Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K Agrawal J., dismissed the second appeal being devoid of merits.

The facts of the case are such that the suit property was held by Jhulan Rajwar, who acquired patta of suit land in his favour in Surguja Settlement and remained in possession during his lifetime and died issueless leaving behind his wife Sonmet. Since Jhulan Rajwar was issueless, he adopted his nephew Ramcharan’s son namley Budhu Rajwar (plaintiffs’ father) and also executed a Will dated 05-03-1942 and after the death of Jhulan Rajwar, Budhu Rajwar came into possession of the said suit land by way of the Will. It is the case of the plaintiffs (sons of Budhu Rajwar) that after the death of Jhulan Rajwar his wife Sonmet executed a gift deed in favour of Rangu i.e. defendants’ predecessor in interest registered on 22-05-1962, as such; plaintiffs’ suit deserves to be dismissed. The Trial Court held that plaintiffs have failed to prove the Will in accordance with Section 63(c) of the Indian Succession Act, 1925 read with Section of the Indian Evidence Act, 1872. Agrreived by this, first appeal was filed which upheld that Trial Courts verdict. Aggrieved by the same, instant second appeal has been filed under Section 100 of the CPC.

Counsel for the appellants submitted that the Will has been duly proved as per the provision contained in Section 69 of the Evidence Act, 1872. the Will dated 05-०३-1942 (Ex. P/4) is a more than 30 years old document which has been produced from proper custody, therefore, presumption of valid execution of the Will would be made and even if the attesting witnesses have not been examined, presumption of due execution and attestation of the Will (Ex. P/4) will be raised by virtue of the provision contained under Section 90 of the Evidence Act.

Counsel for the respondents submitted that plaintiffs utterly failed to prove the will prescribed by Section 69 of the Evidence Act. It was further submitted that Section 90 of the Evidence Act which states about the presumption of validity of a 30 years old document is not applicable in this case and the Will has to proved in accordance with Section 63(c) of the Indian Succession Act read with Section 68-69 Of the Indian Evidence Act.

Issue 1: Section 69 of Evidence Act, 1872

The Court relied on judgments Babu Singh v. Ram Sahai, (2008) 14 SCC 754, K. Laxamanan v. Thekkayil Padmini, (2009) 1 SCC 354, Kalyanswami. v. L. Bakthavatsalam,  2020 SCC OnLine SC 584 wherein it was observed that Section 69 of the Evidence Act provides that if execution of Will could not be proved by examining the attestor or in absence of non-availability of attestor, to prove the Will, secondary evidence could be adduced by proving the handwriting of one of the attesting witnesses and signature of the executant of the document to be in the handwriting of that person. Two conditions are required to be proved for valid proof of the Will, the person who has acquaintance of the signature of one of the attesting witnesses and also the person executing the document should identify both the signatures before the Court.

Issue 2: Section 90 of the Evidence Act, 1872

The Court relied on judgments Laxmi Barvah v. Padma Kanta Lalita, (1996) 8 SCC 357; Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 wherein it was held that Section 90 of the Evidence Act is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities, to prove the execution of an old document, Section 90 has been incorporated in the Evidence Act, 1872, which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised, if the document in question is raised from proper custody. It is, however, the discretion of the Court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.

The Court observed that it is quite vivid that both the attesting witnesses of the Will namely Bhullu Rajwar and Gangaram had already died at the time of institution of the suit and they were not available to prove the Will. In these circumstances, duty is cast upon the plaintiffs to prove the Will as per Section 69 of the Evidence Act that the signature of the executant on the Will that it is of his own and at least the signature of one of the attesting witnesses have to be identified in the manner known to law. Merely saying that the signature of the attesting witness is of him may not be sufficient unless he produces the signature of the attesting witness on some admissible document and makes both the signatures available for comparison by the Court to find out whether the person acted as a real witness, which has admittedly not been done in the instant case.

The Court thus held that given the observations in light of the facts stated above, it cannot be held that the Will has been proved in accordance with Section 69 of the Evidence Act. It was further held that Section 90 of the Evidence Act would have no application in case of Will in view of the strict requirement contained in Section 63(c) of the Indian Succession Act read with Section 68 of the Indian Evidence Act,

In view of the above, impugned order upheld and the second appeal was dismissed.[Choudhari v. Ramkaran, 2020 SCC OnLine Chh 1015, decided on 29-09-2020]


Arunima Bose, Editorial Assistant ahs put this story together

Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar* and Dinesh Maheshwari, JJ has held that for invoking Section 17 of the Limitation Act, 1963, two ingredients i.e. existence of a fraud and discovery of such fraud, have to be pleaded and duly proved and that in case of failure to establish the existence of fraud, there is no occasion for its discovery.


Background of the case


The dispute dating back to 1990 pertains to a General Power of Attorney (GPA) purported to have been executed by the plaintiff in favour of defendant No. 1 and consequently sale deeds executed by defendant No. 1 as an attorney of the plaintiff. However, according to the plaintiff, reposing complete trust in her step brothers to step-brothers, she had signed on blank papers under the guise of preparation and processing of documents for the purpose of getting the estate left behind by their father mutated in their names.

After analysing the evidence on record, the trial Court dismissed the suit filed by the plaintiff and this order was upheld by the appellate Court. The High Court, however, reversed the concurrent opinions of two Courts and held that the trial Court as well as the first appellate Court committed manifest error and misapplied the settled legal position.

Challenging the High Court’s decision before the Supreme Court, the defendants argued that interference by the High Court was unwarranted as the same did not involve any substantial question of law. On merits, the aforesaid defendants contended that the evidence of the plaintiff was self­-contradictory, as she first claimed that her signatures were taken on blank papers and then denied her signatures occurring on the 1990 GPA. The plea that the signatures were taken on blank papers was not substantiated as the 1990 GPA was executed on stamp papers.


Analysis


The Court held that the diverse grounds urged by the plaintiff in disputing the 1990 GPA and the sale deeds were unsubstantiated and untenable. Here are the key factors taken into consideration by the Court:

  • As the record revealed that the disputed documents were registered, the Court, guided by the settled legal principle that a document is presumed to be genuine if the same is registered, was of the opinion that the initial onus was on the plaintiff, who had challenged the stated registered document.
  • As the execution of the 1990 GPA and the sale deeds in the present cases was denied by the plaintiff, it became necessary for the plaintiff to examine the attesting witnesses of the disputed documents to establish her allegation about its non-execution. However, both the attesting witnesses were not examined.

“The trial Court had justly placed the initial burden of proof upon the plaintiff as it was her case that the subject documents were forged or product of fraud and moreso because the documents bore her signature. The first appellate Court did not elaborate on that aspect. Even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead attesting witness was examined by the defendants. Therefore, the documents stood proved and the burden was duly discharged by the defendants.”

  • The evidence of plaintiff’s deed writer (PW4) unveiled that the stated documents were prepared on the basis of instructions of the plaintiff and had been duly executed by her in the presence of the attesting witnesses.

“… the trial Court and the first appellate Court had relied upon the evidence of PW4. The High Court, however, proceeded on surmises and conjectures and took a view which is perverse and tenuous.   In that, the ground on which the High Court rejected the evidence of PW4 is that he was known to the defendant No. 4 since his school days. We do not find it to be a correct approach to disregard  the credible testimony of the witness examined by the plaintiff herself (without declaring him as a hostile witness) and especially when it had come on record that the said scribe is a regular deed writer at  the  Tehsil  complex,  Dasuya.  Notably, PW4 had not been declared hostile at the instance of the plaintiff and as such, this part of his testimony would be staring at the plaintiff.”

  • Since the attesting witness had proved the execution of the sale deeds, the primary onus upon the plaintiff had not shifted unto the defendants. Further, the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of non-receipt of the consideration amount.

Ruling


Concluding that the plaintiff failed to prove that her signatures on the subject documents are forged, the Court reiterated that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt.

“In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants.”

[Rattan Singh v. Nirmal Gill, 2020 SCC OnLine SC 936, decided on 16.11.2020]


*Justice AM Khanwilkar has penned this judgment