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Judgment
A. Selvam, J.—The Judgment and decree dated 09.06.2009 passed in Original Suit No. 165 of 2004 by the Principal District Court,
Virudhunagar District at Srivilliputtur are being challenged in the present appeal suit as well as cross objection. The respondent in A.S. (MD) No.
233 of 2009/cross objector as plaintiff has instituted Original Suit No. 165 of 2004 on the file of the trial Court praying to pass a preliminary
decree of partition in respect of her half share, wherein the present appellants have been shown as defendants.
It is averred in the plaint that the plaintiff is the sister of the first defendant and their father name is John Stephen and he purchased a vacant site
by virtue of sale deeds dated 21.08.1989, 28.08.1989, 13.11.1989, 21.11.1989 and 15.07.1989. After purchase, he made construction and the
same has been shown as suit property and the same is the absolute property of the said John Stephen and he passed away intestate on
08.02.1999 leaving behind him, his wife, plaintiff and first defendant and each of them is having 1/3 share. The mother of the plaintiff and first
defendant has passed away on 27.01.2003 and prior to her demise, she executed a Will dated 22.10.1999 in respect of her separate properties.
Since the mother of the first defendant and plaintiff has passed away in the year 2003, the plaintiff and first defendant are each having half share in
the suit property. The second defendant has lent his support to the first defendant. Under the said circumstances the second defendant has been
added as a formal party in the present suit and therefore the present suit has been instituted for getting the reliefs sought for therein.
In the written statement filed on the side of the defendants 1 and 2, it is averred that the relationship mentioned in the plaint is correct. The
mother of the plaintiff has executed two Wills on 22.10.1999 in favour of the first defendant and plaintiff. In the Will executed in favour of the first
defendant, the suit property has been mentioned. Further a family arrangement has taken place amongst the plaintiff, first defendant and their
mother, wherein the property standing in the name of the father has been absolutely given to the mother. Under the said circumstances she has
executed the Will dated 22.10.1999 in favour of the first defendant in respect of the suit property. Since the Will dated 22.10.1999 has come into
existence and that too in favour of the first defendant, the plaintiff is not having any partible interest over the suit property and therefore the present
suit deserves to be dismissed.
On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and
documentary evidence has decreed the suit only in respect of 1/3 share of the plaintiff. Against the Judgment and decree passed by the trial Court,
the defendants as appellants have preferred Appeal Suit No. 233 of 2009 and against the disallowed portion, the plaintiff as cross objector has
filed Cross Objection No. 1 of 2010.
Before contemplating the rival submissions made on either side, it would be useful to refer the following admitted facts. It is an admitted fact that
the plaintiff is the sister of the first defendant and both of them are the children of one John Stephen and he purchased vacant site through various
sale deeds and subsequently constructed building which has been shown as suit property. The said John Stephen has passed away on 08.02.1999
and his wife has passed away on 27.01.2003.
The consistent stand taken on the side of the plaintiff is that with regard to separate properties of mother of the plaintiff and first defendant, she
executed a Will dated 22.10.1999 in favour of the plaintiff and she has not executed any Will in respect of the property standing in the name of
father (John Stephen) and under the said circumstances the plaintiff is having half share in the suit property.
The defence put forth on the side of the first defendant is that after the demise of father, a family arrangement has come into existence among the
plaintiff, first defendant and their mother wherein the property stands in the name of father has been absolutely given to mother and subsequently
she executed the two Wills dated 22.10.1999, one in favour of the plaintiff and another in favour of the first defendant, wherein the suit property
has been mentioned and therefore the first defendant has become absolute owner of the suit property and in which the plaintiff is not having any
partible interest.
The Will which stands in the name of the plaintiff has been marked as Ex. B.15 and the Will which stands in the name of the first defendant has
been marked as Ex. B.28. The trial Court has come to a conclusion to the effect that the family arrangement put forth on the side of the first
defendant has not been proved and under the said circumstances with regard to 1/3 share of the mother, Ex. B.28 is valid and therefore the first
defendant is entitled to get 2/3 share, whereas the plaintiff is entitled to get 1/3 share in the suit property and to that extent, a preliminary decree of
partition has been passed.
In the present appeal as well as cross objection, the following points have arisen:
(a) Whether the family arrangement put forth on the side of the first defendant can be accepted?
(b) Whether the Court can rely upon Ex. B.28, which stands in the name of the first defendant?
The learned counsel appearing for the appellants/defendants has repeatedly contended that even in the plaint filed in Original Suit No. 165 of
2004, the plaintiff has candidly admitted to the effect that on 22.10.1999 her mother has executed a Will in respect of her separate properties in
favour of the plaintiff and on the same day she has executed Ex. B.28, in favour of the first defendant in respect of the suit property and in Ex.
B.15, no mention has been made with regard to first defendant and likewise in Ex. B.28 no mention has been made with regard to the plaintiff and
under the said circumstances the primary intention of the testator has to be looked into, since both the Wills have come into existence on the same
day and even though Ex. B.28 is a secondary evidence, the Court can very well accept it and the trial Court without considering the intention of the
testator and also the factual circumstances to the effect that both the Wills have come into existence on the same day, has erroneously found that
Ex. B.28 is valid only to an extent of 1/3 share of mother and further the original of Ex. B.28 is under the custody of the plaintiff and the same has
been mentioned in the written statement and the trial Court without considering the aforesaid factual circumstances and also the averments made in
the written statement has erroneously given such kind of finding and therefore the Judgment and decree passed by the trial Court are liable to be
set aside and Original Suit No. 165 of 2004 is liable to be dismissed in toto.
In support of the contention raised on the side of the appellants/defendants, reliance is placed upon the decision in M.B. Ramesh (D) by L.Rs.
Vs. K.M. Veeraje Urs (D) by L.Rs. and Others, , wherein the Hon''ble Apex Court has culled out the following principles of law:
A Will has to be executed in the manner required by Section 63 of the Succession Act. Section 68 of the Evidence Act requires the Will to be
proved by examining at least one attesting witness. Section 71 of the Evidence Act is an enabling Section permitting a party to lead other evidence
in certain circumstances. But the Section does not absolve a party of his obligation u/s 68 of the Evidence Act read with Section 63 of Succession
Act to present in evidence a witness, though alive and available.
Further the learned counsel appearing for the appellants/defendants has drawn the attention of the Court to the observation made by the
Bombay High Court in the decision in Vishnu Ramkrishna Wani Vs. Nathu Vithal Wani, and the same reads as follows:
We are dealing with the case of a will and we must approach the problem as a Court of Conscience. It is for us to be satisfied whether the
document put forward is the last will and testament of Gangabai. If we find that the wishes of the testatrix are likely to be defeated or thwarted
merely by reason of want of some technicality, we as a Court of Conscience would not permit such a thing to happen. We have not heard Mr.
Dharap on the other point; but assuming that Gangabai had a sound and disposing mind and that she wanted to dispose of her property as she in
fact has done, the mere fact that the propounders of the will were negligent - and grossly negligent in not complying with the requirements of S. 63
and proving the will as they ought to have should not deter us from calling for the necessary evidence in order to satisfy ourselves whether the will
was duly executed or not....
In order to controvert the argument put forth on the side of the appellants/defendants, the learned counsel appearing for the respondent/plaintiff
has repeatedly contended that in the instant case, the admitted fact is that the suit property is the absolute property of John Stephen, who is none
other than the father of the plaintiff and first defendant, but on the side of the defendants an attempt has been made to the effect that after the
demise of John Stephen, a family arrangement has been made wherein the suit property has been absolutely given to mother of the plaintiff and first
defendant, but to prove the same no acceptable evidence has been forthcoming on the side of the appellants/defendants and further Ex. B.28 is a
registration copy of the alleged Will dated 22.10.1999 and the same cannot be accepted in evidence and further the wife of the first defendant has
taken active part in execution of Ex. B.28 and under the said circumstances Ex. B.28 has been created in a suspicious circumstances and before
marking Ex. B.28, the burden lies upon the first defendant has not been discharged and the trial Court without considering the initial burden of the
first defendant for marking Ex. B.28, has erroneously relied upon the same to an extent of 1/3 share of mother and under the said circumstances
the finding given by the trial Court with regard to 1/3 share of mother is totally erroneous and since family arrangement has not been proved and
since before marking Ex. B.28, the legal formalities have not been fulfilled on the side of the first defendant, the trial Court ought to have decreed
the suit as prayed for, but it has erroneously passed a preliminary decree of partition only with regard to 1/3 share and therefore the Judgment and
decree passed by the trial Court are liable to be modified.
As pointed out earlier, the suit property is the absolute property of John Stephen, who is none other than the father of the plaintiff and first
defendant.
The entire case of the first defendant is based upon the alleged family arrangement and subsequent execution of Ex. B.28 in his favour by his
mother. In fact this Court has scanned the entire evidence available on record. Even in the written statement no specific date has been mentioned
with regard to alleged family arrangement. Since no specific averments are found place with regard to the said aspect in the written statement, the
Court cannot believe the same.
The specific contention put forth on the side of the appellants/defendants is that by virtue of family arrangement entered into amongst the
plaintiff, first defendant and their mother, the entire suit property has been absolutely given to mother and subsequently she has executed Ex. B.28
in favour of the first defendant in respect of the entire suit property. Since on the side of the first defendant, the so-called family arrangement has
not been proved to the satisfaction of the Court, the Court cannot accept the same.
Even assuming without conceding that such family arrangement has been made, the Court has to look into as to whether Ex. B.28 being a
secondary evidence, can be accepted?
The learned counsel appearing for the appellants/defendants has repeatedly contended that Ex. B. 15 and B.28 have come into existence on
the same day and therefore the intention of the testator plays a pivotal role and under the said circumstances Ex. B.28 can easily be accepted and
further in the written statement filed on the side of the defendants it has been specifically averred to the effect that the original of Ex. B.28 is under
the custody of the plaintiff.
For analysing the above legal aspect, the Court has to look into the following Sections of the Indian Evidence Act, 1872. Section 63 deals with
secondary evidence and the same reads as follows:
Secondary evidence means and includes-
(1) certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical process which in themselves ensure the accuracy of the copy, and copies compared with such
copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
Section 64 deals with proof of documents by primary evidence and the same reads as follows:
Documents must be proved by primary evidence except in the cases hereunder mentioned.
Section 65 deals with cases in which secondary evidence relating to documents may be given and the same reads as follows:
Secondary evidence may be given of the existence, condition or contents of a document in the following cases:--
(a) when the original is shown or appears to be in the possession or power-of the person against whom the document is sought to be proved, or of
any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice
mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or
by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from
his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be
proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the
examination of such documents.
Section 66 deals with rules as to notice to produce and the same reads as follows:
Secondary evidence of the contents of documents referred to in Section 65, clause (a), shall not be given unless the party proposing to give such
secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader, such notice to
produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the
circumstances of the case;
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case
in which the Court thinks fit to dispense with it;-
(a) when the document to be proved is itself a notice;
(2) when from the nature of the case, the adverse party must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;
(b) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.
From the cumulative reading of the said Sections, it is made clear to the Court that as per Section 63 of the said Act, secondary evidence can
be produced if primary evidence is not available. However a document must be proved by primary evidence. If a party wants to produce
secondary evidence, he has to fulfil the conditions mentioned in Sections 65 and 66 of the said Act.
Even though in the written statement filed on the side of the defendants, a mere averment is found place to the effect that the original of Ex.
B.28 is under the custody of the plaintiff, no attempt has been made so as to direct her to produce the same. Section 66 of the Indian Evidence
Act, 1872 says that secondary evidence cannot be admitted, unless notice to produce original is given.
In the instant case, no attempt has been made on the side of the appellants/defendants. Since no attempt has been made on the side of the
appellants/defendants and since all the legal formalities mentioned supra, have not been complied with, the Court cannot place its reliance upon Ex.
B.28. Even the Court can say that Ex. B.28 should not be marked by the trial Court
Since the legal formalities mentioned in the Sections referred to supra, have not been complied with by the first defendant, the alleged mere
intention of the testator does not play any role in the present case and further no leniency can be shown to any party in observing legal formalities.
The substratum of the case of the first defendant is that a family arrangement has been made amongst the plaintiff, first defendant and their
mother. But such family arrangement has not at all been proved and further Ex. B.28 cannot be marked and further the first defendant has not
fulfilled the conditions mentioned in the Sections referred to earlier. Therefore viewing from any angle, the claim made on the basis of Ex. B.28 is
totally erroneous. It is an admitted fact that the suit property is the absolute property of John Stephen, who is none other than the father of the
plaintiff and first defendant. Since the suit property is the absolute property of the father of the plaintiff and first defendant and since no reliance can
be placed upon Ex. B.28, this Court is of the view that the suit property should be divided into two halves and one such share should be allotted to
the plaintiff and the remaining half share should be allotted to the first defendant.
The learned counsel appearing for the appellants/defendants has advanced his residual argument to the effect that on the side of the
appellants/defendants notice to produce documents has not been given and it is purely a mistake on the part of the Advocate who conducted trial
and even if such notice has been given, the plaintiff would say that she is not having original of Ex. B.28 and under the said circumstances for the
purpose of fulfilling the legal conditions, the matter is liable to be remitted to the file of the trial Court.
It has already been dealt with that as per Section 66 of the Indian Evidence Act, 1872, a notice must be issued. Even the person, who is said
to be in possession of a particular document refuses to produce the original, secondary evidence can be let in. But in the instant case, position is
inverse. Under the said circumstances for filling up the lacuna, this Court is of the view that this matter cannot be remitted and therefore the present
appeal suit deserves to be dismissed and cross objection is liable to be allowed. In fine, Appeal Suit No. 233 of 2009 deserves dismissal and
accordingly is dismissed without costs and Cross Objection No. 1 of 2010 is allowed without costs and the suit is decreed as prayed for without
costs. Consequently, connected Miscellaneous Petition is dismissed.