Skip to content


Ramakrishnan Reddiar Vs. Srinivasa Naidu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1984)2MLJ418
AppellantRamakrishnan Reddiar
RespondentSrinivasa Naidu and ors.
Cases ReferredKishore Chandra v. Ganesh Prasad
Excerpt:
- .....income. in the circumstances, we have no doubt that the property should be held to be joint family property and not the individual property of the first defendant. if that is so, it is necessary for the plaintiff to prove legal necessity or benefit to the estate in order to support the alienation by the karta of the undivided family. the plaintiff did not attempt even to give any evidence in this regard. therefore, it should be held that the sale deed is not binding on the joint family. however, the learned counsel for the appellant contended that if we proceed; on the basis that exhibit a-13 is proved but, however it is the joint family property, at least the sale deed will be binding to the extent of the share of the first defendant-father. though it might be that he would be.....
Judgment:

V. Ramaswami, J.

1. The plaintiff is the appellant. The suit was filed by him for a declaration of his title to 8/9 share in item 1 and for declaration of his title to the whole of items 2 and 3 of the plaint schedule and for recovery of possession. There are three items in the plaint schedule. The first item is a house property with some vacant site surrounding and items 2 and 3 are two vacant sites. Though in the form the plaintiff has asked for a declaration of his title to 8/9 share in item 1, there is no dispute relating to his 4/9 share in the same and the dispute is only with reference to the remaining 4/9 share so far as item 1 is concerned. The plaintiff claimed title to this 4/9 share in item 1 under two sale deeds, one dated 17-5-1971 marked as Exhibit A-9 in the case and the other dated 6-3-1975 marked as Exhibit A-13. Exhibit A-13 purports to be a sale deed executed by the first defendant by which the plaintiff claimed that he had purchased 2/9 share in item 1 and the whole of items 2 and 3. The remaining 2/9 share, the plaintiff claims to have purchased under Exhibit A-9 dated 17-5-1971. In so far as item 1 is concerned, there was an alteration in the sale deed Exhibit A-13 in two respects. In mentioning the plaintiff's share which he was already owning, originally it was stated as 4/9, then it was corrected as 6/9 and the second correction is with reference to the share of the executant, namely, the first defendant. Originally, it was stated as 4/9 and later it was corrected as 2/9. The trial Court dismissed the suit on the ground that there is a material alteration in Exhibit A-13 invalidating the document and that therefore the plaintiff could not claim any title, but it granted a decree only in respect of the admitted 4/9 share.

2. The learned Counsel for the appellant contended that the first defendant's title to that portion in item 1 is based on two documents, Exhibits A-7 and A-5. Under Exhibit A-7 dated 17-4-1981, he purchased an undivided l/9th share from one Kuppusami son of Ramaswami and that is not in dispute. Under Exhibit A-5 dated 28-1-1967, according to the plaintiff, the first defendant purchased another l/9th share whereas the 2nd and 3rd defendants contended that he purchased 3/9 share. The document mentions:

This, the learned Counsel for the appellant contended, could only mean an l/9th share and not an 1/3 share. If so construed he would be totally entitled along with the property purchased under Exhibit A-7 to an extent of 2/9th share and since there was a mistake in thinking that he was entitled to 4/9th share originally the document mentioned '4/9' and later on it was corrected as 2/9th when they ascertained the correct position.

3. It may also be mentioned that in pursuance of the purchase under Exhibit A-5 dated 28-1-1967 the first defendant took possession of 3/9th share in item 1. However, this was objected to by the plaintiff's father and therefore the first defendant had to file a suit against the plaintiff's father for an injunction. When the suit was pending the plaintiff's father purported to convey the same property under Exhibit A-9. This document, Exhibit A-9 has been held by the trial Court to have been brought into existence fraudulently with fictitious recitals in order to defeat the valid claim of the plaintiff in the earlier suit. We agree with the conclusion that the plaintiff's father wanted to take advantage of a possible construction of Exhibit A-5 as if it conveyed only l/9th share and purported to purchase the remaining 2/9 share from the other sharers. In the light of the recital that there was a partition in Narayana Chetty's family and the property being allotted to Durairaj and Deenadayalu, we have to hold that the schedule refers to the entirety of the 3/9th share and not 1/3 or 3/9. It may also be mentioned that the trial Court also held that there was a partition in Narayana Chetty's family and therefore the recital in Exhibit A-9 as if there was no partition belies the genuineness of the partition. Therefore, the plaintiff's title can be stated to have been proved only to the extent of 4/9th share which is admitted in the written statement and not to any further portion.

4. The learned Counsel for the contesting respondents contended that under Section 20 of the Registration Act, when there is a material alteration and that alteration is not attested, the Sub Registrar should refuse to register the document though it is put as an enabling provision for the Sub Registrar to reject the same. In this case, however, on the basis that there is a material alteration and not attested by the executant, the Sub Registrar refused to register when it was presented for compulsory registration. However, in an appeal preferred by the appellant, the District Registrar seemed to have registered the document. The learned Counsel for the respondents contended that this compulsory registration by the Appellate Authority had affected his legal right to the entirety of 4/9th share as the document not only reduced the share of the executant from 4/9 to 2/9 but also stated that the plaintiff has already been owning 6/9 shares whereas it was originally stated as the plaintiff owning 4/9. To the extent the document mentions that the executant is estopped from contending that the plaintiff is not the owner of 6/9 share, it does affect the defendants' case and, therefore, the document should not have been registered. There is great force in this argument of the learned Counsel. It is not a mere case of the document purporting to convey a smaller portion of the vendor's property but it does affect the defendants' right to claim title to the entirety of 4/9 share as it will estop the executant since the document mentions the purchaser as already owning 6/9 share whereas, in fact, he was owning only 4/9 share.

5. The document also could not be relied on as evidence of title in this case for another reason. The document is a sale deed and the execution thereof will have to be attested by two witnesses at least as required by the provisions of the Transfer of Property Act. A Division Bench of this Court in Veerappa Chettiar v. Visvanadha Aiyar, 1915 M.W.N. 543 : A.I.R. 1916 Mad. 673, held that when there is an interpolation or alteration and the executant refused to present the document for registration and it resulted in a compulsory registration, it will amount to a denial of execution by the executant. Section 68 of the Evidence Act reads as follows:

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 the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidences-Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.

As per this provisions, since the execution by the person by whom it purports to have been executed has been specifically denied and the law requires the document to be attested, it could not be used as evidence unless one attesting witness at least has been called for the purpose of proving its execution. It is now well-established that if one attesting witness alone is examined and he only proves that the executant has signed before him or personally acknowledges his signature, it is not sufficient proof and it will still be necessary to prove that the executant has signed before the other attesting witness or acknowledged his signature before him. However, if one of the attesting witnesses who is called speaks to the signature of the executant before him and the other attesting witnesses also seeing the execution of the document by the executant, it is not necessary to call all the witnesses. The earliest and leading judgment in this behalf is a judgment of the Division Bench of the Bombay High Court reported in Roda Framroze v. Kanta Varjivandas : AIR1946Bom12 . After discussing the case law on the subject and interpreting the provisions of Section 68 of the Evidence Act, the learned Chief Justice held:

However, it should be observed that Section 68, Evidence Act, does not say that a document required to be attested by two witnesses shall be proved by the evidence of one of them. All that the section provides is that such a document shall not be accepted in evidence unless the evidence of at least one of the attesting witness is called. The words, 'at least' are of the utmost importance. They presuppose that more evidence may be required, and it can only be by reference to the circumstances of each case that the quantum of evidence necessary to discharge the onus of proof can be measured.

The other learned Judge who dealt with the case further observed:

No doubt Section 68, Evidence Act, says that it is not necessary to examine both or all the attesting witnesses, but it does not follow, therefrom that if one attesting witness only proves that the testator had acknowledged his signature to him, it is not necessary that the acknowledgment by the testator before the other attesting witness need be proved. All that it means is that if two attesting witnesses had signed in each other's presence, it is not necessary to examine both of them to prove that they had received the acknowledgment from the testator. But, if, as allowed under Section 63, as well as under Section 3, Transfer of Property Act, the attestations to the testator's signature were not made at the same time, it is necessary, in my opinion, to prove that both the persons, who put down their attesting signatures on different occasions, had done so on the acknowledgment of the testator.

6. This principle has been followed in a number of decisions of this Court and other Courts. In fact, the Supreme Court also in Kishore Chandra v. Ganesh Prasad : [1954]1SCR919 , had occasion to consider one aspect of this matter and held that when one of the attesting witnesses who was examined says that he attested the deed and the executant signed in his presence, the other attestors also attested and that the other attestors also witnessed the execution, it would be sufficient compliance of Section 68. But for the statement that the other attestors also witnessed the execution, the document would have been held not proved. In these circumstances, we are of the view that Ex.A-13 has not been proved and the plaintiff could not claim any title under that document. The plaintiff therefore has not established his title to items 1, 2 and 3 or any portion as is now claimed.

7. In fact, the plaintiff's case also should fail for another reason. All the three items of properties were claimed to be joint family properties. The learned Counsel for the appellant did not dispute that the defendants 1 to 3 constituted a Hindu undivided joint family. It is also seen from Exhibits B-l, B-2 and B-3 that the joint family was possessed of more than 41/2 acres of land. The sale deeds under which items 1, 2 and 3 were purchased were for Rs. 350/-, Rs. 500/- and Rs. 600/-. The amounts could have easily come from the income of the joint family properties. The document also is in the name of the father and karta of the undivided family. There is also no evidence to show that the father was having any other source of separate income. In the circumstances, we have no doubt that the property should be held to be joint family property and not the individual property of the first defendant. If that is so, it is necessary for the plaintiff to prove legal necessity or benefit to the estate in order to support the alienation by the karta of the undivided family. The plaintiff did not attempt even to give any evidence in this regard. Therefore, it should be held that the sale deed is not binding on the joint family. However, the learned Counsel for the appellant contended that if we proceed; on the basis that Exhibit A-13 is proved but, however it is the joint family property, at least the sale deed will be binding to the extent of the share of the first defendant-father. Though it might be that he would be entitled to convey his share in the joint family property, since this suit is not for a general partition, the relief in that regard could not be granted.

8. For the foregoing reasons, the appeal is liable to be dismissed and it is accordingly dismissed. The respondents will be entitled to their costs in this appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //