Sunday, 6 March 2016

When will which is thirty years old shall be deemed to proved even though no attesting witness is examined?

However, the learned Counsel appearing for the appellant defendant No.1 relied upon the judgments of this Court rendered in Y. Venkakka Choudary v. D. Laxshminarayana, , and Mohd. Jamal v. Mohd Sharfuddin (died), , contending that will cannot be said to have been proved unless one of the attesting witnesses is examined to prove its execution. But these two judgments do not apply to the facts of this case. The above two cases sited do not involveSection 90 of the Evidence Act. But even otherwise in the decision Y. Venkakku Choudary case cited (supra), it is held that document compulsorily attestable cannot be sued in evidence until atleast one attesting witness alive is examined to prove its execution. In the instant case, as I have already noticed above that there were only two witnesses and a scribe to the document, but all of them have died according to both sides. As 1 have already stated above, that Borra Venkata Raidu was not one of the attesting witnesses to Ex.A2 at all, both on the basis of evidence of PW2 as well as looking into Ex.A2 itself. In this view of the matter, the law laid down in those two judgments does not apply to the facts of this case. The fact also remains on record that PW2 was one of the identifying witnesses before the Sub-Registrar and he has clearly deposed that the attest or has executed Ex.A2 in favour of the plaintiffs' father and the document is of more than 30 years old. In view of this evidence on record now the other point that would arise for consideration would be whether the appellate Court has erred in raising presumption in favour of Ex.A2 will.
6. As noticed by the appellate Court it is no doubt true under Section 68 of the Evidence Act all documents compulsorily attestable should be proved by examining one of the attesting witnesses. But, Section 90 of the Evidence Act creates an exception and even in the absence of formal proof as required one can seek raising of the presumption under Section 90 of the Evidence Act if the document is 30 years old
Andhra High Court
Kesarapu Manikyalu vs Venna Perumallayya (Died) By Lrs. ... on 10 October, 1999
Equivalent citations: 2000 (1) ALD 32,2000 AIHC590 AP,AIR 2000(NOC)20 AP
Bench: B Raikote
1. This is an appeal preferred by the first defendant being aggrieved by the judgment and decree dated 15th December, 1984 passed by the Principal Subordinate Judge, Kakinada on his file AS No.103 of 1979. By the impugned judgment and decree the lower appellate Court set aside the judgment and decree of the I Additional District Munsif of Kakinada dated 12th December, 1978 passed on his file in OS No.175 of 1972 and consequently decreed the plaintiffs suit as prayed for by allowing the appeal.
2. The learned Counsel appearing for the appellant-first defendant contended that the appellate Court has erred in raising presumption in favour of will dated 17-5-1944 filed in the suit at Ex.A2, under Section 90 of the Evidence Act. He further contended that unless one of the attesting witnesses is examined, the will could not be proved and in such a case no presumption can be raised under Section 90 of the Evidence Act and accordingly he submitted that the appellate Court has erred in decreeding the plaintiffs suit. He further submitted that according to the evidence of PWs. 1 and 2 attestors numbers 1 and 2 by name Botra Tamanna and Koppana Satyam have died, but there is a 3rd attestor by name Borra Venkata Raidu. But according to the evidence of PW2 his whereabouts are not known and said Borra Venkata Raidu is not yet dead. Therefore, the said person could have been examined and without examining such a witness no presumption can be raised under Section 90 of the Evidence Act, having regard to the requirements of Section 68 of the Evidence Act. Therefore, the findings of the appellate Court based on the will Ex.A2 are liable to be set aside. On the other hand, the Counsel appearing for the respondents plaintiff contended that the person by name Borra Venkata Raidu in fact was not one of the attesting witnesses and even otherwise his whereabouts are not known as deposed by the witness and in such circumstances his non-examination would not effect merits of the case. He further submitted that since document is of 30 years old a presumption could be raised in favour of the document Ex.A2 and the appellate Court having regard to the presumption raised in favour of the will and also evidence on the side of the plaintiff has rightly dismissed the suit and this Court cannot interfere with such finding of fact under Section 100 of Code of Civil Procedure and accordingly he submitted that there are no merits in appeal and the same is liable to be dismissed.
3. In order to appreciate rival contentions, I have to note brief facts of this case. The plaintiffs numbers in 1 to 4 are the sons of one late Vennapu China Gurayya and defendants are the neighbours of the suit property and the suit schedule house originally belonged to Medidi Sooramma and her two sons. They have sold this property to one Smt. Koorakula Atchayyamma vide Ex.A1 dated 2-5-1926 and said Atchayyamma in turn has executed a registered will dated 17-5-1944 vide Ex.A2 in favour of the plaintiffs and accordingly the plaintiffs were put in possession of the property. But, in the year 1970 when the plaintiffs were away the defendants have constructed the brick walls and put up thatched pandal for using the same as cattle shed, but they did not have any right, title and interest to do so and as such their possession is illegal and consequently they are liable to be evicted by putting the plaintiffs in possession. Therefore, the plaintiffs have filed this present suit for possession. The first defendant filed written statement denying the case of the plaintiffs. It is further contended that the alleged will is not genuine and not binding. The first defendant stated that the suit property was purchased under the registered sale deed dated 5-7-1967 from the third defendant and his son and constructed the compound wall in the year 1971 by spending an amount of Rs.2,000/- and from 1971 the first defendant has been in possession and enjoyment of the property as owner. Therefore, the plaintiffs suit is liable to be dismissed. D2 filed a separate written statement contending that D2 and D3 are the divided brothers in the partition, taken place about 10 years back and the suit schedule property had fallen to the share of defendants Nos.2 and 3. But, later they came to know that the property belonged to the plaintiffs and after the death of Atchayyamma the suit schedule property was acquired by the plaintiffs' father under the will executed by her. D3 filed a separate memo adopting the written statement of D1. In support of their case plaintiffs examined three witnesses as PWs. 1 to 3 and got marked Exs.A1 to A3. On the side of the defendants, DW1 to DW4 were examined and documents Ex.B1 was marked. On the appreciation of the entire evidence on record, the trial Court dismissed the suit holding that the will Ex.A2 is not proved in accordance with law since one of the witness by name Borra Venkata Raidu was not examined by the plaintiffs and the document is not proved in accordance with Section 68 of the Evidence Act, under which at lease one attesting witnesses shall be examined to prove the execution of the document. Even though, the document is of 30 years old a presumption could not be raised because Borra Tamanna was alive and was not examined. Accordingly, it held that will was not proved and consequently dismissed the suit. On appeal the appellate Court held that even though one attesting witnesses was not examined in terms of Section 68 of the Evidence Act, an exception is created in favour of the document which is of 30 years old under Section 90 of the Evidence Act, and in view of the presumption arising in favour of the Ex.A2 will it cannot be said that the Ex.A2 is not proved on the basis of the evidence on record more so when the will has come from the proper custody and it was not the case of the defendants that the attestor was not in sound and disposing state of mind. The appellate Court further held that non-examination of Borra Venkata Raidu is not fatal to the case since according to the evidence of PW2 his whereabouts were not known and in view of the presumption arising under Section 90 of the Evidence Act in favour of Ex.A2, it cannot be said that Ex.A2 is not proved. The appellate Court took into consideration that the will in question was also registered will and consequently decreed the suit. It is in these circumstances, the first defendant has approached this Court.
4. From the evidence on record and also from the contentions urged on both sides, I find that the sale deed dated 2-5-1926 executed by Medidi Sooramnia in favour of Atchayamma vide Ex.A1 is not seriously disputed. It is the case of the defendant No.1 that he purchased the property from defendant No.3 under a registered sale deed Ex.B1 dated 5-7-1967. But, there is no evidence on record to show as to how defendants 2 and 3 acquired this property from Atchayamma. There is no evidence worth the name on record, as to how the defendant No.3 became the owner of the property so as to sell the property in favour of defendant No.1 vide Ex.Bl. At any rate, Ex.B1 is dated 5-7-1967 and it is subsequent to Ex.A1 sale deed dated 2-5-1926 in favour of Atchayamma. The alleged registered will dated 17-5-1944 is executed by Atchayamma in favour of the plaintiffs' father was thus much earlier to the alleged sale deed Ex.B1 dated 5-7-1967. Having regard to these circumstances, Atchayamma was the owner of the property having purchased the same from Sooramnia under Ex.A1 dated 2-5-1926 has remained unchallenged in this case. Therefore, the other point required for consideration for this Court would be whether Ex.A2 will dated 17-5-1944 executed by Atchayamma in favour of the plaintiffs' father is proved or not. It is no doubt true that under Section 68 of the Evidence Act regarding the document compulsorily attestable one of the attesting witnesses has got to be examined. As per the evidence on record, there were two attesting witnesses and both of them have died. This fact is not disputed by the defendants side also. But, what is their case is that there is one 3rd person by name Borra Venkata Raidu and he is alive and his non-examination would be fatal to the case and consequently presumption under Section 90 of Evidence Act could not be raised. When both the Counsels were contesting on this issue, I went through the evidence of PW2. According to the evidence of PW2 he was the person present during the time of registration of the will Ex.A2 by Atchayamma. He signed the ill as identifying witness before the Sub-Registrar and the will was executed about more than 30 years ago. He further stated that there was another person present who identified the executant. His name was Saraswathi Mulem Ravi and he died and person by name Borra Tamanna also had died, but he stated that Venkat Raidu was living in the village. He stated that Chimia Venkata Sastry, the scribe of A2 has also died. It is on the basis of his statement that Borra Venkata Raidu was living, the trial Court observed that he being one of the attesting witnesses should have been examined. I verified from Ex.A2 and found that Borra Venkata Raidu was not the attesting witness. PW2 except saying that such Venkat Raidu was alive did not state that he was one of the attesting witnesses. Assuming that a person by name Borra Venkat Raidu is alive, his examination would not be necessary unless he was one of the attesting witnesses, and none of the witnesses said that he was one of the attesting witnesses. However, the appellate Court also-proceeded by a wrong assumption that this person was one of the attesting witnesses only because the trial Court discussed regarding his non-examination without looking into the evidence of PW2. Since PW2 did not state that Borra Venkata Raidu was an attesting witness, his non-examination would not be fatal to the case. On the basis of the evidence on record, it is clear that there were only two attesting witnesses and one scribe and all of them have died. If the attesting witnesses are not alive, the question of their examination in terms of Section 68 of the Evidence Act would not arise. At any rate, Ex.A2 is a registered will of 30 years old and in these circumstances, the appellate Court in the light of the evidence of witnesses on record and also on the basis that the document was of 30 years old raised a presumption under Section 90 of the Evidence Act and consequently held that Ex.A2 will was proved, Having regard to the evidence on record, I do not think that this finding of fact recorded by the appellate Court suffers from any infirmity.
5. However, the learned Counsel appearing for the appellant defendant No.1 relied upon the judgments of this Court rendered in Y. Venkakka Choudary v. D. Laxshminarayana, , and Mohd. Jamal v. Mohd Sharfuddin (died), , contending that will cannot be said to have been proved unless one of the attesting witnesses is examined to prove its execution. But these two judgments do not apply to the facts of this case. The above two cases sited do not involveSection 90 of the Evidence Act. But even otherwise in the decision Y. Venkakku Choudary case cited (supra), it is held that document compulsorily attestable cannot be sued in evidence until atleast one attesting witness alive is examined to prove its execution. In the instant case, as I have already noticed above that there were only two witnesses and a scribe to the document, but all of them have died according to both sides. As 1 have already stated above, that Borra Venkata Raidu was not one of the attesting witnesses to Ex.A2 at all, both on the basis of evidence of PW2 as well as looking into Ex.A2 itself. In this view of the matter, the law laid down in those two judgments does not apply to the facts of this case. The fact also remains on record that PW2 was one of the identifying witnesses before the Sub-Registrar and he has clearly deposed that the attest or has executed Ex.A2 in favour of the plaintiffs' father and the document is of more than 30 years old. In view of this evidence on record now the other point that would arise for consideration would be whether the appellate Court has erred in raising presumption in favour of Ex.A2 will.
6. As noticed by the appellate Court it is no doubt true under Section 68 of the Evidence Act all documents compulsorily attestable should be proved by examining one of the attesting witnesses. But, Section 90 of the Evidence Act creates an exception and even in the absence of formal proof as required one can seek raising of the presumption under Section 90 of the Evidence Act if the document is 30 years old Babu Nandan v. Board of Revenue, . At this juncture the Counsel for the appellant contended that as on the date of the filing of the suit the documents could not be one of 30 years old. The will is dated 17-5-1944 and the suit is filed on 20th January, 1972 and by the date of the filing of the suit only 28 years had been completed, but not 30 years. Therefore, no presumption could be raised under Section 90 of the Evidence Act. But, I do not find any substance in this argument in view of the consistent law declared by the Courts in India as to the computing of 30 years period. In Surendra Krishna v. Mirza Mohd, AIR 1936 PC 15, the similar question arose and the Privy Council has observed as under:
"At one time it was argued that Section 90 would not apply to this document by reason that it was filed in Court by the plaintiffs on 11thNovember, 1918. Their Lordships are however of opinion that under Section 90Evidence Act, the period of 30 years is to be reckoned, not from the date upon which the deed is filed in Court but from the date on which, it having been tendered in evidence, its genuineness or otherwise becomes the subject of proof. This was decided in 5 CLR 135 (supra)."
To the similar effect also was the law declared by Division Bench of High Court of Lahore inLadha Singh v. Hukani Devi, AIR 1924 Lahore 145. In this judgment it was held that "the period is to be reckoned, not from the date on which the document is put into Court, but from the dale on which, after the document has been tendered in evidence, its genuineness becomes the subject of proof.
7. To the same effect is also the law declared by the High Court of Calcutta in Sarat Chandra Mondal and Ors. v. Panchanan Mondal and Anr., , in which the Division Bench of that Court followed the judgment of Privy Council, AIR 1936 PC 15, (supra) which I have already referred to above. The other High Courts in Konda v. Pichireddi, AIR 1925 Madras 184, Mahadeo Prasadv. Nasiban, AIR 1920 Oudh 11 and in Duluram v. Rameshwar, AIR 1955 NUC (Rajasthan) 4606, also have taken the same view and they have held that the period of 30 years should be computed from the date of its execution, to the date when the document was sought to be marked in evidence. In the instant case, it is not in dispute that, as on the date the evidence was recorded in the year 1978, 30 years period had completed and if that is so as on the date the document was sought to be put into evidence 30 years period had completed and the appellate Court rightly raised presumption under Section 90 of the Evidence Act as to its genuineness and execution of the document Ex.A2. I have already pointed out that PW2 at any rate is one of the persons who identified the executant at the time of its registration before the Sub-Registrar. In view of this evidence on record and in view of the fact that the document is registered document of more than 30 years old and absolutely there are no suspicious circumstances, in my opinion the raising of such a presumption by the appellate Court cannot be found fault with. At any rate, there is no evidence on the side of the defendants which can rebutt that a presumption. Apart from that their specific case is that defendant No.3 has sold property to defendant No. 1 under Ex.B1. But, it is not established on record as to how defendant No.3 has become the owner as there is no evidence that either the defendant No.2 or defendant No.3 or any person purchased the property from the admitted owner Korakula Atchayamma, The appellate Court also has given a clear finding that absolutely there is no evidence to show that the defendant No. 1 or defendant No.3 were in possession of the property on the basis of Ex.B1 since no document evidencing their possession was produced in the case and there is also no evidence as to their alleged possession for more than a statutory period of 12 years consequently decreed the suit.
8. In view of my above discussion, I do not think that it is a fit case for interference of this Court under Section 100 of CPC. Accordingly, I pass the order as under:
9. The appeal is dismissed. But, in the circumstances without costs.
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