Andhra Pradesh High Court - Amravati
Additional District Judge vs The Parties To This Appeal Are ... on 30 March, 2022
THE HONOURABLE SRI JUSTICE R. RAGHUNANDAN RAO
A.S.No.33 of 2020
JUDGMENT:-
The 2nd defendant in O.S.No.111 of 2014 in the Court of the III
Additional District Judge, Bhimavaram, is the appellant before this Court.
The parties to this appeal are referred to as they are arrayed in the suit.
2. The plaintiff filed O.S.No.111 of 2014 against defendants 1
to 3 for declaration that he is the absolute owner of the plaint schedule
property and for recovery of possession of the western side house portion
of the plaint schedule property and for costs of the suit. The plaint
schedule property is a house bearing D.No.10-3-68m Chinaranganipalem
Dibba area in Bhimavaram municipal limits.
3. The case of the plaintiff was that the absolute owner of the
property was one late Sri Chilla Martin Luther, who is the husband of the
1st defendant and father of the plaintiff and the defendants 2 and 3. This
property is said to have been bequeathed by late Sri Chilla Martin Luther,
by way of a Will dated 19.11.2003 to the plaintiff. The 1st defendant was
set ex parte. Defendants 2 and 3 disputed the Will dated 19.11.2003, by
way of their written statement, stating that the said Will is a forged Will
and the said Will was never executed by late Sri Chilla Martin Luther.
Thereafter, the trial Court framed the following issues.
1. Whether the plaintiff can be declared as absolute owner of the plaint
schedule property?
2. Whether the Will, dated 19.11.2003 is true and valid and bounded
upon the parties?
3. Whether the settlement dated 09.04.2014 is true and valid?
4. Whether the Will dated 21.11.2003 in favour of D-1 is true and valid?
5. Whether another settlement deed executed by D-1 dated 19.06.2014
is true and valid?
2
RRR,J
A.S.No.33 of 2020
6. Whethr D-1 executed settlement deed dated 18.08.2008 is true and
valid?
7. Whether another Settlement deed dated 20.06.2014 executed by D-1
in favour of D-2 is true and valid?
8. Whether this court has no jurisdiction to entertain the suit?
9. To what relief?
4. In the course of the trial, the plaintiff examined himself as
PW.1 by filing an affidavit in lieu of chief-examination. The plaintiff also
marked Exs.A.1 to A.20. It appears that defendants 2 and 3 did not cross-
examine the plaintiff, who had examined himself as PW.1. The defendants
2 and 3 had also not deposed in relation to their cases.
5. The trial Court took the view that since the plaintiff had not
been cross-examined and since the defendants did not examine
themselves, the case of the plaintiff must be taken to be correct and the
Will dated 19.11.2003 has to be accepted. On that basis, the trial Court
decreed the suit. The trial Court also took the view that issues 3 and 5 to
8 need not be looked into.
6. Sri T.V.S. Prabhakara Rao, learned counsel appearing for the
appellant would submit that the trial Court could not have accepted the
Will in as much as the Will needed to be proved in accordance with law.
He submits that for a Will to be proved, the propounder of the Will would
have to examine the attesting witnesses or take such further steps if such
attesting witnesses are no more or shown to be not within the available
reach of the Court.
7. Sri P.N. Murthy, learned counsel appearing for the 1st
respondent-plaintiff submits that in the absence of any cross-examination
of the plaintiff, who had marked the Will under Ex.A.1, the said Will should
3
RRR,J
A.S.No.33 of 2020
be taken as proved and there is no lacuna in the judgment and decree of
the trial Court.
8. Section 68 of the Indian Evidence Act, 1872 reads as
follows:
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.]
9. The requirement of this provision is that a Will cannot be
used as evidence unless at least one attesting witness is called, for the
purpose of proving the execution of the said Will. This would mean that
the propounder of the Will cannot rely upon the Will unless and until at
least one attesting witness is examined in this regard. However, the said
requirement may be waived where both the attesting witnesses are either
dead or outside the reach of the Courts in India. In the present case, no
such contention appears to have been raised. In the circumstances, there
was a duty cast on the plaintiff to prove the Will by examining at least one
attesting witness. As no such witness has been examined, it cannot be
accepted that the Will has been proved.
10. Since there have been lapses on the part of both sides in the
conduct of trial, it would be in the interest of justice to remand the matter
back to the trial Court for a proper trial and adjudication of the matter.
4
RRR,J
A.S.No.33 of 2020
11. Accordingly, the appeal is allowed and the judgment and
decree of the trial Court dated 07.12.2018 is set aside and the suit is
remanded back to the trial Court for proper trial and adjudication. As the
suit is of the year 2014, the trial Court shall dispose of the suit
expeditiously and preferably within a period of six months from the date
of receipt of a copy of this order. There shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand
closed.
__________________________
R. RAGHUNANDAN RAO, J.
30th March, 2022
RRR,J
A.S.No.33 of 2020
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
A.S.No.33 of 2020
30th March, 2022
Js
