Grandhi Lakshmipathi Rao, vs Grandhi Uma Satya Anjan Kumar,
2022 Latest Caselaw 896 AP

         HON'BLE SRI JUSTICE SUBBA REDDY SATTI

               SECOND APPEAL No.600 of 2021

JUDGMENT:-

      The unsuccessful 3rd defendant filed the present second

appeal aggrieved by the decree and judgment dated 17.09.2019

passed in A.S.No.90 of 2014 on the file of III Additional District

Judge,   Bhimavaram,     whereby     the   first   appellate   Court

dismissed the appeal confirming the decree and judgment dated

19.06.2014 passed in O.S.No.79 of 2007 on the file of the Court

of Senior Civil Judge, Bhimavaram.


2.    The 1st respondent in the second appeal being the plaintiff

filed suit vide O.S.No.79 of 2007, (minor represented by mother

Guardian) against the appellant herein and respondent Nos.2

and 3 for declaration of title and consequential relief of

permanent injunction restraining the 3rd defendant (hereinafter

referred to as the appellant) from interfering with the possession

and enjoyment of 1st respondent over the plaint schedule

property. The trial court decreed the suit by judgment and

decree dated 19.06.2014 with costs. Aggrieved by the said

judgment and decree the appellant herein filed appeal in

A.S.No.90 of 2014 on the file of III Additional District Judge,

Bhimavaram and the same was dismissed by the first appellate

court vide judgment dated 17.09.2019. Aggrieved by the same,

the 3rd defendant filed the present second appeal.

3. For the sake of convenience the parties are referred to as

they were arrayed in the plaint.

4. The averments of the plaint, in brief, are that the plaint

schedule property is joint family property of 1st defendant and

his brother Venkateswara Rao; that they partitioned the

properties and later executed a partition list dated 03.04.1974

(Exhibit A2); that the name of the 1st defendant was updated in

record of rights and as a consequence the revenue authorities

issued pattadar pass book; that 1st defendant executed

registered settlement deed dated 19.04.2003 (Exhibit A-1) in

favour of plaintiff and basing on the settlement deed, the

Mandal Revenue Officer issued Exhibit A4 (revenue title deed) in

favour of the plaintiff; that the 3rd defendant proclaimed that he

would occupy the schedule properties and indeed filed a caveat

dated 20.02.2007 and hence the suit was filed. Since the

plaintiff was minor, mother being the guardian instituted the

suit representing the plaintiff. Pending the suit plaintiff attained

majority and hence he was declared as major by discharging

mother from Guardianship.

5. The 1st defendant, the executant of Exhibit A1, filed

written statement and admitted the execution of Exhibit A1 in

favour of plaintiff. He further contended that the plaint schedule

property fell to his share and also about the execution of

partition list dated 03.04.1974. The 2nd defendant adopted the

written statement filed by the 1st defendant.

6. The 3rd defendant filed written statement and contended

interalia that the 1st defendant agreed to allot one share to the

children of the 2nd defendant and the remaining share to the

children of the 3rd defendant; that certain other properties were

kept undivided; that the defendant also filed suit O.S.No.26 of

2007 and O.S.No.152 of 2007; that the 1st defendant had to

enjoy the properties which were allotted to him as per the

partition list dated 03.04.1974 and after his demise the

properties are to be equally devolved upon the children of 2nd

defendant and the 3rd defendant; that 1st defendant without the

knowledge of the 3rd defendant by fraud and coercion executed

the settlement deed and the same does not bind the 3rd

defendant and eventually prayed the court to dismiss the suit.

7. The mother of the plaintiff was examined as PW1 and

plaintiff examined himself as PW2 and Exhibits A1 to A7 were

marked. The 1st defendant examined himself as DW1 and the

2nd defendant examined himself as DW2.

8. The trial Court on a consideration of oral and

documentary evidence and also legal aspects decreed the suit

with costs by judgment dated 19.06.2014. Aggrieved by the

same, the 3rd defendant filed A.S.No.90 of 2014. The first

appellate court being the final fact finding Court framed

necessary points for consideration and after considering the oral

and documentary evidence dismissed the appeal by judgment

dated 19.09.2019. Hence, the 2nd appeal.

9. The learned counsel Smt Nimmagadda Revathi contended

that Exhibit A-1, the settlement deed basing on which the

plaintiff sought for declaration and consequential injunction was

not duly proved and hence the suit filed for declaration and

consequential injunction is liable to be dismissed. She further

contended that there is no specific pleading in the plaint as to

the acceptance of exhibit A1.

10. Heard the counsel appearing for the appellant.

11. I have gone through the judgments of the Courts below

and perused the material available on record. The 2nd defendant

and 3rd defendant are brothers and sons of 1st defendant.

Plaintiff is the son of 2nd defendant. Thus, the parties are closely

related to each other. With regard to the execution and proving

of Exhibit A1, registered settlement deed, apart from the

evidence of PW1 and PW2, the executant himself was examined

as DW1. The executant himself admitted the execution of exhibit

A1.

12. Now the point that falls for consideration in this second

appeal is,

When the executant himself admits the execution of exhibit A1, whether non examination of attestors would make any difference in proving the document?

13. It is profitable here to refer to Sections 68 and 70 of the

Indian Evidence Act.

68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]

70. Admission of execution by party to attested document.--The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.

14. A reading of proviso to Section 68 and Section 70 of the

Indian Evidence Act would make it clear that when the

document is registered one if executant admits the execution of

document, though the document is a compulsory attestable

document, non examination of attestors would not make any

difference. Likewise if the executant admits the execution of

document, non-examination of attestors, in case of compulsory

attestable document, would not make any difference. There is

no need for calling of one of the attestors to prove the same. In

this case on hand, the 3rd defendant son of the 1st defendant

(executant of document) disputed the execution, whereas the 1st

defendant executant admitted the execution by filing written

statement. As DW1 he also stated about execution of Exhibit A1.

15. The Hon'ble Apex Court in Ishwar Dass Jain (Dead) Thr.

Lrs Vs. Sohan Lal1 considered about proving of mortgage deed

which is compulsory attestable document as per Section 59 of

Transfer of Property Act held that "In the present case, though

(2000) 1 SCC 434

it was stated in the written statement that there was no

relationship between the parties as mortgagor and mortgagee,

the defendant admitted in his additional pleas in the same

written statement that the mortgage deed was executed but he

contended that it was executed to circumvent the Rent Control

legislation. In fact, in his evidence as D.W. 2 the defendant

admitted the execution of the mortgage. It must therefore be

taken that there was no specific denial of execution. Hence it

was not necessary for the plaintiff to call the attestor into the

witness box, this not being a will. The plaintiff could therefore

not be faulted for not examining any of the attestors. Hence the

mortgage stood proved by the certified copy. The Courts below

were right in accepting that the deed was proved."

16. In Pagadala Bharathi Vs. J. Radhakrishna2, the learned

single Judge of composite High Court of Andhra Pradesh at

Hyderabad observed that "when the executant himself admits

execution of the gift deed there is no need for calling of one of

the attestors of the same to prove the same". Thus, the

contention of the learned counsel appearing for the appellant

that exhibit A-1 was not duly proved by examining one of the

attestors' is liable to be rejected.

17. The 2nd contention raised by the counsel appearing for the

appellant that possession was not delivered to the plaintiff is

also liable to be rejected, since Exhibit A4 dated 09.03.2007,

record of Rythu book, issued by the Mandal Rvenue Officer

2013 (3) ALT 467

manifests that Exhibit A1 was acted upon and pursuant to the

same the name of the plaintiff was updated in record of rights.

Thereafter Exhibit A4 was issued. Unless, the possession was

delivered under Exhibit A1, plaintiff making application to

revenue authorities and revenue authorities updating record of

rights and issuance of Exhibit A4 does not arise. Thus, the

plaintiff not only proved acceptance of Exhibit A1 but also

proved delivery of possession of property pursuant to Exhibit

A1.

18. The suit was filed for declaration and consequential

injunction. Plaintiff proved exhibit A1 and his possession over

the plaint schedule property. The trial Court having considered

oral and documentary evidence decreed the suit and the first

appellate court confirmed the same. No question of law much

less substantial questions of law involved in the present second

appeal warrants interference of this Court as per Section 100

CPC. Hence the appeal fails and is liable to dismissed, however,

without costs.

19. Accordingly, the second appeal is dismissed. No order as

to costs.

As a sequel, pending miscellaneous petitions, if any, shall

stand closed.

_______________________________ JUSTICE SUBBA REDDY SATTI 18th February, 2022

IKN/PVD

HON'BLE SRI JUSTICE SUBBA REDDY SATTI

SECOND APPEAL No.600 of 2021 18th February, 2022

IKN/PVD