Tuesday 19 March 2024

Supreme Court: Written Statement Must Have Para-Wise Reply To Plaint; Allegations Deemed To Be Admitted Unless Specifically Denied

 In the absence of para-wise reply to the plaint, it becomes a roving inquiry for the Court to find out as to which line in some paragraph in the plaint is either admitted or denied in the written statement filed, as there is no specific admission or denial with reference to the allegation in different paras.{Para 15}

15.1 Order VIII Rules 3 and 5 CPC clearly provides for specific

admission and denial of the pleadings in the plaint. A general or evasive denial is not treated as sufficient. Proviso to Order VIII Rule 5 CPC provides that even the admitted facts may not be treated to be admitted, still in its discretion the Court may require those facts to be proved. This is an exception to the general rule. General rule is that the facts admitted, are not required to be proved.

15.2 The requirement of Order VIII Rules 3 and 5 CPC are specific admission and denial of the pleadings in the plaint. The same would necessarily mean dealing with the allegations in the plaint para-wise. In the absence thereof, the respondent can always try to read one line from one paragraph and another from different paragraph in the written statement to make out his case of denial of the allegations in the plaint resulting in utter confusion.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8935 OF 2011

THANGAM AND ANOTHER Vs NAVAMANI AMMAL 

Rajesh Bindal, J.

Dated: March 04, 2024.

Citation:  2024 INSC 164.

1. The issue under consideration in the present appeal is

regarding genuineness of the Will dated 09.10.1984, which is a registered

document, executed by Palaniandi Udyar in favour of Navamani Amma.

2. A suit1 filed by the respondent/plaintiff for declaration and

injunction was decreed by the Trial Court2, holding the Will to be

1 O.S. No. 402 of 1986.

2 Additional District Munsif Court, Ariyalur.

Page 2 of 16

genuine. In appeal3 by the appellants, judgment and decree of the Trial

Court was reversed by the First Appellate Court4. In second appeal5 filed

by the respondent the judgment and decree of the First Appellate Court

was set aside and that of the Trial Court was restored by the High Court6.

3. Before we embark upon to consider the issues in detail, we

deem it appropriate to mention the relations between the parties and

certain brief facts.

3.1. The testator of the Will dated 09.10.1984, Palaniandi Udayar,

was the husband of appellant no. 1 Thangam and father of appellant no. 2

Laila.

3.2. The Will was executed on 09.10.1984 in favour of Navamani

Amma/Plaintiff, who as per the narration in the Will is said to be daughter

of the brother of the testator.

3.3. The defendant in the suit originally filed was widow of the

testator, however, later on his minor daughter was also impleaded. Both

are the appellants before this Court.

3 Appeal Suit No. 7 of 1991.

4 Subordinate Judge, Ariyalur.

5 Second Appeal No. 1344 of 1996.

6 High Court of Judicature at Madras.


3.4 The appellant no. 1 is the third wife of the testator. The earlier

two wives expired and were not having any child from the loins of the

testator.

3.5 Even as per the admitted case of the defendant no. 1/widow of

the testator, the testator was having total land about 8 acres besides three

houses.

3.6 By way of Will, the testator had bequeathed approximately

3.5 Acres of land in favour of the plaintiff stating therein that she is like his

daughter, being daughter of his brother. The value of the suit property

was estimated to be about ₹16,000/-.

ARGUMENTS

4. In the aforesaid factual matrix, the argument raised by learned

counsel for the appellants challenging the judgment and decree of the

High Court was that the execution of Will was surrounded by various

suspicious circumstances and deserves to be discarded as was rightly

done by the First Appellate Court. The finding of facts recorded by the

First Appellate Court was erroneously reversed by the High Court without

the same being perverse. Re-appreciation of the facts merely to come to

another possible conclusion does not fall within the scope of

Page 4 of 16

consideration of a matter in second appeal. There was no substantial

question of law involved in the second appeal before the High Court.

There were discrepancies in the statements of the scribe and the attesting

witnesses to the Will. The health of the testator was not good and he was

not in a position to understand and comprehend the contents of the Will.

There were differences in the thumb impressions of the testator on the

Will and on the register in the office of the Sub-Registrar.

5. Though, admittedly the testator left behind his widow and a

minor daughter but there is no mention in the Will about the same. How

their interest was taken care of, the Will is silent. In fact, the appellants

were in possession of the suit property. The suit filed by the respondent

was totally misconceived.

6. On the other hand, learned counsel for the respondent

submitted that the execution of Will by a person in favour of any other

relative always would mean that the testator wishes to take away some

property from the normal course of inheritance. In fact, the respondent

being like daughter to the testator was taking care of his health, who was

suffering from asthma and chronic cough. It is not that the entire property

owned by the testator was given to the respondent by way of Will, rather


it was only a part thereof. She is in possession of the suit property after

the death of the testator. The need to file the suit arose more than two

years after the death of the testator as her possession was disturbed by

the appellants. Otherwise also the appellants had not taken any step to

take care of the testator when he was not keeping good health or the

property left by him after his death. Admittedly, the appellant no. 1 was

living away from the testator. Even at the time of his death the appellants

were not present as she came later on. Even the expenses for performing

last rites of the testator were borne by the husband of the respondent.

There is no error in the judgment of the High Court. The findings recorded

by the First Appellate Court being totally perverse were rightly

interfered by the High Court.

6.1 In the written statement filed by the appellants, there was no

specific denial to the claim made by the respondent/plaintiff. No parawise reply was given. In the absence thereof, the allegations in the plaint were deemed to be admitted.

DISCUSSION

7. Heard learned counsel for the parties and perused the

relevant referred record. We may record that the translated copies of

whatever documents have been placed on record by the parties, are

being considered as such as to the same, no dispute has been raised by the either side.

8. What is required to be considered while examining the

correctness of the judgment of the High Court is as to whether the Will in

question was surrounded by suspicious circumstances whereby the

testator had not mentioned the names of his widow and minor daughter in

the Will and has bequeathed a part of his property to the respondent.

8.1 The appellant no. 1 is the third wife of the testator whereas the

appellant no. 2 is the daughter. From the earlier two wives no child was born.

9. Firstly, coming to the health of the testator the Plaintiff/PW-1

stated in her examination-in-chief that though the testator was having

Asthma but otherwise he was in good health condition. In her Cross-

Examination PW-1 stated that the testator was suffering from Asthma and

Cough for about 5 to 6 years. She denied that the testator was having any

drinking habit. She denied the suggestion that the testator was bedridden for three months before executing the Will.


9.1 PW-2/Vadivelu, who is an attesting witness to the Will, in his

cross-examination stated that he inquired about the health of the testator and he told PW-2 that he was having some cough problem and was otherwise suffering from T.B.

9.2 PW-3/Govindasamy, who was a witness in the office of Sub-

Registrar, in his cross-examination stated that at the time of execution of Will the testator was having cough.

9.3 PW-4/Subramanian, who is Scribe of the Will, stated in his

examination-in-chief that at the time of execution of Will the testator was

in good physical condition and he was having cough only. He was not put

any question in this regard in cross-examination.

9.4 DW-1/Thangam Ammal, who is the widow of the testator,

stated in her examination-in-chief that before his death the testator ‘was

suffering from lever wound and he had dysentery and suffered very

much’ (sic). DW-1 in her cross-examination sated that three months

before his death the testator was not in good physique and before that he

was in good condition. DW-1 further stated that the testator was bed

ridden for 3 months and she was taking care of him.


9.5 From the aforesaid evidence of the witnesses with reference

to the health of the testator we do not find that he was not in good senses and was unable to understand his welfare or take correct decisions.

Hence, the Will cannot be held to be suspicious on the ground of the

alleged ill-health of the testator at the time of the execution of the Will.

10. Now, coming to another aspect with reference to the

genuineness of the Will, the PW-4/Subramanian, who is scribe of the Will,

stated in his examination-in-chief that the testator had put his thumb

impression on the Will and that he witnessed the same. He further stated

the Will was registered in the office of Sub-Registrar.

10.1 In his cross-examination, he stated that on enquiry testator told

him that the Plaintiff can take the suit property and other properties can

be taken by the Defendants i.e., his wife and daughter. This shows that

even at the time of execution of the Will, the testator was fully conscious

of the welfare of his widow and minor daughter as sufficient property was

left for them.

11. The Plaintiff examined PW-2/Vadivelu, who was the attesting

witness to the Will. In his examination-in-chief he stated that the testator


was very well known to him and that he was witness in the above Will. He

stated that the Will was written under a tree at Palavur. Details were given

by the Testator. After writing of Will, the testator asked PW-4/scribe to

read over the same. After hearing and being satisfied the testator had put

his thumb impression. He and one other attesting witness, Muruganian

(DW-2), had witnessed the testator putting thumb impression on the Will.

In his cross-examination he stated that the Will was written without

compulsion and in good conscious were expressed by Testator alone. He

asked testator whether he was having any legal heir and testator told him

that as per his desire alone the Will was written.

11.1 The Defendants examined Murugaian, who was also an

attesting witness to the Will, as DW-2, who in his examination-in-chief

stated that he was asked by Paramasivam, who is husband of the Plaintiff,

to be witness in the office of Sub-Registrar. He further stated that he was

requested to sign as witness and after putting his signature he returned.

DW-2 further stated that he did not see the testator put his thumb

impression. In Cross-examination DW-2 stated that he saw the testator

sitting under a tree and that the testator told him that he was writing the

Will in favour of his heirs.


12. It is the admitted case of the appellants that the testator left

behind about 8 acres of land and three houses. What has been

bequeathed to the respondent is merely a part of testator’s entire

property i.e. land measuring approximately 3.5 Acres. Meaning thereby

the balance property of the testator is in possession of widow and

daughter. This is how the interest of the natural legal heirs has been taken

care of.

12.1 The reason to bequeath a part of the property in favour of the

respondent is also evident from the material available on record. It has

come in evidence that the testator was not keeping good heath as he was

suffering from asthma and cough. The appellants were not living with him

for quite sometime as it is the admitted case of DW-1 in her crossexamination

that she had gone to her paternal home on account of

marriage of her brother and was not living with the testator at the time of

execution of Will. It has also come on record that she was not present

when the testator died. Expenses for his last rites were borne by the

husband of the respondent who was taking care of the land of the testator.

12.2 There is nothing on record to suggest that the appellants were

taking care of the property left by the testator immediately after his death


or that any steps were taken by them to get the same mutated in their

favour.

13. From the aforesaid evidence on record, in our opinion, no

error has been committed by the High Court in holding that the Will was

not surrounded by the suspicious circumstances as the scribe and one of

the witnesses were unison. The testator was conscious of the fact that he

had a wife and a minor child whose interest had been taken care of by

leaving part of the property for them. It came in response to a specific

question asked by PW-4 to the testator at the time of execution of the Will.

It was so stated by PW-4 in his cross-examination. Even in para 14 of the

written statement, the appellants stated that they are enjoying the suit

properties and other properties left by the testator. This clearly shows

that certain part of the properties was left by the testator for his widow

and minor daughter.

14. Before we part with the judgment we are constraint to observe

the manner in which the pleadings have been filed in the Trial Courts or may be in some cases in the High Courts.

14.1 A perusal of the plaint filed by the respondent shows that it

contains ten paragraphs besides the prayer. In the written statement filed by the appellants, no specific para-wise reply was given. It was the own story of the respondent containing fifteen paragraphs besides the prayer in para 16.

15. In the absence of para-wise reply to the plaint, it becomes a

roving inquiry for the Court to find out as to which line in some paragraph in the plaint is either admitted or denied in the written statement filed, as there is no specific admission or denial with reference to the allegation in different paras.

15.1 Order VIII Rules 3 and 5 CPC clearly provides for specific

admission and denial of the pleadings in the plaint. A general or evasive

denial is not treated as sufficient. Proviso to Order VIII Rule 5 CPC

provides that even the admitted facts may not be treated to be admitted,

still in its discretion the Court may require those facts to be proved. This

is an exception to the general rule. General rule is that the facts admitted,

are not required to be proved.

15.2 The requirement of Order VIII Rules 3 and 5 CPC are specific admission and denial of the pleadings in the plaint. The same would necessarily mean dealing with the allegations in the plaint para-wise. In the absence thereof, the respondent can always try to read one line from one paragraph and another from different paragraph in the written statement to make out his case of denial of the allegations in the plaintresulting in utter confusion.

15.3 In case, the defendant/respondent wishes to take any

preliminary objections, the same can be taken in a separate set of

paragraphs specifically so as to enable the plaintiff/petitioner to respond

to the same in the replication/rejoinder, if need be. The additional

pleadings can also be raised in the written statement, if required. These

facts specifically stated in a set of paragraphs will always give an

opportunity to the plaintiff/petitioner to respond to the same. This in turn

will enable the Court to properly comprehend the pleadings of the parties

instead of digging the facts from the various paragraphs of the plaint and

the written statement.

15.4 The issue regarding specific admission and denial of the

pleadings was considered by this Court in Badat and Co. Bombay Vs. East India Trading Co7. While referring to Order VIII Rules 3 to 5 of the CPC it was opined that the aforesaid Rules formed an integrated Code

7 AIR 1964 SC 538.


dealing with the manner in which the pleadings are to be dealt with.

Relevant parts of para ‘11’ thereof are extracted below:

“11. Order 7 of the Code of Civil Procedure

prescribes, among others, that the plaintiff shall give in the

plaint the facts constituting the cause of action and when it

arose, and the facts showing the court has jurisdiction. The

object is to enable the defendant to ascertain from the plaint

the necessary facts so that he may admit or deny them. Order

VIII provides for the filing of a written-statement, the

particulars to be contained therein and the manner of doing

so;

XXX XXX XXX

These three rules form an integrated code dealing with the

manner in which allegations of fact in the plaint should be

traversed and the legal consequences flowing from its noncompliance.

The written statement must deal specifically with

each allegation of fact in the plaint and when a defendant

denies any such fact, he must not do so evasively, but answer

the point of substance. If his denial of a fact is not specific but

evasive, the said fact shall be taken to be admitted. In such an

event, the admission itself being proof, no other proof is

necessary.”


15.5 The matter was further considered by this Court in Lohia

Properties (P) Ltd., Tinsukia, Dibrugarh, Assam Vs. Atmaram

Kumar8 after the 1976 Amendment Act in CPC whereby the existing Rule

5 of Order VIII of the CPC was numbered as sub-rule (1) and three more

sub-rules were added dealing with different situations where no written

statement is filed. In paras 14 and 15 of the aforesaid judgment, the

position of law as stated earlier was reiterated. The same are extracted

below:

“14. What is stated in the above is, what amount to

admit a fact on pleading while Rule 3 of Order 8 requires that

the defendant must deal specifically with each allegation of

fact of which he does not admit the truth.

15. Rule 5 provides that every allegation of fact

in the plaint, if not denied in the written statement shall be

taken to be admitted by the defendant. What this rule says is,

that any allegation of fact must either be denied specifically or

by a necessary implication or there should be at least a

statement that the fact is not admitted. If the plea is not taken

in that manner, then the allegation shall be taken to be

admitted.”

8 (1993) 4 SCC 6.

Page 16 of 16

15.6 We have made the aforesaid observations as regularly this

Court is faced with the situation where there are no specific para-wise

reply given in the written statement/counter affidavit filed by the

defendant(s)/respondent(s). In our opinion, if the aforesaid correction is

made, it may streamline the working.

16. For the reasons mentioned above, we do not find any

merit in the present appeal. The same is, accordingly, dismissed.

……………….……………..J.

(C.T. RAVIKUMAR)

……………….……………..J.

(RAJESH BINDAL)

New Delhi

March 04, 2024.

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