2020 Supreme(AP) 90

IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI
M. Venkata Ramana, J.
Chintakunta Venkata Subba Reddy(died) and four Others - Appellants
Versus
Alluri Tholasi Eswara Reddy - Respondents
S.A.No.1086 of 2008
Decided On : 04-03-2020

Point of Law: Article 58 prescribes the period of limitation as three tyears from the date of accrual of the right to sue, for any other declaration. So the period of limitation for obtaining declaration relating to date of birth, as per Article 58 of Limitation Act, is three years from the accrual of the right to sue.

Headnote:

Hindu Women’s Right toProperty Act, 1937- Section-3(2) - Evidence Act, 1872? - Second appeal is by the defendants. It is preferred against the decree and judgment - Whether the Courts below are right in decreeing the suit filed by the Respondent/Plaintiff, for declaration of title in the absence of any cause of action?Whether the Courts below are right in decreeing the Suit for declaration of title, believing Ex.A2, i.e. the Gift Deed, when the attesters of the said Gift Deed were not examined, which is required under the provisions of the Evidence Act, 1872 – Held, in the light of effect of Section 5 of this Act, when the subject matter of property concerned to this case, is a testamentary disposition under the original of Ex.A1, the provisions of this Act as such cannot be made applicable, even with reference to the right and interest conferred to Smt.Pusuluru Chinna Subbamma. Therefore, the contentions so advanced on behalf of the appellants, cannot stand - It is clear from the evidence of the respondent as P.W.1 that none of the attestors to Ex.A3 and it’s scribe is alive nor available to depose. This fact has not been controverted on behalf of the appellants. It is true that a Gift deed pertaining to immovable property is a compulsorily register able document and it should be signed by or on behalf of donor with attestation by at least two witnesses. In terms of Section 68 of Indian Evidence Act, in case, a document is required by law to be attested, it shall not be used in evidence until one attesting witness at least is examined proving it’s execution. In case there are no witnesses available like attestors or the scribe to prove this document, attempt shall be made necessarily under Section 69 of Evidence Act by proving the hand-writing of donor or the attestors, whose presence could not be secured for such purpose. Alternative ways of proof can be adduced in this respect to discharge the burden - Second appeal is dismissed

Facts of the Case:

Declaring the right of the plaintiff over the plaint schedule land and for a consequential permanent injunction restraining the defendant, his men or any body on his behalf from entering into the plaint schedule land; On 01.05.1944, Sri Pusuluru Venkata Konda Reddy executed a registered Will making disposition of his properties, retaining life interest in him and his wife Smt.Pusuluru Chinna Subbamma and directing devolution of all his properties including irrigation wells, granaries, thrashing floors, houses in favour of his two daughters Smt.Pusuluru Pedda Venkata Lakshmamma and Smt.Pusuluru Chinna Venkata Lakshmamma after his lifetime and that of his wife. In the same Will, his other daughter Smt.Nagamma was given away Ac.3.48 cents in Survey No.327/3 of Amudala Village, with absolute rights. The execution of this Will by Sri Pusuluru Venkata Konda Reddy and recitals therein are admitted. The suit land is not a part of disposition of his estate by Sri Pusuluru Venkata Konda Reddy, since it was acquired later to the execution of this Will.

Finding of the Court:

in the light of effect of Section 5 of this Act, when the subject matter of property concerned to this case, is a testamentary disposition under the original of Ex.A1, the provisions of this Act as such cannot be made applicable, even with reference to the right and interest conferred to Smt.Pusuluru Chinna Subbamma. Therefore, the contentions so advanced on behalf of the appellants, cannot stand - It is clear from the evidence of the respondent as P.W.1 that none of the attestors to Ex.A3 and it’s scribe is alive nor available to depose. This fact has not been controverted on behalf of the appellants. It is true that a Gift deed pertaining to immovable property is a compulsorily register able document and it should be signed by or on behalf of donor with attestation by at least two witnesses. In terms of Section 68 of Indian Evidence Act, in case, a document is required by law to be attested, it shall not be used in evidence until one attesting witness at least is examined proving it’s execution. In case there are no witnesses available like attestors or the scribe to prove this document, attempt shall be made necessarily under Section 69 of Evidence Act by proving the hand-writing of donor or the attestors, whose presence could not be secured for such purpose. Alternative ways of proof can be adduced in this respect to discharge the burden

Result: Second appeal has to be dismissed