Andhra HC (Pre-Telangana)
Macha Srinivasa Rao vs Macha Anasuryamma And Anr. on 8 January, 2003
Equivalent citations: 2003(2)ALT246
JUDGMENT Tamada Gopalakrishna, J.
1. Revision Petitioner herein is the 1st defendant in the suit. He preferred this revision against an order passed by the learned Senior Civil Judge, Kothagudem, allowing I.A.No. 740 of 2001 in O.S. No. 9 of 1991, which was filed for summoning one Mr. B. Ramachandraiah, Advocate for the 2nd defendant in the suit (2nd respondent herein) who allegedly attested the will (Ex.A-1) executed by the husband of the plaintiff.
2. The facts that led to the filing of this revision are that the 1st respondent herein, who is the plaintiff in the suit, is the second wife of one late Macha Komaraiah. Late Komaraiah is the father of the revision petitioner (1st defendant). The 2nd respondent herein (2nd defendant) is the adopt son of the said late Komaraiah. According to the plaintiff, the said late Komaraiah executed a will (marked as Ex.A-1 in the suit) in her favour in the year 1981 bequeathing certain property and that one Sri B. Ramachandraiah, Advocate, is one of the attestors to the said will. Basing on the said will executed by late Komaraiah, the plaintiff was constrained to file the suit i.e., O.S. No. 9 of 1991 against the defendants 1 and 2, who are the sons of late Komaraiah, for partition of the joint family property and for separate possession. While so, the alleged attestor of the said will (Ex.A-1) Sri B. Ramachandraiah, a practising advocate, happened to file vakalat in the suit on behalf of the adoptive son i.e., 2nd defendant.
3. During the course of trial of the suit, the plaintiff was examined as P.W.1 and her examination was over on 5-11-2001. On 20-11-2001, P.Ws.2 and 3 were also examined on behalf of the plaintiff. At that juncture, the plaintiff has come forward with the present petition under Order XVI Rules 1 and 2 C.P.C. praying the court to summon the advocate of the 2nd defendant Sri B. Ramachandraiah to be examined on her side for the purpose of proving the will (Ex.A-1) as its attestor. Sri Ramachandriah, who received the petition copy, initially opposed the said petition but subsequently on 7-12-2001 he reported no Instructions on behalf of the 2nd defendant as he is one of the attestors of Ex.A-1 will. The court below after hearing all the parties allowed the said LA. by its order dated 22-1-2002 and summoned Sri B. Ramachandriah as one of the witnesses of the plaintiff. As against the said order, the 1st defendant filed this revision.
4. Learned counsel for the revision petitioner (1st defendant) Sri M. Rajamalla Reddy vehemently contended that the court below committed an illegality in summoning Sri Ramachandraiah, advocate of the 2nd defendant, for the purpose of examining him on behalf of the plaintiff, as it is totally contrary to the spirit of Section 126 of the Evidence Act which prohibits summoning of an advocate. It is contended that even though the said Ramachandraiah has given up vakalat on 7-12-2001, he cannot be examined as a witness of the plaintiff in view of the Explanation to Section 126 of the Evidence Act. In support of his contention, he relied on the judgments reported in Public Prosecutor v. Venkata Reddy, 1960 ALT 539, Vemuru Ramasubbayya v. Bollu Sarojini, 1976 (1) An.W.R. 332 and Kameswara Rao v. Satyanarayana, 1984 (1) ALT 280.
5. On the other hand, Sri P.V. Ramana, learned counsel appearing for the respondents, contended that the will in question was executed on 18-12-1981 and the same was attested by two attestors of whom one attestor died and the other attestor is Sri Ramachandraiah, Advocate. When the attestor to the will is very much available, it is the duty of the court to summon and examine him as a witness for the purpose of proving the said will. Therefore, the order of the court below in summoning Sri Ramachandraiah, who is the sole surviving attestor to the will, so as to examine him as a witness in court is perfectly justified and that the prohibition contemplated under Section 126 of the Evidence Act has, therefore, no application to the case on hand. In support of his contention, learned counsel relied upon the judgments in Pratti Rajamma alias Rayalamma v. Pratti Chintaiah, 1972 (2) An.W.R. 253, P.G. Anantasayanam v. M. Sathiraju, , G. Padmanabham v. N. Narasimha Sastry, and N. Kamalam v. Ayyasam, .
6. In the light of the rival contentions, the question that falls for determination in this revision is whether the court below is justified in summoning Sri Ramachandraiah, who was the counsel for the 2nd defendant, for the purpose of proving Ex.A-1 Will as its attestor.
7. As per Section 68 of the Evidence Act, if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there is an attesting witness alive and capable of giving the evidence. In this case, out of the two attestors of the will, one attestor died and the other attestor is Mr. Ramachandraiah, who held vakalat on behalf of the 2nd defendant for some time. Now, the question is whether the said Ramachandraiah, the alleged attestor of the Will, can be examined as a witness on behalf of the plaintiff under the provisions of Section 68 of the Evidence Act. The petitioner's contention is that he cannot be examined in view of the provisions of Section 126 of the Evidence Act. Therefore, it is pertinent to have a look at the provisions of Section 126 of the Evidence Act which reads as under:
"126. Professional communication:--No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment;
Provided that nothing in this section shall protect from disclosure-- (1) any such communication made in furtherance of any illegal purpose;
(2) any fact observed by any barrister, leader, attorney or vakil, in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment.
It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.
Explanation:-- The obligation stated in this section continues after the employment has ceased."
8. On a plain reading of the language used in Section 126, "in the course of and for the purpose of his employment", it is no doubt clear that if the client engages a particular advocate as his counsel to defend his case in a court of law and if the client discloses any information to his counsel, for the purpose of this section, such information is the professional communication and as long as the said advocate continues to hold vakalat on behalf of such client, the said information shall not be disclosed to anybody under any circumstances. Having carefully perused the provisions of Section 126 of the Evidence Act, I am of the view that Section 126 of the Act is not meant to forbid the disclosure of any fact which was already known or disclosed.
9. In a case reported in Pratti Rajamma v. Pratti Chintaiah (4 supra), this Court had an occasion to examine the scope of Section 126 of the Evidence Act. In that case, certain disputes arose between the petitioner therein who is the daughter-in-law of the respondent therein with regard to a house. Then the petitioner got a lawyer's notice issued to the respondent through her advocate. The respondent got issued a reply notice to the petitioner through Sri N. Venkataratnam, Advocate, in which certain statements alleged to be defamatory were made. The petitioner filed a criminal complaint against the respondent under Section 500 I.P.C. After examining two witnesses in support of her case, the petitioner requested the learned Magistrate to issue summons to Sri N. Venkataratnam who gave reply notice containing defamatory statements and the court rejected that petition. In revision, this court held that-
"Section 126 of the Evidence Act prohibits a Pleader from disclosing any communication made to him in the course of and for the purpose of his employment as such pleader. Disclosure implies that which was not already made known to others. If the communication by the client to the advocate is put in the form of a notice and that notice is produced in Court, it forms the basis of a complaint for defamation under Section 500, Indian Penal Code. If what is communicated by the client to the advocate is what is put in the notice, then there is already a disclosure; and when such an advocate is called upon to give evidence, he is not disclosing any fact for the first time but is only substantiating what is already disclosed. Section 126 therefore does not stand in the way of summoning the advocate for this purpose."
10. Similarly, in another case which is reported in P.G. Anantasayanam v. Sathiraju (5 supra), the respondent/tenant sought permission of the Court to summon the Advocate of the landlord's father for the purpose of proving the reply registered notice issued by him on the ground that the said notice was lost. In that case, this court held that the purpose of summoning the advocate is not to disclose any confidential communication made by the client to his advocate. The purpose is only to prove sending of the notice which was sent by the advocate on the information supplied by the client. The very purpose of sending notice is to communicate the contents to the other side. There is nothing confidential in nature in the contents of the notice. There is abundant authority for stating that Section 126 of the Act is not meant to forbid the disclosure of any fact which was already known or disclosed.
11. A perusal of the averments made in the affidavit filed in support of the petition makes it clear that the purpose of summoning Mr. Ramachandraiah, is only to speak to the factum of his attesting the will. There is nothing confidential in the attestation of a will. As the purpose of summoning Mr. Ramachandraiah, is only to speak to the factum of his attesting the will, in my opinion, it does not amount to disclosure of any information of confidential in nature by the advocate. The decisions cited by the learned counsel for the revision petitioner are not of much help to the petitioner as the ratio laid down therein is beyond the point.
12. For the foregoing discussion, I am of the view that Section 126 of the Evidence Act does not come in the way of summoning Mr. Ramachandraiah, Advocate. Therefore, the court below is perfectly justified in summoning the alleged attestor of Ex.A-1 Will, Sri Ramachandraiah, Advocate, and I see no illegality in the said order. There are no merits in the revision and the same is liable dismissed.
13. In the result, the revision is dismissed. No costs.