In the absence of para-wise reply to the plaint, it becomes a roving inquiry for the Court to find out as to which line in some paragraph in the plaint is either admitted or denied in the written statement filed, as there is no specific admission or denial with reference to the allegation in different paras.{Para 15}
15.1 Order VIII Rules 3 and 5 CPC clearly provides for specific
admission and denial of the pleadings in the plaint. A general or evasive denial is not treated as sufficient. Proviso to Order VIII Rule 5 CPC provides that even the admitted facts may not be treated to be admitted, still in its discretion the Court may require those facts to be proved. This is an exception to the general rule. General rule is that the facts admitted, are not required to be proved.
15.2 The requirement of Order VIII Rules 3 and 5 CPC are specific admission and denial of the pleadings in the plaint. The same would necessarily mean dealing with the allegations in the plaint para-wise. In the absence thereof, the respondent can always try to read one line from one paragraph and another from different paragraph in the written statement to make out his case of denial of the allegations in the plaint resulting in utter confusion.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8935 OF 2011
THANGAM AND ANOTHER Vs NAVAMANI AMMAL
Rajesh Bindal, J.
Dated: March 04, 2024.
Citation: 2024 INSC 164.
1. The issue under consideration in the present appeal is
regarding genuineness of the Will dated 09.10.1984, which is a registered
document, executed by Palaniandi Udyar in favour of Navamani Amma.
2. A suit1 filed by the respondent/plaintiff for declaration and
injunction was decreed by the Trial Court2, holding the Will to be
1 O.S. No. 402 of 1986.
2 Additional District Munsif Court, Ariyalur.
Page 2 of 16
genuine. In appeal3 by the appellants, judgment and decree of the Trial
Court was reversed by the First Appellate Court4. In second appeal5 filed
by the respondent the judgment and decree of the First Appellate Court
was set aside and that of the Trial Court was restored by the High Court6.
3. Before we embark upon to consider the issues in detail, we
deem it appropriate to mention the relations between the parties and
certain brief facts.
3.1. The testator of the Will dated 09.10.1984, Palaniandi Udayar,
was the husband of appellant no. 1 Thangam and father of appellant no. 2
Laila.
3.2. The Will was executed on 09.10.1984 in favour of Navamani
Amma/Plaintiff, who as per the narration in the Will is said to be daughter
of the brother of the testator.
3.3. The defendant in the suit originally filed was widow of the
testator, however, later on his minor daughter was also impleaded. Both
are the appellants before this Court.
3 Appeal Suit No. 7 of 1991.
4 Subordinate Judge, Ariyalur.
5 Second Appeal No. 1344 of 1996.
6 High Court of Judicature at Madras.
3.4 The appellant no. 1 is the third wife of the testator. The earlier
two wives expired and were not having any child from the loins of the
testator.
3.5 Even as per the admitted case of the defendant no. 1/widow of
the testator, the testator was having total land about 8 acres besides three
houses.
3.6 By way of Will, the testator had bequeathed approximately
3.5 Acres of land in favour of the plaintiff stating therein that she is like his
daughter, being daughter of his brother. The value of the suit property
was estimated to be about ₹16,000/-.
ARGUMENTS
4. In the aforesaid factual matrix, the argument raised by learned
counsel for the appellants challenging the judgment and decree of the
High Court was that the execution of Will was surrounded by various
suspicious circumstances and deserves to be discarded as was rightly
done by the First Appellate Court. The finding of facts recorded by the
First Appellate Court was erroneously reversed by the High Court without
the same being perverse. Re-appreciation of the facts merely to come to
another possible conclusion does not fall within the scope of
Page 4 of 16
consideration of a matter in second appeal. There was no substantial
question of law involved in the second appeal before the High Court.
There were discrepancies in the statements of the scribe and the attesting
witnesses to the Will. The health of the testator was not good and he was
not in a position to understand and comprehend the contents of the Will.
There were differences in the thumb impressions of the testator on the
Will and on the register in the office of the Sub-Registrar.
5. Though, admittedly the testator left behind his widow and a
minor daughter but there is no mention in the Will about the same. How
their interest was taken care of, the Will is silent. In fact, the appellants
were in possession of the suit property. The suit filed by the respondent
was totally misconceived.
6. On the other hand, learned counsel for the respondent
submitted that the execution of Will by a person in favour of any other
relative always would mean that the testator wishes to take away some
property from the normal course of inheritance. In fact, the respondent
being like daughter to the testator was taking care of his health, who was
suffering from asthma and chronic cough. It is not that the entire property
owned by the testator was given to the respondent by way of Will, rather
it was only a part thereof. She is in possession of the suit property after
the death of the testator. The need to file the suit arose more than two
years after the death of the testator as her possession was disturbed by
the appellants. Otherwise also the appellants had not taken any step to
take care of the testator when he was not keeping good health or the
property left by him after his death. Admittedly, the appellant no. 1 was
living away from the testator. Even at the time of his death the appellants
were not present as she came later on. Even the expenses for performing
last rites of the testator were borne by the husband of the respondent.
There is no error in the judgment of the High Court. The findings recorded
by the First Appellate Court being totally perverse were rightly
interfered by the High Court.
6.1 In the written statement filed by the appellants, there was no
specific denial to the claim made by the respondent/plaintiff. No parawise reply was given. In the absence thereof, the allegations in the plaint were deemed to be admitted.
DISCUSSION
7. Heard learned counsel for the parties and perused the
relevant referred record. We may record that the translated copies of
whatever documents have been placed on record by the parties, are
being considered as such as to the same, no dispute has been raised by the either side.
8. What is required to be considered while examining the
correctness of the judgment of the High Court is as to whether the Will in
question was surrounded by suspicious circumstances whereby the
testator had not mentioned the names of his widow and minor daughter in
the Will and has bequeathed a part of his property to the respondent.
8.1 The appellant no. 1 is the third wife of the testator whereas the
appellant no. 2 is the daughter. From the earlier two wives no child was born.
9. Firstly, coming to the health of the testator the Plaintiff/PW-1
stated in her examination-in-chief that though the testator was having
Asthma but otherwise he was in good health condition. In her Cross-
Examination PW-1 stated that the testator was suffering from Asthma and
Cough for about 5 to 6 years. She denied that the testator was having any
drinking habit. She denied the suggestion that the testator was bedridden for three months before executing the Will.
9.1 PW-2/Vadivelu, who is an attesting witness to the Will, in his
cross-examination stated that he inquired about the health of the testator and he told PW-2 that he was having some cough problem and was otherwise suffering from T.B.
9.2 PW-3/Govindasamy, who was a witness in the office of Sub-
Registrar, in his cross-examination stated that at the time of execution of Will the testator was having cough.
9.3 PW-4/Subramanian, who is Scribe of the Will, stated in his
examination-in-chief that at the time of execution of Will the testator was
in good physical condition and he was having cough only. He was not put
any question in this regard in cross-examination.
9.4 DW-1/Thangam Ammal, who is the widow of the testator,
stated in her examination-in-chief that before his death the testator ‘was
suffering from lever wound and he had dysentery and suffered very
much’ (sic). DW-1 in her cross-examination sated that three months
before his death the testator was not in good physique and before that he
was in good condition. DW-1 further stated that the testator was bed
ridden for 3 months and she was taking care of him.
9.5 From the aforesaid evidence of the witnesses with reference
to the health of the testator we do not find that he was not in good senses and was unable to understand his welfare or take correct decisions.
Hence, the Will cannot be held to be suspicious on the ground of the
alleged ill-health of the testator at the time of the execution of the Will.
10. Now, coming to another aspect with reference to the
genuineness of the Will, the PW-4/Subramanian, who is scribe of the Will,
stated in his examination-in-chief that the testator had put his thumb
impression on the Will and that he witnessed the same. He further stated
the Will was registered in the office of Sub-Registrar.
10.1 In his cross-examination, he stated that on enquiry testator told
him that the Plaintiff can take the suit property and other properties can
be taken by the Defendants i.e., his wife and daughter. This shows that
even at the time of execution of the Will, the testator was fully conscious
of the welfare of his widow and minor daughter as sufficient property was
left for them.
11. The Plaintiff examined PW-2/Vadivelu, who was the attesting
witness to the Will. In his examination-in-chief he stated that the testator
was very well known to him and that he was witness in the above Will. He
stated that the Will was written under a tree at Palavur. Details were given
by the Testator. After writing of Will, the testator asked PW-4/scribe to
read over the same. After hearing and being satisfied the testator had put
his thumb impression. He and one other attesting witness, Muruganian
(DW-2), had witnessed the testator putting thumb impression on the Will.
In his cross-examination he stated that the Will was written without
compulsion and in good conscious were expressed by Testator alone. He
asked testator whether he was having any legal heir and testator told him
that as per his desire alone the Will was written.
11.1 The Defendants examined Murugaian, who was also an
attesting witness to the Will, as DW-2, who in his examination-in-chief
stated that he was asked by Paramasivam, who is husband of the Plaintiff,
to be witness in the office of Sub-Registrar. He further stated that he was
requested to sign as witness and after putting his signature he returned.
DW-2 further stated that he did not see the testator put his thumb
impression. In Cross-examination DW-2 stated that he saw the testator
sitting under a tree and that the testator told him that he was writing the
Will in favour of his heirs.
12. It is the admitted case of the appellants that the testator left
behind about 8 acres of land and three houses. What has been
bequeathed to the respondent is merely a part of testator’s entire
property i.e. land measuring approximately 3.5 Acres. Meaning thereby
the balance property of the testator is in possession of widow and
daughter. This is how the interest of the natural legal heirs has been taken
care of.
12.1 The reason to bequeath a part of the property in favour of the
respondent is also evident from the material available on record. It has
come in evidence that the testator was not keeping good heath as he was
suffering from asthma and cough. The appellants were not living with him
for quite sometime as it is the admitted case of DW-1 in her crossexamination
that she had gone to her paternal home on account of
marriage of her brother and was not living with the testator at the time of
execution of Will. It has also come on record that she was not present
when the testator died. Expenses for his last rites were borne by the
husband of the respondent who was taking care of the land of the testator.
12.2 There is nothing on record to suggest that the appellants were
taking care of the property left by the testator immediately after his death
or that any steps were taken by them to get the same mutated in their
favour.
13. From the aforesaid evidence on record, in our opinion, no
error has been committed by the High Court in holding that the Will was
not surrounded by the suspicious circumstances as the scribe and one of
the witnesses were unison. The testator was conscious of the fact that he
had a wife and a minor child whose interest had been taken care of by
leaving part of the property for them. It came in response to a specific
question asked by PW-4 to the testator at the time of execution of the Will.
It was so stated by PW-4 in his cross-examination. Even in para 14 of the
written statement, the appellants stated that they are enjoying the suit
properties and other properties left by the testator. This clearly shows
that certain part of the properties was left by the testator for his widow
and minor daughter.
14. Before we part with the judgment we are constraint to observe
the manner in which the pleadings have been filed in the Trial Courts or may be in some cases in the High Courts.
14.1 A perusal of the plaint filed by the respondent shows that it
contains ten paragraphs besides the prayer. In the written statement filed by the appellants, no specific para-wise reply was given. It was the own story of the respondent containing fifteen paragraphs besides the prayer in para 16.
15. In the absence of para-wise reply to the plaint, it becomes a
roving inquiry for the Court to find out as to which line in some paragraph in the plaint is either admitted or denied in the written statement filed, as there is no specific admission or denial with reference to the allegation in different paras.
15.1 Order VIII Rules 3 and 5 CPC clearly provides for specific
admission and denial of the pleadings in the plaint. A general or evasive
denial is not treated as sufficient. Proviso to Order VIII Rule 5 CPC
provides that even the admitted facts may not be treated to be admitted,
still in its discretion the Court may require those facts to be proved. This
is an exception to the general rule. General rule is that the facts admitted,
are not required to be proved.
15.2 The requirement of Order VIII Rules 3 and 5 CPC are specific admission and denial of the pleadings in the plaint. The same would necessarily mean dealing with the allegations in the plaint para-wise. In the absence thereof, the respondent can always try to read one line from one paragraph and another from different paragraph in the written statement to make out his case of denial of the allegations in the plaintresulting in utter confusion.
15.3 In case, the defendant/respondent wishes to take any
preliminary objections, the same can be taken in a separate set of
paragraphs specifically so as to enable the plaintiff/petitioner to respond
to the same in the replication/rejoinder, if need be. The additional
pleadings can also be raised in the written statement, if required. These
facts specifically stated in a set of paragraphs will always give an
opportunity to the plaintiff/petitioner to respond to the same. This in turn
will enable the Court to properly comprehend the pleadings of the parties
instead of digging the facts from the various paragraphs of the plaint and
the written statement.
15.4 The issue regarding specific admission and denial of the
pleadings was considered by this Court in Badat and Co. Bombay Vs. East India Trading Co7. While referring to Order VIII Rules 3 to 5 of the CPC it was opined that the aforesaid Rules formed an integrated Code
7 AIR 1964 SC 538.
dealing with the manner in which the pleadings are to be dealt with.
Relevant parts of para ‘11’ thereof are extracted below:
“11. Order 7 of the Code of Civil Procedure
prescribes, among others, that the plaintiff shall give in the
plaint the facts constituting the cause of action and when it
arose, and the facts showing the court has jurisdiction. The
object is to enable the defendant to ascertain from the plaint
the necessary facts so that he may admit or deny them. Order
VIII provides for the filing of a written-statement, the
particulars to be contained therein and the manner of doing
so;
XXX XXX XXX
These three rules form an integrated code dealing with the
manner in which allegations of fact in the plaint should be
traversed and the legal consequences flowing from its noncompliance.
The written statement must deal specifically with
each allegation of fact in the plaint and when a defendant
denies any such fact, he must not do so evasively, but answer
the point of substance. If his denial of a fact is not specific but
evasive, the said fact shall be taken to be admitted. In such an
event, the admission itself being proof, no other proof is
necessary.”
15.5 The matter was further considered by this Court in Lohia
Properties (P) Ltd., Tinsukia, Dibrugarh, Assam Vs. Atmaram
Kumar8 after the 1976 Amendment Act in CPC whereby the existing Rule
5 of Order VIII of the CPC was numbered as sub-rule (1) and three more
sub-rules were added dealing with different situations where no written
statement is filed. In paras 14 and 15 of the aforesaid judgment, the
position of law as stated earlier was reiterated. The same are extracted
below:
“14. What is stated in the above is, what amount to
admit a fact on pleading while Rule 3 of Order 8 requires that
the defendant must deal specifically with each allegation of
fact of which he does not admit the truth.
15. Rule 5 provides that every allegation of fact
in the plaint, if not denied in the written statement shall be
taken to be admitted by the defendant. What this rule says is,
that any allegation of fact must either be denied specifically or
by a necessary implication or there should be at least a
statement that the fact is not admitted. If the plea is not taken
in that manner, then the allegation shall be taken to be
admitted.”
8 (1993) 4 SCC 6.
Page 16 of 16
15.6 We have made the aforesaid observations as regularly this
Court is faced with the situation where there are no specific para-wise
reply given in the written statement/counter affidavit filed by the
defendant(s)/respondent(s). In our opinion, if the aforesaid correction is
made, it may streamline the working.
16. For the reasons mentioned above, we do not find any
merit in the present appeal. The same is, accordingly, dismissed.
……………….……………..J.
(C.T. RAVIKUMAR)
……………….……………..J.
(RAJESH BINDAL)
New Delhi
March 04, 2024.
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