IMPORTANT POINT
The necessity of proving documents under the Evidence Act is critical in partition suits, impacting the validity of claims based on unproven documents.

JUDGMENT :

S. SOUNTHAR, J.

Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, to set aside the judgment and decree of the learned II Additional District Judge, Trichy, dated 19.07.2001 in A.S. No. 334 of 1999 confirming the judgment and decree of the learned I Additional Subordinate Judge, Trichy, dated 09.07.1999.

1. The 1st defendant in the suit for partition is the appellant.

2. The suit filed by the respondents 1 to 5 was decreed by the trial Court and the findings of the trial Court were affirmed by the first appellate Court. Aggrieved by the concurrent findings, the 1st defendant is before the Court.

3. According to the respondents 1 to 5/plaintiffs, the suit property originally belongs to one Lakshmi Ammal. She executed a settlement deed, dated 20.05.1936 marked as Exhibit A.1 giving life estate in favour of her daughter Seshammal with vested remainder to Seshammal’s grant children Srinivasa Bhattar and Jeyalakshmi @ Pitchammal. The respondents 1 to 5 are the children of the said Jeyalakshmi @ the Pitchammal. The appellant and other respondents are children of above said Srinivasa Bhattar. Thus, claiming half share in the suit properties, the suit for partition was made.

4. The appellant/1st defendant filed a written statement and resisted the suit on the ground that Lakshmi Ammal executed a Will on 17.06.1935 marked as Exhibit B.1 giving the suit properties to Srinivasa Bhattar, who is the father of the defendants. He specifically denied the execution of settlement deed, dated 20.05.1936 pleaded by the plaintiff. Thus, by relying on the Will allegedly executed by Lakshmi Ammal, dated 17.06.1935, the appellant and other defendants sought for dismissal of the suit.

5. Before the trial court, the 1st plaintiff was examined as PW-1 and 3 other witnesses were examined as PW-2 to PW-4. The appellant/1st defendant was examined as DW-1 and the 2nd defendant was examined as DW-2. On behalf of the plaintiffs, 11 documents were marked as Exhibits A.1 to A.11. On behalf of the defendants, 21 documents were marked as Exhibits B.1 to B.21. Exhibits X.1 to X.3 documents relating to registration of settlement deed pleaded by the plaintiff which were marked through the official respondents.

6. The trial Court after appreciating the oral and documentary evidence, arrived at a conclusion that Exhibit A.1 settlement deed relied on by the plaintiff was proved. As a necessary consequence, the Will relied on by the defendants was rejected. In view of the said findings, the trial Court granted a decree for partition of half share in favour of the plaintiffs. Aggrieved by the same, the 1st defendant preferred an appeal in A.S. No. 334 of 1999 on the file of II Additional District Court, Tiruchirappalli. The first appellate Court affirmed the findings of the trial Court. Aggrieved by the same, the 1st defendant is before this Court.

7. At the time of admission, this Court formulated the following substantial question of law, dated 17.04.2002:

“1. Whether the Courts below are right in holding that the original of Exhibit A.1 is proved when the same is very seriously disputed and whether in any event, the provisions of Section 69 of the Evidence Act are not attracted?

2. When admittedly the attestor and scribe of the original of Exhibit B.1 are dead and when Exhibit B.1 is not seriously challenged, the Courts below are right in rejecting Exhibit B.1 as not proved?”

8. The learned counsel appearing for the appellant submitted that the Courts below have committed a serious error of law in holding that Exhibit A.1 settlement deed relied upon by the plaintiffs was proved, when the attestor to the said document has not been examined. He further submitted that original of Exhibit A.1 settlement deed was not produced by the plaintiffs and hence, the Courts below ought not to have pressed into service presumption available to the old documents without production of the original documents. Therefore, it is the submission on the learned counsel