LexN. KAMALAM (DEAD) AND ANR. versus AYYASAMY AND ANR.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A N. KAMALAM (DEAD) AND ANR. v. A YY ASA MY AND ANR. AUGUST 3, 2001 B (A.P. MISRA AND UMESH C. BANERJEE, JJ.) Civil Procedure Code 1908-0rder Xll Rule 27-Application for production of additional evidence-Filed I 0 years after the appeal was filed- C Held, cannot be entertained. Wills Indian Evidence Act, 1872-Section 68-Transfer of Property Act, 1882- Section 3-lndian Succession Act, 1925-Section 63-Attestation--Scribe- D Animo attestandi-Held, statutory requirement of attestation cannot be transposed in favour of scribe. E Will-Onus probandi-Document requiring attestation-Held, propounder has to prove its execution by examining at/east one witness. Words and Phrases-'Animo attestandi '-"Onus probandi"-Meaning of The appellants filed a suit for partition of suit property into two equal shares by metes and bounds with demarcation of proper boundary and after so partitioned, one half share of the suit property should be allotted to the p plaintiffs on the grc•und that a half portion of the eastern side has been purchased by the plaintiff from two sisters who inherited the property by virtue of a will executed by their father one M in their favour, and that after the purchase of the property, the plaintiff had obtained possession of the property. G The respondents disputed the right of disposition on the basis of the will since the suit property was not and cannot by any stretch be termed to be the personal property of M, that the suit property was purchased from the funds of the joint family, that it has always been treated as joint family property and as such 'M' had no right to execute a will over the half portion H of the suit property on the eastern side; neither he was eligible to sell the same 272 - N. KAMA LAM (DEAD) AND ANR. v. A YYASAMY AND ANR. 273 and that the suit properties have never been under the possession and A enjoyment of the vendors. The subordinate judge held that the suit property is the self-earned property of 'M', but that the Will has not been proved as per law with sufficient evidence that 'M' has executed the Will, and that the documents produced depict that the Will cannot be termed to be a "true one" and the B same "will not bind" the respondents. While the appeal was pending in the High Court an application was moved before the High Court to allow additional evidence to be produced by examining one 'G' who was one of the attestors. Single Judge allowed the C application for additional evidence, recorded the contents of the affidavit filed in support of the application for additional evidence, and permitted the party to lead oral evidence and in that perspective directed the subordinate judge to examine the attestor and to submit his evidence before the court. An appeal preferred by respondents against the same was allowed by .D the Division Bench with a direction that the application be heard alongwith the main appeal. Subsequently, the application for additional evidence was dismissed and the contention of the appellants as regards execution of the Will was rejected. In appeal to this Court, it was contended that the scribe also can E discharge the function of attesting witness and since the scribe has subscribed his signatures on the Will, the lacuna if any, of not having the evidence of the attesting witnesses stands rectified and both the trial judge and High Court were in error in not placing reliance thereon; that in the event of there being an intent to attest, that itself should be sufficient compliance of the requirement of law,' and that there is existing a responsibility on to the law Courts to deal with the matter having due regard to the concept of justice and technicalities, would not sub-serve the ends of justice. Dismissing the appeals, the Court F HELD : I. A plain reading of Order 41 Rule 27 would depict that the G rejection of the claim for production of additional evidence after a period of 10 years from the date of filing of the appeal cannot be termed to be erroneous or an illegal exercise of discretion. The three limbs of Rule 27 do not stand attra.cted. The finding of the High Court cannot be found fault with for rejecting the prayer of the appellant for additional evidence made in the H 274 SUPREME COURT REPORTS [2001] SUPP. I S.C.R. A belated application. (284-G, H; 285-AI The Municipal Corporation of Greater Bombay v. Lala Pancham and Ors., AIR (1965) SC 1008 and Smt. Pramod Kumari Bhati
Excerpt shown. Read the full judgment & AI analysis in Lexace.