Andhra HC (Pre-Telangana)
Peddavandla Narayanamma vs Peddasani Venkata Reddy And Ors. on 28 December, 2006
Equivalent citations: 2007(2)ALD817, 2007(4)ALT260, AIR 2007 ANDHRA PRADESH 137, 2007 (3) ALL LJ NOC 491, 2007 (3) AJHAR (NOC) 719 (AP), 2007 A I H C (NOC) 321 (AP), (2007) 53 ALLINDCAS 786 (AP), 2007 (53) ALLINDCAS 786, (2007) 2 ANDHLD 817, (2007) 4 ANDH LT 260, (2007) 3 CURCC 435
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. The appellant filed O.S. No. 27 of 1986, in the Court of Principal District Munsif, Madanapalle, against the respondents, for the relief of declaration of title to the suit property, a house constructed over an area of 125 sq. yards, at Madanapalle, Chittoor District, for recovery of possession thereof, and for mesne profits. She pleaded that her paternal aunt, by name Akkayamma, purchased a plot of 2/2 cents and constructed a house thereon, with the assistance of her (appellant) father. It was alleged that the 1st respondent is also related to Akkayamma from her husband side, and since he was employed as teacher in a village, nearby Madanapalle, she permitted her to stay in a part of the said house. A portion of the house is said to have been rented to the 2nd respondent.
2. According to the appellant, Akkayamma executed a Will, dated 11.9.1981, bequeathing the suit house to her, and the landed and other property in the village, to the 1st respondent and his brother. She also pleaded that after the death of Akkayamma, few months after the execution of the Will, the property was mutated in the Municipal records, in her name, and when she demanded the respondents to vacate the premises, they refused, disputing her entitlement for the property.
3. The suit was contested by the 1st respondent alone. It is endorsed in the Memorandum of Appeal that respondents 2 and 3 are not necessary. Hence, the 1st respondent would be referred to as "the respondent".
4. The respondent did not dispute the relationship of the parties with Akkayamma, but denied the averment as to the assistance of the father of the appellant in constructing the house, or the allegation that the appellant used to live with Akkayamma, during her studies. He stated that he was adopted by Akkayamma, as her son, and on her death, the property devolved upon him. The respondent stated that the Will relied upon by the appellant is a fabricated one, and that it cannot constitute the basis, for any claim of the appellant.
5. Through its judgment, dated 6.8.1992, the trial Court decreed the suit, as prayed for. The respondent filed A.S. No. 81 of 1992, in the Court of Additional District Judge, Madanapalle. The appeal was allowed on 31.12.1996, and the decree passed by the trial Court was set aside. Hence, this second appeal.
6. Sri R. Subba Rao, learned Counsel for the appellant, submits that the lower appellate Court grossly erred in holding that the Will, marked as Ex. A-1, was not proved, though an attestor and the scribe, who too virtually acted as an attestor, were examined. He further submits that in the State of Andhra Pradesh, it is not necessary to obtain the probate of a Will, and despite the same, the lower appellate Court proceeded as though the suit for declaration of title and recovery of possession, on the strength of a Will, without seeking probate, is not maintainable. Learned Counsel further submits that the evidence of PW-3, accorded with Section 138 of the Evidence Act, and that there was no basis for discarding it. Sri Subba Rao submits that even if for any reason, the evidence of PW-3 is to be discarded, Ex. A-1 can be said to have been proved, on the basis of the evidence of PW-2, who not only scribed the document, but also signed in the same manner, as an attestor.
7. Sri K.V. Reddy, learned Counsel for the respondent, submits that the appellant failed to prove Ex. A-1, as required under law, particularly, as regards the attestation. He submits that there existed several suspicious circumstances surrounding the Will, and none of them were explained. Placing reliance upon the judgments rendered by the Supreme Court and this Court, learned Counsel submits that a scribe can never be treated or recognized as an attestor. It is also his case that the evidence of PW-3 cannot be taken into account, since he did not turn up for cross-examination.
8. The controversy in the suit revolved mainly around the truth and validity of Ex. A-1. The claim of the respondent that he was the adopted son of late Akkayamma, did not figure prominently. The obvious reason is that if Ex. A-1 is found to be enforceable, the alleged adoption becomes irrelevant, and if it is held not proved, it makes little difference for the appellant, whether the respondent was adopted, or not. Before the trial Court, the following issues were framed:
(1) Whether the Will dated 11.9.1981 said to have been executed by Akkayamma in favour of the plaintiff is true and valid?
(2) Whether the plaintiff is the owner of the building?
(3) Whether the plaintiff is entitled to delivery of possession of the house from the first defendant?
(4) Whether the 3rd defendant is an unnecessary party to the suit? (Additional issue framed on 17.4.1989) On behalf of the appellant, PWs. 1 to 3 were examined and Exs. A-1 to A-4 were filed. On behalf of the respondent, DWs-1 to 3 were examined and Exs. B-1 to B-8 were filed.
9. In the appeal preferred by the respondent, the lower appellate Court framed the following points for consideration:
(1) Whether the suit for declaration of title and possession can be converted into a probation of Will?
(2) Whether the decree and judgment of the Lower Court suffers from any irregularity of facts or law?
(3) Whether the Will is proved in accordance with law?
(4) Whether the adoption pleaded by D-l has been proved?
All the points were answered in favour of the appellant. The lower appellate Court took the view that the reliefs claimed by the appellant could not have been granted, unless she prayed for probate of the Will. The view taken by the lower appellate Court cannot be sustained in law. In the State of Andhra Pradesh, it is not necessary that a probate must be obtained before the enforcement of a Will is sought. It was so held by this Court in Inkollu Sasikala v. Inkollu Venkata Mutu 2004 (5) ALD 449. It has already been observed that the plea of adoption taken by the respondent, does not assume much significance, in the instant case, since the controversy is about the testate, and not intestate succession. The following questions of law arise for consideration in this second appeal:
(a) Whether a scribe can figure, or be recognized as an attestor?
(b) Whether the evidence of a witness, who was not cross-examined, even when he was ready, is liable to be discarded, on the ground that he did not turn up when recalled?
(c) Whether there existed any suspicious circumstances surrounding Ex. A-1, and if so, whether the appellant explained the same?
10. A Will is one of the documents, which is required to be attested. Just as Sections 59 and 123 of the Transfer of Property Act, require that deeds of mortgage and gift must be attested, Section 63 of the Indian Succession Act, mandates that a Will must also be attested. The word 'attested' is defined under Section 3 of the Transfer of Property Act, as under:
"Attested" - "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 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.
Chapter V of the Evidence Act, which deals with the proof of documentary evidence, maintains a distinction between proof of documents, which are required to be attested, on the one hand, and those, which are not so required; on the other hand. Sections 68 to 71 deals with the former category of cases. Section 68 directs that a document, which is required by law, to be attested, shall not be used in evidence, unless at least one attesting witness has been examined to prove its execution, provided such witness is alive, is subject to process of the Court, and is capable of giving evidence. The proviso to Section 68 carves out an exception, where the documents are registered. This exception, however, shall not apply to Wills, thereby connoting with the fact that a Will is registered, does not make any difference, when it comes to the question of proof.
11. Neither Section 3 of the Transfer of Property Act, nor Section 68 of the Evidence Act, stipulate any qualifications or disqualifications, for the persons to figure as attesting witness. The only requirement is that the attestor must have seen the executant of the document, sign or affix his mark on the document, or has seen some other person sign the instrument, in the presence and on the direction of the executant, and thereafter, must have signed the instrument, in the presence of the executant. It is also permissible in law for an attestor, to sign the document, though he has not seen the executant signing it, provided the latter acknowledges his signature or mark. Controversy persisted on the question, viz., if an individual otherwise possesses the attributes of an attestor, whether his evidence is liable to be discarded, on the ground that he happened to be the scribe of the document. Way back in the year 1915, the Madras High Court in Ayyasami Iyengar v. Kylsam Pillai 1915 Mad. 1052 (1) AIR V2 (C), and three years later in Parama Siva Udayan v. Krishna Padayachi 1918 Mad. 491 AIR V5 (A), held that the writer of a document, who signed his name as a scribe, can be treated as an attesting witness, if he had seen the executant signing the document. Following the said judgment, this Court in M. Venkatasubbaiah v. M. Subbamma 1956 Andhra 195 AIR V43 C 56 Oct, held that if a witness had affixed his signature, in the same manner as an attesting witness, the fact that he is a scribe of a document, cannot be a factor, not to treat him as an attestor.
12. Learned Counsel for the respondent placed reliance upon the judgment of the Supreme Court in N. Kamalam (Dead) and Anr. v. Ayyasamy , in support of his contention that a scribe can never figure as an attesting witness. The said judgment was followed by a Division Bench of this Court, in Gondrala Sithamahalakshmi v. Pulipati Rajarao . A close analysis of the judgment of the Supreme Court in N. Kamalam's case (supra), reveals that except the scribe, no other witnesses were examined, and his evidence also did not satisfy the requirements of an attesting witness. It is difficult to discern from the said judgment, an unequivocal proposition, that a scribe can never figure as an attestor. The doubt if any, in this regard, stood clarified with the judgment of the Supreme Court, in Mathew Oommen v. Suseela Mathew . In that case, the plea that a scribe cannot be recognized as an attestor, is repelled. The relevant portion reads as under:
The learned Counsel for the respondent also urged that the Will had not been attested by two attesting witnesses as required under the law. In support of this argument it was submitted that one of the alleged attesting witness is only scribe of the Will and is not attesting witness. Regarding this objection we may note that there is no requirement in law that a scribe cannot be an attesting witness. The person concerned has appeared in the witness box as PW-1 and has clearly stated that he is a scribe of the Will as well as he is an attesting witness of the Will. For attestation what is required is an intention to attest which is clear from the statement of PW-1. He categorically stated that he has signed as an attestor and scribe. In our view, the requirement of attestation of the Will by two witnesses is fully met in the present case.
13. Reverting to the facts of the case, the appellant examined PWs.2 and 3, to prove Ex. A-1. PW-2 is the scribe of the document and PW-3 is an attesting witness. The question as to whether the evidence of PW-3 is liable to be discarded, would be discussed a little later. On his part, PW-2 stated in his chief-examination as under:
I read over the contents to the parties in the presence of witnesses. Akkayamma was in a sound state of disposing mind at the time of Ex. A-1. After that Akkayamma signed and later attestors Sida Reddy and Anandarao Gupta signed and later I signed as scribe.
It would have made significant difference, had PW-2 signed the document, soon after he read it, without waiting till the executant and the other witnesses have signed it. His evidence is clear to the effect that after scribing the document, he read over the contents, and thereafter, the executant signed the document, followed by the signatures of attestors. It is after these steps, that he put his signature on the document. Though he signed as a scribe, the fact remains that he signed after the executant put her signature on the document. In the cross-examination, nothing was elicited through this witness, to discredit his version. Therefore, the evidence of PW-2 can be treated, as that of an attestor.
14. Serious controversy persisted, as to whether the evidence of PW-3, the attestor of Ex. A-1, must be taken into account, or be discarded. The objection raised on behalf of the respondent is that the said witness deposed on 21.4.1992, but was not cross-examined. A further plea is that I.A. No. 271 of 1992 was filed under Order XVIII Rule 17 CPC, to recall the said witness, and though the IA was allowed, PW-3 did not turn up, for further examination. On this basis, it is contended that there was no cross-examination of PW-3 in effect, and his evidence in chief-examination cannot be taken into account at all.
15. Different connotations would have arisen, had the witness deposed in chief-examination, and thereafter did not offer himself to be cross-examined. In the instant case, that is not so. After PW-3 was examined in chief, he was available for cross-examination. For one reason or the other, the respondent did not cross-examine him. Therefore, the Court endorsed "Cross-examination - Nil" "Re-examination - Nil". It may be true that the said witness was recalled through an order in I.A. No. 271 of 1992. The record, however, discloses that no efforts were made by the respondent to secure the presence of the witness. The appellant filed a Memo, dated 9.7.1992, before the trial Court, alleging that the respondent won over PW-3, and did not take any steps, to secure his presence. On the said memo, it was endorsed on behalf of the respondent that batta Will be paid and necessary steps would be taken, for production of the witness. The respondent deposed as DW-3. In his cross-examination, he stated as under:
I did not try to secure PW-3 for the purpose of cross-examination The cumulative effect of all these factors is that it is not a case of the witness, not being available to be cross-examined, but the failure on the part of the respondent and his Counsel, to cross-examine him.
16. Sections 137 and 138 of the Evidence Act denote the purport of examining in chief, cross-examination and re-examination, of witnesses and the order thereof. Right to cross-examine a witness, is very valuable and important, for a party in judicial proceedings. In fact, cross-examination happens to be the lifeline of the entire evidence of a witness. The right of a party, to cross-examine a witness produced by his opponent, is almost unbridled. The restriction placed by law, on the nature and purport of examination in chief, do not exist in respect of cross-examination. Where, however, if the party does not avail it, the lapse cannot nullify the whole evidence. In his treatise on Evidence, Sudipto Sarkar has this to say, on this aspect:
The doctrine requiring a testing of testimonial statements by cross-examination has always been, understood as requiring, not necessarily an actual cross-examination, but merely an opportunity to exercise the right to cross-examine if desired. The reason is that, wherever the opponent has declined to avail himself of the offered opportunity, it must be supposed to have been because he believed that the testimony could not or need not be disputed at all or be shaken by cross-examination. This doctrine is perfectly settled. By the present doctrine, testimony never actually tested at all, in consequence of the carelessness, fraud, or incompetence of Counsel, or of privity in interest is admitted, if merely the opportunity so to test it had existed. But room should be allowed for the exceptional instances which Will certainly occur.
He derived support for his comment from a judgment rendered by an English Court, which, is to the following effect:
The rule of the common law is that no evidence shall be admitted but what is or might be under the examination of both parties. But if the adverse party has had liberty to cross-examine and has not chosen to exercise it, the case is then the same in effect as if he had cross-examined. Here then the question is whether the defendant had an opportunity of cross-examining. {See 'Sarkar on Evidence' 14th Edition page 1998}
17. The facts of the present case, fit into the said proposition. The judgment of the Supreme Court in Gopal Saran v. Satyanarayan , relied upon by the learned Counsel for the respondent, does not apply to the facts of the case. That was a case, where the witness did not turn up for further cross-examination, after the matter was remanded and in spite of the orders of the Court. In the instant case, the respondent himself admitted that he did not take any steps to procure the presence of PW-3. Therefore, the irresistible conclusion is that the evidence of PW-3 cannot be discarded. If that be so, his evidence that himself and PW-2 signed Ex. A-1 after the executant signed the document, remains unrebutted. Thereby, the requirement under Section 68 of the Evidence Act, stands satisfied.
18. Now remains the last question. It bears repetition that mere proof of a Will, does not make it enforceable, and the propounder thereof, is under obligation to explain the suspicious circumstances, if any. The intensity of suspicion, surrounding a Will, is directly proportionate to the proximity of the persons, that are excluded from the disposition, and the distance of the legatees, in terms of relationship with the testator. The facts of the present case disclose that the, appellant and respondent are as close, or as distant, to the testator on the other. The only difference is that the appellant is from the side of the brother, and the respondent is from the side of the husband of the testator.
19. One suspicious circumstance, which the respondent pleaded, was that the appellant never lived with Akkayamma, and that he alone used to live with her. He reiterated this, in his evidence as DW-3. The appellant disputed the same and asserted that throughout her education, she resided with Akkayamma. DW-1 is none other than the father of the respondent. In his cross-examination, he stated that the appellant was studying in the house of Akkayamma.
20. There would have been some basis for the contention of the respondent, in this regard, had it been a case where, cordiality prevailed between the testator, on the one hand, and the father of the respondent, on the other hand. The absence of such relationship and the truth of the contents of the Will, Ex. A-1, had emanated from DW-1 himself. He stated as under:
Akkayamma filed a suit against me and my younger brother Chinna Reddepa Redely and mother Akkamma. The litigation was pending for 40 to 50 years. DW-2 was also a party to the suit. I heard that Akkayamma gave landed property to Dl and his brother Rami Reddy and house property at Madanapalli to Plaintiff.
Therefore, it is difficult to conclude that there existed any suspicious circumstances, surrounding Ex. A-1. Even assuming that there existed some suspicion circumstances, they stood explained, with the evidence of DW-1. Further, it is not as if the respondent was excluded from the bequest. A small house in an area of about 125 sq. yards was given to the appellant, whereas, the agricultural land and other properties in a village were bequeathed to the respondent and his brother.
21. The lower appellate Court reversed the judgment of the trial Court, on the basis of incorrect notions, and by taking an incorrect view of settled principles of law.
22. The second appeal is accordingly allowed, and the decree and judgment passed by the lower appellate Court in A.S. No. 81 of 1992, are set aside. There shall be no order as to costs.