Janaki Amma v. Damodaran Nair and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2014/7TH PHALGUNA, 1935** ## **RSA.No. 718 of 2013 ()** **----------------------AS.NO. 93/2007 OF SUB COURT, OTTAPPALAM DATED 31-05-2012 OS.NO. 48/2006 OF MUNSIFF- MAGISTRATE COURT, MANNARKKAD DATED 22-08-2007** **----------------------------** ## **APPELLANT/APPELLANT/PLAINTIFF :** **-------------------------------------------------------** **JANAKI AMMA,AGED 54 YEARS, D/O.ARANGATH AMMU AMMA, THORAPPURAM, POOKKUNNU DESOM, MANNARKKAD-1 VILLAGE, MANNARKKAD TALUK.** **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **RESPONDENT(S)/RESPONDENTS/DEFENDATNS :** **-----------------------------------------------------------------------** **1. DAMODARAN NAIR,S/O. ARANGATH LATE RAMAN NAIR, POTTAYIL HOUSE, VALAMBOOR AMSOM DESOM, PERINTHALMANNA TAL-679 325.** **2. RUGMINI AMMA,D/O. ARANGATH LATE KRISHNAN NAIR,** **POTTAYI HOUSE, VALAMBOOR AMSOM DESOM, PERINTHALMANNA TALUK-679 325.** **3. ACHUTHAN NAIR,S/O. ARANGATH LATE KRISHNAN NAIR,** **POTTAYIL HOUSE, VALAMBOOR AMSOM DESOM, PERINTHALMANNA TALUK-679 325** **4. KUNHILAKSHMI AMMA,D/O. ARANGATHU AMMU AMMA,** **THORAPPURAM, POOKKUNNU DESOM, MANNARKKAD-1 VILLAGE, MANNARKKAD TALUK-678 582** **5. PARUKUTTY AMMA, D/O. ARANGATHU AMMU AMMA,** **THORAPPURAM, POOKKUNNU DESOM, MANNARKKAD-1 VILLAGE, MANNARKKAD TALUK-678 582.** **6. DEVAKI AMMA, D/O.ARANGATHU AMMU AMMA,** **THORAPPURAM, POOKKUNNU DESOM, MANNARKKAD-1 VILLAGE, MANNARKKAD TALUK-678 582** **7. HYMAVATHI AMMA, D/O. ARANGATHU AMMU AMMA, THORAPPURAM, POOKKUNNU DESOM, MANNARKKAD-1 VILLAGE, MANNARKKAD TALUK-6768 582** **2/-** **sts** **-2-** ## **R.S.A.NO.718/2013** **8. KESAVAN, S/O. ARANGATH LATE MADHAVAN NAIR,** **ARAKURUSSI AMSOM DESOM, MANNARKKAD TALUK-678 582** **9. SARASWITHI, D/O. ARANGATH LATE MADHAVAN NAIR,** **ARAKURUSSI AMSOM DESOM, MANNARKKAD TALUK-678 582** **10. PURUSHOTHAMAN, S/O.ARANGATH LATE MADHAVAN NAIR,** **ARAKURUSSI AMSOM DESOM, MANNARKKAD TALUK-678 582** **11. VENUGOPALAN NAIR, S/O.PARLIKKAD JANAKIAMMA,** **EDAPPATTA AMSOM DESOM, PERINTHALMANNA TALUK-679 326** **12. RUGMANI AMMA, D/O.PARLIKKAD JANAKIAMMA,** **POOKKUNNU DESOM, MANNARKKAD TALUK-679 326** **13. KARTHYANI AMMA,D/O.PARLIKKAD JANAKIAMMA,** **POOKKUNNU DESOM, MANNARKKAD TALUK-679 326.** **R11 TO R13 BY ADV. SRI.R.SREEHARI** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **P.BHAVADASAN, J. ----------------------------------------------Regular Second Appeal No.718 OF 2013 ----------------------------------------------Dated this the 26[th] day of February, 2014.** ## **J U D G M E N T** A suit for partition was dismissed by the trial court which was confirmed in appeal. The facts fall within a very narrow compass. 2. The properties of which partition was sought for by the plaintiff and the defendants 1 to 10 belonged to one Govindan Nair who acquired the property under document No.1869/1938 namely, Ext.B1 dated 08.12.1938. According to the plaintiff, after the death of Govindan Nair on 22.11.2005, as he had no issues, the plaintiff and the defendants 1 to 10 became the surviving legal heirs. Alleging that the defendants 11 to 13 were raising unfounded claims, suit was laid. 3. The suit was resisted by defendants 11 to 13. While defendants 1 to 10 supported the plaint claim, the defendants 11 to 13 relied on three documents namely, Exts.B4 to B6 which are gift deeds and settlement deed dated 27.07.2005 to claim that **R.S.A No.718/2013** **2** Govindan Nair had gifted certain properties to them. It is also alleged that Govindan Nair assigned six cents of property in favour of one Somarajan by settlement deed No.4996/2001. By virtue of the respective documents, defendants 11 to 13 claimed to be in absolute possession and enjoyment of the properties. Alleging that there was no property left behind by Govindan Nair for partition, they prayed for dismissal of the suit. 4. Issues were raised by the trial court and the parties went to trial. The evidence consists of the testimony of PWs 1 and 2 and the documents marked as Exts.A1 and A2 on the side of the plaintiff. The defendants had DWs 1 to 3 examined and Exts.B1 to B14 marked. Exts.X1 and X2 are 3[rd] party exhibits. Exts.C1 to C3 are commission reports. 5. On appreciation of the evidence in the case, the trial court came to the conclusion that the defendants have successfully established that Exts.B4 to B6 were in fact executed by Govindan Nair and they are valid and binding documents and if that be so, there was no property left behind by Govindan Nair for partition. The suit was accordingly dismissed. The matter **R.S.A No.718/2013** **3** was carried in appeal as A.S.No.93/2007 before the Sub Court, Ottapalam. The lower appellate court independently considered the evidence on record and came to an identical conclusion as that of the trial court i.e. Exts.B4 to B6 have been proved in accordance with law and they are valid and binding documents. Consequently, the appeal was dismissed confirming the judgment and decree of the trial court. Hence this R.S.A. 6. In this R.S.A, the following substantial questions of law have been formulated: - i) Whether the courts below are justified in admitting the notary attested copies of B4 and B6 in evidence in view of the language employed in Section 65 of the Indian Evidence Act 1972. - ii) Whether the courts below are right in holding that Exts.B4 to B6 are valid documents which confers title over the property to defendants 11 to 13? - iii) Is the 1[st] appellate court justified in confirming the judgment and decree of the trial court without considering the various grounds raised in the 1[st] appeal and on the basis of the pleadings and evidence. **R.S.A No.718/2013** **4** 7. Sri.K.Mohanakannan, learned counsel appearing for the appellant pointed out that the courts below have erred both on facts and in law in accepting Exts.B4 to B6 documents which are only photostat notarised copies and conclusions drawn based on those documents cannot be legally sustained. At best, they could be treated only as secondary evidence. The need to establish the circumstances under which secondary evidence could have been adduced is a requirement of law and that had to be established by the person who seeks to produce secondary evidence and in the absence of such proof, documents were not admissible in evidence. Admissibility does not depend on the objections raised by the other side. It is a legal requirement and the court is duty bound to see that the documents are admissible in evidence. while admitting the evidence, it is admissible in law. For the above proposition, learned counsel relied on the decisions in _**The Roman Catholic Mission and another** vs._ _**The State of Madras and another**_ (AIR 1966 SC 1457) and in _**H.Siddiqui (dead) by lrs.** vs._ _**A. Ramalingam**_ [(2011) SCCR 368]. It was therefore contended that the courts below were not justified in accepting Exts.B4 to B6. If those documents are eschewed, then there is **R.S.A No.718/2013** **5** no other documents to prove the claim of defendants 11 to 13. 8. Learned counsel appearing for the respondents, on the other hand, contended that Exts.B4 to B6 were marked at the initial stage itself and at no point of time, the appellants had taken any objection to the marking of the documents. It is significant to notice, according to the learned counsel, that even before the lower appellate court, there was no ground urged by the appellant that these documents were inadmissible in evidence as they were only secondary evidence and no ground for acceptance of secondary evidence has been made out by the contesting defendants. Learned counsel pointed out that the defendants were not given an opportunity to produce the original document and had the objection been taken at the initial stage, the contesting defendants could have taken steps to produce the original and it could not be said that the documents were not produced due to any latches. Learned counsel also pointed out that once the documents are admitted at a later stage the admissibility cannot be questioned. 9. Apart from the above fact, learned counsel for the **R.S.A No.718/2013** **6** respondents also pointed out that from the evidence of DW3, it is clearly proved that Govindan Nair had executed Exts.B4 to B6 and therefore, the requested proof as required under law with reference to has also been satisfied. Under these circumstances, learned counsel pointed out that there are no grounds to interfere with the judgment and decree of the courts below. 10. The main contention taken is regarding the admissibility of Exts.B4 to B6. In the decision in _**H.Siddiqui (dead) by lrs.** vs._ _**A. Ramalingam**_ [(2011) SCCR 368] wherein the decision in _**The Roman Catholic Mission and another** vs._ _**The State of Madras and another**_ (AIR 1966 SC 1457) has been referred to. It is held in paragraph 10 as follows: “10. Provisions of Section 65 of the Act 1872 provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the Court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as **R.S.A No.718/2013** **7** to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The Court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. [Vide: _The Roman Catholic Mission and another vs. The State of Madras and another_ , AIR 1966 SC 1457; _State of Rajasthan and others_ vs. _Khemraj and others_ , AIR 2000 SC 1759; _Life Insurance Corporation of India and another_ vs. _Ram Pal Singh Bisen_ , (2010) 4 SCC 491; and _M. Chandra_ vs. _M. Thangamuthu and another_ , [(2010) 9 SCC 712]”. 11. Learned counsel for the appellant drew the attention of this Court to Sections 63, 65 and 76 of the Indian Evidence Act and pointed out that Section 63 deals with secondary evidence and Section 65 deals with circumstances under which secondary evidence can be produced and Section 76 mentions about certified copies. It is trite, according to the learned counsel, that unless the party who wants to produce secondary evidence lays foundation for its production, that is to say that he has to give **R.S.A No.718/2013** **8** convincing reason as to why primary document is not available, the document could not be admitted in evidence. Relying on the above proposition, learned counsel pointed out that it is immaterial whether the other party objects or not because it pertains to the admissibility of the document. 12. Though the argument may look attractive at the first blush, it cannot be accepted for more reason than one. It is true that secondary evidence is not normally admissible in evidence unless the party who adduces secondary evidence lays foundation for its production and admissibility. In the case on hand, the situation is more precarious. But, strangely enough, no contention seems to have been taken at the time of production of documents and they have admitted without any demur from the contesting parties. It is even surprising to note that no such contention was taken before the lower appellate court also which shows that the appellant had no grievance in that regard. It has to be noticed that though a right was available to the plaintiff to raise objection, at the time of admissibility of documents, it has not been utilised. It is well settled that any objection to the **R.S.A No.718/2013** **9** admissibility of the evidence will have to be taken at the time of admission of the document. True, if an objection was taken at the relevant time, the party who wants to produce the document could have produced primary document itself. After having allowed the contesting defendants to produce the photostat copies of documents and have them admitted in evidence without any objection, raising such contention at a later stage cannot be countenanced. 13. Whatever that be, this Court directed the contesting defendants to produce the original of those documents at least before this Court. They produced those documents. May be the trial court ought to have been more careful at the time of admission of documents. But it is to be noticed that there was no objection raised at all. That would be evident from the fact that even at the lower appellate stage, it was not raised. There is nothing on record to show that any objection was taken at the time of admission of documents or thereafter. As rightly pointed out by the learned counsel for the respondents, it is too late in the day for the appellant to now raise that question and deprive **R.S.A No.718/2013** **10** the contesting defendants of being given an opportunity to produce primary evidence. Whatever that be, now that those documents have been produced, that infirmity also stands cured even though technically saying that there is an infirmity in that regard. 14. As regards the proof with regard to execution of Exts.B4 to B6, we have the evidence of DW3. It is true that he is related to one of the beneficiaries under Ext.B4. But the fact remains that he has spoken about the execution of the document and also had signed the documents as an attesting witness. He in no less terms says that he had occasion to see Govindan Nair signing the document and vice versa. Further these documents are registered documents even though registration by itself may not be a ground to hold that documents are promptly executed. 15. In the light of the fact that the attesting witness has spoken about the execution of the documents and also that the fact that the original documents have now been produced, both the courts below, on appreciation of evidence, had found that Exts.B4 to B6 documents were in fact executed by Govindan Nair **R.S.A No.718/2013** **11** and there is no ground to suspect the execution. That finding essentially one based on appreciation of evidence and it is a question of fact. No substantial question of law arises for consideration and it is not shown that the findings are either perverse or are contrary to the evidence on record. The appeal is without merits and it is accordingly dismissed. The original document produced by the contesting defendants as per the direction of this Court shall be returned to them on substituting them with certified copies. Sd/- **P.BHAVADASAN JUDGE** smp // True Copy // P.A. to Judge.