Madras High Court
R.Dhanam vs O.V.Krishnasamy on 8 August, 2022
Author: B.Pugalendhi
Bench: B.Pugalendhi
C.R.P(MD)Nos.1398 and 1399 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 08.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
C.R.P(MD)Nos.1398 and 1399 of 2022
and
C.M.P(MD)No.5812 of 2022
M.Ramachandran (died after the suit)
1.R.Dhanam
2.R.Somasundaram
3.Ramesh
4.R.Senthil
5.R.Mahesvaran
6.R.Alamelu ... Petitioners
Vs
1.O.V.Krishnasamy
2.Vimala ... Respondents
PRAYER: Civil Revision Petition is filed under Article 227
of the Constitution of India, to allow this civil revision
petition by setting aside the fair and decreetal order
passed in I.A.Nos.178 and 179 of 2020 in O.S.No.222 of 2017
on the file of the Additional Sub Court, Kumbakonam dated
14.02.2022.
1/16
https://www.mhc.tn.gov.in/judis
C.R.P(MD)Nos.1398 and 1399 of 2022
For Petitioner : Mr.H.Arumugam
For Respondent : Mr.S.Meenakshi Sundaram,
Senior Counsel
for Mr.C.Sasi Kumar
COMMON ORDER
These Civil Revision Petitions are filed as against the fair and decreetal order passed by the Additional Sub Court, Kumbakonam in I.A.Nos.178 and 179 of 2020, dated 14.02.2022.
2.The petitioners are the defendants in O.S.No.222 of 2017. They have filed two interlocutory applications in I.A.Nos.178 and 179 of 2020. The application in I.A.No.178 of 2020 is filed for summoning the original document viz., lease deed registered in document No.2120 of 2005 dated 27.06.2005 executed by one Vadivel, S/o.Odayappan, before the Sub Registrar Office, Kumbakonam. The other application in I.A.No.179 of 2020 is filed for summoning the document, viz., the application submitted by O.Vadivel, S/o.Odayappan to the Tahsildar, Kumbakonam on 30.06.2005 for the purpose of comparing the genuineness of 2/16 https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1398 and 1399 of 2022 the signature of the said Odayappan in Ex.A2, unregistered Will dated 27.08.2006. The applications were dismissed by the trial Court and aggrieved over the same, the present civil revision petition is filed by the petitioners/ defendants.
3.The learned Counsel for the petitioners submits that the respondents have filed the above suit in O.S.No.222 of 2017 for the relief of declaration and permanent injunction based on the Will dated 27.08.2006 executed by their father Vadivel, in favour of the plaintiffs. The suit property according to the learned Counsel is a joint family property and the respondents father is not having any absolute right over the property. The plaintiffs during the evidence marked the Will Ex.P2, which is an unregistered will and also examined one of the attestors as witness. The petitioners/defendants disputed the signature of the testator Vadivel in the alleged Will dated 27.08.2006 and in order to establish their case they have filed the above applications to call for the contemporaneous document, which is available with the Sub Registrar, Kumbakonam and with the Tahsildar, Kumbakonam. The testator Vadivel during 3/16 https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1398 and 1399 of 2022 his lifetime has executed the registered document dated 27.06.2005 and made an application before the Tahsildar for change of patta on 30.06.2005. The said interlocutory applications were dismissed by the trial Court that the party, who relies upon the document shall prove the same as per law. The document Ex.P2 was marked on the side of the plaintiffs and therefore, it is the duty of the plaintiffs to prove the same. The trial Court further stated that the Will was executed by the plaintiffs' father based on the exchange deed dated 07.06.2001, even assuming that the father of the plaintiffs would have died intestate, the plaintiffs are the only legal heirs to inherit the properties left by the father and therefore, there is no necessity for the defendants to prove the unregistered Will, which is marked as Ex.P2. The trial Court has also felt that the applications were filed to drag on the proceedings.
4.With regard to the observation of the trial Court, the learned Counsel for the petitioners submits that the Will, which is marked as Ex.P2 is an unregistered Will. The unregistered Will has to be proved by examination of 4/16 https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1398 and 1399 of 2022 the attestors, by proving the genuineness of the signature. The plaintiffs in this case have examined one of the attestors and he is not a trustworthy witness. By examining one of the attestors, the plaintiffs have complied with the part of the requirement for proving the Will and therefore, the onus now shifts on the respondents / defendants and they can demonstrate their case only by referring the document for comparison of the signature through scientific investigation. The plaintiffs have completed their evidence and it is at the stage of the defendants' side evidence and at this stage, the defendants have filed these applications and it cannot be taken as an attempt to drag on the proceedings.
5.With regard to the other ground, the learned Counsel submits that even in the written statement itself, they have raised objections questioning the exchange deed dated 07.06.2001 and the registered Will dated 27.08.2006, and therefore, the reasons of the trial Court is not proper. 5/16 https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1398 and 1399 of 2022
6.The learned Counsel for the petitioners has also relied on the judgment of the Hon'ble Supreme Court in Rama Avatar Soni Vs Mahanta Laxmidhar Das, reported in 2018 SCC Online SC 2120, wherein it has been held as follows:
“if the scientific investigation of the document in question facilitates the ascertaining of truth, in the interest of justice, naturally it has to be ordered. Having regard to the issue raised in the suit, the District Judge was right in allowing the application to send for the Will in question dated 12.03.1989 to handwriting expert.
The High Court was not right in saying that, in the plaint, the appellant has challenged only the genuineness of the Will and nowhere made allegations with regard to the genuineness of the signature of the Mahanta Natabar Das. To challenge the genuineness of the Will inter alia indicates challenge to the genuineness of the signature of Mahanta Natabar Das. In our view, the High Court was not right in saying that there was no specific allegation disputing the genuineness of the signature of Mahanta Natabar Das.” 6/16 https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1398 and 1399 of 2022
7.The learned Counsel has also relied on the judgment in Arulmighu Sadayappasamy Temple represented by its Hereditary Trustee Vs State of Tamil Nadu, reported in 2017(1) MWN (Civil) 741, wherein this Court has held as follows:
“(u)The learned Government Pleader, strenuously contended that the plaintiff should discharge the burden of proof and establish the title and cannot succeed by picking holes on the deposition of D.W.1 or the documents marked by defendant State through D.W.1. On first blush, this argument appears attractive, but a closer scrutiny, in the light of the factual matrix in the instant case, would reveal that such a submission cannot be countenanced in the instant case. The reason is, the plaintiff has, in fact, produced documents and also oral evidence and discharged their initial burden, as would be evident from the factual matrix and discussions, supra. The burden of proof, no doubt, does not shift, but onus of proof, certainly, shifts. The onus or proof not only shifts, but it also swings like a pendulum from one end of litigation to the other. All these principles of law are too well settled by a long line of authorities. In the instant case, the plaintiff, having discharged their initial burden by producing a two centuries old document and also after letting in evidence of an expert in the 7/16 https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1398 and 1399 of 2022 field, the onus shifts to the State to rebut the evidence and to discredit the witness. The State did neither. On the contrary, the documents produced by the State and marked through the revenue official, supports the case of the plaintiff. Therefore, the theory of not discharging the burden of proof, as canvassed, does not help the State in the instant case.”
8.Therefore the learned Counsel prays for allowing these civil revision petitions.
9.The learned Counsel for the Caveator entered appearance through Senior Counsel and has also agreed for disposal of the Civil Revision Petition at the admission stage itself.
10.The learned Senior Counsel appearing for the respondents submits that the Will Ex.P2, was executed based on an exchange deed dated 07.06.2001. The suit property is a joint family property of the petitioners and the respondents. They have exchanged their properties by way of a registered exchange deed dated 07.06.2001. This Will marked as Ex.P2 was executed based on the exchange deed 8/16 https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1398 and 1399 of 2022 with regard to the suit schedule property, which has already been conveyed to the father of the plaintiffs Vadivel by the exchange deed dated 07.06.2001. Even assuming that the father of the plaintiffs would have died intestate, the respondents/ plaintiffs are the only legal heirs to inherit the properties left out by their father Vadivel and therefore even in the absence of the Will, the relief sought for in the suit cannot be disputed by testing the Will. The petitioners /defendants have not raised any objections with regard to the registered exchange deed dated 07.06.2001 and without questioning the exchange deed dated 07.06.2001, the petitioners/ defendants are not entitled to question the subsequent Will and therefore, the trial Court has rightly dismissed the applications that they were filed only to drag on the proceedings.
11.Regarding the Will in Ex.P2 the petitioners/defendants have not made any specific plea of fraud and in the absence of any such pleadings in their written statement, if a party to the suit prays misrepresentation, fraud, breach of trust, willful default 9/16 https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1398 and 1399 of 2022 or undue influence, such particulars shall be stated in the pleadings. Before praying for production of records in the custody of the public officer, the petitioner has to comply with the requirements of Rule 75 of Civil Rules of Practice and these applications in I.A.Nos.179 and 180 of 2020 were filed under Rule 76 of Civil Rules of Practice and also without complying with the requirements as contemplated under Rule 75 of the Civil Rules of Practice. Under Rule 75(3) of the Civil Rules of Practice ordering for summons of documents is permitted, only if the Court is satisfied with the application for certified copy has been duly made and the same has not been granted. If an application is filed under Rule 75 of the Civil Rules of Practice, the petitioners are liable to establish the relevancy of the document to the issue in the suit. However, in this case, the relevancy has not been stated by the petitioners.
12.The learned Senior Counsel has also relied on the judgment of the Hon'ble Supreme Court in M.P.Padmavathi Vs S.Sundaram and Others, reported in (2021) 3 LW 490 wherein this Court has held as follows:
10/16
https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1398 and 1399 of 2022 “However, it is stated in unison by both the learned counsels that the learned Judge had not stated or had not given any finding whether the documents sought to be produced are actually relevant to determine the issues in the suit. That is the nature of the order required to be passed in an application under Rule 75 of the Civil Rules of Practice. The learned Judge should examine first whether the documents had been properly described. Then he should examine whether the documents are relevant to the issues in the suit and later he should also examine whether certified copies of the documents had been applied and whether the Court should orders summoning the documents from the Public Officer.”
13.This Court has considered the rival submissions and perused the materials placed on record.
14.The petitioners / defendants have filed the above interlocutory applications in I.A.Nos.179 and 180 of 2020 to summon two public documents under Rule 76 of Civil Rules of Practice. The production of the records, which are under the custody of the public officer has to be filed under 11/16 https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1398 and 1399 of 2022 Rule 75 of the Civil Rules of Practice.
However, the application made under Rule 75 of Civil Rules of Practice, for such summoning of documents shall be considered by taking into the relevancy of the documents set out in the application and whether any attempt has been made to obtain certified copy.
15.It is relevant to extract, Rule 75(2) and 75(3) of Civil Rules of Practice, which are extracted hereunder:
"75. Production of records in the custody of a Public Officer other than a Court:-
(2) Every application for such summons shall be made by a verified petition setting out (i) the document or documents the production of which is required; (ii) the relevancy of the document or documents; and (iii) in case where the production of a certified copy would answer the purpose, whether application was made to the proper officer for a certified copy or copies and the result of such application.
No court shall issue such a summons
unless it considers the production of the
original necessary or is satisfied that the
application for a certified copy has been duly 12/16 https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1398 and 1399 of 2022 made and has not been granted. The Court shall in every case record its reasons in writing and shall require the applicant to deposit in Court, before the summons is issued, to abide the order of the Court, such sum as it may consider necessary, to meet the estimated cost of making a copy of the document when produced.”
16.The petitioners have disputed the genuineness of the signature and has filed these applications for comparing the signature of the attestor in Ex.P2 through the documents, which are available in the public office. As per Order 6 Rule 4 of CPC, in cases, in which a party relies on any misrepresentation or fraud or any undue influence, such particulars shall be stated in the pleadings. The signature sought to be verified in Ex.P2 is the signature of one Vadivel, found in the Will Ex.P2 and this Will Ex.P2 dated 27.08.2006 was executed based on the exchange deed dated 07.06.2001. The exchange deed is a registered document. The petitioners / defendants have taken out a specific plea in the written statement as follows:
13/16
https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1398 and 1399 of 2022 “The contention that the exchange deed had come into force, is not correct. It is admitted that no consideration whatsoever had been passed to this defendant under the exchange deed The further contention that the father of the plaintiffs had enjoyed the property described in the schedule to the suit, it not true. The contention that on 27.08.2006 the file of the plaintiffs had executed a Will dealing with the suit schedule mentioned property, is not binding upon this defendant.
As in the year 2006 the father of the plaintiffs was not in sound disposing mind, it was not well and the died within a short period after the alleged Will is said to have been executed. He was in a very old age, not able to understand and was not in movement. Therefore, the alleged Will 27.08.2006 is to be strictly proved before this Court. The contention that after the death of the plaintiff's father, the suit was schedule mentioned property is being enjoyed by the plaintiffs, is not true and correct.”
17.As rightly pointed by the learned Senior Counsel appearing for the respondents that even assuming that the executant of the Will Vadivel dies intestate, 14/16 https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1398 and 1399 of 2022 the plaintiffs are the only legal heirs to inherit the properties of their father Vadivel and therefore, this Court is not inclined to interfere with the orders of the trial Court. Accordingly, these civil revision petitions are dismissed. No costs. Consequently connected miscellaneous petition stands closed.
08.08.2022 index: Yes/ no dsk To The Additional Sub Judge, Kumbakonam.
15/16 https://www.mhc.tn.gov.in/judis C.R.P(MD)Nos.1398 and 1399 of 2022 B.PUGALENDHI, J.
dsk C.R.P(MD)Nos.1398 and 1399 of 2022 08.08.2022 16/16 https://www.mhc.tn.gov.in/judis