S.G. Ananda vs Sathishbabu, Kubendran, Usha Rani and Nanda

R.S. Ramanathan, J.—The third Defendant is the revision Petitioner. Respondents 3 and 4 filed a suit for declaration of title and for

injunction and to set aside the sale dated2.12.2004.

The case of Respondents 3 and 4 was that the suit properties were self-acquired properties of the third Respondent''s husband viz., S.R.

Govinda Chetty and the third Respondent is the legally wedded wife of Govinda Chetty and she took the fourth Respondent in adoption in the

month of December 2001 and it was confirmed by adoption deed dated 10.11.2004. Govinda Chetty died on 18.9.2004 leaving behind him

Respondents 3 and 4 as his legal heirs. Respondents 1 and 2 were assisting Govinda Chetty during his life time and taking advantage of his

proximity, they obtained a Will dated 30.10.2003 in his favour executed by Govinda Chetty and the third Respondent herein and after coming to

know about the evil design of the first Respondent, the third Respondent cancelled the Will. Nevertheless, the first Respondent made arrangement

to sell the property to the second Respondent. Unable to bear the atrocities of Respondents 1 and 2, Respondents 3 and 4brought the revision

Petitioner who is the brother of the third Respondent for help and taking undue advantage of Respondents 3 and 4, the third Defendant/revision

Petitioner, by practicing fraud, obtained sale deed in his favour on 3.12.2004 and therefore, the suit was filed for the relied prayed for as stated

above.

Respondents 1 and 2, who were Defendants 1 and 2 in the suit, filed statement admitting the adoption of the fourth Respondent by the third

Respondent, but they claimed to be the owners of the property.

The revision Petitioner also filed separate statement denying the allegations made in the plaint and also the allegations in relation to the

circumstances in which the sale deed was executed in his favour by Respondents 3 and 4. The revision Petitioner also admitted the adoption of the

fourth Respondent by the third Respondent herein. The third Respondent was examined as PW1 and at that time, Respondents 1 and 2, who are

Defendants 1and 2, filed application objecting to the cross-examination of PW1 viz., the third Respondent herein by the revision Petitioner herein

stating that the revision Petitioner and Respondents 3 and 4 herein are supporting each other in their allegation regarding the adoption and Will and

therefore, the revision Petitioner is not an adverse party to the third Respondent herein and therefore, the revision Petitioner cannot be permitted to

cross-examine the third Respondent with regard to adoption and the Will and therefore, the revision Petitioner herein may be permitted to put

questions without reference to adoption and after the cross-examination of the Petitioner, Respondents 1 and2 who are Defendants 1 and 2 be

permitted to cross-examine the third Respondent.

That petition was allowed and the court below permitted the revision Petitioner to cross-examine the third Respondent only in respect of the sale

deed dated2.12.2004 in his favour and aggrieved by the same, this revision is filed.

It is submitted by the learned Counsel for the revision Petitioner that the suit was filed by Respondents 3 and 4 to set aside the sale in favour of

the Petitioner executed by them and also for declaration of title and injunction and he is the third Defendant in the suit and therefore, Defendants 1

and 2, who are Respondents 1 and 2, have to begin the cross-examination and the revision Petitioner can be allowed to cross-examine only after

the cross-examination of Respondents 1 and 2 and he cannot be permitted to cross-examine only with respect to the sale deed dated 2.12.2004 in

his favour and he has to cross-examine the third Respondent who was examined as PW1 with respect to the Will and his right of cross-

examination cannot be curtailed.

On the other hand, the learned Counsel for Respondents 1 and 2 submitted that the revision Petitioner is sailing with Respondents 3 and 4 in

respect of adoption and the Will and he supports the case of adoption pleaded by the third Respondent and also supports the case of the third

Respondent in respect of the Will executed by her alongwith her husband in favour of Respondents 1 and 2 and his only grievance is the challenge

made by Respondents 3and 4 in respect of the sale deed executed in his favour and therefore, he is an adverse party only in respect of the Will

and in other aspects, he is supporting the case of the Plaintiffs, and therefore, when one of the Defendants supports the case of the Plaintiffs, he can

be permitted to put questions in the first instance before permitting the other contesting Defendants to cross examine the Plaintiff. He further

submitted that in the judgment reported in Karumanchi Subba Rao Vs. Yarlagadda Venkatappaiah and Others, , it has been held that the

Defendants, who are admitting the Plaintiff''s case cannot be permitted to cross-examine the Plaintiff and the judgment reported in Hussens

Hasanali Pulavwala v. Sobbirbhai Hasanali Pulavwala and Ors. AIR 1981 Gujarat 190 wherein it has been held that the party not being adverse

party cannot cross-examine the Plaintiff. He, therefore, submitted hat the court below, taking into consideration all these facts and the judgments

referred to above, allowed the application and there is no need to interfere.

Heard both the counsel. As per Section 137 of the Evidence Act, the examination of a witness by an adverse party shall be called as cross-

examination. u/s 138A, witness has to be first examined in chief and then if the adverse party so desires, can cross-examine and thereafter, the

party calling him so desires can re-examine the witnesses. Therefore, a reading of Section 137 and 138 makes it clear that only an adverse party

can cross-examine the witness. Therefore, we will have to see whether there vision Petitioner herein is the adverse party.

As stated supra, the suit is filed by Respondents 3and 4 for declaration of title and for cancellation of sale deed executed in favour of the

revision Petitioner. Respondents 3 and 4 pleaded that the fourth Respondent was taken in adoption by the third Respondent and her late husband

and Respondents 1 and 2 fraudulently obtained the Will from her husband and the third Respondent and that was subsequently cancelled and

Respondents 1 and 2 are claiming rights under the Will and therefore, they sought the help of the revision Petitioner, who fraudulently obtained the

sale deed and in such circumstances, the suit was filed.

The revision Petitioner admitted the case of adoption and also cancellation of the Will and as a matter of fact, as rightly contended by the

learned Counsel for Respondents 1 and 2, the revision Petitioner has to admit the adoption and the can cellation of the Will, otherwise, he would

not get title to the suit property under the Sale deed dated 2.4.2004. Therefore, the revision Petitioner is aggrieved only in respect of challenge

made regarding the sale in his favour and insofar as other issues are concerned, he is supporting the case of Respondents 3 and 4.

In other words, he is an adverse party only inrespect of sale deed which is challenged by Respondents 3and 4 and he is not an adverse party

with regard to otherallegations made in the plaint. Therefore, he issupporting the case of the Plaintiffs in respect ofadoption and the cancellation of

the Will and hence, hecannot be permitted to cross-examine the Plaintiffs in respect of those allegations. This was properly appreciated by the

court below and held that the revision Petitioner can cross-examine PW1, the third Respondent herein only with respect to the sale deed and he

must cross-examine the third Respondent before the cross-examination of PW1 by Respondents 1 and 2 as he is supporting the case of the

Plaintiff''s case in other issues. Therefore, I do not find any infirmity in the order of the court below.

In the result, the revision petition is dismissed. No costs. The connected miscellaneous petition is also dismissed