S.R. Sridhar vs Venkitapathy and Others

R. Mala, J.—Civil Revision Petitions are filed against the fair and decreetal order dated 03.04.2013 in I.A. Nos. 183 and 184 of 2013 in O.S. No. 205 of 2004 on the file of the District Munsif Court, Palladam.

Learned counsel for the revision petitioner/second plaintiff submits that the first plaintiff, who is none other than the wife of the deceased Venugopalasamy, filed a suit for declaration of title and also recovery of possession and granting to pay past mesne profits of Rs. 25,000/- per annum and future mesne profits. During pendency of the suit, she died. During her life time, she executed a Will in favour of the second plaintiff/revision petitioner herein, who stepped into the shoes of the first plaintiff and contested the suit. The respondents/defendants are none other than the sister''s son of Venugopalasamy. He further submits that both the parties have admitted that the suit property is owned by Venugopalasamy. Evidence of defendants heard in part and when the suit was posted for cross-examination, the defendants/respondents herein have come forward with the applications in I.A. Nos. 183 and 184 of 2013 for reception of additional documents and also recall D.W.1 for marking of those documents. The documents they sought for to be marked are only photographs. In the affidavit filed in support of the application in I.A. No. 183 of 2013 itself, the respondents/defendants stated that negatives of the said photographs are not available. Without negatives, the documents are inadmissible in evidence. But the trial Court without considering the above aspect, allowed the applications. Therefore, he prayed for allowing the revision petitions.

Learned counsel for the respondents/defendants submits that it is true, the said photographs are taken only in the year 1972 and the negatives are not available. He further submits that those documents are to be marked only for collateral purpose, so whether those documents are admissible in evidence or not to be decided only at the time of trial and not now. Therefore, he prayed for dismissal of the revision petitions.

Considered the rival submissions made on both sides and perused the materials available on record.

The suit properties are originally belonging to one Venugopalasamy and his wife is Bhagiyalakshmi, who is the first plaintiff in the suit. The respondents/defendants are sister''s son of Venugopalasamy.

According to the plaintiff/revision petitioner herein, the said Venugopalasamy is insane. Whereas the respondents/defendants stated that he is not an insane and he has executed the Will in favour of respondents/defendants on 11.05.1992.

During pendency of the suit, the respondents/defendants have come forward with the applications to receive the documents mentioned under Serial Nos. 1 to 16 as additional documents and recall D.W.1 for marking those documents. The additional documents sought to be marked under Sl. Nos. 1 to 12 are photographs, Sl. No. 13 is the marriage invitation of Ramakrishnan and Sl. Nos. 14 to 16 are video cassette, receipt and D.V.D.

In para-2 of the affidavit filed in I.A. No. 183 of 2013 itself, the respondents/defendants stated as "since these photographs were taken several years back in the personal cameras of my brothers, negatives of these photographs are not available." But as per Indian Evidence Act, without negatives, photographs are not admissible in evidence. Furthermore, photographs have to be marked only through a person, who took photographs. On perusal of affidavit filed by the respondents/defendants, it clearly reveals that they have not mentioned the name of the person, who took photographs. Even though photographs are old, the respondents/defendants have to prove the same in accordance with law before marking those documents. As already stated that in the affidavit itself, it was specifically mentioned that negatives are not available and the photographs were taken by their brother, but name of the person has not been mentioned.

Considering the aforesaid facts and circumstances of the case, the documents sought to be marked are not admissible in evidence. Furthermore, those documents will not help to prove whether the said Venugopalasamy is sane or insane at the time of execution of alleged Will. That factum has not been considered by the trial Court. Once the documents are not able to be marked, recall D.W.1 does not arise. Hence, I am of the view, in respect of the documents under Sl. Nos. 1 to 12, the order passed by the trial Court in I.A. Nos. 183 and 184 of 2013 are unsustainable and the same are liable to be set aside and they are hereby set aside. In respect of the documents under Sl. Nos. 14 to 16/video cassette, receipt and D.V.D., it is left open to the defendants/respondents to prove the same in accordance with law. Since the suit is of the year 2004, the trial Court is directed to dispose of the suit in O.S. No. 205 of 2004 within a period of three months from the date of receipt of a copy of this order.

With the above direction, the Civil Revision Petitions are disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.