JANAKI Vs. KAMALAM

JUDGEMENT

(1.) This appeal is against the preliminary decree granted in a suit for partition with respect to A schedule immovable property by the defendants 1 to 3. B schedule is the movables. The plaintiff and defendants 1 to 4 are the children of one Kombi and Valli. Defendants 5 to 15 are the purchasers of various shares under three sale deeds viz, Ext.B1 of 5/8/1976, Ext.B5 of 27/4/1990, Ext.B6 of 7/5/1993 respectively from first, second and third defendants. There was an earlier partition, Ext.B3 of the year 1970, by which, the properties were divided and separated between the father, mother and five children. Two schedules were separately allotted to the share of father and mother. Schedule C, D, E and G were allotted to the defendants 1 to 4 separately. It is out of that property, they sold their respective rights and title under Exts.B1, B5 and B6. It is thereafter, the plaintiff, the daughter of Kombi and Valli, came up with a suit for partition, that too, after the lapse of more than twelve years from the date of Ext.B3 partition of the year 1970. Admittedly, she did not challenge the partition executed by her mother for and on her behalf within a period of three years after attaining majority. By that time, the partition deed was acted upon by executing various sale deeds by the respective sharers. The first sale was effected in the year 1970, the second one in the year 1990 and the third one in the year 1993. It was submitted by the learned counsel for the respondent/plaintiff that the bar of limitation would not come into play unless the document of partition was proved to be genuine and binding on the plaintiff who was at that time only a minor represented through her mother in the document. The document executed for and on behalf of the minor by the natural guardian can be brought under challenge within a period of three years after attaining majority. No such challenge or suit was filed within a period of three years after attaining majority. The contention raised by the plaintiff that the execution of Ext.B3 partition deed was not proved in accordance with the mandate under Sec. 68 of the Evidence Act cannot be sustained, firstly, on the ground that the partition deed is not a document required by law to be attested. A Will, mortgage, gift and bond alone are required by law to be attested, more specifically, a Will under Sec. 68 of the Indian Succession Act, 1925, a mortgage deed under Sec. 59 and a gift deed under Sec. 123 of the Transfer of Property Act, 1882 and a bond under Sec. 2(5) of the Indian Stamp Act, 1899. Secondly, on the reason that only a signatory to the document and the person who executed the same directly and those who signed on the document as power of attorney holder, agent, guardian or representative alone would come under the purview of "by the person by whom it purports to have been executed" incorporated in the proviso to Sec. 68 of the Evidence Act, which is extracted below for reference:

(2.) The proviso to Sec. 68 of the Evidence Act is an exception to the main sec. by which the mandate of summoning an attesting witness in proof of execution of a registered document, other than a Will or Codicil, was excluded, unless its execution by the person by whom it purports to have been executed is specifically denied. Necessarily, it must be understood that the necessity to summon an attesting witness would not arise, unless its execution is specifically denied by the person by whom it purports to have been executed and the only exception carved out is with respect to a Will or Codicil, though the same is registered in accordance with the law in force. The second part of the proviso is really an exception to the first part of the proviso and as such, no mandate of summoning one of the attesting witnesses in proof of execution of a registered document can be insisted, "unless its execution is denied by the person by whom it purports to have been executed" which stands for the person who signed on the document directly in his/her individual capacity and also the persons who signed on the document in their capacity as a power of attorney or agent of principal or guardian or representative of a minor. No mandate of summoning any attesting witness can be attached when execution of the document is challenged by the principal or the minor, who are not the signatories to the document, though would stand bound by the document being party to the same. Hence, a denial of execution of a registered document either by the Principal or by a minor itself will not attract the mandate of summoning one of the attesting witnesses in proof of its execution. In short, the signatory to the document who had executed the document either in the capacity of agent, power holder or representing the minor and the persons who signed on the document in their individual capacity alone would come under the purview of the expression 'by the person by whom it purports to have been executed' as incorporated under the proviso to Sec. 68 of the Evidence Act. The corollary is that there cannot be any mandate of summoning one of the attesting witnesses in proof of execution of a registered document required by law to be attested, except a Will or codicil, unless its execution is specifically denied by the person by whom it purports to have been executed, which stands for only the signatory to the document and would not be available to the principal or the minor as the case may be, who were represented in the document through their guardian, agent or power of attorney holder etc..

(3.) The fact that the document of partition was duly registered in accordance with the law in force and that its execution was not specifically denied by any of the signatory to the document would sufficiently bring the document outside the purview of Sec. 68 of the Evidence Act. Since the suit is hopelessly barred by limitation, the trial court ought to have dismissed the suit on that ground. Hence, the decree and judgment of the trial court are set aside. The suit will stand dismissed without costs.