Madras High Court
Valliammal vs Sokkammal on 26 March, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.03.2012 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH S.A.No.529 of 2005 1.Valliammal 2.Gopalakrishnan ... Appellants Vs. Sokkammal ... Respondent Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 20.08.2004 passed in A.S.No.25 of 2003 on the file of the Principal Subordinate Court, Tindivanam reversing the Judgment and Decree dated 28.02.2003 passed in O.S.No.415 of 1997 on the file of the Additional District Munsif Court, Tindivanam. For Appellants : Mr.P.L.Narayanan For Respondent : Mr.A.K.Kumarasamy J U D G M E N T
This appeal is directed against the judgment and decree passed by the First appellate court in A.S.No.25 of 2003 dated 03.04.2003, in reversing the judgment and decree passed by the trial Court made in O.S.No.415 of 1997 in dismissing the suit.
2. The appellants were the defendants and the respondent is the plaintiff before the trial Court.
3.The case of the plaintiff before the lower court are as follows:-
The suit property was in possession and enjoyment of the husband of the plaintiff Chellapillai, who is the son of Duraisamypillai. There is no issues for the plaintiff and Chellapillai. Both were residing in the Keel Edayalam village for some time and in Chennai for some time. They were in joint enjoyment of the suit property. The plaintiff alone is legally wedded wife of Chellapillai. On 26.05.1997, Chellapillai died intestate. There is no legal representatives for Chellapillai other than the plaintiff. Until the the death of Chellapillai, the suit properties were in enjoyment of Chellapillai. No one has any right in the suit property. Chellapillai neither executed any document regarding the suit property to anybody nor appointed any one as legal representatives. Therefore, the plaintiff is legally entitled to the suit property. The plaintiff was eking her livelihood from the income derived from the suit property. There is no other property or any other income for the plaintiff, except the income from the suit properties, for her livelihood. After the death of Chellapillai, the respondents tried to seize and alienate the suit property stating that they were the legal heirs of Chellapillai. When the same was questioned by the plaintiff, the respondents threatened the plaintiff stating that they were entitled to the suit property through a Settlement Deed and Will executed by Chellapillai and hence, they alone entitled to the suit property and the plaintiff has no right over the suit property. Since the defendants decided to alienate the suit property with the help of the documents fabricated by them, the plaintiff sent a legal notice on 18.06.1993 for which the defendants sent a reply notice on 12.07.1997 with false facts and allegations. The defendants are not in enjoyment of the suit property. Chellapillai had paid Tax for the suit property. Patta also stood in the name of Chellapillai. The 1st defendant cannot seek right over the suit property as the deceased Chellapillai was in possession and enjoyment of the suit property for more than 17 years and paid kist etc, and the alleged settlement deed did not come into force. Had any settlement deed, executed earlier, there would be no necessity for executing a Will later, that too without any date. The defendants have no right to enter into the suit property. There is no reply from the defendants for the rejoinder dated 19.07.1997, sent by the plaintiff. Hence, the suit.
4. The objections raised by the 1st defendant in her written statement and adopted by the 2nd defendant would be as follows:-
It is not true that all the suit properties belonged to Chellapillai. It is also not true that the plaintiff is in enjoyment of the suit property as the wife of Chellapillai. Some of the suit properties were acquired by Chellapillai and his brother Harikrishnan. The said Harikrishnan executed a settlement deed dated 25.09.1978 in favour of 2nd defendant bequeathing his properties. Since the brother of Chellapillai namely Harikrishnapillai was leading a wayward life, his wife , the 1st defendant was living separately. Before that, Chellapillai and his wife (the plaintiff herein) also lived separately. Chellapillai lived at Keel Edayalam and the plaintiff lived in Chennai. Chellapillai safeguarded the defendants family for more than 25 years and he was also living with the defendants. Chellapillai executed a settlement deed in respect of the items No.1 to 5 to the 1st defendant and the 1st defendant was in enjoyment of same. Chellapillai has also executed a registered Will dated 25.08.1992, in favour of the 2nd defendant in respect of items No. 6 and 7 and the 2nd defendant was in enjoyment of the said items of the suit properties. In the said Will Chellapillai stated that except the defendants there was no other legal representatives for him and he was living under the care and affection of the defendants only. From this, it is clear that the plaintiff was not at all the wife of Chellapillai and she has no right in the suit property. The description of the suit schedule property is not correct. Moreover, the defendants are in adverse possession and enjoyment of the suit schedule property for more that 12 years by paying kist etc., Hence, the defendants alone are entitled to right, possession and enjoyment over the suit property. Hence, the suit may be dismissed with costs.
5. The trial Court had framed necessary issues on the basis of the pleadings and entered trial. After appraising the evidence adduced on either side, the trial court had come to the conclusion of dismissing the suit.
6. Aggrieved by the judgment and decree passed by the trial court, the plaintiff preferred an appeal in A.S.No.25 of 2003 before the First Appellate Court. After hearing the arguments of both parties, the first appellate court had come to the conclusion of allowing the appeal and thereby the judgment and decree passed by the trial court were set aside, consequently, the suit filed by the plaintiff was decreed as prayed for.
7. The aggrieved defendants have preferred the present second appeal against the judgment and decree passed by the first appellate Court in A.S.No.25 of 2003 dated 03.04.2003.
8. On admission of the appeal, this Court has formulated the following substantial questions of law for being considered in this appeal:-
1. In law, can a relief of permanent prohibitory injunction be maintained against defendants on the ground that the plaintiff is in possession of the properties and at the same time, the plaintiff can seek for a relief of delivery of possession of the property as an alternative relief ?
2. When attesting witnesses to a document are not produced due to circumstances of death or refusal to attend court, proving of execution by other persons who have witnessed the execution of the document, will it not satisfy the requirements of Section 68 of the Indian Evidence Act and accordingly, in the instant case, will not the execution of Exs.B1 and B3 stand proved ?
9. Heard Mr.PL.Narayanan, learned counsel for the appellants/defendants and Mr.A.K.Kumarasamy, learned counsel for the respondent/plaintiff.
10. The learned counsel for the appellants/defendants would submit in his argument that the 1st appellate court mis-directed itself in reversing the well considered judgment of the trial court. He would further submit that the plaintiff was erroneously considered to be the wife of the said Chellapillai and consequently, held to be the heir of the said Chellapillai. He would further submit that the finding of the first appellate Court that the settlement deed dated 12.08.1980, Ex.B1 was not proved, cannot be sustained. He would also submit in his argument that the tenor of the premises of Section 68 of the Indian Evidence Act was not understood by the first appellate court, since the settlement deed could have been proved like a mortgage deed by examining the attesting witnesses, in case, the executant, who purports to have executed the same has denied the same. He would further submit that in this case also, the executant of the settlement deed Mr.Chellapillai was not alive and there could not be any denial of execution by the said Chellapillai and therefore, the said document taken as proved as any other document should be as per the provisions of Section 58 of the Transfer of Property Act. He would further submit in his argument that the denial of execution which ought to have been done by the executant of Ex.B1, cannot be taken over by the plaintiff. He would rely upon a judgment of the Hon'ble Apex Court reported in (2000) 1 SCC 434 (Ishwar Dass Jain (dead) through LRs v. Sohan Lal(dead) by LRs), in support of his argument. He would further submit in his argument that the plaintiff has denied the execution of the mortgage and it cannot be a valid denial, as required under Section 68 of the Indian Evidence Act. He would further submit that the settlement deed executed by the said Chellapillai, in favour of the 1st defendant in respect of the item Nos.1 to 5 of the suit properties was produced as Ex.B1 and since the last page of the original was not available and the registration copy has also been produced in Ex.B2. Therefore, the said production of Exs.B1 and B2 would go to prove that the settlement was executed by the said Chellapillai, in favour of the 1st defendant on the presumption which could be taken under Section 58 of the Registration Act. He would further submit in his argument that in respect of the item Nos.6 to 8 the said Chellapillai has executed a registered Will in favour of the 2nd defendant in sound and disposing state of mind and the defendants had summoned the attesting witness namely Kandasamy and he did not turn to Court and yet another witness Kannappan was dead and therefore, the son of Kannappan was examined as DW4, to identify the signature of the testator. He would further submit in his argument that the scribe of the Will Ex.B3 was examined as DW3 and he had also spoken regarding attestation and that would be sufficient to substitute the attesting witness. He would also submit in his argument that the requirement under Section 68 of the Evidence Act to call for an attesting witness would be sufficient and on the witness not turned to Court, the defendants need not do anything more and it is the duty of the Court to compel the said witness to give evidence regarding execution of the Will. He would further submit in his argument that the parties shall not be prejudiced for not taking any action by the Court and therefore, the mere calling for the attesting witness would be sufficient to satisfy the requirements of Section 68 of the Evidence Act. He would also submit that in view of the steps taken by the defendants, to call for the attesting witness of Ex.B3, it would be sufficient for him to proceed further under Section 69 of the Evidence Act. He would also submit that accordingly,signature of one of the attesting witnesses was identified by DW4. He would cite a judgment of the Hon'ble Apex Court reported in 2007 (11) SCC 621 (Savithri and others v. Karthyayani Amma and others), for the principle that the registration of a Will and the outliving of the testator for over seven years would be factor that the Court may take into consideration for the purpose of upholding the Will. He would also rely upon the said judgment for the principle that a scribe can also be taken as an attesting witness for the purpose of proving the Will.
11. He would further submit in his argument that the evidence of DW3 scribe would satisfy the requirements of examination of an attesting witness and on taking the evidence of DW3 also, the Will which was executed and registered by the said Chellapillai in Ex.B3 was a true and genuine document. He would further draw the attention of the Court to a judgment of this Court reported in AIR 2003 MAD 270 (Maria Stella and others v. T.Joseph Catherine and others) for the principle that whenever an attesting witness is not available, the propounder can prove the execution of the Will by any other evidence under Section 71 of the Indian Evidence Act. He would also submit in his argument that the evidence adduced by the defendants through the examination of DW3 and DW4 coupled with the fact that the attesting witness Kandasamy was summoned, and did not appear before Court, would establish and prove that the Will was executed by the Chellapillai in a sound and disposing state of mind and it was also registered accordingly. He would also rely upon the judgment of Hon'ble Apex Court reported in (2005) 8 SCC 67 (Pentakota Satyanarayana and Others v. Pentakota Seetharatnam and others) in support of his argument, regarding the discharge of his burden of proof of the Will under law. He would further submit in his argument that the Will was proved by the defendants and the onus of proving that the Will was fabricated or concocted as pleaded by the plaintiffs. He would also submit that the evidence adduced by the defendants, would establish that item Nos.6 to 8 were disposed of by the testator in favour of the 2nd defendant, under Ex.B3.
12. The learned counsel for the appellants would submit in his argument that the plaintiff was not living as a wife with the said Chellapillai and therefore, the testator was not having any intention to give her any property. He would also submit that the testator has therefore, rightly executed the Will without mentioning her name since she was not living as a wife.
13. He would further submit in his argument that the 1st defendant took possession of the properties settled in her favour through Ex.B1 a settlement deed, by kist payable to the said lands. He would further submit that once the gift has been completed, the validity of the said gift cannot be questioned. In Ex.B1, itself, it has been categorically mentioned that the possession of the properties mentioned in Ex.B1 i.e., item Nos.1 to 5 of the suit properties, had been handed over by the settlor Chellapillai to the settlee, the 1st defendant. He would also submit that the 1st appellate Court before reversing the judgment of the trial Court must satisfy itself as to whether the trial court had committed any grave mistake in arriving to such conclusion and if it is satisfied then only the 1st appellate court ought to have ventured reversing the judgment. He would therefore, submit that the 1st appellate court had reversed the well considered judgment of the trial court in perversity and therefore, it has to be set aside and the judgment and decree passed by the trial court may be restored and thus, the second appeal be allowed.
14. The learned counsel for the respondents/plaintiffs would submit in his argument that the defendants have failed to prove several facts but had admitted certain important facts in their evidence. He would further submit that the 1st appellate court had correctly interfered with the judgment of the trial court and had come to the conclusion that the plaintiff as the wife of Chellapillai was entitled to the suit properties. He would further submit that the defendants had denied the status of the plaintiff as the wife of Chellapillai in their reply notice and also in their written statement, but had categorically admitted her status as wife in their evidence. He would therefore request the Court that the case of the defendants ought to have been considered as untrustworthy. He would further submit in his argument that the defendants, who propounded the settlement deed as executed by the Chellapillai in Ex.B1, with regard to the item Nos.1 to 5 of the suit properties in favour of the 1st defendant and the Will produced in Ex.B3, in favour of 2nd defendant with regard to the item Nos.6 to 8 of the suit properties ought to have proved the execution of those documents under Section 68 of the Evidence Act and the attestation be proved for the Will as required under Section 63(c) of Indian Succession Act. He would also submit that the same requirements for proving the attestation of the settlement deed Ex.B1 is required under Section 3 of the Transfer of Property Act. He would further submit in his argument that Section 68 of Indian Evidence Act requires three things to be proved for considering a Will as properly attested and executed. He would further submit that firstly the testator has to sign or affix his mark to the Will or it has got to be signed by some other persons in his presence and by his directions. The second point was that the sign or mark of the testator or sign of the person signing for him to appear at a place from which it would appear that by the mark or signature, the document was intended to have the effect as a Will. Third point was that the Will has to be attested by two or more witness and each of the witnesses must have seen the testator's signature or affixing his mark to the Will or must have seen other person signing the Will, in the presence and by the direction of testator or must have received from the testator, present acknowledgement of his signature or mark or of the signature of such other person and each of the witnesses has to sign the Will in the presence of testator. He would also submit that these three requirements for the execution of a Will, ought to have been established by examination of at least one of the attesting witnesses as per the provisions of Section 68 of the Indian Evidence Act. He would further submit that the issuance of summons to one of the attesting witnesses is not sufficient to comply with the provisions of Section 68 of the Evidence Act and he ought to have been called for examination in open Court to prove its execution. He would also submit that in case, one of the attesting witnesses examined denied or did not re-collect the execution of the document, the execution can be proved by other evidence under Section 71 of the Evidence Act. He would also submit that in this case, one of the witnesses was not examined before Court, even though he was alive. Unless steps were taken by the propounder to examine one of the attesting witnesses and exhausted the requirement he cannot resort to examine other witness as if all the attesting witnesses were dead, and resort to the examination of a person who knew about the hand writing of the attesting witness. He would therefore submit that the examination of DW4, son of the deceased attestor Kannappa Gounder cannot be deemed as discharge of burden put on the shoulders of the defendants to prove the Will. As per Section 69 of the Indian Evidence Act, it is required that the signature of the attesting witness as well as signature of the executant should have been identified by examining the persons who knows the signature of the attesting witness and the executant. He would further submit that no such witness was examined to identify the signature of the testator and his presence. He would further submit that the scribe who was examined as DW3 had categorically admitted that he did not know the person, Chellapillai nor he wrote any document for him. Therefore, the evidence of DW3 cannot be equated as attesting witness for proving or identifying the signature of the testator Chellapillai. He would further submit that the mere registration of the Will, Ex.B3 would not be enough to prove the same and it could be taken as one of the pieces of evidence, and in this case, nothing was complied with the requirements of Sections 68 to 71 of the Indian Evidence Act, in order to prove Ex.B3. He would draw the attention of the Court to a judgment of the Hon'ble Apex Court reported in 2008 (1) LW 241 (Benga Behera & another v. Braja Kishore Nanda & others) for the principle that proof of execution of a Will is complete by examination of at least one attesting witness to prove the execution and attestation of the Will. He would also rely upon a judgment of this Court reported in AIR 1976 MAD 4 (Rajammal v. Chinnathal), for the same principle. He would also place reliance over a judgment of Hon'ble Apex Court reported in 2009 (3) LW 925 (Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria & Others) for the same principle.
15. He would further submit in his argument that the 1st appellate court was perfectly alright in reversing the judgment of the trial court since the defendants who propounded the settlement deed Ex.B1, did not prove the said document, as per the requirements under Section 68 of the Indian Evidence Act. He would also submit in his argument that the argument advanced by the learned counsel for the appellant that the proof of a settlement deed can be done as that of other registered documents, when the executant had not denied the execution, will not be a correct position of law. He would further submit that the executant was not alive to deny the execution of the settlement deed Ex.B1 and it is very clear from various judgments of Hon'ble Apex Court that the specific denial can be done by the parties to the suit. He would draw the attention of the Court to a judgment of Hon'ble Apex Court reported in 2001 (1) LW 574 SC (Rosammal Issetheenammal Fernandez (dead) by LRs and others v. Joosa Mariyan Fernandez and others), in support of his argument. He would also refer to a judgment of Kerala High Court reported in AIR 1989 Kerala 163 (Krishnan Assari v. Parameswaran Pillai) for the said proposition of law. He would further submit that the evidence of DW2 would categorically show that the properties were standing in the name of Chellapillai till his death and that would go to show the properties were not handed over to the settlee under Ex.B1 and it would go to show that the settlement was not complete even considered to be true. The documents produced by the defendants in Exs.B4 to B6, the patta pass book would show that mutation has not been effected from the name of Chellapillai and there was no change. The kist receipts produced in Exs.B7 to B10 would confirm the same. He would also submit that there was no handing over of possession as contemplated in Ex.B1. He would further submit that all the evidence produced, even by the defendants would go to show that the settlement deed propounded by the defendants in Ex.B1 was not a true document, but was concocted. He would therefore, submit that the 1st appellate court had rightly discussed the evidence and had come to the conclusion and thereby set aside the judgment of the trial court. He would also submit that the findings of the trial court were erroneous and were against the principles of law and therefore, the reversal judgment and decree was passed by the 1st appellate court for setting aside the judgment of trial court, which need not be interfered. He would therefore request the court to dismiss the second appeal and thus to confirm the judgment of the first appellate court.
16. I have given anxious thoughts to the arguments advanced on either side.
17. The suit was filed by the plaintiff seeking the following reliefs:-
"a. to declare that the plaintiff is entitled to the suit property by virtue of succession;
b. to grant permanent injunction restraining the defendants from interfering with plaintiffs peaceful possession and enjoyment of the suit property;
c. if necessary, to grant recovery of possession of the suit property from the defendants through process of Court;
d. to order enquiry regarding the mesne profits if such circumstances arose;
e. for costs.
18. The said suit was dismissed by the trial court on the ground that the husband of the plaintiff Chellapillai had gifted away the suit properties in item Nos.1 to 5 in favour of the 1st defendant through a settlement deed in Ex.B1 and also had bequeathed the item Nos.6 to 8 to the 2nd defendant by way of a registered Will produced in Ex.B3 and therefore, the plaintiff has no property to inherit from her husband.
19. However, the 1st appellate court, on appeal, reversed the finding by reaching to the conclusion that the settlement deed in Ex.B1 and the Will produced in Ex.B3 were not proved by the defendants, who were the propounders and thus decreed the suit. However, the appellant has raised a question that the plaintiff had asked for a consequential relief of injunction as well as recovery of possession of the suit properties and such relief cannot be granted in both ways.
20. The admitted case of both parties would be that the suit properties were originally belonged to Chellapillai. The said Chellapillai was the brother of one Harikrishnan, the husband of the 1st defendant and the father of the 2nd defendant. It is further admitted that the said Chellapillai and Harikrishnapillai, were the sons of one Duraisamy Pillai through the first wife and the third wife respectively. Therefore, it is evidence that the said Chellapillai and the Harikrishnapillai were step brothers. It is further admitted that a suit was filed by the said Harikrishnapillai, in respect of the properties against the Chellapillai for partition and separate possession and the same was dismissed and thereafter, the appeal preferred by the Harikrishnapillai was also dismissed thus, the ownership of the suit properties was admittedly rests with the said Chellapillai.
21. Even though, the defendants have denied the status of the plaintiff that she was not the wife of Chellapillai, in the reply notice Ex.A2 and in the written statement, it has been categorically admitted in the evidence of DW1 (1st defendant) and other witnesses namely DW2 and DW3 that the plaintiff was the wife of Chellapillai. Apart from that, the evidence of PWs would go to show that the plaintiff was the wife of the said Chellapillai. Therefore, it has been clearly proved by the plaintiff that she was the wife of the Chellapillai. The evidence would further go to show that Chellapillai and the plaintiffs were living jointly at Keel Edayalam village for some time and they also lived in Chennai for some period and were also living in Keel Edayalam village again. However, it was contended that the said Chellapillai was living separately from his wife, the plaintiff herein, and was living with the defendants, so as to give protection to the defendants since the 1st defendant being his sister's daughter and was deserted by her husband Harikrishnapillai.
22. According to the plaintiff, the said Chellapillai died intestate leaving the plaintiff as his only heir. However, it was contended by the defendants that the Chellapillai had executed a settlement deed as well as a registered Will, in favour of the defendants separately and thereby the defendants got title and possession of the suit properties during the life time of Chellapillai as well as on the death of the said Chellapillai. The said settlement deed was produced as Ex.B1 by the 5th defendant. Since the last page was misplaced or lost, a registration copy of the settlement deed was produced in Ex.B2. The said settlement deed comprised item Nos.1 to 5 of the suit properties. Similarly, the Will said to have been executed by the Chellapillai, in favour of the 2nd defendant was produced as Ex.B3. By virtue of the said Will, items No.6 to 8 stated to have been bequeathed in favour of the 2nd defendant and the second defendant was stated to have entitled to the properties under the Will on the death of Chellapillai in the year 1992. The trial court had come to the conclusion that both the settlement deed and the Will in Exs.B1 and B3 were proved and therefore, the plaintiff was not entitled to any of the properties. However, the 1st appellate Court had reversed the said findings. Now, it is for this Court to see as to whether the judgment and decree passed by the 1st appellate court was perverse and without the support of any evidence. At the same time, we have to see whether the 1st appellate court was right in finding fault with the dismissal of the suit by the trial court. In case, the settlement deed as well as the registered Will in Exs.B1 and B3 are found to be true, the trial court judgment will prevail. Per contra, if they are found not proved, the judgment of the 1st appellate court would prevail. For that, it has to be seen whether the 1st appellate court had passed the judgment in proper perception of evidence and in accordance with law and without any perversity.
23. According to the submission of the learned counsel for the appellants/defendants, the requirement of proof under Section 68 of the Evidence Act for proving the settlement deed is not so strict as that of a Will and calling an attesting witness for examination is required only in a case where the execution was denied by the executant himself. For that, he has relied upon the judgment of the Hon'ble Apex Court reported in (2000) 1 SCC 434 (Ishwar Dass Jain (dead) through LRs v. Sohan Lal(dead) by LRs). The relevant portion would be as follows:-
"14. We shall first deal with the proof of the certified copy of the deed of mortgage. So far as the mortgage deed is concerned, the plaintiff filed a certified copy and called upon the defendant to file the original. The defendant refused to do so. The plaintiff, therefore, proceeded to file the certified copy as secondary evidence under sub-clause (a) of Section 65 of the Evidence Act. This was certainly permissible. The mortgage is a document required to be attested by two attestors under Section 59 of the Transfer of Property Act and in this case it is attested by two attestors. The mode of proof of documents required to be attested is contained in Sections 68 to 71 of the Evidence Act. Under Section 68, if the execution of a document required to be attested is to be proved, it will be necessary to call an attesting witness, if alive and subject to the process of court and is capable of giving evidence. But in case the document is registered then except in the case of a will it is not necessary to call an attesting witness, unless the execution as been specifically denied by the person by whom it purports to have been executed. This is clear from Section 68 of the Evidence Act. It reads as follows:-
"68. 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 an 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, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
In the present case, though it was stated in the written statement that there was no relationship between the parties as mortgagor and mortgagee, the defendant admitted in his additional pleas in the same written statement that the mortgage deed was executed but he contended that it was executed to circumvent the rent control legislation. In fact, in his evidence as DW2 the defendant admitted the execution of the mortgage. It must therefore be taken that there was no specific denial of execution. Hence it was not necessary for the plaintiff to call the attestor into the witness box, this not being a will. The plaintiff could therefore not be faulted for not examining any of the attestors. Hence the mortgage stood proved by the certified copy. The courts below were right in accepting that the deed was proved. Point 2 is decided in favour of the plaintiff appellants."
24. According to the said principle laid down by the Hon'ble Apex Court it was argued that the proposition of law regarding mortgage is also applicable to the settlement deed. It is further argued that the proof of settlement deed can be done as that of any other document as per the proviso to Section 68 of Indian Evidence Act. However, the learned counsel for the respondent/plaintiff would cite a judgment of the Hon'ble Apex Court to distinguish the said view of te Hon'ble Apex Court by citing a judgment reported in 2001 (1) LW 574 SC (Rosammal Issetheenammal Fernandez (dead) by LRs and others v. Joosa Mariyan Fernandez and others). The relevant passage would run thus:-
10.Section 68 of the Indian Evidence Act:
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 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 accrues to the concerned respondent over Schedule A Property which is covered by this gift deed." [Emphasis Supplied]
25. Apart from that, a judgment of Kerala High Court reported in AIR 1989 Kerala 163 (Krishnan Assari v. Parameswaran Pillai) has been cited. The relevant passage would be as follows:-
"4. The first contention of the learned counsel for the appellant is that Ext.B1 mortgage deed ought not have been looked into in this case as it was not legally proved. S.68 of the Evidence Act is pressed into service, which says 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". S.59 of the Transfer of Property Act says that a mortgage can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses, unless the principal money secured by the mortgage is less than one hundred rupees. The amount purported to be secured by Ext.B1 mortgage deed is one hundred rupees. Admittedly, no attestor was called to prove Ext.B1 mortgage deed. It is on the aforesaid premise that the contention was raised regarding the bar against Ext.B1. Such contention raised in the first appellate Court was repelled by the learned Sub Judge relying on the proviso to S.68 of the Evidence Act."
According, to the Sub Judge, "Ext.B1 is not a Will but only a registered mortgage deed and in this case it was challenged not by the person who executed the same, but by a stranger". In other words, the learned Sub Judge is of the view that it is impermissible for a stranger to deny the execution of a document and hence the provision would apply. The proviso reads thus: "Provided that it shall not be necessary to call an 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, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied." There is nothing in the provisio to suggest that persons who are not parties to the document are under any disability to deny the execution of a document. What is envisaged is that the execution of a document by the the person by whom its is purported to have been executed must be specifically denied. It does not mean that the right to deny the execution is available only to the parties document. There is no warrant for eliminating all other persons than the parties to a document from resorting to S.68. Support can be drawn for this proposition from the following observations of a Division Bench of this Court in Kannan Nambiar v. Narayani Amma, 1984 Ker LT 855. "The requirement (under S.68 of the Evidence Act) is only that the execution should be specifically denied by the party against who the document is sought to be used. Not only the executent but also all the persons who are interest in denying the execution of the document are entitled to invoke the aid of the proviso to S.68 of the Evidence Act." [Emphasis Supplied]
26. On a careful perusal of the dictum laid down by the Hon'ble Apex Court and the view taken by Kerala High Court in a case where the executant was alive, and was a party to the proceedings the specific denial should come from the executant as he happened to be a party and where the executant was not a party, it is sufficient if the specific denial has been made by any one of the parties to the proceedings. The dictum laid by the Hon'ble Apex Court reported in 2001 (1) LW 574 SC (Rosammal Issetheenammal Fernandez (dead) by LRs and others v. Joosa Mariyan Fernandez and others), is squarely applicable to the present case. When we go through the pleadings of the plaintiffs, the plaintiffs had categorically denied the execution of the settlement deed dated 12.08.1980, produced in Ex.B1 and therefore, the requirements under Section 68 of the Evidence Act, that the appellants/defendants ought to have examined as one of the attesting witnesses in order to prove the attestation and execution.
27. In this case, admittedly no attesting witness was examined by the defendants. No particulars were given regarding the existence of those attesting witnesses. When the attesting witnesses were not available or dead, the defendants could examine some other witness, to prove the settlement deed Ex.B1 but it was not explained on the side of the defendants about the attesting witnesses, to the satisfaction of the Court. Therefore, the settlement deed said to have been executed by Chellapillai in favour of the 1st defendant could not be found as proved. The finding reached by the 1st appellate court in these lines was quite correct and in accordance with law. Therefore, I could find no perversity on the part of the 1st appellate court in interfering with the findings of the trial court.
28. So far as the registered Will stated to have been executed by Chellapillai is concerned, it was produced as Ex.B3. No doubt the said Will was a registered one and therefore, it was argued that the genuineness of the Will may be taken note of by virtue of its registration. No doubt the registration can be considered as one of the pieces of evidence for its proof but the requirements of proof is governed by Section 68 of the Indian Evidence Act, coupled with the provisions of Section 63(C) of the Indian Succession Act. The attestation required was also explained in Section 63(C) of the Indian Succession Act. For better understanding, the provisions of Section 63(C) Indian Succession Act, has been extracted as follows:-
"63 (C) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
29. Therefore, the attestation which is an important event in an execution of a Will, should have been proved by virtue of the provisions of Section 68 of the Indian Evidence Act. According to the submission made by the learned counsel for the appellants/defendants he had complied with the provisions of Section 68 of the Indian Evidence Act, since he has summoned one of the attesting witnesses namely, Kandasamy but, he did not turn for examination and therefore, he examined the scribe as DW3 to speak about attestation and he also examined the son of the deceased attestor Kannappa Gounder as DW4 to identify the signature of the said Kannappa Gounder. For that, he had relied upon a judgment of the Hon'ble Apex Court reported in 2007 (11) SCC 621 (Savithri and others v. Karthyayani Amma and others) in support of his arguments. The relevant passage would be as follows:-
16. It is not correct to contend that DW2 could not have been the attesting witness. He in his deposition categorically stated that he had seen the Will being read over to the propounder. The witnesses and he had seen Sankaran Nair putting his signature on the Will. Sankaran Nair had also seen the witnesses putting their signatures. This satisfies the requirements of the provisions of Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872."
30. Quoting the aforesaid passage, it was argued that the examination of DW3 would be sufficient to prove the attestation. We have to see whether the examination of DW3 would be equivalent to that of an attesting witness. On a cursory look on the evidence of DW3, I could see that DW3 scribe was firstly known to the said Chellapillai on his self-introduction at Sub-Registrar Office and he brought the attesting witness to identify him and he did not know either Chellapillai or the attesting witnesses or the first defendant, who accompanied them. His further evidence would be that he did not re-collect that if any 4th person, had actually on that day. Therefore, it is clear that DW3 scribe was not an already known person to the testator as well as the attesting witnesses and the first defendant. Therefore, how his signature could be treated as that of an attestor, who is expected to note the testator, who sign the document, had the knowledge about the testator and also the intention to attest the document. It has been explained in the judgment of Hon'ble Apex Court reported in 2010 JT (4) 296 = 2010 (5) SCC 274 (S.R.Srinivasa ..vs.. S.Padmavathamma), in support of his argument. The relevant passage would run thus :-
"27. In our opinion, the aforesaid test has not been satisfied by DW.2, the scribe. The situation herein is rather similar to the circumstances considered by this Court in the case of "N.Kamalam ..vs.. Ayyasamy (supra). Considering the effect of the signature of Scribe on a Will, this Court observed as follows:- "26. The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of the same status as that of the attesting witnesses." "The animus to attest, thus, is not available, so far as the scribe is concerned : he is not a witness to the Will, but a mere writer of the Will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer, rather goes against the propounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the Court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to be the proof of due attestation unless the situation is so expressed in the document itself, this is again, however, not the situation existing presently in the matter under consideration. "
The learned counsel for the appellants had also pointed out the above referred judgment for the principle that the evidence of the scribe cannot be considered as that of an attesting witness. The relevant passage would be thus:-
"In the present case, none of the attesting witnesses have been examined. The scribe, who was examined as DW.2, has not stated that he had signed the Will with the intention to attest. In his evidence, he has merely stated that he was the scribe of the Will. He even admitted that he could not remember the names of the witnesses to the Will. In such circumstances, the test that the witness should have put his signature animo attestandi, has not been satisfied. Therefore, the signature of the scribe could not be taken as proof of attestation. The execution of a Will can be held to have been proved when the statutory requirements for proving the Will are satisfied. Thus, it is evident that the Will has not been duly proved."
31. According to the aforesaid judgment a witness who put his signature animo attestandi could only be considered as an attesting witness. Therefore, the said scribe DW3 was the author of Ex.B3 Will, and how he could be an attesting witness when there was no animo attestandi, perceived from his evidence. Admittedly, he did not sign as scribe as well as attesting witness in the said document Ex.B3. Moreover, he had stated in his evidence that he did not know about Chellapillai, prior to the writing of Ex.B3. Apart from that, he had admitted the writings of the 1st page of the Will only. His evidence was to the effect that the 2nd page Ex.B3 was not written by him. In the said circumstances, it could be presumed that he had no animo attestandi nor his evidence be believed regarding the execution of the said Will Ex.B3. Therefore, I could see that the facts of the present case are different from the facts discussed in the judgment of Hon'ble Apex Court reported in 2007 (11) SCC 621 (Savithri and others v. Karthyayani Amma and others). The principle laid down by the Hon'ble Apex Court reported in 2010 (5) SCC 274 is squarely applicable to the facts of this case and as per the principle laid down in the said judgment, animo attestandi is not present in the evidence of DW3 and therefore, his evidence cannot be equated to the evidence of an attesting witness. DW3 did not know the propounder, or even the attesting witness and the 1st defendant was also not known to him. DW3 was examined after a long gap before the Court and in the said circumstance how the scribe who did not sign as the attestor also, could speak as an attesting witness, is a question, which could not be answered in the form of the propounder.
32. Nextly, when we consider the submission of the learned counsel for the appellants/defendants that one of the attesting witness namely Kandasamy was called for by the defendants and he did not appear before Court and therefore, the propounder can resort to the next step of producing other evidence to prove the Will, under Section 69 of the Act. According to the said submission of the appellant counsel, he would insist that on the summons issued to the attesting witness Kandasamy, was not responded to Court, this Court can coerce him to depose before Court and therefore, the propounders are relieved from compelling the witness to come to the Court for giving evidence. He would rely upon a judgment of this Court reported in AIR 2003 MAD 270 (Maria Stella and others v. T.Joseph Catherine and others) for the principle that if the attesting witness is not available, Section 71 of the Indian Evidence Act can be resorted to and the Will can be proved by any other evidence. The relevant passage would run as follows:-
"15. If the attesting witness is not available and even available if he is not able to recollect the facts under Section 71 of the Indian Evidence Act, the propounder can prove the execution of the Will by any other evidence that may be available and it is not necessary that the scope of proof should be as submitted by the learned senior counsel appearing for the appellants. This view of mine is supported by the decision in Pateswari Prasad v. Shankar Dayal, AIR 1924 All 217."
33. However, the learned counsel for the respondents/plaintiffs would cite a judgment of the Hon'ble Apex Court reported in 2008 (1) LW 241 (Benga Behera & another v. Braja Kishore Nanda & others) in which the following passage he relied upon as follows:-
"40. It is now well settled that requirement of the proof of execution of a Will is the same as in case of certain other documents, for example Gift or Mortgage. The law requires that the proof of execution of a Will has to be attested at least by two witnesses. At least one attesting witness has to be examined to prove execution and attestation of the Will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two attesting witnesses and the attesting witnesses had put their signatures in presence of the executant. (See Madhukar D.Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85; Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91 and Bhagatram v. Suresh and Others, (2003) 12 SCC 35 = 2004-2- L.W.355)."
34. Yet another judgment of the Hon'ble Apex Court reported in 2009 (3) LW 925 (Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria & Others) would emphasis the same principle, which is laid down as follows:-
"9.Indisputably, the said provision is mandatory in nature. A Will is required to be attested by two or more witnesses.
Section 68 of the Evidence Act provides that the propounder must prove execution and attestation of the Will by examining at least one of the attesting witnesses.
What is meant by the word 'attestation' is defined in Section 3 of the Transfer of Property Act which reads as under:
Section 3 :- Interpretation clause In this Act, unless there is something repugnant in the subject or context,-
XXX XXX XXX "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 is 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 at the same time, and no particular form of attestation shall be necessary."
35. The said principle was also expressed in a judgment of this Court reported in AIR 1976 MAD 4 (Rajammal v. Chinnathal), as follows:-
"5. Apart from the above, the language of Section 68 is clear and categorical and therefore once the execution of the document is denied by the alleged executant, the document cannot be admitted in evidence, unless one attesting witness at least has been called for proving the execution of the document, if alive, and subject to process of the court. In this case, there is no evidence to show that the attesting witnesses were not alive, and in such circumstances, it is clear that the requirement of Section 68 of the Indian Evidence Act has not been complied with and that therefore Ex.A1 cannot be used in evidence. The suit being one on the mortgage, Ex.A1 and that mortgage document being inadmissible in evidence, it will have to be dismissed."
36. In the said judgment, it has been clearly laid down that at least one of the attesting witness be called and examined to prove the execution of the Will. Therefore, the argument advanced by the learned counsel for the appellants that the summons was issued to one of the attesting witness, the defendant Kandasamy and he refused to come to Court and it would be sufficient to resort to other evidence under Section 69 of the Indian Evidence Act, cannot be sustained.
37. The reliance placed upon the evidence of DW4, the son of another attesting witness Kannappa Gounder cannot also be believed for the simple reason that no death certificate of Kannappa Gounder has been produced, when especially DW1 has categorically admitted that Kandasamy and Kannappa Gounder who were attesting witnesses of Ex.B3 are alive during her cross examination. Furthermore, the stage of examination of identification of the signature of the attesting witness as well as the executant under Section 69 of Indian Evidence Act would arise only after the requirements under Section 68 of the Indian Evidence Act are exhausted i.e., attesting witnesses cannot be found by the propounder to examine before the Court. Therefore, that contingency would also not arise to examine DW4 to identify the signature of the attesting witness, Kannappan. It was also brought to the notice of the Court to a judgment of the Hon'ble Apex Court reported in (2005) 8 SCC 67 (Pentakota Satyanarayana and Others v. Pentakota Seetharatnam and others) by the learned counsel for the appellants/defendants that the exclusion of the wife from inheritance would not raise any suspicious circumstances. The relevant passage would be as follows:-
"26.... We are unable to countenance the said submission. The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the Will is to interfere in the normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and some cases partly."
38. No doubt, the inheritance can be excluded against natural heirs by virtue of execution of a Will. As far as Ex.B3 is concerned, the testator is said to have no legal heir to inherit the property and therefore, the Will has been executed. Admittedly, the plaintiff, wife of the testator was alive at the time of alleged execution of Ex.B3. It has been candidly admitted by the witnesses examined as DWs 1 and 2 that the plaintiff was the wife of the testator Chellapillai. In the said circumstances, the contents of Ex.B3 also create suspicion as to whether it was written by the said Chellapillai or was at a concocted one as contended by the plaintiffs. In the said circumstance, the judgment of the Hon'ble Apex Court that the exclusion would not create any suspicion is not applicable to the facts of the present case.
39. For the foregoing discussion, I find that the findings of the first appellate court in respect of onus of proof cast upon the propounders / the defendants were not discharged by them and the settlement deed in Ex.B1, Will in Ex.B3 were not proved to have been executed respectively by the settlor and the testator Chellapillai in accordance with law. Therefore, I could not find any perversity in the judgment and decree passed by the first appellate court.
40. Having come to the next question of law as to whether the first appellate court can grant both the injunction as well as recovery of possession of the properties while declaration is granted in favour of the plaintiff, I could see that the first appellate Court ought to have granted either one of the reliefs namely permanent injunction or recovery of possession, on the basis of the evidence. On a careful perusal of the judgment of the first appellate court, it is seen that it has granted declaration as sought for and also for permanent injunction after finding that the plaintiff was in possession of the said properties. However, in the decree drafted by the first appellate court, it has been wrongly included that the defendants were directed to hand over possession to the plaintiff and also to relegate the mesne profits through separate proceedings. The decree drafted was not on the basis of the judgment of the first appellate court and hence is liable to be modified, and thus the relief of declaration and for permanent injunction are only to be granted in the decree.
41. Accordingly, the judgment and decree passed by the first appellate court are confirmed and modified to that extent as indicated above and the appeal is liable to be dismissed.
42. In fine, the second appeal is dismissed. No costs.
ssn To
1.The Principal Subordinate Court, Tindivanam.
2.The Additional District Munsif Court, Tindivanam