Madras High Court

Duraisamy vs Pavayee on 27 April, 2021

                                                                               CRP(PD) No.307 of 2017 in
                                                                                   CMP.No.1403 of 2017

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 27.04.2021

                                                          CORAM:

                          THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

                                                CRP(PD) No.307 of 2017
                                                         in
                                                 CMP.No.1403 of 2017

                   1. Duraisamy
                      S/o.Late Palaniappan gounder

                   2. Dinesh
                      S/o.Duraisamy

                   Nisha (Died)
                                                     ... Petitioners/Petitioners/Defendants 1 and 2

                                                           Vs.
                   Pavayee
                   W/o.Late Thangamuthu                     ... Respondent/Respondent/Plaintiff



                   PRAYER: Civil Revision Petition filed under Article 227 of Constitution of
                   India to set aside the Fair & Final order passed in I.A.No.699 of 2016 in
                   O.S.No.608 of 2008 dated 11.11.2016 on the file of the Sub Judge Court,
                   Tiruchengode.
                                         For Petitioner     : Mr.V.S.Kesavan

                                         For Respondent     : Mr.R.Marudhachalamoorthy




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                                                                               CRP(PD) No.307 of 2017 in
                                                                                   CMP.No.1403 of 2017

                                                       ORDER

(This case has been heard through video conference)

This Civil Revision Petition has been filed to set aside the Fair

and Final order passed in I.A.No.699 of 2016 in O.S.No.608 of 2008 dated

11.11.2016 on the file of the Sub Court, Tiruchengode dismissing the petition

filed seeking to permit the petitioners/defendants to mark the registered Will

dated 27.01.2000 which was executed by one Thangamuthu in favour of the

Second Petitioner.

2. The learned counsel for the petitioners would submit that the

petitioners are the defendants in O.S.No.608 of 2008 filed by the

respondent/plaintiff for partition and separate possession of the suit property.

He would further submit that the first petitioner/first defendant was

examined as DW-1 and that he had filed a proof affidavit on 15.10.2014 and

even prior to that, the first petitioner had filed the registered Will dated

27.01.2000 executed by his elder brother namely Thangamuthu in favour of

the second petitioner/second defendant. He would further submit that the

elder brother Thangamuthu passed away on 03.02.2003 and that the

petitioners had also filed the death certificate and other connected

documents. He would further submit that since, objection was made by the https://www.mhc.tn.gov.in/judis/

CRP(PD) No.307 of 2017 in CMP.No.1403 of 2017

respondent / plaintiff to mark the registered Will dated 27.01.2000, the

documents have not been not marked till date. He would further submit that

since, the second petitioner/second defendant namely Dinesh was a minor at

the time of execution of the Will, the executor/his elder brother had

appointed the first petitioner /first defendant as a guardian of the 2 nd

defendant and the Will was also in the custody of the 1st petitioner and

thereafter, the Will was filed before the Trial Court. He would further submit

that since, the second petitioner/second defendant was not in station, in order

to prove the finger print of the Executor of the Will, the first petitioner/ first

defendant had produced the certificate issued by the Forensic Experts and

thereby, the petition was filed to mark the Will through the 1 st petitioner. He

would further submit that the respondent had filed a counter objecting that

the second petitioner/second defendant had attained majority and that the

Will could be either marked though the second petitioner/second defendant

or through the witnesses who had attested the Will and the Trial Court

without looking into the legal positions that a document can be marked

subject to the objections raised by the other side and that such objections can

be decided at the final stage while delivering judgment, had dismissed the

petition. He would further submit that the Hon'ble Apex Court in

Bipin Shantilal Panchal V. State of Gujarat and Another reported in (2001) https://www.mhc.tn.gov.in/judis/

CRP(PD) No.307 of 2017 in CMP.No.1403 of 2017

(3) SCC 1 has held that when any objection is raised regarding admissibility

of any material or any item of oral evidence, the Court instead of passing any

detailed order allowing or rejecting the objections, should make a note of

such objection and decide it at the last stage of the final Judgment and that

procedure has to be followed except to the objections relating to the stamp

duty of the documents. The Apex court has deprecated such practice for the

reason that it would pave way for delay in trial, since the Court has to

suspend the trial to enable parties to approach the higher forum. He would

further submit that in this case, there is no quarrel with regard to stamp duty

and that the respondent/ plaintiff had only objected the mode of marking. He

would further submit that the trial Court without taking into consideration

the law in that aspect, had dismissed the petition and thereby, he would seek

to set aside the order and permit the petitioners to mark documents.

3. Per contra, the learned Counsel for the respondent/plaintiff

would oppose stating that in this case, an attempt was made by the first

petitioner/1st defendant to mark a document when he is neither the scribe of

the document nor the attesting witness to the document and further, the

beneficiary of the Will, who is the second petitioner /second defendant in

this case, has attained majority and there is no quarrel in the document being https://www.mhc.tn.gov.in/judis/

CRP(PD) No.307 of 2017 in CMP.No.1403 of 2017

marked through the second petitioner/second defendant who is the

beneficiary of the Will. He would further submit that the Trial Court has also

found that the petition has been filed belatedly only to drag the trial and

thereby, the trial Court has rightly dismissed the petition. He would further

submit that the Trial Court by following the dictum laid down in Karthik

Meyyappan and Others Vs. Sudha Devi and Others reported in 2016 (6)

MLJ 371 has rightly dismissed the petition.

4. At this juncture, the learned Counsel for the petitioners would

submit that the judgment of this Court in Karthik Meyyappan and Others

Vs. Sudha Devi and Others referred supra is in conformity with the

judgment of the Hon'ble Apex Court in the case of Bipin Shantilal Panchal

V. State of Gujarat and Another referred below. He would reiterate that the

Hon'ble Supreme Court has held that the document can be allowed to be

marked subject to objections and all objections raised shall be decided by the

Court at the final stage. When the Court has directed this practice to be

adopted in order to avoid stalling of trial and delay in the trial. He would

further submit that the petitioner has attempted to mark it, subject to his own

risk and the legality of such marking can be decided at the final stage.

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CRP(PD) No.307 of 2017 in CMP.No.1403 of 2017

5. Heard the learned Counsels and perused the materials placed

on record.

6. In this case, the first petitioner/first defendant had attempted

to mark a registered Will executed by his elder brother in favour of his son/

the second petitioner/second defendant. An objection has been raised by the

respondent / plaintiff that the first petitioner/first defendant is neither a

Scribe nor the attesting witness nor the beneficiary of the Will. Further,

objection was made stating that the petition was filed belatedly to drag on the

proceedings. Further, an objection has been raised stating that the second

petitioner/second defendant who is the beneficiary has attained majority and

that it could have been marked through him. The trial Court finding that an

attempt was made to mark a document through a wrong person, had

dismissed the petition.

7. In Karthik Meyyappan and Others Vs. Sudha Devi and

Others reported in 2016 (6) MLJ 371 referred supra, this Court has held

that;

“9. it is a well settled principle of law that as per Section 63(c) of the Indian Succession Act, 1925, a Will has to be attested https://www.mhc.tn.gov.in/judis/

CRP(PD) No.307 of 2017 in CMP.No.1403 of 2017

at least by two attesting witnesses and they must see the signature or thumb impression of the executant and in turn, the executant must see their signatures.

10. At this juncture, it would be apposite to look into Section 68 of the Indian Evidence Act, 1872. It Section 68 of the Indian Evidence Act, 1872, it is clearly stated that if a document required by law to be attested, at least one of the attesting witnesses must be examined for the purpose of proving its execution as well as attestation, otherwise, the same cannot be treated as evidence.

In the above judgment, this Court has acknowledged the

principles of law that mere marking is entirely different from proving of a

particular document. In I.A.No.699 of 2016, the prayer is only to accept the

Will and to mark the Will.

8. It is relevant to refer to the Judgment of the Hon'ble Apex

Court in Bipin Shantilal Panchal V. State of Gujarat and Another reported

in 2001 (3) SCC 1 wherein, it has been held as under:-

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CRP(PD) No.307 of 2017 in CMP.No.1403 of 2017

"13. It is an archaic practice that during the evidence- collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fallout of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or the revisional court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.

14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral https://www.mhc.tn.gov.in/judis/

CRP(PD) No.307 of 2017 in CMP.No.1403 of 2017

evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)"

The above view of the Hon'ble Supreme Court in Bipin Shantilal

Panchal V. State of Gujarat and Another referred supra has been endorsed

by the Hon'ble Supreme Court in a later decision in Dhanpat Vs. Sheo Ram

(Deceased) Through legal representatives and Others, reported in (2020)

16 SCC 209 and the relevant paragraph is extracted hereunder;

                                         20. This      Court        in Bipin      Shantilal
                                   Panchal v. State     of     Gujarat [Bipin     Shantilal

Panchal v. State of Gujarat, (2001) 3 SCC 1 : 2001 SCC (Cri) 417] , deprecated the practice in respect of the admissibility of any material evidence, where the Court does not proceed further without passing order on such objection. It was held that all objections raised shall be decided by the Court at the final stage. The Court held as under: (SCC pp. 5-6, paras 14-15)

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CRP(PD) No.307 of 2017 in CMP.No.1403 of 2017

“14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)

15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the https://www.mhc.tn.gov.in/judis/

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correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.”

9. In view of the above, the Civil Revision Petition stands

allowed and the order dated 11.11.2016 passed in I.A.No.699 of 2016 in

O.S.No.608 of 2008 on the file of the Sub Court, Tiruchengode, is set aside

on the following terms;

The petitioners are permitted to mark the registered Will dated 27.01.2000 subject to recording of objections raised by the respondent/plaintiff regarding the admissibility of the document and the Trial Court shall make a note of such objection and mark the document tentatively as exhibit in this case and such objections can be decided at the last stage of the final Judgment.

10. Since, the Suit is of the year 2008, the learned Sub Judge,

Trinchengode, is directed to give priority and see to that the Suit is disposed

as expeditiously as possible preferably within a period of six months from

the date of receipt of copy of this order.

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CRP(PD) No.307 of 2017 in CMP.No.1403 of 2017

11. It is made clear that the document is merely allowed to be

marked and the admissibility of the document is subject to proof and

admissibility in accordance with rules of evidence. It is further made clear

that mere marking itself would not constitute its proof.

12. With the above observations, this Civil Revision stands

allowed. Consequently, connected Miscellaneous Petition is closed. No costs.