Kishan Lal Vs. Shanti Devi - Court Judgment

Verma, J.

(1). This civil misc. appeal has been preferred against the order dated 28.5.1990 passed by the District Judge, Ajmer, whereby the probate has been granted to the respondent Smt. Shanti Devi under Section 299 of the Indian Succession Act, 1925,

(2). One Smt. Dakha had died on 31.12.1977 leaving certain properly. Application under Section 276 of the Indian Succession Act was filed by the respondent with the prayer that Smt. Dakha had executed a registered Will in her favour on 29.9.1977 and the probate letter be issued to her in connection with the properly in question. Application was opposed by the present appellant with the prayer that he is relative of the deceased Dakha and no Will was executed on 29.9.1977.

(3). The application of probate was allowed on 28.5.1990 which is challenged in the present appeal. It is the contention that as per the statement of PW-'1 Kanhaiya Lal, Smt. Dakha was not in senses when she had executed the Will and when she had put her thumb impression. It is also the contention that Umrao Singh had not been produced. II is stated that Shanti Devi herself did nol appear in the court. Her husband had appeared and, therefore, an adverse inference should have been drawn against her.

(4). The trial court had framed the required issues.

(5). On issue No.1 it was held by the trial court that the Will Ex. 1 was proved by PW-1 Kanhaiya Lal, PW-2 Kailash Narain, PW-3 Gainda Lal which was registered on 29.9.1977 before the Sub- Registrar, witnessed by Umrao Singh and Kanhaiya Lal. Even though Umrao Singh had not been produced, but it has been proved by the witness Kanhaiya Lal and PW-2 Kailash Narain who had slated that at the direction of Sml. Dakha, Will Ex. I was executed by Kailash Narain which was entered into his register Ex.2. Smt. Dakha was identified by Kanhaiya Lal and Gainda Lal and that Smt. Dakha had executed the Will which was got registered at the instance of Smt. Dakha. PW-3 Gainda Lal is the husband of Smt. Dakha who has confirmed these facts. The trial court had found that the Will had been proved to have been executed in favour of respondent Shanti Devi.

(6). Per contra, learned counsel for the respondent submits that the Will was executed a few months before the death of Smt. Dakha and she was at the time suffering from descentry and was not in senses. The defendant's version was supported by Ratan Singh DW 3 and Gokul Chand DW -2, however, it was admitted by the defence witnesses as well that even at the time of death Smt. Dakha was living with Shanli Devi where she was taking her meals as well.

(7). Original record has been seen.

(8). Only contention of the learned counsel for the appellant is that for the reason that Shanli Devi herself had not come in the witness box, but her husband Gainda La! was produced as PW-3, therefore, it is to be presumed that there was no evidence at all as the husband even if he may be having power of attorney in his favour by Shanti Devi, but he can only be treated as witness and not a party.

(9). The only question being raised is that in the circumstances if a party does riot appear in the witness box, his power of attorney appears, in such situation, whether it is a case of no evidence.

(10), Reliance is placed on the decision of Bombay High Court in the case of Humberto Luis & anor. v. Floriano Armando Luis and Anr. (1), and Parikh Amratlal Raman Lal Trustee and Administrator of Sanskrit Pathshala Institution and others v. Rami Mafatlal Girdharilal and others (2).

(11). The Bombay High Court in the case of Humberto Luis (supra) while adjudging the competency of the witness i.e. holder of power of attorney, after discussing the provisions of Order 111 Rule 1 and Order XVIII CPC r/w Section 118 of the Evidence Act which clearly provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answers to those questions, by the tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind. It was held that the competency of a person to testify as a witness is different from that of credibility of the testimony of the witness. It is true that the testimony of the person will definitely be subject to the scrutiny in the manner provided in the provisions contained in Section 60 of the Evidence Act viz. a viz. credibility of such testimony and not relating to the competency of a person to depose on behalf of some other person. It was further observed that it cannot be concluded that the provisions contained in Order III Rule 1 of CPC would restrict the powers of holder of Power of Attorney to depose on behalf of the plaintiff in relation to the matter in issue before the Court. Being so, the finding arrived at by the trial court that the deposition of such witness on behalf of the plaintiff on the basis of Power o[ Attorney clearly amounts to pleading on behalf of the plaintiff as well as the finding that recognised agents cannot step into the shoes of the plaintiff in order to depose on behalf of the plaintiff could be sustained and were liable to be set aside. It was further held that under Order HI Rule 1 CPC, a direction to the plaintiff to step into the witness box can be given only in justifiable cases and not as a matter of course. It is primarily for the parly to the suit to decide whether to appear in person to depose in relation to the facts of the matter or not. It is for the court to draw necessary inference in case of failure of the party to appear in person in a matter before the court; but that by itself would not entitle the court to discharge the burden of issues which lies on'such person.

(12). Single Bench of this court in the case of M/s Ramavatar Kailash Chand v. Sml. Suraj Bai (3), in a case of Rent Control Act, it was held that it cannot be laid down as a very general proposition that if the landlord or land lady does not examine himself/herself, an adverse inference has to.be necessarily drawn. It will depend on facts of each case. This fact of course, will be considered as a circumstance while considering the case of the plaintiff and while arriving at the conclusion whether the plaintiff has been able to prove its case of reasonable and bonafide necessity. Ordinarily, a person for whom there is need for getting the suit premises vacated, shouldappear as a wimess in the court and make himself available for cross-examination by the other side, but the bonafide need can be proved by other evidence, both oral and documentary and even by circumstances and it is not correct to state that in every case the plaintiff must enter the witness box and depose about the requirement.

(13). In the case of Parikh Amrattal Raman Lal (supra), it was held that the question whether the general power of attorney holder of a party can be a competent witness on behalf of a parly before a Judicial Tribunal or authority has to be answered in the light of Sec. 118 of the Evidence Act and for answering that question the provisions of Order3 Rule. I and 2(a) of the Civil P.C. are beside the point and can afford no guidance whatsoever. Giving deposition on oath as a power of attorney holder of a party is not a part of pleadings. It is a part of the procedure for proving a case by examining a competent witness. Who can be a competent witness is indicated by the Evidence Act alone as per Section 118. The power of attorney holder of a party, only on the ground that he holds the power of attorney, cannot be said to be in the category of persons who are incapable of being witnesses as provided by Section 118 of the Evidence Act. Whether such a power of attorney holder has personal knowledge about the matters in controversy may be a question which can be thrashed out by cross-examining him and if it is found that the power of attorney holder has no personal knowledge about the facts in controversy, the evidentiary value of his deposition may be whittled down, but that has nothing to do with the competence of such a power of attorney holder to depose before a court of a Judicial Tribunal as a competent witness.

(14). In the case of Ram Kishan Dass v. Dwarka Prasad Bhousarla (4), it was held that where in an ejectment application filed against the tenant power of attorney holder appearing as his witness and some of his statement was to be recorded, but on the objection being raised by the counsel for the tenant, that he could not make out anything from the statement of the power of attorney, the Rent Controller had directed (hat the landlord be produced for making the statement. The Rent Controller had directed the landlord to be produced for statement which order was challenged before the High Court. It was held that the impugned order passed by the Renl Controller was wholly without jurisdiction, there was no jurisdiction in the Renl Controller to order the landlord to appear in the witness box.

(15). This court in the case of Ram Prasad v. Hari Narain & Ors. (5), had held that under Order 3 Rule 2 power of attorney holder is not entitled to appear as witness for party appointing him power of attorney holder. The work 'acts' in Rule 2 does not include act of power of attorney holder to appear as witness on behalf of a party. Such power of attorney can appear only as a witness in his personal capacity and whatever he has knowledge aboul the case, he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that parly and if the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC.

(16). Reliance is placed by the petitioner on the case of Pritam Singh v. Vimla Devi, (6), wherein it was observed thai the. second contention raised by the learned counsel for the appellant is that the plaintiff respondent, Smt. Vimla Devi, did not appear in the witness-box. The statemenl of her husband, Satyanarain (PW-1), who is said to be her power of attorney holder, to the effect that the appellant did not pay the rent from 11.9.1982 to 10.9.1985, cannot be relied upon that the appellant had not paid the amount of rent, as stated by PW-1. According to the learned counsel, it was necessary for the appellant to have personally entered into witness-box and state about non-payment of rent. The appellant, therefore, could not have been held to be a defaulter. It may be pointed out that PW. 1, husband of the respondent is her power of attorney and the appellant himself has stated that the rent has been paid to the respondent, by way of supply of cloth from time to time to Satyanarain, husband of the respondent. Therefore, when the appellant himself has taken a defence of payment of rent by way of supply of cloth to Salyanarain, it was only appropriate for him to havecome in the witness box and give statement. Moreover, respondent being a lady, there was nothing wrong if her husband enters into witness box to give evidence as her power of attorney. The Division Bench did not find any force in the submission that the evidence of the power of attorney cannot be read out or that as a general rule the party on whose behalf of attorney was appearing shall always appear as witness.

(17). In the case of Pandurang Jivaji Apte v. Ramchandra Gangadhar Ashtekar (7), where question was raised that because of failure of Apte and Bavdekar to appear before the court, adverse inference is to be drawn against such persons. It was held that such situation would only arise when there was no evidence on the record on the point in issue. It was held that the question of drawing adverse inference against a parly for his failure to appear in court is only when there is no evidence on the record.

(18). I fully agree with the law laid down by the Bombay High Court in the case of Humberlo Luis (supra), a single Bench decision of this courl in the case of M/s Ramavatar Kailash Chand v. Smt. Suraj Bai (supra), Parikh Amratlal Raman l,al (supra), Ram Kishan Dass v. Dwarka Prasad Bhousarla (supra) and Pritam Singh v. Vimla Devi (supra).

(19). The case of Ram Prasad v. Hari Narain, a single bench decision of this courl which has been relied is for the proposition that the power of attorney cannot be a plaintiff himself, but it is not for the proposition that in case the plaintiff does not appear, the witness of power of attorney is to be rejected or that in all circumstances, the plaintiff or defendant i.e. the parly must appear in the case.

(20). In view of the above said discussions it is setlled law that power of attorney is a competent witness and is entitled to appear as such. His statements in the court cannol be ignored or it cannot be said that the statement of such a witness shall not be read in evidence only because of the reason that he had appeared as power of attorney and in case the parties to suit i.e. plaintiff or defendant does not choose in appear as a witness in witness box it cannot be said that the evidence of the power of attorney who had appeared in the capacity as holder of power of attorney is not to be read at all. His evidence is to be evaluated as per his deposition before the court and in case the court finds that witness/evidence of such power of attorney doss not depose a confidence the court is at liberty to evaluate the same. There is no jurisdiction with the court to say that the evidence of such person shall not be read at all and that the plainliff must appear in the case in her support. The order of the trial court cannot be set aside,

(21). For the discussions and reasons mentioned above, it is settled that even it the plaintiff or defendant does not appear in the witness box to support his case, but there is other reliable evidence, the courts can definitely take that evidence into consideralion. The contention of the learned counsel for the appellant cannot be accepted. There is no merit in the Civil Misc. Appeal and the same is dismissed. No order as to costs.