Judgment:
(Prayer: Second Appeal has been filed against the judgment and decree dated 31.3.2006 made in A.S.No.119/1998 on the file of the Principal District Judge, Thanjavur in reversing the Judgment and decree dated 20.10.1998 made in O.S.No.57/1996 on the file of the Sub Court, Pattukottai.)
1. The appellants are the respondents 16 and 17 in A.S.No.119/98 and they are the wife and son of Abdul Samath, respectively, the first defendant in O.S.No.57/96 and the first respondent in A.S.No.119/98, who died pending A.S.No.119/98. The first respondent is the plaintiff in O.S.No.57/96 and the appellant in A.S.No.119/98. The respondents 2 to 15 are purchasers of suit properties from Abdul Samath, the first defendant and his step mother. The suit in O.S.No.57/96 was dismissed after trial and A.S.No.119/98 filed by first respondent/plaintiff was allowed. Against the Judgment and decree, dated 31.3.2006, made in A.S.No.119/98, passed by the learned Principal District Judge, Thanjavur, the present second appeal has been filed.
2. The appellants herein, who have filed this second appeal are the legal representatives of first defendant, Abdul Samath, who were impleaded as respondents 16 and 17 in A.S.No.119 of 1998.
3. For the sake of convenience, the first defendant in the suit, namely, Abdul Samath since deceased is referred to as the first defendant.
4. The case of the first respondent/plaintiff:
(i) She is the wife of Abdul Samath, the first defendant in the suit (since deceased). M.K.Mohaideen Abdul Khader, father of first defendant is brother of first respondent's mother and close friend of first respondent's father. His wife, mother of first defendant died. He married again. M.K.Mohaideen Abdul Khader wanted first defendant to marry the first respondent.
(ii) The suit properties belonged to M.K. Mohaideen Abdul Khader, father of first defendant. On 11.5.1964, he sent a letter to father of first respondent, when he was taking treatment in the hospital at Sengipatti. In the said letter, he specifically, stated that after he comes from hospital, the marriage between the first respondent and first defendant can be conducted and promised to give all his properties to the first respondent and stated that the said letter has to be treated as his Will, i.e., VASIYYAT ?. On 13.6.1964, he died in the hospital. In fulfillment of his wish, the marriage of first defendant and first respondent was conducted on 19.7.1964. The marriage was conducted in a simple way as 40 days had not expired from the date of death of M.K.Mohaideen Abdul Khader, father of first defendant. The step mother of first defendant also gave her consent for the said marriage. After the marriage, Will came into force and first respondent became owner of suit properties. The first respondent's father was managing properties on her behalf. The first defendant did not like the same and hence, the management was given to him. On the ill advise of his step mother, the first defendant started acting against the interest of first respondent. They filed petition for succession certificate stating that they are the only legal heirs of M.K.Mohaideen Abdul Khader. The first respondent filed her objections in the OP for succession certificate on the ground that she is the owner of the properties of M.K.Mohaideen Abdul Khader, as per Will. The Court granted Succession Certificate to the first defendant and his step mother observing that the first respondent can establish her right under the Will in a Civil Court. The first defendant is not living with first respondent and he has alleged that first respondent is not his wife. He and his step mother sold certain properties to respondents 2 to 15. The first defendant denied the Will. Therefore, as per Muslim law, the first respondent is entitled to claim only 1/3rd of the properties belonging to M.K.Mohaideen Abdul Khader under the Will.
(iii) The step mother of first defendant died on 22.11.1994. The first defendant as the sole legal heir of M.K.Mohaideen Abdul Khader is entitled to 2/3rd share. The sale in favour of respondents 2 to 15 will not bind the 1/3rd share of first respondent. The first defendant was managing the suit properties on behalf of first respondent also. She sought for partition as she did not want to enjoy the property jointly with the first defendant, but he did not agree for the same. Therefore, she filed suit for partition of suit properties and for mesne profits. Respondents 2 to 15 are impleaded as they have purchased the certain properties from first defendant and his step mother.
5. The case of the first defendant-Abdul Samath/husband of first appellant herein and father of second appellant herein:
(i) M.K.Mohaideen Abdul Khader was owner of suit properties as some properties were allotted to him in partition and he purchased certain properties. The first respondent is a stranger to first defendant's family. It is not correct to state that M.K.Mohaideen Abdul Khader, father of first defendant and father of plaintiff are close friends and first defendant's father expressed his desire to get the first defendant married to first respondent. The first defendant and his father never had such an intention. His father did not write letter dated 11.5.1964. He was seriously ill at that time, and was taking treatment as in patient at Sengipatti. He was bed ridden and was not in a position to understand the happenings around him.
(ii) Father of first respondent has forged the letter dated 11.5.1964. At the instigation of her father, the first respondent has filed the suit after 32 years. The first defendant is the only son of his father and he had love and affection for first defendant and it is not correct to state that his father by Will bequeathed all the properties to the first respondent. It is not correct to state that marriage between first defendant and first respondent was conducted on 19.7.1964. At no point of time, they lived as husband and wife. The first defendant married Hawva Nachiyar, who is the first appellant herein as per the procedure and Shahul Hameed/second appellant herein is their son.
(iii) If first defendant's father had an intention to get the first defendant married to first respondent, he would have done it before he got admitted in the hospital. The said Will was not executed before witnesses. It is a contingent Will. There was no necessity to conduct marriage during the ''iddat period' of death of his father. His step mother never spoke to first respondent during her life time. The properties were inherited by first defendant and his step mother. On that basis only, they applied for Succession Certificate as legal heirs of his father. The objection of first respondent/plaintiff on the basis of Will was rejected and the Succession Certificate was issued to them in the year 1966.
(iv) The first respondent did not take any steps to prove the genuineness of alleged Will. It is not correct to state that after the marriage, the first respondent's father was managing the properties. The first respondent has not taken any steps to get the patta transferred in her name. After 32 years, the first respondent has come out with the suit. She has taken contradictory statement that first defendant and step mother accepted the Will in question and in another place states that they have not accepted the Will and hence restricted her claim to 1/3 share in the suit properties.
(v) The first defendant and his step mother were in possession of suit properties as absolute owners and dealt with the property including alienation to 3rd parties. The first respondent was never in joint possession with first defendant. Due to exclusive possession and enjoyment by first defendant to the knowledge of first respondent, she lost her right if any. 'B' scheduled properties were sold to third parties and they are in possession of the same. The Court fee paid by the first respondent under Section 37(2) of Tamil Nadu Court Fees and Suit Valuation Act is not correct. Hence, prayed for dismissal of suit.
6. The respondents 2, 3, 8 and 15 filed written statements denying the claim of first respondent. The 14th respondent adopted the same. According to them, the first defendant and his step mother are only owners of suit properties. They purchased the properties on 17.7.1972, 03.1.1976, 17.7.1991 and 20.08.1970 and they are in possession and enjoyment of the respective properties. The first respondent has no right over the suit properties and prayed for dismissal of the suit.
7. Based on the pleadings, the learned Subordinate Judge, Pattukotai framed necessary issues.
8. The first respondent/plaintiff examined herself as P.W.1 and examined one Abdul Hussain as P.W.2. Exs.P.1 to P.18 were marked. The first defendant examined himself as D.W.1 and one A.M.Farook as D.W.2 and marked Exs.B.1 to B.28.
9. The learned Subordinate Judge considered the pleadings, evidence and arguments of learned counsel for parties and dismissed the suit by the Judgment and Decree dated 20.10.1998.
10. The first respondent/plaintiff filed A.S.No.119/98 before the Principal District Judge,Thanjavur against the Judgment and decree dated 20.10.1998. In the first appeal, the first respondent filed I.A.Nos.159/99 and 83/2000 for permission to file additional documents. The first defendant resisted the same. The learned Principal District Judge framed necessary points for consideration in first appeal and also whether I.A.Nos.159/99 and 83/2000 are to be allowed as prayed for.
11. Pending appeal, first defendant died. The appellants herein were impleaded as respondents 16 and 17 in the first appeal. The learned Principal District Judge considering all the materials on record the Judgment relied on and arguments advanced by learned counsel for parties allowed the appeal and I.A.Nos.159/99 and 83/2000 filed by first respondent by Judgment and Decree dated 31.3.2006. The additional documents were marked as A19 to A.26. Against the said Judgment and Decree dated 31.3.2006, the appellants have filed the present second appeal.
12. The learned counsel for the appellants contended;
(i) that the Judgment and Decree of Lower Appellate Court is contrary to law and the case of appellants was not appreciated in the proper perspective and caused miscarriage of justice. The impugned Judgment is passed on surmises and conjectures;
(ii) that the first respondent has failed to substantiate her claim of execution, validity and genuineness of Ex.A.1, the alleged Will and marriage between the first defendant and first respondent;
(iii) that the first respondent failed to prove Ex.A.1 as per law and finding of lower Appellate Court that first respondent proved Ex.A.1 is contrary to law;
(iv) that as per Muslim law, a Will of a Muslim need not be attested by witnesses. But, as per Sections 101 to 103 of Evidence Act, the onerous is on the first respondent to prove Ex.A.1 by acceptable evidence;
(v) that the lower Appellate Court erred in law in placing reliance on the evidence of first defendant in allowing the first appeal. The lower Appellate Court failed to see that the first respondent failed to prove her case of alleged Will, Ex.A.1 and marriage between the first defendant and first respondent;
(vi) that the first Appellate Court erred in allowing I.A.Nos.159/99 and 83/2000 as first respondent failed to give acceptable reasons for not filing documents before the Trial Court. The reasons given by the first respondent does not satisfy the provisions of Order 41 Rule 27 CPC;
(vii) that in the evidence of first respondent's father given in OP filed by first defendant and his step mother for obtaining Succession Certificate, he had stated that he received Ex.A.1 by post whereas the first respondent in her evidence has stated that Ex.A.1 was handed over to her father in person;
(viii) that by marking and relying on evidence marked as additional documents, the first defendant and the appellants did not have the opportunity to cross examine the said witnesses;
(ix) that the first Appellate Court erred in law in holding that the first respondent proved Ex.A.1 in O.P.No.36 of 66 filed by the first defendant and his step mother for issuance of Succession Certificate. In the said O.P., Succession Certificate was issued to the first defendant and his step mother rejecting the objection and claim of the first respondent/plaintiff and she was directed to establish her right as per Ex.A.1 in the competent Civil Court. The first respondent/plaintiff did not take any steps for 32 years to establish her right over the properties;
(x) that the lower Appellate Court erred in holding that Ex.A.1 was proved as first defendant has given his consent for marking the same. Giving consent to mark a document will not amount to admitting the contents of the said document. The person producing the document must prove the contents of the said document. In the present case, the first respondent failed to prove the contents of Ex.A.1;
(xi) that the lower Appellate Court erred in drawing presumption under Section 90 of Evidence Act on the ground that Ex.A.1 is more than 30 years and the same was produced from proper custody. The lower Appellate Court failed to see that the first respondent did not take any action for more than 32 years even though the first defendant and his step mother were dealing with suit properties openly as owners and alienated certain properties to respondents 2 to 15;
(xii) that Ex.A.1 is a void document. It comes into operation only on contingency mentioned therein. The first respondent can become owner of the suit properties only when marriage between the first defendant and the first respondent is conducted. However, no marriage was conducted between the first defendant and the first respondent;
(xiii) that the first respondent alleges that marriage took place on 19.7.1964, she failed to prove that such marriage took place as per Islamic Custom and did not examine any person, who witnessed the said marriage;
(xiv) that the marriage alleged to have taken place on 19.7.1964 was not registered in Nikkah register while marriage of her other family members were registered in Nikkah Register;
(xv) that the first respondent did not take any steps to prove the marriage by taking steps for restitution of conjugal rights or mediation through well wishers, relatives and elders,
(xvi) that the evidence of P.W.2 does not advance the case of the first respondent as he has not deposed that the marriage was conducted on 19.7.1964;
(xvii) that the first defendant had proved that the marriage with first appellant by oral evidence as well as through Exs.B1, 2 and 4. The first defendant and first appellant lived as husband and wife and co-habitated for a long time and the second appellant was born in the wedlock. The marriage invitation of second appellant clearly proved the marriage between the first defendant and the first appellant;
(xviii) that the first defendant and his step mother alienated certain properties mentioned in the suit schedule as per Exs. B3 to 13 and Exs.B15 to 28 to respondents 2 to 15 and they are in possession and enjoyment of the said properties from the date of purchase openly as owners to the knowledge of all including first respondent. In view of their possession as owners for more than statutory period, in any event they have perfected their title by adverse possession; and
(xix) that in view of alienation in favour of respondents 2 to 15 to the knowledge of the first respondent, her right if any under Ex.A.1 got extinguished.
13. The learned counsel for appellants relied on following Judgments:
(i) Govindaraj Vs. Ramadoss reported in 2011 (3) CTC 433
(ii) Shanmugam Vs. Elumalai Gounder and 3 othersreported in 2010 (1) MWN Civil 556
(iii) Srirangam Co-operative Building Society and Others V. T.N.Muniswami Konarreported in 2010-2-L.W.637
(iv) Dhannulal and others Vs. Ganesh Ram and anotherreported in 2015(2)T.N.C.J.389
(v) Fathima Bi Ammal Vs. A.A. Mahomed Mohideen and others reported in 1971 MLJ 450
(vi) Om Prakash (Dead) th. His LRs Vs. Shanti Devi and Othersreported in 2015 (1) MWN (CiVil) 324
(vii) Thulasiammal and 7 others Vs. Kalyani and 5 othersreported in 2003 (1) CTC 609
(viii) Jagat Ram Vs. Varinder Prakashreported in (2006) (3) M.L.J 141
(ix) Kotteeswaran (died) and others Vs. K.S.Subramaniam and others reported in (2008) 6 MLJ 626
(x) Sajathi Bi Vs. Fathima Bi and othersreported in (2002) 2 MLJ 698
(i) In Govindaraj Vs. Ramadoss reported in 2011 (3) CTC 433, wherein in paragraph 14 it is stated as follows:
14. At this juncture, I would like to point out that the latest and the recent decision of the Hon'ble Apex court reported in Bharpur Singh and Ors. v. Shamsher Singh should necessarily be adhered into as under: Certain excerpts from it would run thus:
19. The provisions of Section 90 of the Evidence Act, 1872 keeping in view the nature of proof required for proving a Will have no application. A will must be proved in terms of the provisions of Section 63(c) of the Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. In the event of the provisions thereof cannot be complied with, the other provisions contained therein, namely, Sections 69 and 70 of the Evidence Act providing for exceptions in relating thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 of the Evidence Act postulates that execution must be proved by at least one of the attesting witnesses, if an attesting witness is alive and subject to the process of the court and capable of giving evidence.
It is therefore crystal clear from the decision of the Hon'ble Apex Court that Section 90 of the Indian Evidence Act is not applicable relating to proving of the Will is concerned; even though the Will like Ex.B4 might be of 30 years old and produced from proper custody, yet strictly in accordance with Section 68 and 69 of the Indian Evidence Act, the Will Should be proved. ?
(ii) In Shanmugam Vs. Elumalai Gounder and 3 others reported in 2010 (1) MWN Civil 556 wherein in paragraphs 17 and 18, it is stated as follows:
17. In the present case, the appellant/defendant though marked the documents as Exs.B-1 and B-2, did not examine any witness to prove the contents of the documents. Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue. Therefore, I am of the view that the two sale deeds namely, Exs. B-1 and B-2 marked on the side of the appellant cannot be construed as proved documents.
18. With regard to the contention of ancient documents, the language of section 90 of Indian Evidence Act clearly indicates that the production of the particular document may be necessary for applying statutory presumption. If the document produced was a copy admitted under section 65 as secondary evidence and it was produced from proper custody and was over 30 years old, then the signature authenticating the copy might be presumed to be genuine but the production of the copy was not sufficient to justify the presumption of due execution of the original under section 90. Though the documents Exs. B-1 and B-2 sale deeds are of the year 1933 and 1931 respectively, the said documents are only the certified copies of the original sale deeds. ?
(iii) In Srirangam Co-operative Building Society and Others V. T.N.Muniswami Konar reported in 2010-2-L.W.637, wherein in paragraphs 23 and 26 it is stated as follows:
23. Under Section 90 of the Indian Evidence Act, where any document, proved to be thirty years old, is produced, the Court may presume that the signature and every other part of such document duly executed and attested. However, The provisions of Section 90 of the Evidence Act, 1872 keeping in view the nature of proof required for proving a Will have no application as a Will must be executed as provided under Section 63(c) of the Indian Succession Act, 1975, and should be proved under Section 68 of the Indian Evidence Act and if there is no such attesting witnesses, the provision under Section 69 of the Indian Evidence Act has to be pressed into service. There cannot be a presumption for the 'Will' simply because it is 30 years old. It is more necessary to prove the Will, when there is a suspicious circumstances of execution of such 'Will'.
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26. Therefore, the trial Court is wrong in drawing presumption that the Will dated 04.02.1949 is 30 years old and genuine. The will has to be proved as required under law and the same has not been proved. There is also no evidence to show that a Trust has been created and in existence. As far as the temple, viz., Anjaneyar Temple, is concerned, even according to the second defendants, they have not alienated the temple and the surrounding vacant site in 'A' schedule property, but, in a part of 'A' schedule property, the second defendant, viz., Srirangam Co-operative Building Society, has put up a construction of their office. Whether the plaintiff is in possession and enjoyment of the temple and the surrounding vacant site is not proved before the trial Court.
(iv) In Dhannulal and others Vs. Ganesh Ram and anotherreported in 2015(2)T.N.C.J.389, wherein in paragraphs 18 to 21 it is stated as follows:
18. It is evident from the findings recorded by the High Court in the paragraph referred to hereinabove that the Will suffers from serious suspicious circumstances. The execution of a document does not mean mechanical act of signing the document or getting it signed, but an intelligent appreciation of the contents of the document and signing it in token of acceptance of those contents.
19. Proof of a Will stands in a higher degree in comparison to other documents. There must be a clear evidence of the attesting witnesses or other witnesses that the contents of the Will were read over to the executant and he, after admitting the same to be correct, puts his signature in presence of the witnesses. It is only after the executant puts his signature, the attesting witnesses shall put their signatures in the presence of the executant.
20. In the instant case, the suspicious circumstance appears to be that when the Will was being executed, the thumb impression over the alleged Will was also taken by the beneficiaries and the document-writer was shown to be scribe of the document, whereas the document was not scribed by him. However, late Phoolbasa Bai although filed written statement before her death, but she did not whisper anything about the Will in the written statement. Admittedly, the Will was allegedly executed in 1977 whereas the written statement was filed some time in 1987. Taking into consideration all these facts, we do not filed any error in the conclusion arrived at by the High Court. The said finding, therefore, needs no interference by this Court.
21. For the reasons aforesaid, we do not find any merit in these appeals which are accordingly dismissed. ?
(v) In Fathima Bi Ammal Vs. A.A. Mahomed Mohideen and others reported in 1971 MLJ 450, wherein in paragraph 8 it is stated as follows:
8. Mahomedan Law prescribes certain essentials of a marriage. In paragraph 252 of the Principles of Mahomedan Law-16th Edition- by Mulla, they are stated thus:-
It is essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other, in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Mahomedans. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting ; a proposal made at one meeting and an acceptance made at another meeting do not constitute a valid marriage. Neither writing nor any religious ceremony is essential ?
The law imposes certain prohibitions based on consanguinity and affinity. If a man marries a woman in violation of such prohibition, the marriage is void and the offspring is illegitimate. There is also Quoranic injunction against a man having at the same time two wives who are so related to each other by consanguinity, affinity or fosterage that if either of them had been a male they could not have lawfully intermarried, as for instance, two sisters or aunt and niece. On the question as to whether a marriage performed in violation of such an injunction is void or is only irregular, there is difference of opinion among some of the High Courts. According to the Calcutta High Court, such a marriage is void and the issue is illegitimate. Aizunnissa Khatton V. Karimunissa Khatton. But, the Madras High Court has taken the view that such a marriage is only irregular and the issue is not illegitimate. Rahiman Baibi Saheba V. Mahoob Bibi Saheba. The Bombay High Court has also taken the same view. Tajli Abalaa V. Mowlakhan Alikhan. ?
(vi) In Om Prakash (Dead) th. His LRs Vs. Shanti Devi and Others reported in 2015 (1) MWN (CiVil) 324, wherein in paragraphs 6 and 11 it is stated as follows:
6. The due execution and attestation of this Gift Deed is the sole point in issue before us. The Appellant has rested his case on the favourable presumption contained in Section 90 of the Evidence Act i.e. that the Gift Deed being thirty years old should be taken as having been duly executed and attested. The Appellant seems to have made little or no endeavour to prove the Gift Deed without the advantage of this presumption. Under Section 90, before any question of presuming a document's valid execution can emerge, the document must purport and be proved to be thirty years old. The law surrounding the date of computation of the elapse of thirty-years stands long-settled, since the verdict of the Privy Council in Surendra Krishna Roy v. Mirza Mahammad Syed Ali Mutawali: AIR 1936 PC 15, which held that the period of thirty years is to be reckoned, not from the date upon which the Deed is filed in Court but from the date on which, it having been tendered in evidence, its genuineness or otherwise becomes the province of proof. Generally speaking, although the date on which the document has been tendered in evidence or subjected to being proved/exhibited is the relevant date from which its antiquity is to be computed, we think it necessary to underscore that it should be produced at the earliest so that it is not looked upon askance and with suspicion so far as its authenticity is concerned. ?
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The relevant portion of the paragraph 11 is as follows:
11. We hasten to add that even if the document purported or proved to be thirty years old, the Appellant would not axiomatically receive a favourable presumption, the Section 90 presumption being a discretionary one. ?
(vii) In Thulasiammal and 7 others Vs. Kalyani and 5 others reported in 2003 (1) CTC 609, wherein in paragraphs 15 and 16 it is stated as follows:
15. The next point that arises is whether the suit is barred by limitation. The suit was filed on 2.9.1988. According to the learned counsel for the appellants, the first plaintiff has purchased the property on 15.9.1974. He referred to Ex.A-2 and a reading of Ex.A-2 clearly shows that the first defendant refused to attorn tenancy in favour of the first plaintiff. In Ex.A-2 it is also stated that the first defendant had gone to the extent of denying the title of the landlord. It is therefore submitted by the learned counsel for the appellants that the time limit to determine the period of limitation has to be considered from the date of purchase of the property and since the suit was filed after a period of 13 years, 11 months and 17 days from the date of purchase, the suit is barred by limitation.
16. I am unable to accept the submission of the learned counsel for the appellants. In Ex.A-3 which was sent as a reply to the notice Ex.A-2, the first defendant denied the title of the landlord. Ex.A-3 is dated 15.2.1982 and the suit was filed on 2.9.1988. As far as notice (Ex.A-2) is concerned, the notice merely called upon the first defendant to pay the entire arrears of rent and also to deliver vacant possession of the property. Even before the issue of Ex.A-2 notice, the suit for specific performance filed by the first defendant was dismissed. In the notice issued to the first defendant in Ex.A-2 it is not stated anywhere that the first defendant was denying the title of landlord even from the date of purchase by the first plaintiff, but it is stated that the tenant had gone to the extent of denying the title of the landlord. In that notice, it is not stated that from which date, the first defendant has denied title of the first plaintiff. There is no evidence from the side of the appellants that the first defendant had denied the title of the landlord even from the date of purchase. In the absence of any such evidence, both the Courts relied upon Ex.A-3 as the starting point for the computation of limitation period, and found that the suit filed by the first plaintiff is within the time. Learned counsel for the appellants referred to Article 67 of the Limitation Act and submitted that Article 67 would only apply and not Article 65. However, since it is a suit for declaration and delivery of possession and since the possession of the first defendant has become adverse to the first plaintiff, I am of the view that Article 65 of the Limitation Act would apply and therefore the 12 year period has to be computed from the date of Ex.A-3 notice issued by the first defendant. I therefore hold that both the Courts are correct in holding that the suit filed is within the time. ?
(viii) In Jagat Ram Vs. Varinder Prakash reported in (2006) (3) M.L.J 141, wherein in paragraph 6 it is stated as follows:
6. In our view, the High Court was right in holding that the suit was barred by, limitation. Article 65 of the Limitation Act, 1963 prescribes the period of limitation for possession of immovable property or any interest based on title where the suit is by a Hindu or Muslim entitled to possession of immovable property on the death of a Hindu or Muslim female. Article 65(b) in express terms provides that "the possession of the defendant shall be deemed to become adverse only when female dies". The limitation prescribed is 12 years beginning from the date when the possession of the defendant becomes adverse to the plaintiff. Learned Counsel submitted that in view of Article 65 of the Limitation Act, 1963 the suit had to be filed within 12 years from the date on which the possession of the defendant became adverse and, therefore, it was immaterial as to when the Hindu female died. It is not possible to sustain the contention because the Article itself provides that the possession of the defendant shall be deemed to become adverse only when the female dies. Thus, there is no scope for the argument that limitation does not run from the date on which the Hindu female died and that it would start running from some other date. In our view, the High Court has rightly held that the suit should have been filed by the plaintiff within 12 years of the death of the Hindu female, namely Smt Kirpi, and the same having not been filed within 12 years was barred by limitation. Much was sought to be made of the pending litigation relating to the adoption and gift deed executed in favour of the defendant. It was contended before us that since the matter was still pending and though the plaintiff's suit had been decreed on 16.1.1960, the plaintiff could not have filed the instant suit till such time as the Letters Patent. Appeal was not dismissed by the High Court i.e. till 18.11.1981. The submission has no substance because in the litigation which was pending before the High Court the plaintiff had not claimed possession of the suit land. The High Court has rightly pointed out that even if the plaintiff had sought amendment of the pleadings in the pending matter and claimed decree for possession, the legal position would have been different He having not done so, he should have filed the suit for possession of the suit land within 12 years of the death of Smt. Kirpi, which he failed to do. ?
(ix) In Kotteeswaran (died) and others Vs. K.S.Subramaniam and others reported in (2008) 6 MLJ 626, wherein in paragraphs 11 to 14 it is stated as follows:
11. At the time of hearing, it transpired that the documents were marked during the trial by consent. It is a trite proposition of law that mere marking will not amount to proving the documents. The bone of contention of Sreeranga Gounder was that the suit property was purchased as per Ex.A1 by Sreeranga Gounder and one other person jointly, subsequently, they got it partitioned as per Ex.A.2 and Ex.B.4 the mortgage deed executed by Sreeranga Gounder along with his sons would not in any way enure to the benefit of the appellant herein to contend that the suit property was treated as joint family property, as putforth by abundant caution only, the sons of Sreeranga Gounder also signed the mortage deed. The contention of the appellant is that there should have been evidence in that regard. Ex.B.4 is a registered document, which would clearly demonstrate that Sreeranga Gounder and his two major sons viz., Ramasamy and Arunachalam signed as though they are the joint owners of the property concerned. Incidentally, at this juncture, I would like to point out that even though in Ex.B.4 three persons were named as joint owners, nevertheless, it is not known as to how the decree holder ignoring such fact simply at the time of bringing the suit property for sale projected the case as though Arunachalam the Judgment Debtor had half share in the suit property. If really the suit property happened to be the joint property of Sreeranga Gounder and his two sons, then, Arunachalam would be having only one third share. But curiously enough half share in the suit property was brought for sale in the EP proceedings ignoring these facts. Now it transpires that Sreeranga Gounder died during the pendency of these appeals and hence his legal representatives viz., his wife, his son, Ramasamy Gounder and his grand son born to Ramasamy, were added. The fact remains that the said defendant Arunachalam in both the suits died during the pendency of the suits, however he remained exparte in those suits, presumably on that ground only it appears that his legal representatives were not added.
12. Be that as it may, the crucial point which arises is as to whether the plaintiff Sreeranga Gounder in one suit and Subramaniam in one other suit were justified in not figuring as witnesses so as to speak about the facts and details relating to this case. My mind is redolent with the decision of the Apex Court reported in the case of Vidhyadhar vs. Mankikrao reported in AIR 1999 SC 1441, the excerpt of the same would run thus:-
"15. It was defendant No.1 who contended that the sale deed, executed by defendant NO.2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transaction as only Rs.500/- were paid as sale consideration to defendant No.2. He further claimed that payment of Rs.4,500/- to defendant No.2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by defendant No.1 as he did not enter into the witness box. He did not State the facts pleaded in the written statement on oath in the trial Court and avoided the witness box so that he may not be cross examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No.2 and the plaintiff was a bogus transaction.
16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksha Singh vs. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madh Pra 225, also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (AIR 1927 PC 230) (supra). The Allahabad High Court in Arjun Singh v. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box".
13. A perusal of the aforesaid decision would clearly highlight and spot light that when certain facts are within the exclusive knowledge of the plaintiff, it is the bounden duty of him to appear before the Court and depose and in the absence of it, the genuineness of the plaintiff case cannot be held to have been proved. But, in this case, even though Ex.B.4 a registered mortgage deed emerged in the name of Sreeranga Gounder and his sons viz., Ramasamy and Arunachalam as joint owners/co-mortgagors, the said Sreeranga Gounder had not figured himself as a witness to prove that he happened to be the exclusive owner of the suit property. It is just and necessary to highlight the significance of Section 91 and 92 of the Indian Evidence Act, which would shun oral evidence being adduced quite contrary to the recitals in a registered deed. However, in certain circumstances, evidence could be adduced to prove the actuals. But all those facts could be expatiated only by the person concerned by figuring himself as a witness. Whether joint family existed or not among Sreeranga Gounder and his two sons is a fact should have been known to Sreeranga Gounder. But he never appeared before the Court and deposed and no steps have been taken by any of the parties to summon Sreeranga Gounder as a Court witness. Even the Judgment Debtor Arunachalam at the relevant time during the earlier proceedings was very much alive but he remained exparte. The auction purchaser Subramamaniam in his suit even though had come forward with the specific plea that the Judgment Debtor had no soleable interest in the suit property, nonetheless, he had not figured himself as a witness. These are all in my opinion serious flaws in the proceedings conducted before the trial Court. No doubt, the trial Court extracted an excerpt from treatise on the Hindu Law to the effect that simply because the mortgage deed was signed by the father and sons, there could be no presumption that there existed a joint family. The opinion found in the treatise is not conclusive and it is not to the effect that such deeds have no evidentiary value at all to prove joint family status. It cannot be taken that when father and sons have executed the mortgage deed, it should necessarily be taken that there was no joint family status. It all depends upon the facts and circumstances involved in each and every case. The trial Court simply relying on the excerpt from the said treatise, ignored Ex.B.4 and placed reliance only on Exs.A1 and A2 and decreed the suit. In my opinion, the approach of the trial Court was perverse and the parties also were not justified in refraining from adducing oral evidence to highlight crucial circumstances relating to this case. The nature of the pleas involved in both the cases warrant clinching and reliable oral evidence. In the absence of such evidence, necessarily the Judgment and decree of the trial Court should be set aside and the matter should be remanded back to the trial Court for being dealt with as per law from the stage of conducting of trial.
14. In view of the discussions set out supra, both the appeals are decided by setting aside the common Judgment and decrees of the trial Court and in remanding both the matters to the trial Court for being dealt with as per law. The parties are directed to appear before the trial Court on 30.07.2008. ?
(x) In Sajathi Bi Vs. Fathima Bi and others reported in (2002) 2 MLJ 698, wherein in paragraphs 15 and 16, it is stated as follows:
15. Admittedly, the parties being Muslims are governed by Mohammedan Law. A person cannot bequeath his entire properties excluding the right of devolution of properties to his heirs. Mohammedan Law lays down that a Mohammedan can only bequeath his property by way of a Will in respect of 1/3 of his estate which is the surplus after deducting all his debts and funeral expenses. If a bequest is made to a heir, it is not valid unless the other sharers consent to the same.
16. A Mohammedan cannot by Will dispose of more than 1/3 of the surplus of his share after payment of funeral expenses and debts. Bequests in excess of the share cannot take effect, unless the heirs consent to that and that too after the death of the testator. ?
For the above reasons, the learned counsel for the appellants prayed for allowing the second appeal.
14. Per contra, the learned counsel for the first respondent contended;
(i) that the first defendant and first respondent are close relatives, namely, father of first defendant is brother of first respondent's mother;
(ii) that from the early age of first defendant and first respondent, it was decided that they are to be married;
(iii) that the first respondent has proved Ex.A.1 as per law. First defendant did not object the marking of Ex.A.1 and hence, cannot dispute the contents;
(iv) that the first defendant's father M.K. Mohaideen Abdul Khader while taking treatment at Sengipatti hospital wrote Ex.A.1 wherein he has categorically stated that he will get first defendant and first respondent married once he comes from hospital. Ex.A.1 had categorically stated that after marriage, the first respondent shall become owner of all his properties;
(v) that Ex.A.1 is more than 30 years old and the same was produced from proper custody. As per Section 90 of Evidence Act, signature and every other part of such document may be presumed to be in the hand writing of any particular person; and
(vi) that in the present case, Ex.A.1 is more than 30 years old and the same is produced from proper custody and hence, the lower Appellate Court has rightly held that first respondent proved Ex.A.1.
15. In O.P.No.36/66 filed by the first defendant and his step mother for issuance of Succession Certificate, the first respondent as objector has proved Ex.A.1 in the year 1967. In Ex.A.1, father of first defendant has stated that in case of his death, Ex.A.1 must be treated as his "VASIYYAT"- Will and first respondent will become owner of his properties on first defendant and first respondent getting married.
16. As per wish of M.K. Mohaideen Abdul Khader, father of first defendant, marriage between first defendant and first respondent was conducted on 19.7.1964. First defendant and his step mother gave their consent for the marriage. First defendant also admitted his presence at the place of marriage. First respondent as P.W.1 and by examining one Abdul Hussain as P.W.2, proved the marriage conducted on 19.7.1964.
17. The first respondent did not take any steps for a long time on the fond hope that the first defendant will start living with her. The first defendant has not proved his marriage with first appellant. There is no necessity for them to get married at Nagore Dargah, when both of them are residents of Madookoor Village.
18. It is not correct that Ex.A.1, will come into effect only on contingency. On the other hand, it is only conditional in the sense that it will come into effect on the conducting of the marriage between the first defendant and the first respondent.
19. The respondents 2 to 15 did not let in any oral evidence to substantiate their claim that they have purchased the properties and that they are in possession from the date of purchase and perfected their title.
20. The learned counsel relied on the Judgment of this Court in the case of A.V.S. Perumal V. Vadivelu Asari reported in 1986 MLJ 283. Paragraph 6 of the judgment reads as follows:
6. In Manicka Mudaliar's Case, (1982) 95 L.W.297 the learned Judge has held as follows:
By merely marking the documents be consent, the court is not obliged to look into the contents unless those documents are formally proved in accordance with the provisions of the Indian Evidence Act ?. (underlined supplied).
We think, with respect to the learned Judge, the above proposition is too wide and needs modification. The correct position as found by the earlier Division Bench is as follows:
permitting a document to be marked by consent only means that the party consenting is willing to waive his right to have the document in question proved
The learned singe Judge, in Manicka Mudaliar's case, (1982) 95 L.W. 297 has taken the view even that formal proof also is required notwithstanding the fact that the document was marked by consent. To that extent, the learned single Judge, with respect is not right. ?
In view of the above, he prayed for dismissal of the second appeal.
21. At the time of admitting the second appeal, the following substantial questions of law were framed:
(i) Having regard to the scope of Sections 101 to 103 of The Evidence Act, whether the plaintiff has proved the execution and validity of Ex.A.1 and her case and as such, the adverse findings of the First Appellate Court is not perverse?
(ii) Whether the legal presumption drawn in favour of the plaintiff on Ex.A.1, under Section 90 of the Evidence Act is correct in law when the 1st defendant disputed the Ex.A.1 as fradulent and fabricated document?
(iii) Whether the learned Ist Appellate Judge has misconducted the construction of Ex.A-1 and as such, the judgment and decree of the 1st Appellate Court is sustainable?
(iv) Having regard to the materials available on record, whether the plaintiff has positively proved her marriage with the 1st defendant as required under law by adducing legal evidence when more particularly she had not taken any proceeding for restitution of conjugal rights. ?
Substantial questions of law 1, 2 and 3:
22. The first respondent filed a suit for partition against the first defendant claiming 1/3 share in the suit properties. According to the first respondent, M.K.Mohaideen Abdul Khader, father of first defendant is her maternal uncle being brother of her mother. First defendant's father and her father are close friends. In the circumstances, the first defendant's father, M.K. Mohideen Abdul Khader from the early age of first defendant and first respondent was intending to get them married to each other. M.K. Mohideen Abdul Khader was admitted in Sengipatti hospital and was taking treatment. While in hospital, he wrote a letter dated 11.5.1964 marked as Ex.A.1. In the said letter, he had stated that after he is discharged from hospital, he would conduct marriage between first defendant and first respondent. In the said letter, he had also stated that he would give all his properties to first respondent after marriage between first defendant and first respondent. He died on 13.6.1964 in the hospital. According to the first respondent, the marriage between her and first defendant was conducted on 19.7.1964. From that day onwards, she became owner of all the properties of M.K. Mohaideen Abdul Khader as per Ex.A.1 as M.K. Mohaideen Abdul Khader has categorically stated that in case of his death, the said letter has to be treated as Will.
23. The first defendant denied the execution of Ex.A.1 by his father. He also denied the marriage between him and first respondent. The first defendant and his step mother filed O.P.No.36 of 1966 for Succession Certificate with regard to estate of M.K. Mohideen Abdul Khader. The first respondent objected to the same on the ground that she is the owner of properties. In the OP filed by the first defendant for Succession Certificate, Ex.A.1 was marked through father of first respondent. First defendant gave his consent for such marking. In the said OP, Succession Certificate was issued to first defendant and his step mother and first respondent was directed to prove Ex.A.1 before competent Civil Court. She did not prove Ex.A.1 in O.P.No.36 of 1966 filed by first defendant and his step mother. The Trial Court held that the first respondent did not prove Ex.A.1 as per law and rejected the claim of first respondent for partition based on Ex.A.1. The Trial Court for various reasons had not accepted Ex.A.1 as genuine. On the other hand, the Appellate Court has considered evidence of first respondent's father given in O.P.No.36 of 1996 and held that genuineness of Ex.A.1 has been proved.
24. It is pertinent to note that first defendant admitted the signature in Ex.A.1 as that of his father and gave his consent for marking the same. In the circumstances, the contentions of the first defendant and appellants in second appeal that first respondent has to prove Ex.A.1 inspite of admitting the signature of his father is contrary to law.
25. The Judgment relied on by the learned counsel for the first respondent clearly shows that once consent is given, the document need not be proved. At the same time, it will not amount to admitting the genuineness of contents. In addition to this, Ex.A.1 is dated 11.5.1964 and was more than 30 years when it was marked in the suit for partition. First respondent, who is the proper person, who is entitled to the custody of Ex.A.1 produced the same. In the circumstances, the presumption as per Section 90 of Evidence Act comes into play and lower Appellate Judge had rightly held that Ex.A.1 is more than 30 years old produced from the custody of proper person, i.e., first respondent and therefore, the same has to be presumed as proved. The first respondent's father in O.P.No.36 of 1966 deposed about the same. He was cross examined on behalf of first defendant and his step mother. Further, in the suit for partition, the first respondent spoke about the contents of Ex.A.1. Accepting the evidence of the first respondent as P.W.1 and her father, the First Appellate Court has held that the first respondent has proved the contents of Ex.A.1. The first defendant has not let in independent evidence like his uncles, who were present in hospital when his father was taking treatment to prove that his father was seriously ill and would not have written Ex.A.1.
26. The following reasons are given by Trial Court for rejecting Ex.A.1:
(1) M.K. Mohideen Abdul Khader would have straight away written Will bequeathing his properties to first respondent instead of writing letter to her father;
(2) No property was given to his wife;
(3) Ex.A.1 is clearly written and would not have been written by seriously ill person; and
(4) No evidence was produced to prove through whom Ex.A1 was sent to first respondent's father.
27. All these reasons are invalid reasons. The Trial Court has lost sight of fact that the first respondent is the sister's daughter of the first defendant's father (M.K.Mohaideen Abdul Khader) and the first defendant's father and the first respondent's father are close friends.
28. The first defendant admitted the signature in Ex.A1 as that of his father. He consented for marking the document. He disputed the writing in Ex.A1 as forged and fabricated by the first respondent's father. He did not take any steps to send Ex.A1 along with admitted writing of his father to Handwriting Expert for opinion. The learned Subordinate Judge rejected Ex.A1 on the ground that writing therein is very clear and a sick person could not have written so clearly. He did not have any admitted writing of the first defendant's father for comparison. On the other hand, the first respondent as P.W.1 and her father in O.P.No.36 of 1996 categorically deposed and proved that Ex.A1 was written by the first defendant's father.
29. It is a case of first respondent that from the beginning, the intention of M.K. Mohaideen Abdul Khader, father of first defendant is to get the first defendant married to first respondent. The first defendant has not examined anybody to disprove this statement. In the circumstances, there is nothing suspicious about the contents of Ex.A.1 especially when the first defendant himself has admitted that signature in Ex.A.1 is that of his father.
30. For the above reasons, I am inclined to accept the contentions of the learned counsel for the first respondent that the first respondent has proved Ex.A.1 including contents. The lower Appellate Judge has given valid reasons for holding that the first respondent has proved Ex.A.1. There is no infirmity in the said finding. Substantial questions 1, 2 and 3 are answered accordingly.
Substantial question of law No.4:-
31. The first respondent has stated that she married to first defendant on 19.7.1964 in the house of one Batcha. The marriage was conducted in a simple manner as 'iddat period' of 40 days after the death of first defendant's father M.K. Mohideen Abdul Khader had not been over. The first defendant and his step mother gave their consent for their marriage. To prove the marriage, the first respondent examined one Abdul Hussain as P.W.2, who attended the marriage. He categorically stated that he was present at the time of marriage. It is admitted that marriage between a Muslim male and Muslim female is a contract and it is not a sacrament. No specific procedure or rituals is prescribed. It is only a proposal and acceptance which must be done in the same meeting.
32. In the present case, the first respondent as P.W.1 deposed the she got married with first defendant. In addition to that, she examined P.W.2 who was present at the time of marriage and he deposed that marriage took place between first respondent and first defendant on that day. The first defendant also admitted that he was in that place at that time. His version is that he was taken by force by first respondent's father by seven or eight people and they tortured and forced him to give consent for marriage. They kept him locked in a room and police complaint was given by his uncle and police came and rescued him. He also contended that first respondent did not take steps for restitution of conjugal rights after marriage. The Muslim marriage is a civil marriage. The first respondent and P.W.2 have categorically stated that marriage between first defendant and first respondent was conducted on 19.7.1964. In the criminal case filed against the first respondent's father, P.W.2 and others they were acquitted. Therefore the case of the first defendant that he was forced and tortured by first respondent's father, was rejected. A marriage between a Muslim male and Muslim female can be proved by direct or indirect way.
33. Direct way of proving marriage is by producing extract of Nikkah register from the concerned Jammath register or by examining persons, who witnessed the said marriage. Indirect way of proving marriage is cohabitation for a long period and begetting children. The alleged marriage between the first defendant and the first respondent was not registered in Nikkah register and therefore, no marriage took place in the year 1967, is untenable. The first defendant has not produced any document to show that the marriage between him and the first appellant was registered in Nikkah register even though, he claims that the said marriage was registered in Nagore Dargah. The first respondent has proved her marriage with first defendant by direct evidence, i.e. certified copies of evidence of her father recorded in O.P.No.36 of 1966 and C.C.No.277 of 1964, her evidence in the suit as P.W.1 and evidence of P.W.2, Abdul Hussain, who attended the marriage of first defendant and first respondent.
34. The learned Trial Judge disbelieved the evidence of P.W.2 as he is an unbelievable witness and his evidence is artificial in nature. The said reasonings are not acceptable. Whereas the first Appellate Court has appreciated all the evidence on record and also the nature of Muslim marriage in proper perspective and came to a conclusion that the first respondent has proved her marriage with first defendant. It has to be taken note of that the first respondent is an illiterate lady living in a village and would not have come out with a false case that she got married to first defendant. She had politely and patiently waited with fond hope that first defendant would change his attitude and live with her as husband and wife. This reason given by her for the delay in filing the suit for partition is acceptable one in the social circumstances which first respondent hails. For the reasons, stated above, this substantial question of law No.4 is answered that the first respondent has proved her marriage with the first defendant.
35. In the result, the second appeal is dismissed. The Judgment and Decree of the First Appellate Court are confirmed. No costs. Consequently, connected miscellaneous petitions are closed.