P.R. Shivakumar, J.@mdashThis second appeal has been preferred against the judgment and decree of the learned Subordinate Judge, Hosur dated 27.01.2006 made in A.S. No. 32 of 2005 on the file of the Sub-Court, Hosur. By the said decree of the first appellate Court, Judgment and decree passed by the trial Court, namely District Munsif, Denkanikottai dated 15.04.2005 in O.S. No. 244 of 1999 came to be reversed. The trial Court had dismissed the suit and the appellate Court, setting aside the decree of the trial Court, decreed the suit and granted a preliminary decree for partition directing division of the suit property into two equal shares and allotment of one such share to the plaintiff in the above said suit. The suit was filed by Muniamma, the respondent herein, against Sridhandappa @ Rajappa, who is none other than the brother of the respondent herein, on the premise that the said property belonged to their mother Ramakkal and she died intestate leaving behind her the appellant herein/defendant and the respondent herein/plaintiff as her non-testamentary legal heirs entitled to equal moieties in the estate of deceased Ramakkal. The suit was resisted by the appellant herein/defendant on the basis of his contention that Ramakkal, the mother of the parties did not die intestate and on the other hand, she had left a Will dated 07.04.1974 bequeathing the suit property in favour of the appellant herein/defendant.
2. The learned trial Judge simply framed two issues without framing a specific issue regarding the proof and validity of the Will propounded by the appellant herein/defendant and decided the suit based on the evidence adduced on both sides. The issues thus framed by the trial Judge are:
1) Whether the plaintiff is entitled the relief of partition regarding the suit properties?
2) To what relief?
Though the trial Court failed to frame a specific issue regarding the proof, genuineness and validity of the Will propounded by the defendant, it allowed the parties to lead evidence in proof of the Will and also in disproof of the Will.
3. At the conclusion of trial, the learned trial Judge, read the issue regarding the proof of Will into the first issue and decided the same in favour of the appellant herein/defendant. Thus, the learned trial Judge held the Will to have been proved and the defendant to be entitled to the entire suit property as the sole testamentary legal heir of deceased Ramakkal. Accordingly, the suit was dismissed holding that the respondent herein/plaintiff did not have a right to share in the suit property as claimed by her, Such a judgment was pronounced and a decree was passed dismissing the suit filed by the respondent, namely O.S. No. 244 of 1999 on 15.04.2005. The said decree of the trial Court dismissing the original suit for partition was challenged before the Sub-Court, Hosur (lower appellate Court). The learned Subordinate Judge (lower appellate Judge) rectified the defect of non-framing of an issue regarding the proof of the Will propounded by the appellant herein/defendant by framing two points for consideration, one directly regarding the proof of Will and other regarding the consequences of the proof or otherwise of the Will.
4. However, at the conclusion of the hearing of the appeal, the learned Subordinate Judge, chose to render a finding that the Will was not true and that the appellant herein/defendant could not claim any right in the suit Will as it was not a registered document. Based on the said finding alone, the learned Subordinate Judge chose to reverse the judgment of the trial Court, set aside the decree dismissing the suit passed by the trial Court and decreed the suit as prayed for by grating a preliminary decree for partition in accordance with the prayer of the respondent herein/plaintiff. As against the said judgment and decree of the lower appellate Court, the appellant herein/defendant has preferred the present second appeal on various grounds set out in the memorandum of grounds of second appeal.
5. The second appeal was admitted identifying the following questions to be the substantial questions of law involved in the second appeal:
1) Whether the lower appellate Court is right in dismissing the suit for partition ignoring Ex. B3?
2) Whether a Will requires to be registered as observed by the lower appellate Court?
3) Whether the suit is maintainable in law and is not barred by the laws of limitation?
6. The arguments advanced by Mr. V. Raghavachari, learned counsel for the appellant/defendant and by Mr. V. Nicholas, learned counsel for the respondent are heard. The materials available on record are also perused.
7. For the sake of convenience, the parties are hereafter referred to in accordance with their ranks in the original suit and at appropriate places, their ranks in the Second Appeal will also be indicated, if necessary.
8. The plaintiff Muniamma is none other than the sister of the defendant Sridhandappa @ Rajappa. The bone of contention between the parties to the suit is a piece of land extending 2.10 acres comprised in S. No. 72 at Hosapura village, Denkanikottai Taluk. It is an admitted fact that the property originally belonged to one Ramaiah, the brother of Ramakkal, who is also the husband of the plaintiff Muniamma. He settled the property on Ramakkal. A certified copy of the Settlement Deed dated 11.06.1962 and the original settlement deed have been produced as Exs. A1 and B1 respectively. There is also no controversy over the fact that Ramakkal became the absolute owner of the suit property as per the gift Settlement Deed dated 11.06.1962, Accepting the gift to be true, the plaintiff has claimed that she along with the defendant being the daughter and son of Ramakkal, are entitled to equal shares in the suit property as Ramakkal, according to the plaintiff, died intestate. The defendant contended that since the plaintiff and her husband had been left with other properties, Ramakkal wanted to make an arrangement for her son alone and thus the Will dated 07.04.1974 came to be executed by Ramakkal bequeathing her properties mentioned in the Will in favour of the defendant Sridhandappa @ Rajappa. The said Will in Telugu along with a translated copy has been produced and marked as Ex. A3. Since the execution of the Will is disputed by the plaintiff, the burden of proving the Will lies on the defendant.
9. Initially, an attempt was made on behalf of the plaintiff (respondent in this appeal) to contend that the Will had not been proved in the manner contemplated u/s 68 of the Evidence Act, as if none of the attestors had been called as a witness for the proof of execution and attestation of the Will. After going through the documents, this Court pointed out the fact that besides the defendant figuring as DW1, one of the attestors by name Venkatasamy and scribe by name Anumaiah were examined as DW2 and DW3 respectively. After the same was pointed out, the learned counsel for the plaintiff/respondent herein withdrew the said contention. At the same time, learned counsel for the plaintiff/respondent herein advanced an argument that since the trial court had not framed an issue regarding the proof of the Will, the judgment of the trial Court was rightly set aside by the lower appellate Court and that, in any event, if any defect is found in the judgment of the lower appellate Court warranting interference by this Court, this Court should set aside the decree of the appellate Court and remit the suit back to the trial Court for fresh disposal after framing the issue regarding the proof of Will as a necessary issue.
10. In this regard, this Court has to accept the contention of the learned counsel for the defendant/appellant herein that the mere failure to frame an issue alone shall not be the ground for remanding the case back to the trial Court and that such omission would be an irregularity capable of being cured by the appellate Court or the second appellate Court if the parties were very much aware of their respective pleas and conscious of the respective pleas, they lead evidence in full regarding such controversy also. In this regard, reliance can be made to the judgment of the Hon''ble Supreme Court in
No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mix-trial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer.
In the second of the judgment cited above, namely Swamy Atmananda''s case, the Hon''ble Apex court referring to the above cited observation of the Larger Bench of the Supreme Court in Nedunuri Kameswaramma''s case cited supra and following the same, has made the following observation:
If the parties went to the trial knowing fully well the real issues involved and adduced evidence in such a case without establishing prejudice, it would not be open to a party to raise the question of non-framing of particular issue.
In the case on hand, the parties, in fact, led evidence sufficient for rendering a finding on such issue. In this case, as rightly pointed out by the learned counsel for the defendant (appellant in the second appeal), though the trial Court committed a mistake in not framing a specific issue regarding the proof of the Will relied on by the defendant, it allowed both parties to lead evidence, in extenso, in proof and in disproof of the document, namely the Will dated 07.04.1974 marked as Ex. B1 and relied on by the defendant.
11. After having allowed the parties to lead such evidence, the learned trial Judge also considered the evidence and rendered a finding that the Will had been proved by the testimonies of DW1, the defendant and Dws 2 and 3, namely one of the attestors and the scribe. The learned trial Judge found cogency in their evidence regarding the circumstances under which the Will came to be executed and the fact of execution of the Will by Ramakkal. In addition, the learned trial Judge also referred to certain admissions made by the witnesses examined on the side of the plaintiff and especially admission made by the plaintiff herself, who deposed as P.W. 1 to the effect that she had got knowledge of the Will on the death of her mother Ramakkal. The trial Judge has also referred to the fact that the dispositions made by the defendant in respect of yet another property, which was also the subject matter of bequeath under the suit Will, namely a house property, was not objected to by the plaintiff and opined that the same would strengthen the case of the defendant that Ramakkal died leaving Ex. B3 Will.
12. When such a finding had been rendered by the trial Court, the learned Subordinate Judge, Hosur, who heard the appeal, committed a blunder in making a perverse observation that a Will which is unregistered is invalid and the legatee under the unregistered Will cannot derive any title from such Will., even though he had chosen to rectify the irregularity found in the judgment of the trial Court by framing a necessary point for determination regarding the proof and validity of the Will. The relevant portion of the judgment of the lower appellate Court in vernacular is reproduced for better appreciation:
13. The above extract from the judgment of the learned Subordinate Judge, Hosur is only a tip of the iceberg to show how the construction of the sentences are made. In fact the entire judgment running to several pages has been condensed in a few sentences. Apart from that, the above said observation shows that the learned subordinate Judge does not have even the knowledge of the rudimentary principles. The learned subordinate Judge has chosen to refer to certain provisions without even considering the scope of those provisions for arriving at the conclusion, which has been indicated supra in the above said extracted portion of the judgment of the lower appellate Court. Similarly, the learned subordinate Judge chose to refer to certain precedents by simply reproducing the editor''s head-notes without any application of mind and gave an erroneous finding that in those judgments it was held that no person shall be entitled to claim a right under a Will which is unregistered.
14. The learned subordinate Judge seems to have proceeded on the erroneous footing that a Will needs compulsory registration to be admitted as a piece of evidence in a Court of law. The learned subordinate Judge has referred to the following provisions:
1) Section 68 of the Indian Evidence Act;
2) Section 63 of the Indian Succession Act; and
3) Section 17 of the Registration Act;
Section 68 of the Indian Evidence Act deals with proof of execution of documents required by law to be attested. It simply states that a document which is required by law to be attested shall not be admitted in evidence unless at least one of the attesting witness has been called for the purpose of proof of its execution if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. It also provides an exception in the proviso that for the proof of any document required by law to be attested, other than a Will, calling of at least one of the attestors shall not be necessary provided it has been registered in accordance with the provisions of the Indian Registration Act, 1908. The proviso provides an exemption for the proof in the manner contemplated under the main section and dispenses with the condition found in the main section if such a document has been registered under the provisions of the Registration Act. Such a provision has been totally misunderstood by the learned subordinate Judge as if the said section means that registration of a Will is made compulsory under the said Section.
15. Section 63 of the Indian Succession Act deals with the execution of unprivileged Wills. It says how a Will has to be executed and how it has to be attested. The entire Section is reproduced hereunder:
63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:--
(a) the testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction,
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a person acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
16. This Court doubts whether the learned Subordinate Judge could have gone through this Section before making the above said observations. Nowhere in the said section it has been stated that a Will, to be admitted in evidence, should have been registered. The third provision referred to by the learned subordinate Judge, namely Section 17 of the Registration Act, 1908 enumerates the documents of which registration is compulsory. It makes instruments of gift of immovable property, other non- testamentary instruments relating to immovable property, leases of immovable property, non- testamentary instruments transferring or assigning any decree relating to the rights in respect of the immovable property etc., are compulsorily registrable. By an amendment made in 2001, agreements for sale of immovable property to claim part performance u/s 53A of the Transfer of Property Act also are made compulsorily registrable. Entire section refers to only non- testamentary instruments, which will make it clear that the testamentary instruments are excluded. Will is a testamentary instrument. Without even considering the scope of the above said section, the learned subordinate Judge has chosen to make an absurd observation that a Will, if unregistered, shall not be admitted in evidence.
17. The absurdity is seen at its peak as the said observation is found below the citation, namely 1996 (II) C.T.C. Page 466. The learned Subordinate Judge does not even know how to cite a precedent. Following are the exact reference made by the learned subordinate Judge.
1996 (II) C.T.C. Page 466.
Registration Act 1908 - Section 10 -Registration of Will - Testamentary capacity of executent - Registration of will not proof of testamentary capacity of Testator of make Will - Registered Will has to be proved in accordance will provisions of evidence Act and Succession Act - Registration of Will have significance when dispute relates to factum of execution of Will and not where Testamentary capacity of executant is disputed.
18. When a precedent is cited, it is expected of the Judicial Officer not to be content with the citation noting the journal and the page alone without writing the name of the case, namely cause title of the case in which the judgment cited as precedent was pronounced and it is also desirable to note the Court which pronounced the judgment. In this case, the learned subordinate Judge has flouted all the norms of citation and simply bent upon filling up the pages by making the above said extract containing only the editor''s head notes. This Court would not have found fault with him, if the learned subordinate Judge atleast properly understood the editor''s note (headnotes) and applied it. To the agony of this Court, even that headnotes were not properly understood by the learned subordinate Judge. In the said head notes, it has been provided that even a registered Will has to be proved in accordance with the provisions of the Evidence Act and Succession Act with a rider that registration of a Will shall not dispense with the proof of the Will but it will have a consequence when a dispute relating to the factum of execution of the Will has arisen. It was also made clear that the Registration of the Will not have any bearing where the testamentary capacity of the executent is in dispute. In the said judgment, it has been held that an unregistered Will shall not be inadmissible in evidence. For the said reasons, this Court does have no hesitation in coming to the conclusion that the above finding of the learned subordinate Judge, Hosur is bound to be held perverse.
19. So far as the proof of the Will produced as Ex. B3 is concerned, as pointed out supra, the conditions stipulated in the admission of the Will in evidence in Section 68 of the Evidence Act has been complied with by examining one of the attestors as DW2, who spoke about the execution of the Will by Ramakkal in the presence of witnesses and the attestation by each one of the witnesses in the presence of the attestor and the other witness. Their evidence stands corroborated by the evidence of scribe, who was examined as DW3. Nothing that will discredit their reliability has been elicited during their cross-examination. In addition, the circumstantial evidence also corroborates the evidence of the witnesses examined on the side of the defendant regarding the execution of the Will. It is not in dispute that Ramakkal was incompetent to execute the Will. The capacity of the Ramakkal to execute a Will has never been disputed. On the other hand, the witnesses have spoken about her conscious state of mind at the time of execution of the Will. The plaintiff, who denied the Will, has taken contradictory stands. At one place she would totally deny her knowledge regarding the existence of the Will and at another place, she would admit that she got knowledge of the Will after the death of her mother, namely the testator. Similar evasive or contradictory answers are given by the other witnesses examined on the side of the plaintiffs as Pws 2 and 3.
20. Out of the one and the same survey number having larger extent of 3.61 acres, admittedly Ramakkal got 2.10 acres by way of a gift settlement deed dated 11.06.1962, marked as Ex. B1 (copy marked as Ex. A1). It is also admitted that out of the remaining 1.50 acres alienations were made by the plaintiff to other persons including one Manjula @ Ellamma, who according to the plaintiff, is the second wife of the defendant, whereas according to the defendant she is the first wife of the defendant. The plaintiff has also admitted in categorical terms that the subject matter of the suit is only 2.10 acres, which Ramakkal got under the Settlement Deed dated 11.06.1962. Another house property which was also bequeathed along with the suit property under the suit Will marked as Ex. B3 was sold by the defendant to a third party and no objection was raised by the plaintiff for such alienation. The plaintiff has not chosen to include that property also in the suit filed for partition. The same will show that the plaintiff was very much aware of the existence of the Will and she was conscious of the right conferred on the defendant under the Will and that the same was the reason why she has chosen to omit the other property to be included in the suit. There are also ample evidence to show that the Will is not an unnatural Will to cast a greater burden on the propounder of the Will to dis-spell suspicious circumstances. In fact, no such suspicious circumstance worth mentioning has been brought to the notice of the Court by the plaintiff. On proper appreciation of evidence, the learned trial Judge has arrived at a conclusion that the Will stood proved and that hence the plaintiff could not make a claim in respect of the suit property which was bequeathed to the defendant under the Will. Such a finding was disturbed by the learned subordinate Judge totally ignoring Ex. B3 Will. The first substantial question of law framed is answered accordingly in favour of the defendant/appellant and against the plaintiff/respondent and this Court hereby holds that the lower appellate Court has committed a grave error in decreeing the suit for partition. The forgoing discussions will provide an answer to the question framed as the second substantial question of law as it will be obvious from the said discussions that a Will does not require registration for being admitted in evidence in a Court of law.
21. So far as the third substantial question of law is concerned, this Court is of the considered view that the same does not arise in this case because what is claimed by the plaintiff is partition on the premise that the property was jointly owned by the plaintiff and the defendant as it was left by their mother, who according to her, died intestate. Hence it is hereby held that the third substantial question of law does not arise for consideration in this appeal. At the cost of repetition, this Court once again makes it clear that though the trial Court failed to frame an issue regarding the execution and validity of the Will, the parties who were fully aware of their respective stands led evidence in full and after considering the evidence in full, the learned trial Judge rendered a finding, the correctness of which is endorsed by this Court in this judgment by supplying the missing question, namely whether the Will has been proved or not and answering the same in the affirmative. For all the reasons stated above, this Court comes to the conclusion that the defendant/appellant shall succeed in the second appeal resulting in a judgment and decree setting aside the decree of the lower appellate Court and restoring the decree of the trial Court.
In the result, the second appeal is allowed and the judgment and decree of the Sub-Court, Hosur dated 27.01.2006 made in A.S. No. 32 of 2005 is set aside and the decree passed by the trial Court on 15.04.2005 in O.S. No. 244 of 1999 dismissing the said suit is restored. However, there shall be no order as to costs.
