ANANDAN NAMBIAR Vs. RAJALAKSHMI

JUDGEMENT

(1.) Second defendant is the appellant. Respondents 1 to 7 (plaintiffs) filed the suit for partition claiming 7/8 shares. First defendant is the mother of the plaintiffs and second defendant their maternal uncle. Property belongs to the tavazhi of the plaintiffs and their mother the first defendant. Second defendant was impleaded in the suit as he obtained assignment (Ext. B-1) of a portion of the plaint schedule properly from the 1st defendant on her own and acting as guardian of the plaintiffs. Contention of the plaintiffs is that the first plain lift was a major at the time of Ext. B-1 assignment and so it has no validity in view of S.33 of the Madras Marumakkathayam Act.

(2.) It is common case that the first defendant for herself and acting as guardian of plaintiffs 1 to 6 assigned a portion of the plaint schedule property to the second defendant as per Ext. B-1 dated 3-10-1973 for a consideration of Rs. 1,500/-. Contention of the plaintiffs is that at the time of Ext. B-1 assignment deed the first plaintiff was a major as she was born on 29-11-1953 and so the first defendant was net competent to execute the document. If the first plaintiff was a minor at the time of Ext. B-1 assignment the irrefutable position is that there cannot be any valid challenge against it. The Trial Court held that as there is no evidence that the 1st plaintiff had attained majority on the date of Ext. B-1 it cannot be invalidated. The learned District Judge relied on the evidence of PW. 1 (father of the plaintiffs and husband of the first defendant) and Ext. A-2 (true extract of S S.L.C. book) and held that the first plaintiff was born on 29-11-1953 and that she was a major at the time of Ext. B-1.

(3.) Counsel for the second defendant contended that Ext. A-2 is only a true copy of the S.S.L C. book and as it has not been properly proved no reliance can be placed on it. Counsel submitted that when primary evidence can be easily produced and it is not produced, the secondary evidence is not admissible. It is argued that no reliance can be placed on Ext. A-2, as the primary evidence viz. the original S.S.L.C. book or birth register of the first plaintiff was not produced before the Court. Counsel for the plaintiffs contended that when Ext. A-2 was marked no objection was raised and therefore the belated objection is untenable in the appellate Court. Marking of Ext. A-2 was not objected to by the counsel in the Trial Court. Where the copies of documents were admitted in the Court without objection its admissibility cannot be challenged in the appellate Court. The proceedings paper in the case would show that Exts. A-1, A-2 and B-1 to B-5 were marked on 24-11-1978. It is apparent that these documents were marked by the Court without any objection. The party opposing admission of the document should have objected to the marking of the document then and there. There cannot be any doubt that documents must be proved by primary evidence except in circumstances envisaged under S.65 of the Evidence Act. S.64 of the Evidence Act provides that secondary evidence is not generally admissible. Exceptions to the above rule are specified in S.65 of the Act. Contention of the second defendant is that the original S.S.L.C. book is with the first plaintiff and there was no difficulty at all for her to produce it before the Court and as no justifiable circumstances exist for adducing secondary evidence the Court has no option but to discard Ext. A-2. When a party produces in evidence a certified copy without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection cannot be allowed at a later stage. If a timely objection was taken it would have alerted the opposite party and he could salvage the position by adducing the primary evidence. If an objection was raised, the first plaintiff could have easily produced the S.S.L.C. book or her birth register. It is elementary rule that objection should be taken when the evidence is tendered and not later. Proper time to object to the admissibility of evidence is when the evidence is tendered. If the method of proving a particular document was not opposed at the threshold objection to it cannot be allowed to be raised in the appellate Court as it would virtually result in complete negation of justice as by then it would not be possible to the party concerned to rectify the lacuna by adducing the necessary primary evidence.