Ponnammal vs Sundaram Pillai and Others

Before dealing with this appeal generally, it will be convenient to dispose of the question as to the admissibility of Exhibit A. This document was

tendered in evidence on behalf of the plaintiff in support of the allegation contained in paragraph 3 of the plaints ""Before his return to India, he gave

plaintiff and defendants 1 and 2 each one-third share of the moveable and Immovable properties he possessed then under a will which he had

executed on 28th February 1872.

Before the Subordinate Judge, no other evidence was tendered in proof of this allegation. The Subordinate Judge marked this document and

filed It as an exhibit in the case, but in giving judgment he held that it was not admissible in evidence. The document purports to be a""copy of a will

executed by a person of the name of Chinna Tamby Pillai. The copy contains an endorsement purporting to be signed by the Assistant Registrar-

General for Ceylon, to the effect that the copy was a true copy of ""last will and testament made from the protocal of record filed in that office, and

the same was issued to M.R.M.A. Narayanen Chetti on his application at Colombo on the 8th day of March 1897.

The Subordinate Judge held this document inadmissible on the ground that it was not a "" public document,"" and that if it was a public document,

there was no certificate ""under the seal, &c."" Section 78(6) of the Indian Evidence Act. After the delivery of the judgment by the Subordinate

Judge, the plaintiff obtained a certificate which purported to be signed by the Governor of Cey lon, to the effect that the person who signed the

endorsement on A, was the Assistant Registrar-General for the Island of Ceylon.

In our judgment, the will is not a public document within the meaning of Section 74(1)(2), or 3 of the Evidence Act. It has been argued that if the

original will is not a public document it is a document to which Section 65 of the Evidence Act applies and that inasmuch as the possession or

power of a person out of the reach of, and not subject to the process of the court secondary evidence may be given of its contents. By Section 63

of the Evidence Act ''''secondary evidence"" is defined as meaning and including (1) certified copies under the provisions herein after contained that

is to say in the case of public documents; (2) copies made from and compared with original. No legal evidence was tendered before the

Subordinate Judge that this copy had been made from and compared with the original, and the appellant cannot only in aid the provisions of the

Evidence Act which apply only to public documents for the purpose of supplying secondary evidence of a document which is not a public

document. We do not think that the document is admissible u/s 35 as an entry in a public register or record. It seems doubtful whether this section

applies to an entry in a public register or record kept outside British India. In any case the entry, even if admissible u/s 35, would not be proof of

the allegation contained in paragraph 3 of the plaint.

Even if admissible, the document would only be evidence of the fact that a man of the name of Chinna Tamby Pillai made a will in 1872

disposing of his property in a certain way. There is no evidence forthcoming to identify the maker of this will with the plaintiff''s father.

We have been asked that an opportunity should be given to the plaintiff to give legal evidence if she is in a position to do so--of the will of 1872.

We do not think she is entitled to any such indulgence. There is no reason whatever why she should not have produced the necessary legal

evidence to establish her allegations with regard to the alleged will of 1872 when the case was tried before the Subordinate Judge. In our judgment

the Subordinate Judge rightly held that Exhibit A was inadmissible and we decline to allow the case to be reopened upon this point.

As regards the alleged will of August 19, 1889, we agree with the conclusion of fact at which the Subordinate Judge arrived that this alleged will

was a forgery. The testator died seven days after the will was alleged to have been executed. Nothing was heard of the will until October 10th

when it was presented for registration. The defendants at once attacked the alleged will, and on the very day it was presented for registration they

presented a petition alleging it to be a forgery. Thereupon, the plaintiff at once agreed to refer all mattersin dispute, including the question of the

genuineness of the will to arbitration. The award of the arbitrators was published on the 26th June 1890, and under the award, the plaintiff received

a very substantial sum, though not so much as she would hare been entitled to under the alleged will. The plaintiff after the issue of the award

proceeded to deal with the property allotted to her by the award, and she did not attempt to put forward any claim based upon the alleged will,

until more than seven years after the publication of the award. There was a considerable body of oral evidence in support of the execution of the

alleged will of 19th August 1889, but we think that the Subordinate judge was perfectly right in declining to believe this evidence in face of the facts

referred to above and the inference to be drawn from Exhibit 4, and the other circumstances of the case, which it is not necessary for us to go into.

The appeal is dismissed with costs. Costs payable to defendants appearing in this Court will be apportioned in proportion to their respective

interests, on the same principle, as costs of these defendants were apportioned in the courts below.