Madras High Court
K.Rajalakshmi vs V.Vijayalakshmi on 8 March, 2021
CRP.PD.No.2631 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.03.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.PD.No.2631 of 2017
and CMP.No.12571 of 2017
1.K.Rajalakshmi
2.K.Chandiral
3.R.Mahalakshmi
4.B.Shanthi
5.S.Indira
6.S.Naveen Kumar
7.S.Nithila Bargavi ..Petitioners
Vs.
1.V.Vijayalakshmi
2.The Sub-Registrar,
Kinathukadavu Sub Registrar Office,
Kinathukadavu, Coimbatore District
3.S.Geenath Ahamed
4.S.Suaip Mohammed ..Respondents
PRAYER:
The Civil Revision Petition is filed under Article 227 of the
Constitution of India against the order dated 25.04.2017 passed in
IA.No.51 of 2017 in OS.No.127 of 2011 on the file of 4th Additional
District Court, Coimbatore.
For Petitioners : Mr.A.Sivaji
1/6
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CRP.PD.No.2631 of 2017
For Respondents
For R1 : Mr.N.Ishtaq Ahmed
For R2 : Mr.T.M.Pappiah,
Special Government Pleader
R3 & 4 : No Appearance
ORDER
This civil revision petition is filed against the order dated
25.04.2017 passed in IA.No.51 of 2017 in OS.No.127 of 2011 on the file of
IV Additional District Court, Coimbatore thereby permitting the plaintiff to
examine her husband to adduce evidence on behalf of her husband in the
suit for partition.
2. The petitioners are the defendants and the first respondent
herein is the plaintiff. The first respondent filed suit for partition. While
pending the suit, the first respondent filed petition seeking permission to
examine her husband on behalf of the first respondent to adduce
evidence.
3. The learned counsel for the petitioners would submit that the
power of attorney can very well depose on the side of the plaintiff, but he
cannot represent on behalf of the plaintiff when he does not know about
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CRP.PD.No.2631 of 2017
the plaintiff's personal knowledge about the facts of the case. The plaintiff
has to enter into box and to state his own case on both and if the plaintiff
does not do so to depose or to get cross examined, adverse interference
can be drawn against the plaintiff. In support of his contention, he also
relied upon the following judgments:
(i) Janki Vashdeo Bhojwani and another Vs. Indusind Bank Ltd
and others reported in (2005) 2 SCC 217
(ii) Ram Prasad Vs. Hari Narain and others reported in
AIR 1998 Rajasthan 185
(iii) Sakunthala Vs. Anandarajan and anothers
reported in (2008) 1 MLJ 354
4. Per contra, the learned counsel for the respondents would
submit that Section 120 of Indian Evidence Act provides for deposition of
the husband and the wife as witness. Therefore, in a suit for partition on
behalf of the wife, her husband can very well depose since he is the
competent witness on behalf of his own wife, provided his testimony is
found believable. Therefore, the order passed by the court below does not
warrant any interference by this Court.
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CRP.PD.No.2631 of 2017
5. Heard, Mr.A.Sivaji, the learned counsel for the petitioners,
Mr.N.Ishtaq Ahmed, the learned counsel for the first respondent and
Mr.T.M.Pappiah, Special Government Pleader appearing for the second
respondent.
6. It is a suit for partition filed by the first respondent. While
pending the suit, she executed power of attorney in favour of her
husband. Further, the case of the first respondent is that claiming 1/3
share in the suit schedule property and those properties are joint family
properties, in which she has 1/3 share. While pending the suit, she
executed power of attorney on 08.06.2016 in favour of her husband as
power agent to conduct the main suit on her behalf. In this regard, it is
relevant to extract Section 120 of Indian Evidence Act as follows:
120. Parties to civil suit, and their wives or husbands.
Husband or wife of person under criminal trial.—In all civil
proceedings the parties to the suit, and the husband or wife
of any party to the suit, shall be competent witnesses. In
criminal proceedings against any person, the husband or wife
of such person, respectively, shall be a competent witness.
Therefore, it is settled law that the husband and the wife are believed to
be one person and not separate. The husband and wife can depose for
one another, as such directed the husband of the plaintiff to give oral
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CRP.PD.No.2631 of 2017
evidence which shall be confined to the facts within his knowledge and the
court below rightly allowed the petition and this Court finds no irregularity
or infirmity in the order passed by the court below.
7. Accordingly, this civil revision petition is dismissed.
Consequently, connected miscellaneous petition is closed. No order as to
costs.
08.03.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
G.K.ILANTHIRAIYAN,J.
https://www.mhc.tn.gov.in/judis/
CRP.PD.No.2631 of 2017
lok
To
The IV Additional District Court,
Coimbatore.
CRP.PD.No.2631 of 2017
08.03.2021
https://www.mhc.tn.gov.in/judis/
