Sunday, 6 March 2016

When execution of will can be proved without examining attesting witness?


In Thayyullathil Kunhikannan (supra) a Division Bench of the Kerala High Court while considering the provisions of Sections 58 and 68 of the Evidence Act as to the requirement to call an attesting witness, held--
Section 68 relates to those documents which require to be proved at the trial of a suit. If by any rule of law or of pleadings, such proof is not required, Section 68 cannot operate to insist on formal proof by calling an attesting witness. Section 58 has to be read as overriding Section 68and as obviating the necessity for calling an attesting witness, unless the execution of the Will or the attestation is in dispute. In the absence of any such plea in the written statement, it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a Will could be used as evidence. Order 8 Rule 5 C.P.C. deems the execution of the Will to be admitted in the absence of any denial thereof in the written statement. Examination of an attesting witness is therefore unnecessary when the parties have not joined issue on the validity or genuineness of the Will.
Andhra High Court
Darisi Masthanamma vs Mandiga Rama Krishna on 24 January, 2006
Equivalent citations: AIR 2006 AP 286, 2006 (2) ALD 534
Bench: S A Reddy

1. This second appeal is at the instance of the second defendant, aggrieved by the judgment and decree passed by the Court of District Judge, Nellore, in A.S. No. 95 of 1988, dated 21-4-1993 by which the judgment and decree passed by the Court of Principal District Munsif, Nellore, in O.S. No. 819 of 1983, dated 5-9-1988 dismissing (sic decreeing) the suit was confirmed.
2. The respondent/plaintiff filed the suit seeking for cancellation of the sale deed dated 26-3-1980 executed by the first defendant in favour of the second defendant as illegal and invalid, and the first defendant has no right or authority to execute such sale deed. According to the respondent/ plaintiff, the suit schedule property belongs to his maternal grandfather Bomma Suryanarayana, who purchased the same out of his own money along with some other property and obtained a registered sale deed in the name of his wife Bomma Narsamma in the year 1941. Later even during the lifetime of his wife B. Narsamma, who pre-deceased him, executed Ex.A.2 sale deed dated 20-6-1951 in respect of half of the property, which he purchased under Ex.A.3 sale deed dated 31-12-1941. It was also the case of the plaintiff that his grandfather executed a registered Will Ex.A.6, dated 14-4-1948 (certified copy) under which he disposed of all his properties with life interest to the first defendant, who is the mother of the plaintiff, and vested remainder to the plaintiff with absolute rights, therefore, the first defendant has no right to dispose of the suit schedule property. During the pendency of the suit itself, the first defendant died and being the only son, the plaintiff was recorded as legal heir of the first defendant. The first defendant executed a sale deed in favour of the second defendant, who is stated to be the wife of paramour of the first defendant without any sale consideration and nominally obtained the sale deed under Ex.A.1. As the first defendant has no capacity to dispose of the said property, as she has no absolute rights and further as the same was nominally executed, the same has to be declared as invalid.
3. The suit filed by the plaintiff was contested by the second defendant, who is stated to be the purchaser under Ex.A.1 sale deed from the first defendant.
4. The second defendant disputed the allegations made by the plaintiff in the plaint. It was claimed that the property was the Stridhana property of Bomma Narasamma, who is the mother of the first defendant and wife of Bomma Suryanarayana, and after her death, the property devolved upon the first defendant as the only daughter, therefore, neither Bomma Suryanarayana nor the plaintiff has got any right over the suit schedule property, and therefore, Bomma Suryanarayana has no right to execute Ex.A.6 Will in respect of the suit schedule property and the sale deed executed by the first defendant under Ex.A.1 is valid and binding on all the parties, therefore, the suit is liable to be dismissed.
5. The trial Court negatived the claim of the defendant and agreed with the contention of the plaintiff that the property was not the Stridhana property of Bomma Narasamma, therefore, the same would devolve on the first defendant as well as the plaintiff under Ex.A.6 Will executed by Bomma Suryanarayana, as per which the first defendant has got only life interest, and therefore, the sale deed executed by her, disposing of the suit schedule property, is invalid. On appeal by the second defendant, the said judgment and decree of the trial Court was confirmed by the lower appellate Court. Hence the present second appeal.
6. In the present second appeal, though as many as four grounds are raised, the sum and substance of the grounds is, whether the transaction of purchase by Bomma Suryanarayana in the name of his wife would attract the provisions of Benami Transactions Prohibition Act, 1988, and if so, can the plaintiff claim the property under Ex.A.6 Will executed by his grandfather, husband of Bomma Narasamma. Subsequently, an additional ground is raised by filing a separate application, whether without proving the Will dated 4-4-1948, Ex.A-6, can it be held valid and binding on the respondent/plaintiff (wrongly referred as respondent/plaintiff instead of appellant/ second defendant).
7. The learned Counsel appearing for the appellant/second defendant contended that the second defendant is the bona fide purchaser for a valuable consideration. As the suit schedule property was in possession and enjoyment of the first defendant, the sale deed executed in her favour cannot be cancelled or set aside. The learned Counsel also contended that though the plaintiff alleged that the second defendant is the wife of the paramour of the first defendant, but failed to prove the same, further even passing of the consideration from the second defendant to the first defendant was held in favour of the appellant/second defendant, therefore, there is no justification in declaring the sale as invalid. The learned Counsel also contended that though it was contended that Bomma Narasamma was only the ostensible owner and the real owner being Bomma Suryanarayana, her husband, no evidence was adduced to show that the sale consideration was passed on from Bomma Suryanarayana, on the other hand, the recitals in Ex.A.3 sale deed shows that the sale consideration was passed on from the purchaser Bomma Narasamma, therefore, there is no justification in treating the suit schedule property as that of Bomma Suryanarayana. The learned Counsel also contended that Ex.A,2 sale deed executed not only by Bomma Suryanarayana, but also by the first defendant while selling half of the property that was purchased under Ex.A.3 sale deed. The inclusion of the first defendant as one of the vendors while affecting the sale of half of the property clearly shows that the property was treated as the Stridhana property of Bomma Narasamma, otherwise there was no explanation as to why the first defendant should be made party for the execution of the sale deed under Ex.A.2. Lastly, the learned Counsel contended that though the plaintiff relied upon Ex.A.6 Will said to have been executed by Bomma Suryanarayana, the said document was not proved as required under law. In the absence of such evidence to prove Ex.A.6, the same cannot be considered as a piece of evidence to accept the claim of the plaintiff, therefore, sought to set aside the judgment and decree of the lower appellate Court.
8. The learned Counsel relied upon the following decisions in support of his contentions.
Bhim Singh v. Kan Singh ; Chapalabala v. Sarat Kumari (28) AIR 1941 Cal. 318; Harihar Prasad v. Deonarain Prasad AIR 1956 SC 305; H. Venkatachala v. B.N. Thimmajamma ; Gondrala Sithamahalakshmi and Anr. v. Pulipati Rajarao 2002 (4) ALD 277 (DB); Mrs. Murial Hyden v. Mrs. Dulcie M. Robb 1991 (1) ALT 5; K. Nookaraju v. P. Venkatarao ; D. Suryanarayana v. I. Suryakanthamma and Janki Narayan Bhoir v. Narayan Namdeo Kadam 2003 (2) ALD 45 (SC) : 2003 (1) Supreme 297.
9. The learned Counsel appearing for the respondent/plaintiff, on the other hand, supported the judgment and decree of the lower appellate Court. The learned Counsel contended that the property was purchased by Bomma Suryanarayana, grandfather of the plaintiff, but the sale deed was obtained in the name of his wife Bomma Narasamma. The learned Counsel also contended that the document Ex.A.3 was obtained as early as in the year 1941 and no persons connected with the execution of that document in the year 1941 were alive to adduce evidence to prove the nature of the transaction. The learned Counsel further contended that the conduct of the parties themselves shows as to the nature of the transaction. It is contended by the learned Counsel that even during the lifetime of Bomma Narasamma, Ex.A.2 sale deed was executed disposing of half of the property purchased under Ex.A.3 only by Bomma Suryanarayana and not by Bomma Narasamma. No doubt, at the instance of the purchaser, the first defendant was also added as one o the vendors. The learned Counsel also contended that the said document Ex.A.2 contains clear recitals as to the nature of the property and how the first defendant was made a party to the said sale transaction. It was contended that both the Courts below referred to the said recitals and basing on that have come to the conclusion that the said property was purchased by Bomma Suryanarayana, benami in the name of his wife Bomma Narasamma, and he has been treating the property as his own, therefore, he executed Ex.A.2 sale deed and even prior to it Ex.A.6 registered Will was executed giving the property to his only daughter - defendant No. 1, during her lifetime and with vested rights absolutely to the plaintiff, who is his grandson through the first defendant. The learned Counsel also contended that in the light of the latest decision of the Supreme Court in G. Mahalingappa v. G.M. Savitha 2005 (5) Supreme 683, the provisions of theBenami Transaction (Prohibition) Act was declared prospective and has no application to the transactions that had taken place prior to the Act came into force, therefore, the Benami Transaction (Prohibition) Act has no application. Even otherwise also, as the purchase was by Bomma Suryanarayana in the name of his wife Bomma Narasamma, the same comes under the exception. It was contended that, in fact, a specific finding was called for by this Court during the pendency of the second appeal and even in that also the lower Court has recorded a finding that the property was purchased by Bomma Suryanarayana in the name of his wife. Therefore, it is not open to the appellant/ second defendant to contend that the first defendant has got saleable interest in the suit schedule properties.
10. With reference to the second issue, the learned Counsel contended that no plea was raised disputing the validity or genuineness of Ex.A.6. When no plea, disputing the genuineness and validity of Ex.A.6, was raised or pleaded, it was not obligatory on the part of the plaintiff to lead evidence, as in the absence of any specific pleading, raising objection, it is deemed or presumed that the document is valid and admissible. The learned Counsel also contended that Ex.A.6 is a registered Will executed as early as in the year 1948, as the plaintiff was the only minor at that point of time, even after the demise of his grandfather, the plaintiff could not secure the original of Ex.A.6, therefore, he had obtained the certified copy of the same and filed. In fact, it was alleged that if the original is available, it must be only with the first defendant, who did not produce the same. The learned Counsel further contended that in the absence of any plea raising any dispute as to the genuineness of the registered Will executed by Bomma Suryanarayana, the plaintiff is not obligated to lead any evidence and for the first time, it is not open to the second defendant to raise such a plead as to the validity of the Will in this second appeal, therefore, the same is liable to be rejected.
11. The learned Counsel also relied upon the following decisions in support of his contention.
Meenakshiammal v. Chandrasekharan 2005 (1) HLR 158 (SC); Thiagarajan v. Venugopalaswamy B. Koil ; Shaik Nurbi v. Pathan Mastanbi ; Chander Kali v. Jagdish Singh ;Raghunath Pradhani v. Damodar Mahapatra ; Kishan Lal Sharma and Anr. v. Ram Kirti and Ors. AIR 1980 NOC 7 (All.); V. Subbareddi v. Basivireddi AIR 1966 (1) An.WR 272; Munnalal v. Kashibai AIR 1947 PC 15; Md. Ata Hussain v. Hussain Ali AIR 1944 Oudh 139; Navneet Lal v. Gokul ; Thayyullathil Kunhikanna v. Thayyullathil Kalliani ; Badri Prasad V. Mt. Anpurna AIR 1919 Oudh 210; K. Manikyalu v. V. Perumallayya AIR 2000 NOC 20 (AP) : 2000 AIHC 590 and T. Ramesh v. Laxmamma .
12. Heard both sides and considered the material on record.
13. The relevant facts, as referred to earlier, are not in dispute. Admittedly, the suit schedule property along with another half of the property, which was disposed of under Ex.A.2 was purchased and stood in the name of Bomma Narasamma as per Ex.A.3 sale deed. The claim of the plaintiff is that it was purchased by Bomma Suryanarayana, but obtained the registered sale deed in the name of his wife Bomma Narasamma. While the defendants dispute it, contending that the property was purchased by Bomma Narasamma out of her own and she was the absolute owner of the property and it is her Stridhana property, therefore, after her death, it devolved upon the first defendant, therefore, first defendant has got absolute right to dispose of the property, and as such, Ex.A.1 sale deed is valid.
14. The lower Court framed the appropriate issues and answered all the issues in favour of the plaintiff. Though it was pleaded as to the benami nature of the transaction, but no specific issue was framed either before the trial Court or even before the lower appellate Court. The trial Court having held all the issues in favour of the plaintiff decreed the suit.
15. The lower appellate Court framed the following points for consideration--
(i) Whether the deceased Mandiga Lakshmikanthamma i.e., D.1 was only holder of the limited interest and not the absolute owner ?
(ii) Whether the sale deed dated 26-3-1980 executed and registered by D.1 in favour of D.2 is valid and binding on the plaintiff ?
16. These two issues also relate to the nature of the interest the first defendant was having in the suit schedule property and as to the validity of the sale deed, therefore, it is clear that even before the appellate Court also, no specific issue was framed. Therefore, during the pendency of the second appeal, a specific issue as to the benami nature of the transaction was framed by this Court and a report was called for. The trial Court, after considering the issue basing on the evidence available on record, as no further evidence was adduced, submitted its report holding that the property was purchased by Bomma Suryanarayana, benami in the name of his wife, and he is the real owner of the property in question. In fact, even though no specific issue was framed, the trial Court as well as the lower appellate Court referred to the recitals in Ex.A.2, which are to the following effect:
Further as seen from the recital of the said document (Ex.A.2) it goes to show that the property sold under the said document was purchased on 3-12-1941 (Ex.A.3) in the name of Bomma Narasamma with the funds of Bomma Suryanarayana and since the date of purchase of the said property, it was in the possession and enjoyment of Bomma Suryanarayana and that he has made constructions in the said property, and further it is recited that the second vendor is the daughter of the first vendor and though the schedule mentioned property covered under that document stood in the name of Bomma Narasamma, who is the mother of the second vendor, but the second vendor has no right whatsoever over the schedule property covered under that document. But, since the vendee (under the original of Ex.A.2) requested the first vendor to execute the sale deed (original of Ex.A.2) along with the second vendor, therefore, the document has been executed by the second vendor along with the first vendor. The second vendor under the original of Ex.A.2 is no other than the first defendant in this suit who is the mother of the plaintiff.
17. In the light of the above recitals contained in Ex.A.2, mentioned by Bomma Suryanarayana, at a time when there was no dispute at all, clearly goes to show that he is the real purchaser and beneficiary of the property, which was purchased under Ex.A.3, therefore, it is not open to the first defendant, having been a party to Ex.A.2, where the above recitals were incorporated, to go back from those recitals and claim that the property was the Stridhana property of her mother Bomma Narasamma. Therefore, there is absolutely no merit in the claim of the appellant and even the Benami Transaction (Prohibition) Act has no application with reference to the present transaction in question, in the light of the judgment of the Apex Court in G. Mahalingappa case (supra).
18. Coming to the second issue as to the non-adducing of evidence by the plaintiff to prove Ex.A.6 Will, a perusal of the pleadings clearly shows that no doubt was cast either on execution or genuineness of the Will. What was pleaded by the defendants in the written statement was that the suit schedule property was the Stridhana property of first defendant's mother, therefore, the first defendant succeeds to the same with absolute rights, and hence, the sale deed executed by her in favour of the second defendant is valid. Now having lost in their attempt to claim that it is the Stridhana property of the first defendant's mother, the defendants have now turned round to attack the Will executed by Bomma Suryanarayana under Ex.A.6. Though the learned Counsel relied upon various other decisions where certain observations were made that a legal issue can be raised even at a later stage of the proceedings, but here it is not a pure legal issue. If a dispute was raised as to the execution and genuineness of a Will, then a question may arise whether the opposite party, who propounded the Will, has proved the same in accordance with law or not. But in the absence of any plea as to casting of any doubt or shadow as to the execution and genuineness of the Will, still would it be obligatory on the part of the plaintiff to adduce evidence to prove the said document. The contention of the plaintiff is that there is no obligation to adduce evidence to prove such document, whose execution and genuineness was not disputed.
19. At this stage it would be appropriate to refer to the decisions relied upon by either side. The learned Counsel for the appellant relied upon the following decisions :
20. In Bhim Singh v. Kan Singh (supra) the Apex Court while considering the issue of benami transactions formulated the principles governing the determination of the benami nature of the transactions. But, this decision may not be of any assistance to the appellant, as, in the present case, basing on the recitals contained in Ex.A-2 sale deed, which was executed subsequent to the purchase of the property, alienating half of the property by Bomma Suryanarayana, that the property was purchased by him benami in the name of his wife, which finding was recorded by both the Courts below. Even when this Court called for a specific finding by framing an issue with reference to the benami nature of the transaction, the Court below recorded a finding relying upon the above referred recitals. Therefore, the above decision is not of any assistance to the appellant.
21. In Chapalabala v. Sarat Kumari (supra) a learned Single Judge of the Calcutta High Court held that the bona fide purchaser of the property from the widow in whose name the property stood could invoke the provisions of Section 41 of the Transfer of Property Act in a suit instituted by the reversioners claiming that the property was purchased by her husband benami in her name. In the present case, admittedly, the defendant did not raise the plea invoking the provisions of Section 41 of the Transfer of Property Act. In fact, had there been any bona fide enquiry by the 2nd defendant before purchasing the property in question under Ex.A-1, it would have been known as to the nature of the interest, the 1st defendant was having in suit schedule property. Therefore, the above decision is also not of any assistance to the appellant.
22. The learned Counsel also relied upon the decisions in H. Venkatachala v. B.N. Thimmajamma (supra), Gondrala Sithamahalakshmi and Anr. v. Pulipati Rajarao (supra); Mrs. Murial Hyden v. Mrs. Dulcie M. Robb (supra); K. Nookaraju v. P. Venkatarao, (supra); D. Suryanarayana v. I. Suryakanthamma (supra) and Janki Narayan Bhoir v. Narayan Namdeo Kadam (supra), in support of his contention as to how the Wills in question are required to be proved. All these decisions deal with the method required to prove the execution as well as the genuineness of the Will. But, admittedly, in the present case, there was no pleading raising any dispute as to the genuineness as well as the execution of Will in question and no issue was even framed, and no evidence was also adduced. Therefore, these judgments are of no assistance to the appellant.
23. Coming to the decisions relied upon by the learned Counsel for the respondent in Shaik Nurbi (supra), a learned Single Judge, after referring to and relied upon the number of Supreme Court judgments, came to the conclusion "It is settled principle of law that even for raising a new plea on the basis of the provision of law it must have its foundation in the pleadings and in the absence of pleading in the plaint even though evidence is adduced by the party it cannot be looked into for the reason that the opposite party could not have any opportunity to contradict the above said pleading. When a pleading is raised in the plaint, the plaintiff has to adduce evidence in support of it. If the Court accepts the new plea based on a legal provision of law to meet the fair plea and to give an opportunity to the opposite party the matter has to be remitted to the original Court for a fair re-trial of the matter to give an opportunity to the opposite party."
24. In Chander Kali (supra) the Apex Court held that a new question of fact cannot be entertained at the appellate stage, which was never put forward, while considering the scope of Section 100 C.P.C.
25. In Raghunath Pradhani (supra) the Apex Court held that a question of fact, which could not be permitted to be raised for the first time in the second appeal, would equally be not allowed to be raised before the Supreme Court in appeal by Special Leave.
26. In Thayyullathil Kunhikannan (supra) a Division Bench of the Kerala High Court while considering the provisions of Sections 58 and 68 of the Evidence Act as to the requirement to call an attesting witness, held--
Section 68 relates to those documents which require to be proved at the trial of a suit. If by any rule of law or of pleadings, such proof is not required, Section 68 cannot operate to insist on formal proof by calling an attesting witness. Section 58 has to be read as overriding Section 68and as obviating the necessity for calling an attesting witness, unless the execution of the Will or the attestation is in dispute. In the absence of any such plea in the written statement, it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a Will could be used as evidence. Order 8 Rule 5 C.P.C. deems the execution of the Will to be admitted in the absence of any denial thereof in the written statement. Examination of an attesting witness is therefore unnecessary when the parties have not joined issue on the validity or genuineness of the Will.
27. In K. Manikyalu v. V. Perumallayya (supra), a learned Single Judge of this Court while considering the proof of Will with reference to the provisions of Sections 68 and 90 of the Evidence Act held that in respect of a registered Will, which is more than 30 years old where there is absence of any suspicious circumstances regarding its execution and where all the attesting witnesses and the scribe to the document were dead, the question of their examination does not arise and the presumption regarding genuineness of Will is proper and just.
28. Though number of other decisions were cited, it is not necessary to refer to all those decisions in detail. Suffice it, in view of the above legal position, as no plea was raised disputing the execution and genuineness of the Will Ex.A.6, it is not open to the defendants to raise such an issue for the first time in the second appeal.
29. Therefore, this Court declines to allow the petition to raise additional ground regarding the genuineness of Ex.A.6 Will. Accordingly, the said petition (SAMP No. 1985 of 2004) seeking to raise an additional ground itself is rejected.
30. Under the above facts and circumstances of the case, there is no merit in the second appeal and the same is accordingly dismissed. But, under the circumstances, no costs.
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