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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
C. PRAVEEN KUMAR, J.
Penke Pallayya – Appellant
Versus
Penkey Venkata Ramana and Others – Respondents
C.R.P. No. 3071 of 2018
Decided On : 10-08-2018
Civil Procedure Code, 1908 – Order XVI – Rules 1(2) and 14 – Section 151 – Evidence Act, 1872 – Sections 68 and 69 – Succession Act, 1925 – Section 63(1)(c) – Constitution of India.
Constitution of India – Article 227 – Assailing order passed by Principal Junior Civil Judge – Seeking to issue summons to 2nd plaintiff was dismissed – Petitioner and respondents 1, 2 and 4 to 7 are own brothers, whereas respondent-3 is mother – Respondents 1 and 2 herein are plaintiffs filed suit against petitioner and respondents 3 to 7 herein seeking partition of plaint schedule property into 8 equal and equitable shares and allot one such share to each to plaintiffs – During thecourse of trial, the petitioner/1st defendant filed IA No. 596 of 2018, to summon the 2nd respondent/2nd plaintiff to give evidence with regard to attestation of Will, as he attested unregistered Will wherein their father bequeathed plaint schedule property in favour of 1st defendant stated that 2nd plaintiff is willfully avoiding to enter into witness box to depose – Held,
Second plaintiff who attested Will and who is alive denied attesting same in petition, which was not on oath – According to Section 68 of Evidence Act not necessary to call more than one attesting witness to prove execution of Will, but that would not mean that attested document shall proved by evidence of one attesting witness only and two or more attesting witnesses need not be examined at all – Section 69 of Evidence Act apply, inter alia in a case where attesting witness is either dead or out of jurisdiction of Court or kept out of way by adverse party or cannot be traced despite diligent search – Only in that event, will may be proved in manner indicated in Section 69. Ordinarily Will must be proved keeping in view of the provisions of Section 63 of Succession Act and Section 68 of Act, 1872 – Directing Trial Court to examine, as to whether second plaintiff is required to be summoned as Court witness in which event same dealt with in accordance with law – Civil Revision Petition Disposed Of. (Paras: 23 to 25)
Facts of the case:
Assailing order passed by Principal Junior Civil Judge – Seeking to issue summons to 2nd plaintiff was dismissed – Petitioner and respondents 1, 2 and 4 to 7 are own brothers, whereas respondent-3 is mother – Respondents 1 and 2 herein are plaintiffs filed suit against petitioner and respondents 3 to 7 herein seeking partition of plaint schedule property into 8 equal and equitable shares and allot one such share to each to plaintiffs – During the course of trial, the petitioner/1st defendant filed IA No. 596 of 2018, to summon the 2nd respondent/2nd plaintiff to give evidence with regard to attestation of Will, as he attested unregistered Will wherein their father bequeathed plaint schedule property in favour of 1st defendant stated that 2nd plaintiff is willfully avoiding to enter into witness box to depose.
Findings of the court:
Second plaintiff who attested Will and who is alive denied attesting same in petition, which was not on oath – According to Section 68 of Evidence Act not necessary to call more than one attesting witness to prove execution of Will, but that would not mean that attested document shall proved by evidence of one attesting witness only and two or more attesting witnesses need not be examined at all – Section 69 of Evidence Act apply, inter alia in a case where attesting witness is either dead or out of jurisdiction of Court or kept out of way by adverse party or cannot be traced despite diligent search – Only in that event, will may be proved in manner indicated in Section 69. Ordinarily Will must be proved keeping in view of the provisions of Section 63 of Succession Act and Section 68 of Act, 1872 – Directing Trial Court to examine, as to whether second plaintiff is required to be summoned as Court witness in which event same dealt with in accordance with law.
Result: Civil Revision Petition disposed of
Certainly. Based on the provided legal document, here are the key points:
The case involves a dispute over the attestation and proof of a Will, with the petitioner seeking to summon the second plaintiff as a witness to testify about attestation, which was denied by the court (!) (!) .
The second plaintiff, who attested the Will, denied attesting the document, and this denial was not made on oath. The court noted that under the Evidence Act, it is not necessary to call more than one attesting witness to prove the execution of a Will, but it does not mean that the attesting witnesses can be completely disregarded or that only one witness’s evidence is sufficient without examining all available witnesses (!) (!) .
The court emphasized that the power to summon a witness as a Court witness under the relevant procedural rules is at the court’s discretion and can be exercised suo motu or upon an application if the court finds it necessary for the just resolution of the case (!) (!) .
The court clarified that the application to summon the second plaintiff was filed beyond the prescribed time limits for such applications, and the trial court initially rejected the request primarily because the second plaintiff denied attestation in his counter, which was not on oath (!) .
The court highlighted that even if a witness denies attestation or execution of the Will, the court has the authority to examine that witness as a Court witness if it deems such examination necessary for the case, especially to clarify factual disputes (!) (!) .
The court underscored that the denial of attestation by the second plaintiff, being not on oath, does not automatically preclude the court from summoning him as a Court witness to determine the truth of the attestation and the execution of the Will (!) .
The final direction was for the trial court to examine whether the second plaintiff should be summoned as a Court witness, and if so, to deal with his testimony in accordance with law. The court dismissed the civil revision petition without costs, indicating that the matter should be considered based on the necessity of examining the witness (!) .
The procedural provisions governing the summoning of witnesses, including the conditions under which a party can request the court to summon a witness and the court’s suo motu power, are fundamental to understanding the court’s discretion and the importance of ensuring a fair trial (!) (!) (!) .
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ORDER :
1. Assailing the order dated 3.4.2018, passed in IA No. 596 of 2018 in OS No. 105 of 2016 on the file of the Principal Junior Civil Judge, Kakinada, wherein the petition filed by the petitioner/1st defendant under Order XVI Rules 1(2) and 14 and Section 151 of the Code of Civil Procedure seeking to issue summons to the 2nd plaintiff-Penkey Anand Kumar was dismissed, the present civil revision petition came to be filed under Article 227 of the Constitution of India.
2. The facts in issue are as under:
3. A counter came to be filed by the respondents 1 and 2 denying the allegations made in the petition. It is their case that the 2nd plaintiff never acted as an attester to the unregistered Will dated 16.2.2009 and that Late Kannaya never executed the alleged Will in favour of the petitioner/1st defendant.
4. Considering the rival arguments advanced and in view of the plea taken by the 2nd plaintiff that he never acted as an attestor, the Trial Court rejected the said application. Aggrieved by the same, the present civil revision petition came to be filed.
5. Sri E.V.V.S. Ravi Kumar, learned Counsel for the petitioner mainly submits that though the 2nd plaintiff has denied in his counter about the execution of the Will, but that by itself does not debar the petitioner from summoning him and question him about the attestation. He further submits that the entire case is based on the unregistered Will and great prejudice would be caused if the 2nd plaintiff is not summoned as a witness.
6. Sri G.L. Nageswara Rao, learned Counsel appearing for the respondents, opposed the same contending that having regard to the contents of the counter filed, no useful purpose would be served in summoning the 2nd plaintiff as a witness. Apart from that he would contend that the 2nd plaintiff cannot be forced to give evidence, which is contrary to the provisions of law.
7. The question now would be whether the defendants can summon the 2nd plaintiff as a witness to depose about the attestation of the un-registered Will, when he denied in the counter filed to the LA.
8. It is to be noted that the present application came to be filed under Order XVI Rules 1(2) and 14 and Section 151 of C.P.C.
9. Order XVI deals with summoning and attendance of witness. Rule 1 of Order XVI deals with list of witnesses and summons to witnesses. Order XVI Rule 1 states that the on or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. Clause (2) of Order XVI Rule 1 states that a party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. Clause (4) of Rule 1 of Order XVI states that subject to the provision of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be
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