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2013 Supreme(Mad) 4157
High Court of Judicature at Madras
N. PAUL VASANTHAKUMAR & P. DEVADASS, JJ.
S. Bhaskaran & Another
Versus
R. Loganathan (deceased) & Others
O.S.A.No.392 of 2013 & M.P. No. 1 of 2013
Decided On : 18-12-2013
Advocate Appeared:
For the Appellants :S. Parthasarathy Senior Counsel for M. Rajasekar, Advocate.
The main legal point established is that the court has wide discretion under Section 154 of the Evidence Act to recall a witness, especially when the witness exhibits an element of hostility or changes sides, in order to extract the truth of the matter.
Headnote:
Recall of Witness - Will Dispute - Evidence Act, Section 154 - Summary
Fact of the Case:
The case involves a dispute over the validity of a will dated 20.09.1997, where the property was bequeathed to the brother of the deceased. The witness, Rajakumari, initially attested the will but later resiled from her statement, leading to the need for her recall for cross-examination.
Finding of the Court:
The court found that the recalling of the witness was necessary to extract the truth of the matter, as she had exhibited an element of hostility towards the plaintiffs. It held that the impugned order permitting such recalling did not suffer from any infirmity.
Issues: The main issue was whether a witness who initially attested a will but later resiled from her statement could be recalled for cross-examination by the plaintiffs.
Ratio Decidendi: The court relied on Section 154 of the Evidence Act, which confers wide discretion to the court to recall a witness, especially when the witness exhibits an element of hostility or changes sides. It emphasized the need to extract the truth of the matter and held that the wider power given to the court under Section 154 cannot be restricted to any stage or period within which the witness has to be recalled.
Final Decision: The Original Side Appeal was dismissed, and the impugned order of the learned Single Judge permitting the recalling of the witness was upheld.
P. Devadass, J.
As this appeal lies on a narrow campus, we have decided to dispose of it at the admission stage itself.
2. This Original Side Appeal arises out of the order passed by the learned Single Judge in Application No. 4809 of 2013 filed by the plaintiffs in T.O.S. No. 23 of 2008, whereunder P.W.3 Rajakumari has been recalled to enable the plaintiffs to cross examine her.
3. One Loganathan is the father of respondents (plaintiffs). Loganathan's brother Purushothaman married one Renganayaki. They have no issues. Purushothaman, while alive stated to have executed a Will on 20.09.1997 whereunder reserved life estate in favour of his wife in his property situate in Royapuram, Chennai and the remainder absolutely in favour of his brother Loganathan. Purushothaman died on 01.04.1998.
4. In O.P. No. 157 of 2011, in this Court, Loganathan sought for issuance of Letters of Administration. Renganayaki questioned the genuineness of the said Will. She had stated that on 24.10.1997 her husband had executed a Will in her favour. If the Will dated 20.09.1997 is disproved Renganayaki will become absolute owner to her husband's property. Renganayaki sold the property to Bhaskaran and Ganga Devi, who are the appellants herein. The respondents herein have filed the suit in C.S. No. 227 of 1999 to cancel the sale deed made in their favour.
5. In O.P. No. 157 of 2001, Loganathan examined one Rajakumari. She confirmed the execution of the Will by Purushothaman and her attesting of it. On 17.09.2001, this court granted Letters of Administration to Loganathan. The purchasers, namely, Bhaskaran and Ganga Devi have filed Application Nos. 619 and 620 of 2002 to revoke the said Letters of Administration. It was dismissed by the learned Single Judge. However, on appeal, in O.S.A. Nos. 111 and 112 of 2003, on 18.08.2007, O.P. No. 157 of 2001 was converted as T.O.S. No. 23 of 2008.
6. In the meanwhile, both Renganayaki and Loganathan have passed away. The legal heirs of Loganathan continued the T.O.S. Thus, if the Will dated 20.09.1997 is proved, Loganathan will get absolute right to the property and that will devolve on his legal heirs, namely, the plaintiffs. If the Will is disproved, Renganayaki will become owner of the property, her purchasers, namely, the defendants in T.O.S. No. 23 of 2008, who are appellants herein will get title to the property.
7. Thus, in T.O.S. No. 23 of 2008, the crux of the matter is proving the Will of late Purushothaman dated 20.09.1997. The burden is now upon the legal heirs of late Loganathan.
8. In the circumstances, in T.O.S. No. 23 of 2008, deceased Loganathan's son, Kannamurthy, the third plaintiff/second respondent examined himself as P.W.1 and took steps to examine the attesting witness Rajakumari. He took summons to her. But she avoided it. However, after issuance of a bailable warrant by this Court, on 24.09.2013, she appeared and on 26.09.2013, she was examined by the Master as P.W.3. She had resiled from her previous statement in her affidavit filed in O.P. No. 157 of 2001. Now, she had stated that the Will dated 20.09.1997 of Purushothaman has not been executed in her presence and she did not attest the Will when it was executed. She was cross examined by the appellants / purchasers.
9. In the circumstances, on 10.10.2013, the respondents have filed Application No. 4809 of 2013 to recall Rajakumari to examine her as a Court witness. The appellants have filed counter opposing it. The learned Single Judge referring to Section 154 of Evidence Act allowed the application, recalled P.W.3 for the cross examination by the plaintiffs. However, gave liberty to the appellants/defendants to cross examine P.W.3 after the cross examination of the plaintiffs is over. Aggrieved, the defendants have directed this Appeal.
10. Mr.S.Parthasarathy, the learned Senior Counsel for the appellants would submit that the respondents (plaintiffs) had every opportunity to cross examine P.W.3 on the day when she was cross examined by t
