(1.) THIS Second Appeal is preferred against the concurrent findings of Courts below decreeing Plaintiff's suit for Permanent Injunction. Unsuccessful Defendants 1 and 2 are Appellants. Respondents 2 and 3 are Defendants 3 and 4 in the suit. For convenience, the parties are referred as per their array in the suit.
(2.) PARTIES are related as under:- --------------------------------------------- AkilandamElumalai=Ramasamy Naicker ---------------------- Purushothaman [Plaintiff] Bakthavachalu Ayyavu Naicker (D3) [Died on 21.10.94] Karpagam (D1) =Pachaiyappan (D2)3. Suit property items 1 and 2 originally belonged to one Bakthavatchalu Naicker and he was looked after by Plaintiff and his family for nearly 20 years prior to his death. While in a sound disposing state of mind Bakthavatchalu Naicker executed Ex.A1 Will [28.8.1987] giving life interest to Plaintiff and vested remainder to Plaintiff's son. Testator Bakthavatchalu Naicker died on 21.10.1994. Suit item No,3 was purchased by Plaintiff from 1st Defendant and thus Plaintiff is in exclusive possession and enjoyment of suit items. Case of Plaintiff is that Plaintiff was in enjoyment of suit properties even during the life time of Bakthavatchalu Naicker and Plaintiff was rendering active help in cultivation of lands. 1st Defendant had filed O.S.No,357/1994 against Bakthavatchalu Naicker and others. Further case of Plaintiff is that Defendants are envious that Bakthavatchalu Naicker has given away his properties to Plaintiff's sons and inimical towards Plaintiff and are trying to dispossesses the Plaintiff and hence the suit for Permanent Injunction.4. Resisting the suit, Defendants filed written statement denying execution of Will by Bakthavatchalu Naicker. First Defendant had also denied title of Plaintiff in respect of item No,3. Defendants further stated that 1st Defendant is the exclusive owner and is in possession of suit properties and that Plaintiff is trying to take forcible possession under the pretext of suit and prayed for dismissal of suit.5. On the above pleadings, six Issues were framed. On the side of Plaintiff, Plaintiff himself examined as PW1 and Exs.A1 to A9 were marked. On the side of Defendants, DWs.1 to 4 were examined and no documents were marked.6. Upon consideration of oral and documentary evidence, trial Court held that possession follows title and held that Plaintiff presumed to be in lawful possession. In so far as item No,3, trial Court held that non-passing of consideration was not proved by 1st Defendant. Pointing out admission of DW1 as to signature of Bakthavatchalu Naicker in Ex.A1 Will, trial Court held that Ex.A1 Will is a valid, genuine and enforceable and binding upon Defendants. Holding that possession follows title, trial Court decreed Plaintiff's suit for Permanent Injunction.7. Being aggrieved by decreeing of suit, Defendants filed A.S.No,55/2004 on the file of Sub-Court, Tiruvallur. Pointing out admission of DW1 as to signature of Bakthavatchalu Naicker in Ex.A1 Will and evidence of DW1, lower Appellate Court held that Ex.A1 Will is true and genuine. In so far as item No,3, lower Appellate Court held that Plaintiff had purchased the same under sale deed. Finding that Plaintiff is in possession and enjoyment of suit item Nos. 1 to 3, lower Appellate Court confirmed findings of trial Court and dismissed the appeal preferred by Defendants.8. Challenging the concurrent findings of Courts below, Defendants 1 and 2 have filed this Second Appeal. Second Appeal was admitted on the following substantial questions of law:-1. Whether the Lower Appellate Court is right in upholding Ex.A1 in the absence of proof and evidence by examination of attestors or persons conversant with their signature?2. Whether the Lower Appellate Court is right in confirming the judgment of the Trial Court without appreciating the relevance of "koorchit" which proves the partitioning of the suit property among the sharers and lack of title in Baktavatsalu?9. Mr.V.Raghavachari, learned counsel for Appellants submitted that Ex.A1 Will was not proved in accordance with law. Learned counsel for the Appellant further submitted that trial Court erred in finding that it is the duty of Plaintiff to prove Ex.A1 Will not only by proving signature of executant but also attestors and Courts below erred in accepting Ex.A1 Will as genuine. Learned counsel for Appellant further argued that when there is any denial as to title of Plaintiff, Plaintiff ought to have amended the plaint for Declaration. In support of his contention, learned counsel for Appellant placed reliance upon (2008) 4 SCC 594 [Anathula Sudhakar v. P.Buchi Reddy (dead) and others].10. Reiterating findings of lower Appellate Court, Mr. M.R.Khapali, learned counsel for 1st Respondent submitted that when 1st Defendant has admitted signature in Ex.A1 Will, it is not right to say that Ex.A1 Will has to be proved in accordance with law. Learned counsel for 1st Respondent submitted that when attestors of Ex.A1 Will died, Plaintiff cannot be faulted for non-examination of attesting witnesses. It was further argued that Sec.58 of Indian Evidence Act has to be read overriding Sec.68 of Indian Evidence Act. In support of his contention, learned counsel for 1st Respondent placed reliance upon (2008) 1 MLJ 1123 [R.Vellingiri and another v. R.Kannaian and others] AIR 1990 Kerala 226 [Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani and others] and 1998 (2) LW 333 [Muthu Goundar v. Poosari @ Palaniappan and 4 others].11. In so far as, item Nos.1 and 2, Plaintiff claims right on the basis of Ex.A1 Will [28.08.1987] executed by Bakthavatchalu Naicker infavour of Plaintiff giving him life estate and after Plaintiff's life time to Plaintiff's sons. Ex.A2 death certificate of Bakthavatchalu Naicker showing his date of death as 21.10.1994.12. Main contention of Appellants is that it is the duty of Plaintiff to prove the Will not only by establishing signature of the executant but also by examining attestors as per the statutory mandate under Sec.63(c) of Indian Succession Act and Sec.69 of Indian Evidence Act. Further contention of Defendants is that Courts below ought to have seen that no proof had been adduced to establish the Will under Ex.A1 in the manner known to law and non-examination of witnesses conversant with the signature of attestors is fatal to the case of Plaintiff. Learned counsel for the Appellants would further contend that death of attestors would not exonerate from proving the signature in the alleged Will.13. Sec.68 deals with the proof of execution of attested documents and provides that such a document shall not be used as evidence unless one attesting witness at least has been called to prove execution.14. Sec.69 of Indian Evidence Act relaxes strict proof of execution and attestation as required in Sec.68 of the Act. In the case of a Will if the attesting witness cannot be found, the execution can be proved by examining a witness who can identify the signature of the attestor. Sec.69 of the Act is applicable only if the person says that attesting witness cannot be found and so he is unable to examine him.15. If no attesting witness can be found, i.e. if he is dead, insane, blind, too ill to attend, suffering imprisonment, out of the jurisdiction of the court, kept out of the way by the adverse party or cannot be traced after diligent search two things must be proved - (1) the signature of one attesting witness, and (2) the signature of the executant. They may be proved in the manner indicated in Sec.67 of the Act by the evidence of persons who are able to prove the hand-writing of the attestor and of the executant. Sec.67 of Evidence Act does not prescribe any particular kind of proof and under Evidence Act handwriting may, in addition to usual modes be also proved by circumstantial evidence or by presumptive evidence or any other acceptable mode of evidence.16. In Ex.A1 Will one Janarthanam and Kanniappa Nattar have attested the Will as attestors. Ex.A6 is the death certificate of Janarthanam showing his date of death as 08.2.1988. Ex.A7 is the death certificate of Kanniappa Nattar showing his date of death as 27.10.1993. In his evidence, PW1 has stated that scribe Kothandaraman is aged 70 years and due to old age his eye sight is affected and therefore, he could not examine the scribe who has written Ex.A1 Will. Pointing out death of attesting witnesses and inability of scribe being examined in Court and referring to admission of execution of Ex.A1 Will by 1st Defendant, Courts below recorded concurrent finding that execution of Ex.A1 Will has been proved.17. When the executant and attesting witnesses are dead and writer is aged, it is sufficient to satisfy the Court that execution which was not specifically denied was so probable that a prudent man ought to act upon supposition that it was executed. Signature of executant may be proved under Sec.69 of Indian Evidence Act by a contemporaneous admission. When both attesting witnesses are dead, requirements of law would be satisfied by any evidence showing that Will was executed in the presence of two witnesses.18. As concurrently held by the Courts below that 1st Defendant who is the daughter of executant Bakthavatchalu Naicker in her evidence admitted the signature of her father in Ex.A1 Will. In her evidence, DW1 has categorically admitted the signature of her father/executant in Ex.A1 Will as seen from the following:-Language19. Signature of executant is thus proved by admission of 1st Defendant herself. Courts below concurrently found that Ex.A1 Will was 'legally proved' as per Sec.69 of Indian Evidence Act, exercising jurisdiction under Sec.100 C.P.C., High Court will not interfere with such concurrent findings.20. Denial of execution of Ex.A1 Will in the written statement appears to be a casual denial. In (2008) 1 MLJ 1123 [R.Vellingiri and another v. R.Kannaian and others], it was held that examination of an attesting witness to a Will is unnecessary when the parties have not joined issue on the validity or genuineness of the Will.21. When the validity of Will has not been questioned by Defendants, question whether it is necessary to prove Will under Sec.68 of Indian Evidence Act was considered by the Division Bench of Kerala High Court in AIR 1990 Kerala 226 [Thayyullathil Kunhikannan and others v. Thayyullathil Kalliani and others] wherein, it was held as under:-"34. Order 8 Rule 5 of the C.P.C. provides that unless there is a specific denial of any allegation of fact made in the plaint, it shall be taken to be admitted. Section 58 of the Evidence Act provides that no fact need be proved in any proceedings, which by any rule of pleadings in force at the time, the parties are deemed to have admitted by their pleadings. In this case, in the absence of any denial in the written statement, the genuineness and the validity of the will Ext. A1 must be deemed to have been admitted by the law of pleadings, namely Order 8 Rule 5, and therefore that fact was not required to be proved at the trial. Section 68 states that 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. The proviso to the Section which was introduced by the amending Act 31 of 1926 makes an exception in the case of any document, not being a will, which has been registered, unless its execution by the persons by whom it purports to have been executed, is specifically denied. The fact that the proviso is not applicable to wills, and that it does not make an exception in the case of registered wills, does not lead to any inference that a will cannot be acted upon or used as evidence, unless it has been proved by examining an attesting witness. The only effect of the proviso is that registration of the will by itself does not obviate the necessity of calling an attesting witness to prove it, if it is otherwise required to be proved. The proviso does not speak of a case where a will is not in dispute. Section 68 relates to those documents which require to be proved at the trial of a suit. If by any rule of law or of pleadings, such proof is not required, S.68 cannot operate to insist on formal proof by calling an attesting witness. Section 58 has to be read as overriding S.68 and as obviating the necessity for calling an attesting witness, unless the execution of the will or the attestation is in dispute. In the absence of any such plea in the written statement, it will be the height of technicality and waste of judicial time to insist on examination of an attesting witness, before a will could be used as evidence. Phipson on Evidence 12th Edition (1976) explains the rationale behind examining an attesting witness as that he is the witness appointed or agreed upon by the parties to speak to the circumstances of its execution, "an agreement which may be waived for the purposes of dispensing with proof at the trial". In paragraph 1757, the learned author points out that proof of execution of documents required by law to be attested is dispensed with (although the attesting witness may be alive and in Court) "when the execution has been admitted for purposes of trial". Order 8 Rule 5, C.P.C. deems the execution of the will to be admitted in the absence of any denial thereof in the written statement. Examination of an attesting witness is therefore unnecessary when the parties have not joined issue on the validity or genuineness of the will." [underlining added]The above decision clearly lays down that when execution of Will has not been specifically denied, examination of attesting witness to a Will is unnecessary. This is all the more so, when execution of Will and signature of executant was admitted by 1st Defendant. Courts below rightly held that Ex.A1 is true and genuine and first substantial question of law formulated is answered against the Appellants.22. In so far as item No,3 - S.No,509/1 - 1.19 acres admittedly, it was settled infavour of 1st Defendant. Case of Plaintiff is that he purchased item No,3 from 1st Defendant but Plaintiff has not filed the sale deed. Absolutely, there is no evidence to show that when property was settled infavour of 1st Defendant and when Plaintiff purchased.23. Ofcourse in her evidence, DW1 / 1st Defendant admitted that she had executed sale deed infavour of Plaintiff but in her evidence, DW1 has stated that sale consideration has not been paid to her and plaintiff has cheated her without paying sale consideration. The relevant portion of evidence of DW1 reads as follows:-LanguageCourts below proceeded to pass decree infavour of Plaintiff based on the admission of 1st Defendant as to execution of sale deed in respect of item No,3.24. Even though, execution of sale deed was so admitted by 1st Defendant, Plaintiff must independently prove his case by producing evidence to lay foundation of fundamental facts. For obtaining a decree for Permanent Injunction, production of documents of title is so fundamental to establish prima facie case. Cause of action emanates from plaint averments, but not from defence version in the written statement. In so far as item No,3, Plaintiff relies upon sale deed and was expected to produce the document. Plaintiff cannot take advantage of admission of 1st Defendant for proving the fundamental facts.25. Now admittedly, Plaintiff is said to have sold item No,3 to third parties. Placing reliance upon (2007) 10 SCC 53 [Prabha Arora and another v. Brij Mohini Anand and others], learned counsel for the Appellants contended that when item No,3 has been sold to third parties during pendency of proceedings and Court has to take note of subsequent events/changed circumstances and decline equitable relief of Permanent Injunction to Plaintiff. In the said decision, Supreme Court held that there is need for taking into consideration of subsequent events/changed circumstances. Since Plaintiff has not produced document of title and having regard to the subsequent events/changed circumstances, insofar as item No,3, Plaintiff is not entitled to equitable relief of Permanent Injunction. Courts below erred in not keeping in view non-production of documents of title in respect of item No,3 by the Plaintiff. In so far as item No,3 findings of Courts below cannot be sustained.26. Concurrent findings of Courts below as to execution of Ex.A1 Will is based upon evidence and materials on record and concurrent findings of Courts below in respect of item Nos.1 and 2 of suit property is to be confirmed. In so far as item No,3, concurrent findings of Courts below cannot be sustained and liable to be reversed. 27. In the result, findings of Courts below in A.S.No,55/2004 dated 15.03.2006 on the file of Subordinate Judge, Tiruvallur in respect of item No,3 of suit property is set aside and the Second Appeal is partly allowed. In so far as item Nos.1 and 2 of suit property, findings of Courts below is confirmed. In the circumstances of the case, there is no order as to costs.