Suit on Possessory Remedy, Other side Admits Possession; Should the Will be Proved?

Jojy George Koduvath

Suit on Possessory Remedy, Other side Admits Possession; Should the Will be Proved? No. Because proving the Will will be a surplusage.

Read also:

Possession is a Substantive Right: Possession by itself is a substantive right recognised by law. It is heritable and transferable, as explained in the following decisions –

  • Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165,
  • Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179;
  • Phirayalal Kapur v. Jia Rani, AIR 1973 Delhi 186;
  • Nallammal v. Ayisha Beevi, 2017-5 Mad LJ 864). 

Possession Follows Title and Adverse Possession: It is held in MS Jagadambal v. Southern Indian Education Trust, 1988 (Supp) SCC 144, that the possession continues with the title holder unless and until the defendant acquires title by adverse possession (possession follows title). In LN Aswathama v. P Prakash, 2009-13 SCC 229, the Supreme Court held as under:

  • “In law, possession follows title. The plaintiffs having established title to the suit property, will be entitled to decree for possession, unless their right to the suit property was extinguished, by reason of defendant being in adverse possession for a period of twelve years prior to the suit.”

Sec. 17 (Admission) and Sec. 58 (Facts admitted need not be proved) are attracted. Division Bench decision in Boomathi v. Murugesan, 2023-2 Mad LJ 684 considered – when a Will is ‘categorically’ and ‘clearly’ admitted by the other side, should it be proved by calling a witness of the Will under Section 68 of the Evidence Act. The Madras High Court came to the conclusion that Section 68 will not be attracted where the Will is “admitted” by the other side.

Read also:

Gratuitous Possession – Owner can Reclaim Even Without Knowledge of the Other: In Anima Mallick v. Ajoy Kumar Roy, (2000) 4 SCC 119, our Apex Court held that where the sister gave possession as gratuitous to her brother, the sister could reclaim such possession even without knowledge of the brother; and that ‘no one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. (Relied on in Maria Margadia Sequeria v. Erasmo Jack De Sequeria 2012 (5) SCC 370, Indore Development Authority v. Manoharlal, (2020) 8 SCC 129; AIR 2020 SC 1496.)

Documents required by law to be attested by attesting witnesses.

The following documents are required by law to be attested by attesting witnesses.

  1. Will: Sec. 63 of the Succession Act.
  2. Mortgage deed: Sec. 59 of the T P Act.
  3. Gift deed: Sec. 123 of the T P Act.
  4. Bond: Sec.  2(5) of the Indian Stamp Act, 1899.

Section 68 of the Evidence Act, 1872 mandates examination of one attesting witness at least to prove the aforesaid four documents required by law to be attested. The proviso to Sec. 68 lays down the following: if the aforesaid documents, EXCEPT WILL, are (i) registered in accordance with the provisions of Indian Registration Act, 1908 and (ii) not specifically denied by the person who executed it, execution of those documents need not necessarily be proved by calling ‘an attesting witness’. That is, for the purpose of proving the Will (alone), the examination of ‘an attesting witness’ is necessary. It is difficult to support the logic and grounds for picking out Will (in Sec. 68 Evidence Act), from other (three) documents that are required by law to be attested by attesting witnesses.

But, note – the Will stands picked out (in Sec. 68 Evidence Act) from other (three) documents that are required by law to be attested by attesting witnesses.

Do General Provisions of S. 58 give way to Special Provisions of S. 68

Three views are possible:

  • First: Requirement of calling at lest one witness to prove those documents that requires attestation, in spite of express admission from the opposite party as to the execution of the document in the written statement.
  • Second: If the Will is (even impliedly) admitted, Sec. 68 need not be invoked.
  • Third: If only the Will is expressly or categorically admitted, then only there will be alleviation of burden laid down in Sec. 68.

In the light of the Apex Court decision in Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, (that the position – as to proof of documents requires attestation – remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement) it appears that the second view stated above (taken in Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker 226) is not sustainable.

But, the proposition of law in the third view above, applied in Boomathi v. Murugesan (supra), and other decisions (that the position – as to proof of documents requires attestation – will be different if the Will is “categorically admitted“), sounds good.

Dominant Owner  Cannot Dispute The Title Of The Servient Owner

It is a trite law in ‘Law on Easement’ that the dominant owner cannot dispute the title of the servient owner (Reghuprasad v. M.  Raghunathan, AIR 2020 Ker 16). 

In Omana v. Reji Kurian, AIR 2022 Ker 91, it is held (K. Babu, J.) as under:

  • “19. Yet another aspect that requires consideration is that the pleadings of the defendants in the written statement go in the line, denying the title of the plaintiff over the ‘B’ schedule way. One of the fundamental ingredients in a claim of easement is the admission of the title of the servient owner by the dominant owner. On this ground alone, the claim of the defendants over plaint ‘B’ schedule property by way of easement by prescription must fail.”

Recovery on “GENERAL TITLE” and “SUPERIOR TITLE“

The legal proposition on “General Title” is seen adhered to in Mt.  Sewti v.Rattan, AIR 1951  HP 54. It is observed as under:

  • “It has therefore been held that where a suit for recovery of possession of property based on a lease fails, a subsequent suit to recover the same property on the strength of general title is not barred by res judicata: Zamorin v. Narayanan, 22 Mad. 323 and Kuttt Ali v. Cindan, 23 Mad. 629.”

The legal proposition on “Superior Title” is seen adhered to in Shankarlal v. Gangabisan, AIR 1972  Bom 326, and it is observed as under:

  • “The plaintiff could have sued upon this document and the claim in that case would have been under the contract. But the plaintiff in the subsequent suit did not sue upon the contract but he sued upon his general title as the owner of the property. He alleged that the defendants were trespassers and that the plaintiff was entitled to get possession and further damages on the basis of his title as stated in the passage we have quoted above. Therefore, the plaintiff was claiming in the second suit on the basis not of a title arising under the contract but dehors the contract. In other words, the plaintiff was seeking to enforce in the subsequent suit his general title as owner and not his title to get back the property under the contract of lease. It is clear therefore that this title was superior to the contract between the parties and it was by virtue of this superior title that the plaintiff claimed in the second suit. The respective causes of action in the earlier suit and in the subsequent suit were therefore entirely distinct and separate.”

Landlord can win the TITLE SUIT if he Proves his GENERAL TITLE

In Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693, the plaintiff-landlord sued defendant for eviction. The Defendant claimed title over the property. It is held–

  • “The landlord in a given case#* although may not be able to prove the relationship of landlord and tenant, but in the event he proves his GENERAL TITLE, may obtain a decree on the basis thereof.”
    • #*Tenant challenges title of landlord; and no special law (e.g., BRC Act) bars to give such a relief in ‘civil suit’.
  • This decision is referred to in TribhuvanShankar v. Amrutlal (S.B. Sinha and Deepak Misra, JJ.), 2014-2 SCC 788.

In Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693, the question was formulated by the Court as under:

  • “Whether a Civil Court can pass a decree on the ground that the defendant is a trespasser in a simple suit for eviction is the question involved in this appeal.”

Read also:

Unknown's avatar

Published by sajikoduvath

Leave a Comment