Y. KIRANMAYEE Vs. D RUKMINAMMA

JUDGEMENT

(1.) The Civil Revision Petition is filed under Article 227 of the Constitution of India, against the order dtd. 4/4/2022 allowing the petition in I.A.No.1600 of 2021 in O.S.No.21 of 2012 on the file of Court of the III Additional District Judge, Kurnool at Nandyal, filed under Sec. 120 of the Indian Evidence Act and under Sec. 151 of CPC to permit the petitioner to lead evidence through her second son Mr.D.Srinivasa Reddy.

(2.) The plaintiff filed the suit for declaration that the Will dtd. 16/12/2011 of G.Devalathamma is neither true nor genuine and consequentially to declare plaintiff's title over the plaint schedule property and for delivery of possession of the properties to the plaintiffs. The main contention of the plaintiff is that a few days prior to the death of G.Devalathamma, the plaintiff and her husband along with her sons went to Hyderabad to see G.Devalathamma where she was admitted in Omega Hospital and found that she was in a state of unconsciousness and she could not even identify the family members of the plaintiff. When the suit is coming up for trial, the plaintiff attended before the Court on 12/2/2020 along with the assistance of her relatives and submitted that she was not in a position to depose evidence and requested for an adjournment and later, after passing two adjournments, on 2/3/2020, she attended the Court and filed her affidavit in lieu of examination-in-chief and got marked documents as Exhibits.A1 and A2, however after adjourning the matter for crossexamination, 6 or 7 adjournments were granted and ultimately on 23/3/2021, a memo was filed by the counsel for the plaintiff stating that the plaintiff was not in a position to attend before the Court and depose evidence since she was not coherent. On recording the memo, her examination-in-chief was eschewed, subsequently this petition was filed to examine her second son. The petition was opposed by filing counter of the defendants No.1, 2 and 4 stating that the medical certificate issued by Dr.S.Vijay Babu that the plaintiff is suffering from old age ailments does not contain the period of treatment to come to opinion of the medical condition of the plaintiff and therefore, the certificate is not a complete document to support the version of the petitioner. It is further contended that there is no assertion that the proposed witness has personal knowledge of the allegations in the suit so that he is competent to depose. It is also stated that the parties to the suit, the spouse of a party shall be competent witness in all civil proceedings, whereas the proposed witness, being the son, does not come under the purview of the said provision and therefore, the proposed witness cannot give evidence in place of the petitioner.

(3.) After hearing both parties, basing on the decision of erstwhile High Court for the States of Telangana and Andhra Pradesh in CRP.No.1698 of 2018 between V.Kavitha Reddy and two others vs. V.Aditya Reddy and another,CRP.No.1698 of 2018. the petition was allowed on the principle that a person who is exclusively managing the affairs of a party to the suit or proceedings, such as, son/daughter can be permitted to depose evidence in the place of their biological parents and further that a party may examine any witness who is present during the course of prosecution and has personal knowledge of the facts concerning the suit. The trial Court further observed that the plaintiff sought to examine the witness as she is unable to depose coherently. It is further observed that the plaintiff who approaches the Court, if fails to adduce satisfactory evidence, would lose the case and if the plaintiff is able to bring the facts which are within the knowledge of his/her agent or family members who got knowledge of certain events can depose the facts within the knowledge of the witness. The trial Court recorded the observation of the Supreme Court in M/S Kamakshi Builders vs M/S Ambedkar Education Society and others,2007 (12) SCC 27. that title cannot be vested because a witness or a party is not examined. With these observations, the trial Court held that since the plaintiff is unable to depose evidence, and her second son stated to have knowledge of the facts, she be permitted to examine her second son in the suit in her place. Accordingly, the petition was allowed.