BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 30/01/2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGA PERUMAL ADITYAN C.M.A.No.176 of 2002 Rajamani ... Appellant Vs 1.Ponnusamy 2.Thankavel 3.Vallivel 4.Mariammal 5.Saratha 6.Bindhu (Minor) 7.Sathish (Minor) ... Respondents (Respondents 6 and 7 being minors, represented by their mother and natural guardian 5th respondent, Saratha) Prayer: Appeal filed under Section 299 of the Indian Succession Act, against the order and decree passed in Probate O.P.No.43 of 1997, dated 17.08.2001, on the file of the Sub Court, Padmanabapuram, Kanyakumari District. !For Appellant ... Mr.R.Subramanian Mr.M.Saravanan ^For Respondents ... Mr.K.Srikumaran Nair :JUDGMENT
This appeal has been preferred against the order passed in Probate
O.P.No.43 of 1997, on the file of the learned Sub Judge, Padmanabapuram, dated
17.08.2001.
2. The probate petition was filed by the appellant / petitioner to probate
a Will No.26 of 1987, dated 25.06.1987. In the petition, the petitioner had
stated that respondents 1 to 4 are the brothers of the petitioner and 5th
respondent is her mother and that one, Ambrose is the brother of the 5th
respondent and the maternal uncle of the petitioner as well as the R1 to R4 and
that the said Ambrose died on 29.05.1992 and before his death, he had executed a
registered Will, dated 25.06.1987. To probate the said Will, the petitioner had
filed the above said probate O.P.No.43 of 1997.
3. Respondents 1 to 3 and 5 have filed a joint counter, contending that
the said Ambrose had not executed any Will and the Will relied on by the
petitioner was a bogus one and that the said Ambrose had only 1/3 share in the
plaint schedule property and the remaining 2/3 share belonged to 5th respondent,
Mariammal and one Therasammal. The suit property originally belonged to one
Padmanaban, who died intestate and after his death, the property devolved on
Ambrose, Mariammal and Therasammal. The 5th respondent, Mariammal get 1/3 share
and she was enjoying it. The 1/3 share of Therasammal, was sold on 07.09.1978,
by executing a sale deed in favour of the petitioner and R1 to R4. Even though,
in the recitals, it has been stated in the sale deed that it was executed in
respect of . share of Therasammal, actually Therasammal had 1/3 share in the
said property. After the death of Ambrose, his 1/3 share also devolved on
Therasammal. The petitioner was entitled to . share of 1/5 share. The
testators to the Will are closely related to the said Ambrose and with the help
of those testators, Ambrose had concocted the alleged Will.
4. On the side of the petitioners, P.W.1 and P.W.2 were examined and
Ex.P.1 and P.2 were marked and on the side of the respondents, R.W.1 was
examined and Ex.R.1 was marked. After going through the documentary and oral
evidence, the learned Sub Judge, Padmanabapuram, has come to a conclusion that
the petitioner is not entitled to any relief and consequently dismissed the
petition.
5. Aggrieved by the orders of the learned Sub Judge, Padmanabapuram, the
petitioner has preferred this appeal.
6. Now, the point for determination is whether the order passed in Probate
O.P.No.43 of 1997, on the file of the learned Sub Judge, Padmanabapuram, dated
17.08.2001, is liable to be set aside for the reasons stated in the Memorandum
of appeal?
The Point:
7. The learned Sub Judge has dismissed the Probate O.P.No.43 of 1997, on
the ground that the petitioner has failed to prove the Will, by examining at
least any one of the testators to the Will or as per the provisions contemplated
under Section 69 of the Evidence Act. Now, the petitioner had filed
C.M.P.No.398 of 2006 and also C.M.P.No.397 of 2006, under Order 41 Rule 27,
C.P.C., to permit the petitioner to adduce the oral evidence and also to receive
documents. As far as C.M.P.No.397 of 2006, to receive the documents, is
concerned, there is no dispute that both the testators to the Will are now no
more. The documents, dated 29.11.2005, are related to the death certificate of
Palrathnam, one of the attestors to the Will and the other document dated
09.12.2005, death certificate of Baliah Nadar, the other attesting witness to
the Will.
8. The learned Counsel appearing for the appellant would contend that the
advocate who conducted the petition before the learned Sub Judge,
Padmanabapuram, has failed to examine the witnesses who were present at the time
of registration of the Will and also who knows about the signatures of the
testating witnesses. The Section 69 of the Evidence Act, runs as follows:
“Proof where no attesting witness found.- If no such attesting witness can
be found, or if the document purports to have been executed in the United
Kingdom, it must be proved that the attestation of one attesting witness at
least is in his handwriting, and that the signature of the person executing the
document is in the handwriting of that person.”
9. The learned Counsel appearing for the respondents relying on the
decision in G.Vaidehi Vs. S.Govindarajan reported in 1992 (2) MLJ 393, contended
that all that is required is to prove the attestation by bringing on record the
evidence of a witness that the attestation was in the handwriting of that person
who was described as the attesting witness and that he had put his signature.
10. Now, the petitioner wants to let in further evidence in the said
Probate O.P.No.43 of 1997, by filing C.M.P.No.398 of 2006. The learned Counsel
appearing for the respondent would object to such a course on the ground that
under Order 41 Rule 27, the petition is not maintainable, because this petition
has been filed after lapse of five years from the date of disposal of Probate
O.P.No.43 of 1997. In support of this contention, the learned Counsel relied on
the decision in N.Kamalam Vs. Ayyasamy reported in 2001 (7) SCC 503. It has
been held in the above said judgment as follows:
“The provisions of Order 41 Rule 27 have not been engrafted in the Code so
as to patch up the weak points in the case and to fill up the omission in the
court of appeal – it does not authorise any lacunae or gaps in evidence to be
filled up. The authority and jurisdiction as conferred on to the appellate
court to let in fresh evidence is restricted to the purpose of pronouncement of
judgment in a particular way…..
The time-lag in the matter under consideration is enormous. The suit was
instituted in the year 1981 and the decree therein was passed in 1983. The
first appeal was filed before the High Court in April 1983 but the application
for permission to adduce additional evidence came to be made only in August
1993. Needless to record that the courts shall have to be cautious and must
always act with great circumspection in dealing with the claims for letting in
additional evidence particularly, in the form of oral evidence at the appellate
stage and that too, after a long lapse of time. A plain reading or Order 41
Rule 27 would depict that the rejection of the claim for production of
additional evidence after a period of 10 years from the date of filing of the
appeal cannot be termed to be erroneous or an illegal exercise of discretion.
The three limbs of Rule 27 do not stand attracted. The learned trial Judge
while dealing with the matter has, as a matter of fact, very strongly commented
upon the lapse and failure on the part of the plaintiffs even to summon the
attesters to the Will and contextually, the justice of the situation does not
warrant any interference.”
11. The learned Counsel appearing for the appellant would contend that
under Order 47 Rule 27(1)(aa), even after due diligence, the advocate who
conducted the case before the Sub Judge, Padmanabapuram, had failed to examine
the persons who had seen the attestors signing the Will and registration of the
Will, so as to prove the Will. As per Section 69 of the Evidence Act, in the
absence of both the testating witnesses expired. The learned counsel appearing
for the respondent would contend that after a lapse of five years from the
disposal of the probate petition, it is not open to the appellant / petitioner
to agitate the same before the appellate Court and that a partition suit in
respect of the same suit property is pending in O.S.No.510 of 1992 and the
appellant can file necessary applications to reopen the same and prove the Will
by examining the necessary witnesses. So, I am of the view, that the appellant
having failed to prove the Will before the learned trial Court, now, cannot be
allowed to reopen the same for adducing further oral and documentary evidence.
12. Hence, I hold on the point that the order passed in Probate O.P.No.43
of 1997 on the file of learned Sub Judge, Padmanabapuram, dated 17.08.2001, need
not be set aside for the reasons stated in the Memorandum of appeal. The point
is answered accordingly.
13. In the result, the appeal is dismissed. No costs. The parties are at
liberty to let in evidence in the partition suit for the same property, pending
before the learned District Munsif, Padmanabapuram, in O.S.No.510 of 1992 and to
get an appropriate relief therein.
rsb
To
The Sub Judge,
Padmanabapuram,
Kanyakumari District.