Madras High Court
Krishnan (Died) vs Nallathi on 11 August, 2021
S.A.No.983 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 11.08.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.No.983 of 2006
1. Krishnan (died)
2. S.K.Chengaiyan
3. S.K.Muniratinam
4. S.K.Padmanabhan
5. S.K.Balaraman
appellants 2 to 5 are brought on record
as LRs of the deceased sole appellant vide
order dated 27.11.2007 made in MP.1/2007 in SA.983 of 2006.
..Appellants
Vs.
1. Nallathi
2. Shanmugham
3. Yuvaraj
4. Guna
5. Mahendiran
6. Chitra ...Respondents
Prayer: The Second Appeal is filed under Section 100 of Civil
Procedure Code against the judgment and decree dated 31.01.2006
made in AS.No.15 of 2005 on the file of the Sub Court, Gudiyatham,
Vellore District reversing the judgment and decree dated 31.01.2005
made in OS.No.786 of 1993 on the file of the District Munisf,
Gudiyatham, Vellore District.
For Appellants : Mr.T.Dhanyakumar
For Respondents : M/s.T.R.Rajaraman for R1 to R6.
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S.A.No.983 of 2006
JUDGMENT
(This case has been heard through video conference)
This Second Appeal has been filed challenging the common
judgment and decree passed by the lower appellate Court on
31.01.2006 in AS.Nos.14 and 15 of 2005 whereby the judgment and
decree passed by the trial Court on 31.01.2005 in favour of the
appellant in OS.No.786 of 1993 was reversed.
2. The appellants are the plaintiffs in the suit in OS.No.786 of
1993 on the file of the District Munsif, Gudiyatham. They sought for
the relief of declaration and injunction in the said suit relying upon the
Will dated 30.04.1970, which has been marked as Ex.B4 before the
Trial Court. Even prior to the filing of the suit in OS.No.786 of 1993
the respondents have filed a suit in OS.No.652 of 1988 before the very
same District Munsif Court seeking for a declaration and injunction
claiming that they are the absolute owners of the suit schedule
property based on a sale deed dated 21.07.1964 which has been
marked as Ex.A1 before the trial Court.
3. Since, the issues involved in both the suits are common,
the trial Court disposed of both the suits in OS.No.652 of 1998 and
OS.No.786 of 1993 by a common judgment and decree dated
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S.A.No.983 of 2006
31.01.2005. By the common judgment and decree, the suit filed by
the appellant in OS.No.786 of 1993 was decreed in their favour and
the suit filed by the respondents in OS.No.652 of 1988 was dismissed.
Aggrieved by the common judgment and decree dated 31.01.2005
passed in OS.Nos.652 of 1988 and 786 of 1993, two regular first
appeals were filed in AS.Nos.14 and 15 of 2005 by the plaintiffs in
OS.No.652 of 1998 before the Sub Court, Gudiyatham. By common
judgment and decree dated 31.01.2006 in AS.No.14 of 2005 and
AS.No.15 of 2005, the appeals filed by the plaintiffs in OS.No.652 of
1988 came to be allowed and the judgment and decree passed by the
trial Court on 31.01.2005 in favour of the appellants who are the
plaintiffs in OS.No.786 of 1993 was set aside by the lower appellate
Court. Aggrieved by the judgment and decree dated 31.01.2006,
passed in AS.No.15 of 2005, this Second Appeal has been filed.
4. AS.No.15 of 2005 pertains only to the suit filed by the
appellant before the trial Court in OS.No.786 of 1993. No separate
second appeal has been filed with regard to the suit in OS.No.652 of
1988, which is the subject matter of AS.No.14 of 2005. At the time of
admission of second appeal on 08.09.2006, the following substantial
questions of law were framed by this Court :-
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S.A.No.983 of 2006
“a) Whether the fourth defendant has
discharged the burden and proved Ex.B4 Will as per
Sections 68, 69 and 71 of the Indian Evidence Act?
b) Whether the learned Lower Appellate
Judge is justified in decreeing the suit in favour of
the plaintiff in OS.No.652 of 1988 and dismissing
the suit filed by the plaintiff in OS.No.786 of 1993
merely basing on the surmises and conjectures and
without application of law?”
5. The learned counsel for the respondents at the outset
would submit that this second appeal is not maintainable, in view of
the fact that no second appeal has been filed by the appellant
challenging the findings of the lower appellate Court in AS.No.14 of
2005 which is the subject matter of the suit filed by the respondents in
OS.No.652 of 1988. Since, it is a common judgment without filing a
separate second appeal, challenging the findings in AS.No.14 of 2005
alone which corresponds to OS.No.652 of 1988, the learned counsel
for the respondent would submit that this second appeal is not
maintainable.
6. In support of his submissions, the learned counsel for the
respondent has also relied upon the judgment of a learned single judge
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S.A.No.983 of 2006
of this Court in the case of Sundararaj v. R.Manoharan and 10
others reported in 2002 (4) CTC 94. Relying on the said judgment,
the learned counsel for the respondent would submit that in similar
circumstances, the learned single judge had held that if an appeal has
been filed against one decree alone and no appeal has been filed
against the other decree, the appeal was held not to be maintainable.
Hence, the learned counsel for the respondent would submit that this
second appeal has to be dismissed at the threshold stage itself as not
maintainable.
7. The learned counsel for the appellant would submit that
the appellant had discharged their burden of proving Ex.B4/Will as per
Sections 68, 69 and 71 of the Indian Evidence Act. Therefore,
according to him, the lower appellate Court has erroneously reversed
the findings of the trial Court which has passed the decree in favour of
the appellants in OS.No.786 of 1993. According to him, the scribe of
the Will has been duly examined as witness before the Trial Court and
therefore, the lower appellate Court ought to have confirmed the
findings of the trial Court in OS.No.786 of 1993.
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S.A.No.983 of 2006
8. However, the learned counsel for the respondent would
further submit that the statutory requirements as contemplated under
Sections 68, 69 and 71 of the Indian Evidence Act have not been
complied with by the appellant, as it is mandatory for them to examine
one of the attesting witnesses to the subject Will (Ex.B4). He would
submit that there are four attesting witnesses to Ex.B4/Will and no
convincing reasons have also been given for non examination of any of
the attesting witnesses. Since, no reasons have been given for non
examination of the attesting witnesses, the appellants have not
complied with the statutory requirements as contemplated under
Sections 68, 69 and 71 of the Indian Evidence Act. Hence, he would
submit that only in accordance with law, the lower appellate Court has
reversed the findings of the trial Court in OS.No.786 of 1993. Section
68 of the Indian Evidence Act reads as follows :
“68. 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
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S.A.No.983 of 2006
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. As seen from Section 68 of the Indian Evidence Act, it is
clear that a Will cannot be used as a piece of evidence unless and until
atleast one of attesting witnesses who are alive has been examined.
In the case on hand, admittedly none of the attesting witnesses to the
Will/Ex.B4 has been examined as witness before the trial Court. No
evidence has also been let in by the appellant before the trial Court to
establish that none of the attesting witnesses were not alive at the
time of letting in their oral evidence.
10. Under Section 69 of the Indian Evidence Act, it is also
clear that If no such attesting witness can be found, it must be proved
that the attestation of one attesting witness at least is in his
handwriting, and that the signature of the person executing the
document is in the hand writing of that person. As seen from the
evidence available on record, the statutory requirement under Section
69 of the Indian Evidence Act has also not been complied with.
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S.A.No.983 of 2006
11. Since, as seen from the evidence available on records,
the attesting witness to the subject Will/Ex.B4 has not been examined
and no reasons have been given for the non examination of any of the
attesting witnesses, this Court is of the considered view that only in
accordance with law, the lower appellate Court has allowed the appeals
filed by the respondents, by reversing the findings of the trial Court.
12. Further, as rightly contended by the learned counsel for
the respondents that when the appellant has filed only one appeal
which pertains to AS.No15 of 2005 only, though the judgment passed
by the lower appellate Court is a common judgment which pertains to
AS.Nos.14 and 15 of 2005, which corresponds to the suits in
OS.Nos.652 of 1988 and 786 of 1983 where a common judgment was
passed. This second appeal is not maintainable in view of the fact that
aggrieved by the findings of the lower appellate Court in AS.No.14 of
2005 which corresponds to OS.No.652 of 1988 in which a decree has
been passed by the lower appellate Court in favour of the respondents
no separate second appeal has been filed by the appellant.
13. The judgment relied on by the learned counsel for the
respondents as cited supra is squarely applicable to the facts of the
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S.A.No.983 of 2006
present case on hand also. Even on merits, the appellant has not
made out any case for any interference by this Court under Section
100 C.P.C. Even on maintainability, the appeal is not maintainable for
the reasons stated supra.
14. This Court finds, there is no merit in this second appeal
and the substantial questions of law formulated by this Court at the
time of admission of the second appeal are answered against the
appellants.
15. In the result, the second appeal stands dismissed. No
costs.
11.08.2021.
tsh
To
The Sub Court, Gudiyatham, Vellore District.
The District Munsif, Gudiyatham, Vellore District.
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S.A.No.983 of 2006
ABDUL QUDDHOSE, J.
tsh
S.A.No.983 of 2006
11.08.2021.
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