Plaintiffs not entered in to witness box - Adverse inference can be drown up - certified copy of partition deed is public document can be marked as an exhibit

Kandavel and others vs Chidambara Padayachi(died)

 Indian Evidence Act, 1872 - Section 74(1)((iii) & 114 - Public Document - Failure to give Evidence - Adverse Inference - It is seen from Ex.A-9 that the claim application had been presented belatedly subsequent to the passing of the decree in the suit against the said S, and therefore the executing court thought it fit to reject the same on that ground - Unable to concede with the contention put forth by the learned counsel for the appellants that since the claim application made under Ex.A-9 was rejected even at the inception by the executing court, the court below erred in relying upon the same to prove that there had been partition of the family properties belonging to S and D. It follows necessarily that the courts below were right in concluding that Ex.A-9 is the material piece of evidence to prove the partition alleged by the plaintiff in this case - It is clear that the document under Ex.A-9 certainly falls under the category of secondary evidence admissible in evidence. Further it is useful to refer to the conduct of the 3rd defendant in this case, as she has conveniently avoided the box for the simple reason that she would be confronted with Ex.A-9 in the cross-examination if she had examined herself as witness on the side of the defendants. Therefore in view of the provision under Section 114 of the Indian Evidence Act and the principle enunciated by the Supreme Court in the decision, VIDHYADHAR v. MANKIKRAO AND ANOTHER (1999-3-L.W. 576), necessarily an adverse inference has to be drawn against the case set out by the 3rd defendant as she did not appear and state her own case on oath and subject herself to the cross examination by the plaintiff with reference to Ex.A-9 as she had initiated the said proceedings as evident by the said document. Hence the finding rendered by the trial court and the first appellate court that the suit property fell to the share of S in the partition between him and his brother D has to be confirmed.

Para 20 & 24

Code of Civil Procedure, 1908 - Section 100 & Order XXI Rule 58 - Inference - It is seen from Ex.A-9 that the claim application had been presented belatedly subsequent to the passing of the decree in the suit against the said S, and therefore the executing court thought it fit to reject the same on that ground - Unable to concede with the contention put forth by the learned counsel for the appellants that since the claim application made under Ex.A-9 was rejected even at the inception by the executing court, the court below erred in relying upon the same to prove that there had been partition of the family properties belonging to S and D. It follows necessarily that the courts below were right in concluding that Ex.A-9 is the material piece of evidence to prove the partition alleged by the plaintiff in this case - It is clear that the document under Ex.A-9 certainly falls under the category of secondary evidence admissible in evidence. Further it is useful to refer to the conduct of the 3rd defendant in this case, as she has conveniently avoided the box for the simple reason that she would be confronted with Ex.A-9 in the cross-examination if she had examined herself as witness on the side of the defendants. Therefore in view of the provision under Section 114 of the Indian Evidence Act and the principle enunciated by the Supreme Court in the decision, VIDHYADHAR v. MANKIKRAO AND ANOTHER (1999-3-L.W. 576), necessarily an adverse inference has to be drawn against the case set out by the 3rd defendant as she did not appear and state her own case on oath and subject herself to the cross examination by the plaintiff with reference to Ex.A-9 as she had initiated the said proceedings as evident by the said document. Hence the finding rendered by the trial court and the first appellate court that the suit property fell to the share of S in the partition between him and his brother D has to be confirmed.

Para 20 & 24

Comparative Citation:
2005 (3) CTC 344, 2005 (3) CTC 344
CDJ 2005 MHC 977

Comparative Citations:
1999 (3) SCC 573, 1999 AIR(SC) 1441, 1999 (2) JT 183, 1999 (2) Scale 93, 1999 (4) SRJ 175, 1999 (3) BCR 564, 1999 (3) AD(SC) 37, 1999 (3) LW 576,CDJ 1999 SC 1017

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