2019 Supreme(Mad) 1427

IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Dr. S. Senthilkumar - Appellant
Versus
A.R. Venkidusamy & Others - Respondents
S.A. Nos. 935, 938 & 939 of 2005 & C.M.P. Nos. 13011 & 12969 of 2005
Decided On : 03-06-2019

Headnote:

Civil Procedure Code,1908 - Order 16 - Rules 10,11,12 and 13 - Sections 100 - Indian Evidence Act,1872 - Section 71 and 68 - Indian Registration Act, 1908 - Indian Succession Act - Section 63 - Challenge - Suit for permanent injunction - Suit in has come to be laid by against and others for declaring that will is last genuine and valid testament of deceased and for consequential permanent injunction - Above said suit has been stoutly resisted by contending that will had been revoked by by a will and also further pleaded that will had also been cancelled and revoked by testator by way of another will and accordingly contended that plaintiffs in are not entitled to obtain relief’s prayed for - It is found that pending suit second plaintiff A having died his wife and daughter having not joined hands with surviving plaintiff it is found that and minor legal representatives of deceased had been arrayed as defendants in above said suit and they have filed written statement supporting will and accordingly it is seen that they had sailed along with in contending that it is only will which is last will of deceased - Claiming ownership of property - Suit in has been laid by against for relief of permanent injunction in respect of suit properties described therein and for obtaining said relief he relied only upon will - First defendant in above said suit has challenged truth and validity of will contending that abovesaid suit of is only laid as a counter blast to suit laid by him in and accordingly prayed for dismissal of said suit - Second defendant had supported case of in said suit - It is found that has laid suit against in for evicting him from suit property by pleading landlord tenant relationship between two parties - For claiming ownership of property in dispute he has relied upon will and the defendant has challenged truth and validity of above said will and contended that is not owner of property described therein and therefore not entitled to seek and obtain relief’s as prayed for in said suit - In absence of challenge to subsequent registered wills executed by same testator could a declaration be asked for in law that earliest will executed by same testator alone is valid? Whether said will had been executed by - Whether wills have been proved by respondent as per law - Held, Section 71 Proof when attesting witness denies execution - If attesting witness denies or does not recollect execution of document its execution may be proved by other evidence - On a perusal of above said provision of law it is found that abovesaid provision could be invoked only when attesting witness denies or does not recollect execution of document its execution could be proved otherwise - Insofar as this case is concerned in Court considered opinion inasmuch as endeavour to serve witnesses on part of appellant did not fructify one way or other as above stated they were unable to be examined by - Therefore this is not case where witnesses had come forward and denied execution of document or failed to recollect execution of document as provided under Section 71 of Indian Evidence Act and in such view of matter it is seen that invocation of Section 71 of Indian Evidence Act by appellant cannot be accepted as such for enabling him to establish truth and validity of will by other evidence - Section 68 of Indian Evidence Act reads as follows Section 68 Proof of execution of document required by law to be attested - If a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for purpose of proving its execution if there be an attesting witness alive and subject to process of Court and capable of giving evident - Provided that it shall not be necessary to call an attesting witness in proof of execution of any document not being a will which has been registered in accordance with provisions of Indian Registration Act unless its execution by persons by whom it purports to have been executed is specifically denied - Challenging wills projected by one or other and contending that wills projected by rival parties are not true and valid documents and fabricated and also contending that by way of last will testator had cancelled and revoked earlier two wills and as at present when it is seen that has claimed relief in his suit only based upon will and appellant resultant position is that none of above said parties had sought for relief’s prayed both based on will - However as above noted appellant is not accepting truth and validity of will as according to him above said will had been cancelled by testator by virtue of last will executed by him - Where attesting witnesses are dead and could not be found or could not be summoned one way of other parties should endeavour to examine will or other documents required to be attested under law by proving that attestation of one attesting witness at least is in his handwriting and that signature of person executing document is in hand writing of that person - In such view of matter it seen that if according to appellant he is unable to summon and bring/examine attestors to establish his case as above stated his remedy is found to be only by invoking Section 69 of Indian Evidence Act and establish his case as provided there under in Court considered opinion appellant cannot be allowed to establish truth and validity of will by summoning other witnesses namely scribe who had written will concerned and Sub Registrar concerned who had registered will concerned - When party who is propounding his will is permitted to examine other witnesses other than attestors concerned only in circumstances as set out under Sections 68, 69 and 71 of Indian Evidence Act and when appellant has failed to establish position that attestors to above said will had totally remained inaccessible to court process one way or other on other hand one of attestors to above said will had been examined by him in other suit and when appellant is found to have not resorted to other modes for enforcing attendance of said witnesses as provided under order 16 Rules 10, 11, 12 and 13 of Code of Civil Procedure and by repeatedly requesting court concerned to reissue warrant or serve summons or solicit assistance of police machinery for enforcing warrant / service of summons in all it is found that mode adopted by appellant for establishing truth and validity of will through other witnesses cannot have legal sanction and approval and on above said grounds evidence tendered by scribe and Sub Registrar concerned cannot at all be looked into for upholding truth and validity of will - Second Appeals Disposed Of