile witness since he admitted his attestation of the document Ex.A.1 gift deed, but stated that without reading the contents of Ex.A.1, he signed on it. PW.5 being an attestor is not required to know the contents of the document-Ex.A.1 and just signing on the document with an intention to attest or on seeing the signing the document by the executant or a receipt of personal acknowledgment about the execution of the document is sufficient to constitute attestation as defined under Section 3 of the Transfer of Property Act, 1882. Therefore, there is no necessity to treat the 3 MSM,J C.R.P.No.3449 of 2014 witness as hostile to grant permission to the plaintiff to cross- examine the witness by exercising power under Section 154 of the Indian Evidence Act, 1872. The learned Junior Civil Judge placing reliance on the judgment of this court reported in Vattikonda V. Anantharama Rao v. Voruganti Narayana Rao (2010 (2) ALT 641) and following the judgment in N. Balaraju and another v. Vidhyadhar (2004 (5) ALT 55), concluded that permission is to be granted to the counsel for the plaintiff to cross-examine PW.5 though the witness was summoned by the plaintiff on his behalf to give evidence as witness did not support the case of the plaintiff in the examination-in-chief of PW.5. In the judgment in Vattikonda V. Anantharama Rao v. Voruganti Narayana Rao, the court considered the similar situation, which reads as follows:
"It is well settled that merely because one part of the statement of the witnesses was not favourable to the party, which called him, the Court should not readily conclude that he was suppressing the truth or that his testimony was adverse to the party, which called him. To grant permission to cross-examine one's own witness, the Court has to exercise its power carefully taking into consideration all facts and circumstances of the case, vide decision of this Court in Smt. Kolluri Kasuma Kurmari v. Grandhi Surya Bhagawan ((1) 1995 (2) APLJ 370).
Similarly, another judge of this court, placing reliance on N. Balaraju and another v. Vidhyadhar (2004 (5) ALT 55, which was referred by the trial court in the order impugned in the present revision and earlier judgment of the same High Court in Kolluri Kusuma Kumari V. Grandhi Surya Bhagawan (1995 (2) APLJ 370 (HC), held as follows:
"For a witness to be treated or declared as hostile there should be some material to show that he made a statement or had done an
4 MSM,J C.R.P.No.3449 of 2014 act in support of the case of the party calling him as a witness at any earlier point of time and is speaking contrary to that statement or act, vide decision of this court in N. Balaraju and another v. Vidhyadhar."
In view of the principles laid down in the above judgment granting permission to cross-examine his own witness exercising power under Section 154 of the Evidence Act is purely discretionary in nature. Even otherwise, when PW.5 summoned to prove the attestation of Ex.A.1, when he spoke about his signing on the document is sufficient to constitute attestation. However, failure to know the contents of the document is not relevant consideration to constitute an attestation of a document under Section 3 of the Transfer of Property Act, 1882. Therefore, I find absolutely no ground to grant permission to cross-examine PW.5 by the plaintiff since sufficiently the witness supported about the attestation of the document Ex.A.1 in his examination-in-chief itself. Therefore, the order passed by the Court below is erroneous on the face of it and this court, while exercising the power under Section 227 of the Constitution of India, can reverse the order of the court as the court below exceeded its jurisdiction. Hence, the order dated 21.07.2014 passed by the Junior Civil Judge, Nandikotkur in O.S.No.194 of 2007 is hereby set aside, while permitting the petitioner counsel to cross- examine the witness in accordance with law.
In the result, the Civil Revision Petition is allowed, setting aside the order dated 21.07.2014 passed by the Junior Civil Judge, Nandikotkur in O.S.No.194 of 2007, while directing the trial Court to 5 MSM,J C.R.P.No.3449 of 2014 proceed further in accordance with law. There shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
_____________________________ M. SATYANARAYANA MURTHY, J Date: 11-12-2020 Ksn