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Judgment
Srinivasan, J.—The defendants, who were successful in the trial Court, but defeated in the appellate Court, are the appellants in this second
appeal.
The suit relates to a trust created by one Kankipati Kanniah Chetty in 1847, whereby he endowed two items of immovable properties, one
situated in Third North Beach Road, Madras and another in Kaladipet, Saidapet Taluk, Chingleput District. One Pasumarthy T. Krishnasamy
Chetty was the trustee in 1925 and by his will dated 21.8.1925, he appointed his wife Pasumarthy Venkamma alias Sriranganacharamma along
with three others as executors and trustees to administer the trust. He also directed the executors-cum-trustees to discharge the debt of Rs. 1,913
due to him by the trust. His will was duly probated in O.P. No. 183 of 1927 on the file of this Court. After some time, Sriranganacharamma
became the sole trustee on account of the departure of the other trustees from this world. She found that the trust properties were in a bad state of
repair and could not yield sufficient income either for the performance of the charities or for the liquidation of the debts due to Krishnaswamy
Chetty referred to earlier. She entered into an agreement with one Bysani Krishnayya Chetty that she would appoint him if, he paid a sum of Rs.
1,650 in full satisfaction pf the debt due to her late husband Krishnasamy Chetty. Consequently, a transfer deed was brought into existence on
February 2, 1931 in and by which Bysani Krishnayya Chetty became the trustee after payment of Rs. 1,650 to Sriranganacharamma. He was
administering the estate upto 1938 when he transferred his rights of trusteeship to his son Bysani Rangayya Chetty under a deed of transfer dated
4th May 1938. The said document is marked as Ex. B2. Under the said deed, Bysani Sundaramma was directed to manage the trust estate in
accordance with the provisions of the Indian Trust Act and the specific directions and terms contained in the will of Pasumarthy Krishnasamy
Chetty.
Bysani Sundaramma died on 3.12.1976. The plaintiff in the present suit, who is the respondent herein, and the first defendant, who is the first
appellant herein, are her daughters. The second defendant/second appellant is the son of the first defendant/first appellant. There is another
daughter by name Sujatha, who has not been made a party to these proceedings.
The defendants claimed to have obtained the right of trusteeship under a document alleged to have been executed by Sundaramma on
15.11.1976. The document was presented for registration before the Joint Sub-Registrar II, exercising the powers of the District Registrar,
Madras by the defendants on 25.1.1977. When notice pf the same was issued to the plaintiff, she came forward with the present suit praying for a
decree ''declaring the document, namely, transfer of trust dated 15.11.1976 alleged to have been executed by Bysani Sundaramma a true copy of
which as produced before the Sub-Registrar Madras is filed herewith is sham and nominal'' and for an injunction restraining the defendants from.
registering the same or acting in pursuance thereof.
It will be necessary to extract certain portions of the plaint as most of the arguments of learned Counsel for the appellants revolved round the
same. Paragraphs 5 to 7 of the plaint read thus:
The plaintiff, 1st defendant and one Snjatha are the issues of the aforesaid Bysani Sundaramma. Bysani Sundaramma was living with the plaintiff
and the plaintiff''s husband was helping her in the conduct of the trust and the collection of rent and the administration of the trust properties.
Sundaramma went to the first defendant''s house at Tiruttani in the first week of November, 1976. Before 29.12.1976 the said Sundaramma
appears to have fallen sick seriously. The defendants, husband and wife appear to have got some documents executed, one a will and another
alleged to be a transfer of trust and a third a power of attorney to register the trust deed. The alleged power of attorney was in favour of the
second defendant. The will purported to be the last will and testament of Sundaramma and the deed of transfer purported to be the appointment of
trustees to have been made by Sundaramma in favour of the defendants and the power of attorney was claimed to have been executed by the
aforesaid Sundaramma for the purpose of enabling the second defendant to register the documents.
The plaintiff states that the documents said to have been executed by the late Bysani Sundaramma are not real and genuine but fabricated and
false. The execution is not by Sundaramma and she was hot in a position to execute the documents her mind following the hand. The plaintiff states
that the said Sundaramma was not mentally and physically well enough to execute the documents and the defendants have taken advantage of her
sick condition and obtained her signatures by exercise of undue influence. The plaintiff states that Sundaramma died on 3.12.1976 and her death
was thereafter intimated to the plaintiff and other relatives. Sundaramma''s sickness was not intimated but kept a closely guarded secret by
defendants 1 and 2.
The plaintiff states that the transfer of trust to the defendants is illegal and invalid. The defendants are not the beneficiaries under the original deed
of trust. The plaintiff states that there can be in law no transfer of the right of trusteeship. The alleged transfer deed dated 29.12.1976 is invalid.
The plaintiff states that the transfer of trust could not have been at the instance of Sundaramma who was mentally incapable at that time for
executing any such deed.
The prayer in the plaint at the time of its presentation was one for declaring the document as ''invalid and not true and genuine document.'' The
plaint was presented on 24.11.1977. It was returned on 25.11.1977 with the following endorsement:
Plaint relief should be valued u/s 40 of C.F. Act.
On the same day, the plaint was represented with the counsel''s endorsement, which is as follows : ""The plaintiff claims relief for declaration that the
document is sham and nominal and not to set aside the same. Hence, it is valued u/s 25(d) of C.F. Act''. It is seen from the original plaint that in the
prayer paragraph the words ''invalid and not true and genuine document'' are struck off in ink and the words ''sham and nominal'' are written in ink.
It is not necessary to refer to the other corrections made in the plaint.
The defendants filed a common written statement in which they had asserted that Sundaramma was very much attached to the first defendant,
her husband and her family members as it was the first defendant''s husband who was responsible to bring about the trust transfer in the name of
Sundaramma from her husband Rangayya. It was alleged in the written statement that some time during September 1976, Sundaramma came to
live with the defendants at Tiruttani and she wanted to appoint a fit person to manage the affairs of the trust to its best advantage and that her
natural choice was the first defendant out of her two daughters. The written statement proceeded to state that the documents executed by
Sundaramma were true and valid. The plaintiff filed a reply statement reiterating the averments made in the plaint.
The trial Court framed the following issues:
Whether the plaintiff is entitled to declaration as prayed for?
Whether the plaintiff is entitled to injunction as prayed for?
Whether the suit has been properly valued for purpose of court-fees and jurisdiction?
To what relief?
A persual of the judgment of the trial court shows that neither the parties nor the Court took note of the correction made in the plaint at the time
of representation of the same changing the prayer therein. After discussing the evidence on record, the trial Court held that the document executed
by Sundaramma was not vitiated by the circumstances set out in the plaint and that there was no reason for preventing the registration of the same.
Consequently, the trial Court dismissed the suit. It has to be pointed out that the impugned document was not produced before the Court.
On appeal by the plaintiff, the learned Second Additional Judge of the City Civil Court framed the point for determination as follows :
''Whether the deed of transfer of trust executed by the deceased Bysani Sundaramma in favour of the respondents dated 15.11.1976 was
obtained by undue influence and if so whether it is enforceable?'' Again it is seen from the judgment of the lower appellate Court that the change in
the prayer in the plaint made at the time of representation was not taken note of by the counsel or the Court. The learned appellate Judge
commented upon the non-production of the impugned document by the defendants, which was admittedly with them. Though there is no specific
finding by the learned appellate Judge that the document in question was vitiated by undue influence, a perusal of the judgment would show that he
came to such a conclusion and held in favour of the plaintiff. The learned appellate Judge has also taken the view that the power of attorney
executed by Sundaramma in favour of the second appellant authorising him to present the deed of transfer'' of trust for registration became
inoperative on her death and the document could not be registered thereafter. In that view, the learned appellate Judge allowed the appeal and
decreed the suit.
Learned Counsel for the appellants submitted at the outset that in the absence of a specific finding by the lower appellate Court that the deed
of transfer of trust was vitiated by undue influence, the judgment under appeal was unsustainable. It is also contended by learned Counsel that the
deed of transfer of trust was presented for registration not in the capacity of a power agent but as a beneficiary under the document and a legal
representative of the deceased, under Clause (a) and (b) of Section 32 of the Indian Registration Act. It is further submitted by learned Counsel
that the case of undue influence or fraud vitiating the document cannot be countenanced as the plaint is not in conformity with the provisions of
Order 6, Rule 4, Code of Civil Procedure. In other words, learned Counsel contends that in all cases in which a party pleads undue influence,
fraud or misrepresentation etc., he is bound to give full particulars in the pleading and if there is a failure to do so, the Court has no alternative but
to dismiss the suit. According to learned Counsel for the appellants, the plaint does not contain the particulars of undue influence or fraud and the
lower appellate Court was in error in upholding the case of undue influence. Learned Counsel went on to argue that even assuming that the
requirements of Order 6, Rule 4, CPC were in a way satisfied by the averments in the plaint, the burden was heavily on the plaintiff to establish the
same and in the present case she failed to do so.
In answer to the aforesaid contentions urged by the appellant''s counsel, it is argued by learned Counsel for the respondents that the effective
plea of the plaintiff as set out in the plaint is one of non-est tactum and not merely a case of undue influence. He refers to the passage in the plaint
wherein it has been specifically alleged that the execution of the document is not by Sundaramma and that she was not in a position to execute the
document, her mind following the hand. Learned Counsel for the respondent invites the Court to draw an adverse inference against the defendants
inasmuch as they failed to enter the witness box to speak about the facts which were in their exclusive knowledge. He points out to the various
suspicious circumstances surrounding the execution of the impugned document and urges that the defendants failed to clear the suspicion by giving
evidence themselves. The fact that the impugned document was not produced before the Courts below is also relied upon by learned Counsel for
the respondent. Learned Counsel submits that P.W. 2 is a reliable witness who had no axe to grind and his evidence makes out that Sundaramma
was not in a position to understand the contents and execute the document in question. Learned Counsel for the respondents submits that even
though there is no specific finding in the judgment of the lower appellate Court to the effect that the document was vitiated by undue influence, it is
clear from a reading of the judgment that the learned Judge came to such a conclusion.
Before proceeding to deal with the respective contentions of learned Counsel on both sides, it is necessary to point out that neither of them
was aware of the change in the prayer in the plaint made at the time of representation of the same in the trial Court. The same was actually
discovered by the Court practically when the arguments of learned Counsel for the respondents came to an end. The typed set of papers furnished
by learned Counsel for the appellants contains a copy of the plaint but the prayer found therein was the prayer originally made at the time of the
filing of the plaint. Learned Counsel for the appellants explained the same by pointing out that the copy of the plaint served on the defendants
contained only the prayer as originally made and the correction made in the original plaint at the time of representation was not carried out in the
copies. As pointed out earlier, in the Courts below, the change in the prayer was not taken outat all. Throughout the proceedings, the parties as
well as the Courts dealt with the matter as if the prayer was one for declaring the document to be invalid and not true. After the discovery of the
correction made in the plaint, I sent for the counsel who made the correction in the plaint and enquired him in the open Court in the presence of
counsel for both sides. Mr. B. Ananthakrishnan, who was the counsel for the plaintiff at that stage, stated before me that he made the correction
only after informing his client about the same. It is quite obvious that the change in the prayer was made with a view to avoid payment of Court-fee
u/s 40 of the Court-Fees Act as demanded by the registry. Learned Counsel appearing for the plaintiff at that time thought that the only way in
which the payment of a higher Court-fee could be avoided was to change the prayer as found in the plaint. The said counsel, however, admitted
that he did not realise at that time, the implication of the prayer for declaring the document to be sham and nominal. It goes without saying that the
plaintiff could not have any idea whatever about the legal implications of such a prayer or the meaning of the words ''sham and nominal''.
Learned Counsel for the appellants lost no time in urging that the prayer as found in the plaint after the representation would imply an admission
on the part of the plaintiff that the document was executed by Sundaramma properly and validly though it was intended to be acted upon. I am
unable to accept this argument. Though I have my own doubts as to whether the plaintiff had knowledge of the change made by the counsel in the
prayer in the plaint, it is unnecessary for me to consider the question. The case of a plaintiff has to be gathered from the averments made in the
body of the plaint and not from the prayer paragraph. The prayer only relates to the relief which the plaintiff seeks from the Court on the basis of
the averments made in the earlier paragraphs. The appropriate relief that has to be prayed for by a plaintiff is very often decided by the counsel and
not by the client. The client instructs the counsel on the facts. After setting out the facts, the counsel frames the relief that has to be obtained from
the Court. It is always for the Court to decide whether on the averments made in the plaint and the evidence let in by the plaintiff, the relief prayed
for by the plaintiff could be granted or not. The power of the Court to mould the relief according to the facts established by evidence cannot be
disputed. The dictum of Natesan, J. in Lakshmi Ammal v. Sivakamu Natesan (1969) 82 L.W. 589, may be referred with advantage in this
connection. The learned Judge observed as follows:
It seems to me that neither of the parties, when they adduced evidence in this case, nor the courts below have kept before themselves the
principles above set out from the decided cases in coming to their conclusion as to the true relationship between the plaintiff and the defendant in
the matter of latter''s occupation of the plaintiff''s land. Also neither the plaintiff nor the defendant should be penalised for overstating their case and
putting exaggerated versions. If the Court can find the true and real relationship between the parties, notwithstanding some ornamentation and
some trappings in the cases of the parties, the Court should give relief according to the rights found.
In my opinion, the change in the prayer in the plaint even assuming that it was made with the knowledge and consent of the plaintiff; shall not
prevent the Court from granting the appropriate relief to the plaintiff, if she has made out a case there for. The prayer in the plaint has always to
follow the averments in the body of the plaint and the reverse cannot be true.
Even as the plaint stood originally, Section 40 of the Court-fees Act was not attracted as there were specific averments in the plaint that the
execution of the document was not by Sundaramma. Unfortunately, learned Counsel who appeared for the plaintiff at that stage did not think about
the correct position in law with regard to the payment of Court-fees and., hastened to change the prayer in the plaint when he found some difficulty
in getting the plaint numbered. Hence I do not find any substance in the contention raised by learned Counsel for the appellants on the basis of the
prayer found in the plaint.
As stated earlier, the impugned document was not produced before the Courts below. The appellants have filed an application under Order
41, Rule 27, CPC in this Court for permission to file the said document as additional evidence. The said application is before me as C.M.P. No.
17092 of 1986. As the entire case relates to the validity and the genuiness of the document, it is necessary for a just disposal of the case. Hence, I
am admitting the said document as evidence and the same will be marked as Ex. B15 in the case.
In view of the unsatisfactory manner of disposal by both the Courts below, learned Counsel on both sides requested me to exercise my
powers u/s 103 of the CPC and determine the issues in the case by considering the evidence on record. I have already set out the relevant
paragraphs in the plaint in which it is alleged that the deceased Sundaramma went to the first defendant''s house at Tiruttani in the first week of
November 1976 and before that she was living with the plaintiff. Though it is contended by the defendants that Sundaramma went to Tiruttani in
September, 1976, the fact that she was living with the plaintiff prior to her going to Tiruttani is not disputed. Whether she went to Tiruttani in
September, 1976 or November, 1976 does not matter very much It is clear from the evidence that Sundaramma was living for some time with the
plaintiff and for some time with the defendants. Nothing has been brought out in the evidence that Sundaramma had any quarrel with either the
plaintiff or the defendants, or that she had any occasion to dislike one of them. There is absolutely no evidence with reference to the attitude of
Sundaramma towards her other daughter Sujatha. The plaintiff has examined herself as P.W. 3 and her husband as P.W. 1. P.W. 2 is a person
known to the family for about 15 years and he was living in the house opposite to that of the plaintiff. The defendants contended themselves with
the examining of one of the attestors to the impugned document by name Rajarathnam and another person who claimed to have taken care of,
Sundaramma''s affairs between 1964 and 1972.
From the very nature of things, the plaintiff will not be in a position to give full particulars as to what happened at Tiruttani when the document
was executed. Admittedly, Sundaramma was in Tiruttani at the time when the document was executed and she died soon thereafter. The document
in question is dated 15.11.1976 and Sundaramma died on 3.12.1976. The argument that the plaint does not satisfy the requirements of Order 6,
Rule 4, CPC and has to be rejected on that ground, cannot be accepted on the facts of this case. It is no doubt true that Order 6, Rule 4, CPC
enjoins a party pleading misrepresentation, fraud, breach of trust, wilful default or undue influence to set out all the necessary particulars in the
pleading. It may be noted that the grounds referred to in the said rule would only make a document voidable and not void. In such cases, it will be
necessary to seek the relief of setting aside the documents. A relief based upon misrepresentation, fraud or undue influence presupposes that the
party claiming the relief is himself the victim of such misrepresentation, fraud or undue influence or the party claiming the relief is doing so by
stepping into the shoes of such a victim. If the victim of misrepresentation, fraud or undue influence seeks to be relieved from the effects of such
misrepresentation, fraud or undue influence, he will be in a position to give full particulars regarding such misrepresentation, fraud or undue
influence. He cannot seek the aid of the Court without disclosing the same. The position, will not be the same with reference to a third party who
seeks to set at naught a transaction on the ground that it is vitiated by the circumstances mentioned in the rule. In that case, he will be able to give
only such particulars as are within his knowledge. If he is able to prove before the Court circumstances from which a reasonable inference could be
drawn by the Court, as to the existence of any of the grounds mentioned in the rule, the Court cannot throw out the plaint on the ground that the
exact particulars have not been given in the plaint. The provisions of Order 6, Rule 4, CPC would only mean that where a party is in a position to
give all the particulars regarding the grounds set out in the rule, he shall set out the same in the pleading itself. The object of of the rule is to enable
the opposite party to know what case he has to meet and thus to prevent a surprise at the trial. But, it must always depend upon the facts of each
case as to what degree of particularity is required. Vide Philips v. Philips 4 Q.B.D. 127. The general rule that full particulars must be given in the
pleading cannot be made applicable to a case where the concerned party is not in a position to know the full particulars.
Learned Counsel for the appellants relied upon the following decisions of the Supreme Court in support of the proposition hat in the absence of
full particulars in the pleading, the case of a party shall not be accepted:
Bishundeo Narain and Another Vs. Seogeni Rai and Jagernath, , Ladli Prasad Jaiswal Vs. Karnal Distillery Co. Ltd. and Others, , Subhas
Chandra Das Mushib Vs. Ganga Prosad Das Mushib and Others, and Varanasaya Sanskrit Vishwavidyalaya and Another Vs. Dr. Rajkishore
Tripathi and Another, .
In all those cases, the plea was fraud, undue influence and coercion. It is not necessary to refer to the aforesaid decisions in detail in view of the
facts and circumstances of the present case which I will set out below. Learned Counsel for the appellants also relied upon the decision of a
Division Bench of this Court in P. Saraswathi Ammal Vs. Lakshmi Ammal alias Lakshmi Kantam, , which lays down that the burden is heavily,
upon the complainant to establish that a transaction is tainted by undue influence and that it is unconscionable,. Bat, in that case itself, the Bench has
taken care to issue a note of caution that the standards of proof regarding undue influence or coercion may be slightly different in cases where a
person suffers from infirmity or backwardness. The Bench has also observed that each case has to depend on its own facts.
Turning to the facts of the present case, the following suspicious circumstances are glaring at us. The impugned document which is styled as
''appointment in execution of a power'' purports to have been executed on 15th November, 1976. The entire document is typed and in the last
page, it is written in ink ""typed by"" and below that it is signed by ''G.N. Raj''. The said G.N. Raj is none other than the second appellant. That is
evident from the document itself when he has signed before the Joint Sub-Registrar at the time of presenting the document. Beneath his signature,
he has given his name, his father''s name and address wherefrom it can be gathered that the typist of the document is the second appellant. All the
stamp papers are purchased in his name. On the same day, i.e., on 15.11.1976 another document styled as ""Special Power of Attorney"" purports
to have been executed by late Sundaramma. That document also bears the endorsement ""typed by"" and below that it is signed by G.N. Raj. The
stamps for this power of attorney have also been purchased in the name of the second appellant. This Special Power of Attorney recites that
Bysani Sundaramma appoints the second appellant as her true and lawful attorney and agent for procuring registration of a deed of appointment in
execution of power dated 15.11.1976 for a market value of Rs. 60,000 (Rupees sixty thousand only) executed by her in favour of the appellants.
The agent is authorised to present the document to the registering officer in the Registrar''s office at Madras. This power of attorney has been
registered by the Sub-Registrar, Tiruttani on 15.11.1976 at the residence of the appellants. This power of attorney is also attested by the same
persons who have attested the deed of appointment of execution of power viz., N. Rajarathinam (D.W. 1) and M. Munnuswamy Reddy. The
identifying witnesses before the Sub Registrar are the same attestors. Curiously, another special power of attorney purports to have been executed
on 19.11.1976 in favour of the second appellant himself for the very same purpose of presenting the document dated 15.11.1976 for registration
in the office of the Registrar at Madras. The later Power of Attorney, however, sets out the reason for executing the power of attorney while the
same was absent in the earlier power of attorney. This document exhibits an anxiety to fill up the lacuna in the earlier one. This power of attorney
purports to have been executed in the presence of the Sub Registrar at the residence of the appellants and once again the identifying witnesses are
the same two persons. There is absolutely no evidence on record explaining as to why two special powers of attorney were executed for the same
purpose appointing the same person as the agent. Both the powers of attorney and the appointment in execution of power are all typed in the same
machine. While two of the documents bear the signature of the typist under the endorsement ""typed by"", the last of the documents dated
19.11.1976 does not disclose the name of the typist. One significant circumstance is that in all the three documents, the signatures of the executants
are found to be shaky. One can easily say that whoever executed the documents was either very old or not keeping good health. Admittedly
Sundaramma was about 70 years old. The stamp paper for the last document dated 19.11.1976 has been purchased on 16.11.1976 itself in the
name of the second, appellant. While the executant of the two documents dated 15.11.1976 has merely signed the documents without giving the
date, the last document significantly gives out the date below the signature of the executant. It is very clear from the document that the date is not
written by the executant as the same is written with a firm hand while the signature is shaky. The endorsement relating to the execution in the
presence of the Sub Registrar in the last document reads thus:
Executed in my presence at the private residence of Bysani Sundaramma, No. 44 Old Bazaar Street, Tiruttani, this 19th day of November, 1976
by Bysani Sundaramma whose identity is proved by.
In the aforesaid endorsement, the words ""at the private residence of Bysani Sundaramma, No. 44 Old Bazaar Street, Tiruttani"" are written in a
different ink. It appears as if they have been written subsequently.
Neither the first appellant nor the second appellant has chosen to enter the witness box to give evidence with regard to the exact state of health
of Bysani Sundaramma and the execution of the documents by her. Learned Counsel for the appellants states that the burden being on the plaintiff
to prove the case of undue influence and fraud, there was no necessity for the defendants to give evidence. I cannot accept this contention of
learned Counsel. It has been repeatedly laid down by the Privy Council and the Supreme Court that it is the bounden duty of a party personally
knowing the whole circumstances of the case to give evidence on his own behalf and submit to cross-examination and if he fails to do so, an
adverse inference should be drawn against him. In AIR 1927 230 (Privy Council) , the Privy Council laid down the above proposition in
unequivocal terms and held that the non-appearance of a party knowing the full circumstances of the case as a witness would be the strongest
possible circumstance going to discredit the truth of his case. Speaking for the Judicial Committee, Lord Shaw observed thus:
Their Lordships think it unnecessary to repeat the numerous details of the story, but, as it involves a general and important question of procedure
and practice, they think it expedient to make the following reference to what occurred at the trial of this civil suit. At the Bar of the Board it was
admitted by the respondents that she, Bhagwan, had been present in Court when the evidence was being taken, and that she did not go into the
witness box, and was not examined as a witness on her own or her alleged son''s behalf.
Notice has frequently been taken by this Board of this style of procedure. It sometimes takes the form of a manoeuvre under which counsel does
not call his own client, who is an essential witness, but endeavours to force the other party to call him, and so suffer the discomfiture of having him
treated as his, the other party''s own witness.
This is thought to be clever, but it is a bad and degrading practice. Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranji Lal (1910) 20
M.L.J. 182 : L.R. 37 IndAp 1 : ILR All. 104, calling it ""a vicious practice, unworthy of a high-toned or reputable system of advocacy.
The present case, however, is a pointed instance of the evil which"" flows from such a practice. Bhagwan''s case had been the subject of prolonged
investigation in the Revenue Courts, and had been pronounced by them a bogus case. She had appeared and told a story there, and it had not
been believed. She was, however, also present in this civil suit, the issue in which was the legitimacy of the boy that she was putting forward as the
Jaghirdar of the estate. Her non-appearance in answer to the challenge, that is to say, to disclose the actual fact as to her condition shortly after her
husband Jawala''s death, her disappearance into a foreign State, and all the other circumstances mentioned, had been established. If her story
were, notwithstanding all this, a true story, it was her bounden duty to give eidence in the suit, telling the whole facts in support of her and her
alleged son''s case; but she did not. If under advice she did not do so, that advice was of the worst description, and worthy of the animadversion
above made. But in any view her non-appearance as a witness, she being present in Court, would be the strongest possible circumstance going to
discredit the truth of her case.
A similar view is expressed by the Supreme Court in Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, , wherein their Lordships
observed that even if the burden of proof does not lie on a party, the Court may draw an adverse inference if he withholds an important document
in his possession which would throw light on the facts at issue. The Supreme Court went on to observe as follows:
...It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence
which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.
In Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi 1917 32 M.L.J. 369 : (1917) 44 Ind. App. 98 : ILR Mad. 402 : AIR 1917 P.C. 6 ,
Lord Shaw observed as follows:
A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract
doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this
may be right enough they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordships'' opinion,
an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their
possession which would throw light upon the proposition.
This passage was cited with approval by this Court in a recent decision Biltu Ram v. Jainandan Prasad Civil Appeal No. 941 of 1965 dt.
15.4.1968 (S.C). In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial
Committee in Mt. Bilas Kunwar v. Desraj Ranjit Singh 1915 29 M.L.J. 335 : (1915) 44 Ind. App. 202 : AIR 1915 P.C. 96 :
But it is open to a litigant to refrain from producing any documents that he considers irrelevant if the other litigant is dissatisfied it is for him to apply
for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he
fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents.
But Shah, J., speaking for the Court stated:
The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of
documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against party withholding
evidence in his possession. Such a rule is inconsistent with illustration (g) of Section 114 of the Evidence Act, and also an impressive body of
authority.
In K.C. Kapoor Vs. Smt. Radhika Devi (Dead) by Lrs. and Others, , the Court made the following observation to a similar effect:
And then the failure (referred to above) of plaintiff No. 1 to step into the witness box is enough for the Court to raise another presumption, namely,
that her deposition would not have supported the plaintiff''s case. The onus of proof of the issue on the defendant was, therefore, very light and
stood amply discharged by the facts noted in that behalf by the trial Court....
I am entirely in agreement with the contention of learned Counsel for the respondent that an adverse inference should be drawn as against the
appellants from their failure to examine themselves as witnesses in this case. As stated earlier, Sundaramma was at Tiruttani with the appellants
during the relevant period. Her state of health when she left Madras for Tiruttani is spoken to by P.Ws. 1 to 3. Even if the evidence of P.W. 1 and
P.W. 3 is rejected on the ground that both of them are interested parties, the evidence of P.W. 2 cannot be assailed on that ground. He was a
person living in the house opposite to that of the plaintiff and he had known the family for about 15 years. He has given definite evidence that at the
time when Sundaramma left Madras, she was not in a position to speak properly and that she was almost in a fainting condition. In his cross-
examination, he has repeated the assertion that she used to swoon very often and could not walk. He has also stated that he had a doubt whether
Sundaramma would reach Tiruttani. Nothing has been eliciated in his cross-examination as to why he should speak against the defendants. The
defendants who were the best witnesses to speak about the state of health of Sundaramma on 15th and 19th of November, 1976, have refrained
from entering the witness box. Obviously, they we e not willing to face the cross-examination by the plaintiff''s counsel.
Of the two attestors, one has been examined and there is no explanation as to why the other has not been examined. D.W. 1 the attestor, who
has been examined, is living in Old Bazaar Street, Tiruttani and he has got a bunk shop about five or six houses off the defendants'' residence. He
claims that he knows the defendants'' family for about 20 years and that he has seen'' Sundaramma several times. He states that he signed as a
witness in Ex. B4 and Ex. B6. He speaks as if both Exs. B4 and B6 were executed on the same day, but actually Ex. B4 purports to have been
executed four days after Ex. B6. He states that there was an advocate by name Venkatarathnam, who translated the document in Telugu and
explained to the executant. That itself shows that Sundaramma did not know English and all the documents were typed in English. The said
advocate Venkatarathnam has not been examined and there is no explanation therefor. The witness claims to have signed another document on the
next day. But, we do not find any document dt. 16.11.1976. Significantly, the stamp paper for the last document was purchased on 16.11.1976
but it purports to have been executed on 19.11.1976. The witness proceeds to say that Sundaramma was in good state of health when she signed
Exs. B4 and B6. According to him, she was able to walk and she had been going to the temple in the evenings. If that was her condition of health,
there is no reason why the Sub Registrar was brought to the residence of the defendants for registering the power of attorney. The witness also
says that 20 days after the registration of Exs. B4 and B6, Sundaramma died on account of some trouble in clearing the bowels, and that a Doctor
had seen her. In the cross-examination he states that Sundaramma had no disease at the time when she came to Tiruttani and that she was in
perfect health. He states in the cross-examination that the document was signed by Sundaramma in her bed room. His evidence shows that he has
been prepared by the second appellant for supporting his case. His evidence that Sundaramma was hale and healthy when she came to Tiruttani
and when she executed the documents is believed by the recital in Ex. B4 which states that she was not able to go to the concerned office of the
Sub Registrar for registering the document. It is for the defendants to have let in evidence as to the nature of the illness of Sundaramma. When their
case is that she was quite healthy during the relevant period, when the documents were executed, they must have at least disclosed to the Court the
cause of her death within a few days after the execution of the document.
The evidence of D.W. 2 has nothing to do with either the condition of Sundaramma at the time of the execution of the documents or the
execution of the documents themselves. He has been examined only for the purpose of proving that Sundaramma used to live at Tiruttani also for
some periods. It is the definite case of the plaintiff in paragraph 6 of the plaint that the documents said to have been executed by Sundaramma are
not genuine but fabricated and false. The plaint also states that the execution is not by Sundaramma and she was not in a position to execute the
documents, her mind following hand. No doubt, the plaint proceeds to speak about the exercise of undue Influence by the defendants. That does
not mean that the plaintiff has admitted the execution of the documents by Sundaramma. In fact some of the averments in the written statements of
the defendants are to the effect that Sundaramma was very much attached to the first defendant and her husband and her family members as the
first defendant''s husband was responsible to get the trusteeship transferred to Sundaramma by her husband Rangayya. The averments in the
written statement may give an1 impression that Sundaramma was indebted to the first defendant''s husband and would act according to his wishes.
Whatever it may be, the evidence does not disclose that Sundaramma had more affection - towards one daughter than the other. Nothing has been
brought it out in the evidence as to why Sundaramma should favour one daughter and her son to take over the trusteeship.
Having regard to the facts and circumstances of the case, the burden is on the defendants to prove the execution of the documents by
Sundaramma. In view of the fact that Sundaramma died within a few days after the dates of the documents, her evidence regarding the same is not
available to the Court. Nor can there be any evidence with regard to her conduct after the dates of the documents which would have been
available if she had lived for long thereafter. Hence, in this case, the standard of proof required for establishing the genuineness and validity of the
document in question will be the same as that of a will. The Supreme Court has dealt with the matter of proof of wills at some length in H.
Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, , and has laid down as follows:
What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in
Courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a
will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which
govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. u/s 67, if a document is alleged to be signed by
any person, the signature of the person must be proved to be in his handwriting, and for proving such a hand writing under Sections 45 and 47 of
the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68, deals with
the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until
one attesting witness at least has been called for the purpose of proving its execution. These povisions prescribe the requirements and the nature of
proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Sections 59 and 63 of the Indian Succession Act
are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three
Illustrations to this section indicate what is meant by the expression ""a person of sound mind"" in the context. Section 63 requires that the testator
shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark
shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be
attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to toe the last will of
the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the
dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which
determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any
other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof
of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the
usual test of the satisfaction of the prudent mind in such matters.
However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of
the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is
his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document prpounded is
proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry
as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the
testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the
dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested,
satisfactory and sufficient to prove the sound and disposing state of the testator''s mind and his signature as required by law, Courts would be
justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to the discharged on proof of
the essential facts just indicated.
There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the
testator may be very shaky and doubtful and evidence in support of the propounder''s case that the signature in question is the signature of the
testator may not remove the doubt created by the appearance of the signature; the condition of the testator''s mind may appear to be very feeble
and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions
made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that'' the
said dispositions may not be the result of the testator''s free will and mind. In such cases the Court would naturally expect that all legitimate
suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious
circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the
document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the
execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a
doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus
to remove any such legitimate doubts in the matter.
Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity.
Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the
propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a
suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory
evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the
satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made
by ecclesistical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word ''conscience'' in
this context would in our opinion, be purely technical and academic, if not pedantic The test merely emphasises that, in determining the question as
to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully
satisfied that it had been validly executed by the testator who is no longer alive.
It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible
rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due
and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder roust remove
the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of
these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the
evidence adduced by the parties. It is quite true that, as observed by Lord Du Pareq in Harmos v. Hinkson (1946) 2 M.L.J. 156 : 50 C.W.N.
895 : 59 L.W. 489 : AIR 1946 P.C. 156, where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate
persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He
is never required to close his mind to the truth. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in
such cases the judicial mind must always be open though vigilant, cautious and circumspect.
The above tests should be applied to the document on hand though it is not a will.
As pointed out already, the second appellant stands in the position of a propounder and he has taken a large part in bringing about the
document in question. It is significant to note that the impugned document under which the defendants claimed their rights to trusteeship was not
produced by them in either of the Courts below. Learned Counsel for the appellants submitted that the document was presented for registration
and it was with the Registrar till the registration was completed, and therefore, it could not be produced in Court. But, I find that the registration
was completed on 11.7.1980 after the disposal of the suit by the trial Court. The appeal before the lower appellate Court was disposed of only on
26.3.1981. But, the appellants herein did not choose to produce the documents before the lower appellate Court. When the second appellant has
not chosen to enter the witness box and clear the suspicion created by the various circumstances referred to already, it is not open to harp upon
the onus of proof being on the plaintiff. I have no hesitation in holding that Ex. B15 has not been proved to be the document executed by Bysani
Sundaramma in the sense that she understood the contents and signed the same willingly.
In fine, the conclusion of the lower appellate Court has to be upheld, though for different reasons. The second appeal fails and is dismissed. In
the circumstances of the case, there will be no order as to costs.