IMPORTANT POINT
Marking of a document as exhibit – Mere marking of a document as an exhibit, is not a proof of contents thereof.

JUDGMENT :

SANJAY KAROL, J.

Leave granted.

2. The present appeal is directed against the impugned judgment and order dated 21.08.2024 passed in OSA No. 31/2023 by the High Court of Judicature at Madras, which, in turn, was preferred against the order of the Single Judge dated 04.11.2022 in Application No. 4262 of 2022 in T.O.S. No. 12 of 2021.

3. The brief facts giving rise to the present lis are that on 17.10.2019, the plaintiff, being respondent herein, filed a suit bearing number O.P. No. 164 of 2020 [later converted to T.O.S. No. 12/2021] seeking probate of the will of one late C. Shyamalavalli before the High Court of Judicature at Madras. The suit remains pending as on date.

4. The defendant being appellant herein filed a written statement in the aforesaid suit on 19.04.2021. Thereafter, on 10.08.2022, a proof affidavit came to be filed by the plaintiff. Aggrieved thereof, the appellant filed an application bearing number 4262 of 2022 praying to eschew the proof affidavit, averments and documents exhibited. It was stated therein that certain documents and averments made therein are irrelevant to the present testamentary proceedings before the High Court.

5. The Single Judge of the High Court vide order dated 04.11.2022 dismissed the application of the defendant. It was observed:

a. Filing of lengthy proof affidavit cannot be faulted, as the defendant themselves filed a 16-page written statement for a 5-page petition.

b. Marking of the will is different from proof of the same. It can be marked through the beneficiary of the will, who is PW-1 in the proceedings.

c. Document numbers 5 – 9 cannot be marked as they are not original documents, but are xerox copies. In the absence of any explanation as to the non-availability of originals, these documents cannot be permitted to be marked.

d. All other documents can be received in evidence for showing title and deciding rival claims on the will.

6. Yet dissatisfied, the appellant preferred an appeal, which came to be numbered as Original Side Appeal No. 31 of 2023. Vide the impugned order dated 21.08.2024, the appeal of the appellant herein came to be dismissed. It was observed that:

a. Mere filing of an affidavit is not proof of statements that are found in the same. It does not dispense with the requirement of proof by relevant evidence.

b. Eschewing the contents of the affidavit in the peculiar facts, will cause serious prejudice to the respondents.

c. In testamentary proceedings, the plaintiff will have to prove the will to the satisfaction of the Court.

d. There is no bona fides in this litigation. It is a settled proposition that evidence, both oral and documentary, should not be shut down at the initial stage.

e. Appeal dismissed, with cost of Rs. 10,000 imposed due to the conduct of the appellants.

7. We have heard the learned counsel for the appellant and the learned senior counsel for the respondent.

8. For reference, Order XIII Rule 3 reads as under:

“3. Rejection of irrelevant or inadmissible documents.—

The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.”

9. We find no reason to interfere with the reasoning of the Courts below. The Single Judge has rightly eschewed the documents wherein xerox copies were filed in place of originals, without any explanation thereto. That apart, the objections raised to the other documents marked and exhibited are not such which make the documents prima facie inadmissible in law or irrelevant to the properties involved in the present suit. Consequently, exercise of power under Order XIII Rule 3 of the Civil Procedure Code, 1908 by this Court is not warranted in this case.

10. Moreover, in our view, the contentions raised and documents marked in the proof affidavit relating to pendency of other suits and transfer of properties relating to the very same family structure cannot be rejected at the threshold. We advert to the observations of a three-Judge