TaxTMI 
TaxTMI 
2014 (1) TMI 1980
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....se are the issues arising for consideration in this second appeal which has been filed by the plaintiff. For the sake of convenience, the parties in this appeal have been referred as per the nomenclature assigned to them in the trial court. 2. The plaintiff filed the suit, against his brother (i.e) the defendant, in O.S. No. 1110 of 2002 seeking the relief of declaration and injunction. The trial court decreed the suit by judgment dated 14.09.2007. The defendant preferred the appeal in A.S. No. 88 of 2009 and by the judgment dated 27.11.2009, the first appellate court allowed the appeal and thereby the suit came to be dismissed. Challenging the dismissal of the suit, the present second appeal has been filed. 2.1. The second appeal was admitted on the following substantial questions of law :- a) Whether attestation by a person having interest in the subject matter of a deed operates as estoppels as stipulated under Section 115 of the Indian Evidence Act, 1872? b) Whether a finding in an earlier suit is a relevant fact to the subsequent suit relating to the same subject matter within the meaning of Section 40 of Indian Evidence Act, 1872? 3. Brief facts ....
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...., the trial court has relied upon the diary entries made by the defendant himself under Exs.A27 to 30. Relying upon the attestation made by the defendant under Ex.A2, the trial court gave a finding that if really the properties belonged to the defendant, he would not have signed as an attesting witness in a document which recites that the property belonged to his brother. Having found that Silambayee had grievance against the defendant as evidenced by cancellation of power deed under Ex.A12 and held the Will to be true. 5. The first appellate court while reversing the judgment gave a finding that the attestation of the document by the defendant would not amount to admission of contents of the document and therefore the settlement deed cannot confer any title upon the plaintiff especially when the parent document of title in the name of Silambayee has not been produced before the court. In other words, the finding is that the title of the plaintiff's ancestor itself has not been proved. So far as the Will is concerned, it was disbelieved on the grounds that a) the note dictated by the Testator was not produced; b) PW2 attesting witness, did not say that the ....
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....ty or by any other person may be given in evidence against that party for the purpose of proving any fact stated in the admission. The justification for this proposition is that there is likelihood of truth in a statement adverse to the interest of its maker which is not the case when the statement is made in his own favour. No party would normally make a statement against his own interest and if it is made, one can presume that such statement made must be true. It would be relevant to quote the admission made by DW1 during cross examination that his mother executed the power deed in his favour, (which had been executed even as early as during 1973). It would be relevant to point out that notice dated 05.08.1990 was issued to the defendant, by the plaintiff's mother intimating that the defendant has exceeded the authority given under the power of attorney and that in fact he was trying to misappropriate the property using the right to act as the power agent. Moreover, the defendant has not produced any document to show that the so-called owner namely, Krishnasamy Konar Vagera was having any right over the property. No document has been filed to show that Krishnasamy Konar execu....
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.... of the attestation under Exs.A1 and A2 made by the defendant is the issue to be considered. It is the contention of the learned counsel for the appellant that the attestation would amount to admission and consent and therefore, the plaintiff is relieved of the responsibility from proving the title. On the other hand, it is the contention of the learned counsel for the respondent that the attestation would not amount to admission of the contents of the document. Therefore, it is necessary to consider the effect/impact of attestation said to have been made by the defendant under Ex.A1/Ex.A2. 8.2. In order to appreciate the contentions raised with regard to the effect of attestation, it is necessary to understand the meaning of the word 'attested' The word 'attested' is defined in Section 3 of the Transfer of Property Act. "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the execu....
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....ss to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of hiss signature. If a person puts his signature on the document for some other purpose. e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.' 8.6. The Hon'ble Supreme Court also has held that, a party to a document cannot be an attesting witness, for, the object of attestation is protection against fraud and undue influence (Harish Chandra v. Bansidhar AIR 1965 SC 1738). In English Law also attestation implies that the attesting witness was present at the execution and can testify that the deed was executed voluntarily by the proper person (Freshfield v. Reed 1842 9 M&W 404). 8.7. Having seen the meaning of the word 'attestation' and who could be an attesting witness, then it would be necessary to look into the mode of proof of an attested document. Proof of an attested document must be in accordance with Secti....
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.... by his mother under Ex.A11 dated 02.05.1973. This power of attorney had been executed in respect of properties covered under Ex.A1-settlement deed and Ex.A5-Will. 8.9. Therefore, these facts would go to show that the defendant might have had dual interest in the property. The defendant would have the legitimate expectation that he would inherit the property as a legal heir. Moreover, he had a subsisting interest in the property as power of attorney. Because of the close-knitted relationship between the plaintiff and the defendant, he ought to have remained interested in finding out the contents of the document. The relationship between the parties, the status of the defendant as power of attorney and the future possibility of the defendant inheriting the property as a legal heir would have certainly sounded a note of caution to the defendant and the defendant having noted those events in the diary, can safely be presumed to have knowledge regarding the contents of the document. Therefore, he is estopped from disputing the title of the plaintiff or his mother. It would be appropriate to point out the ingredients of estoppel which is given in nutshell in the following decision re....
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....#39;ble Justice Sadasiva Aiyar said "I may respectfully add that, in my pretty long experience as a Judicial Officer, if the attestor of a document has an existing interest in the property dealt with in the document, it has been always the case that his attestation has been taken in order to bind him as to the correctness of the recitals therein." 8.15. In Gopaul Ghunder Manna v. Gour Monee Dossee (1866) 6 W.R. (C.R.) 52, the learned Judges clearly decided that a reversioner attesting a conveyance by a Hindu widow cannot impeach the sale afterwards, thus treating the attestation as tantamount to assent. In short, they say that the effect of his being an attesting witness to the conveyance shows the acquiescence on his part in the act of the widow. 8.16. In Matadeen Roy v. Mussodun Singh (1868) 10 W.R. (C.R.) 293, the implication of attestation made by one brother made in a document executed by another brother. The observations made are; "When the plaintiff put his name as a witness to his brother's signature to a deed conveying the whole of the property, the court might reasonably infer that he knew that his brother was selling the whole of the property. If he knew that h....
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....counsel for the respondents that the judgments are not inter-parties and therefore, the judgments are not binding upon the respondent and therefore the claim of the plaintiff cannot be upheld based upon the past judgments alone. 9.1. Strictly speaking, even though the judgments relied upon are not inter-parties, but the party therein in the previous suit claims right through the respondent herein. The respondent herein has admitted knowledge regarding the existence of those judgments. Even otherwise, the extent to which those judgments are binding has to be considered. 9.2. There is evidence to show that the plaintiff has consistently claimed right over the property and he has been fighting the litigation in the court. The plaintiff has relied upon the judgment in O.S. No. 1650/84 dated 25.11.1991 and judgment in O.S. No. 719/85 dated 06.03.1998, judgment in A.S. No. 144/98 dated 21.04.1999 and judgment in O.S. No. 443/2000 dated 28.10.2003 (against Municipal Corporation) to show that there had been incessant assertion of right by him. 9.3. To have the effect of res judicata, a judgment inter-parties alone can be admitted in evidence. For other purposes (i.e) where the jud....
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....t can be proved by other circumstances which would indicate the mental status. The attesting witness has spoken about the execution of Will by Silambayee. It is the evidence of the plaintiff that he was protecting his mother till her death. It is stated in the evidence that the mother gave instruction regarding the disposal of the property and after writing the same in a plain paper and later in the document it was read over to the mother by the document writer and the mother admitted the same to be correct. This part of the evidence go to show that the mother was in sound disposing state of mind. PWs 2 and 3 have supported the evidence of PW1. 11.3. The strained relationship between the defendant and the propounder of the Will is explicit through the cancellation of power deed. Moreover, the mother has alleged that the son has attempted to misappropriate the property by misusing the power of attorney executed by her. Therefore, there is nothing unnatural in the mother having preferred the plaintiff to confer title upon him. Therefore, the plaintiff has proved title to Item No. 2 of the suit property. 12. The learned counsel for the appellant submitted that Item No. 1 bein....