THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY Review SAMP No.639 of 2014 In S.A.No.1255 of 2010 JUDGMENT : (Per the Hon’ble Sri Justice L.Narasimha Reddy) This application is filed with a prayer to review the judgment dated 29.10.2011, rendered by this Court in S.A.No.1255 of 2010. The Second Appeal, in turn, arose out of the judgment in O.S.No.486 of 2005, which was filed by the petitioner herein. For the sake of convenience, the parties are referred to as arrayed in the suit. The facts that gave rise to the filing the application are that: One Smt Pakiramma had two daughters, by name, Ademma and Drowpadamma. The plaintiff is the daughter of one Ademma and the defendant is the daughter of Drowpadamma. Pakiramma died way back on 27.06.1956. The plaintiff filed O.S.No.486 of 2005 in the Court of the II Additional Junior Civil Judge, Guntur for partition of the suit schedule property, originally owned by Pakiramma being Ac.1-00 cents of land in D.No.192/A situated at Gorlavaripalem Village, Pedapakala Mandal, Guntur District. He pleaded that on the death of Pakiramma, the property has devolved equally upon her daughters Ademma and Drowpadamma, and being the children of those two women, the plaintiff and defendant are entitled to equal shares. The defendant opposed the suit by filing written statement. She did not dispute the relationship pleaded by the plaintiff. According to her, Pakiramma executed a Will dated 18.02.1956 in favour of Drowpadamma, and the latter, in turn, executed a deed of gift on 04.09.1985 in her favour. Through its judgment dated 27.02.2009, the trial Court dismissed the suit. Aggrieved by that, the plaintiff filed an appeal in A.S. No.229 of 2009 in the Court of the III Additional District Judge, Guntur and the same was dismissed on 11.03.2010. The plaintiff carried the matter to this Court by filing Second Appeal No.1255 of 2010 and the same was dismissed on 29.10.2011. Sri M. Pitchaiah, learned counsel for the plaintiff submits that the trial Court, lower Appellate Court and this Court did not take into account, the important legal aspect, viz., whether a Will can be said to have proved unless an attestor thereof is examined as provided for under Sections 68 and 69 of the Indian Evidence Act (for short “the Act”). He contends that once the relationship is not disputed and the only defence pleaded by the defendant is Ex.B3- Will, the suit could have been dismissed, if only Ex.B3 was proved in accordance with law. He submits that neither an attestor was examined nor a person, who is acquainted with the writing or signature of the attestors, deposed before the trial Court. Learned counsel further submits that unlike other documents, the document, which is required to be attested in law, can be acted upon, if only the attestors are examined, and failure to examine such attestors, would virtually cripple the operation of a document of that category. He contends that since a serious error of law has crept into the adjudication undertaken at various levels, the order passed by this Court deserves to be reviewed. Sri N.Subba Rao, learned counsel for the defendant, on the other hand, submits that the review is not at all maintainable, and for all practical purposes, the plaintiff has presented the present review petition almost as a further appeal. He submits that Ex.B3 was executed more than half a century ago, and none of the attestors are alive. He submits that the trial Court and the lower appellate Court were convinced that Ex.B3 was proved to the satisfaction of the Court, and that this Court dismissed the Second Appeal on finding that no substantial question of law arises for consideration. He contends that there are no merits in the review petition and the same deserves to be dismissed. This Court is conscious of the fact that the review cannot be a forum, akin to a further appeal, and it is only on a limited and specific grounds recognized in law, that a review can be entertained. The fact that a second view is possible on the same set of facts does not provide a justification for entertaining a review. It is only when an important fact missed the attention of the Court or the view expressed by the Court runs contrary to a specific provision of law, or a binding precedent, that a review can be entertained. The facts in the instant case are not in serious dispute. The plaintiff on the one hand, and the defendant, on the other hand, are the children of two daughters of the common ancestor, Pakiramma. If natural course of succession is permitted to take place, the property held by Pakiramma must be divided equally between the plaintiff and the defendant. The defendant, however, pleaded that Pakiramma executed Ex.B3 in favour of Drowpadamma, bequeathing the entire suit schedule property in favour of the mother of the defendant. The fact that Drowpadamma executed a gift deed in favour of the defendant does not make much of difference, because even through succession, the defendant would have got it, subject, of course, to the claims of any other legal heirs. The only point urged before this Court is that Ex.B3, the Will which is said to have been executed by Pakiramma was not proved as required under law. Therefore, it needs to be seen as to whether any specific requirement under law was not complied with by the defendant. Attestation is a phenomenon, which is prescribed by law, for valid execution of a particular category of documents. A document executed by an individual can be proved by examining the executant, and if necessary, the persons who witnessed the execution thereof. In a given case, the proof of signature of the executant may serve the purpose. However, ‘attestation’ has totally a different connotation. It is only in certain categories of documents, such as Will under Section 66 of the Act, the Gift Deed and Deed of Mortgage under Transfer of Property Act, that are required to be attested. The word ‘attestation’ is explained, though not precisely defined, under Section 3 of the Transfer of Property Ac. It reads: “Attested” – “attested” in relation to an instrument means and shall be deemed always to have meant attested by two or more witness each of whom has seen some other person sign or affix his make to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary” Since the very word “attested” occurred in the definition itself, it is more in the form of description or explanation of the phenomenon, than a precise definition of that very expression. The purport of the same is not difficult to understand. The provision has been interpreted by the Hon’ble Supreme Court and various High Courts. For example : M.L.Abdul Jabhar Sahib Vs H. Venkata Sastri and Sons and others[1] , it was observed, “….it is to be noticed that the word “attested” the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 3 are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgement of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness…..” There can be no denial of the fact that ‘attestation’ is a process, through which, law ensures that the possibility of a document being brought into existence through fraudulent means is eliminated. Obviously, by taking into account, the nature of legal consequences, that flow from the documents, which are required to be attested, the Act has prescribed a totally different procedure for proof thereof. Sections 68 and 69 of the Act prescribe the procedure in this behalf. They read as under: “Section 68 : Proof of execution of document required by law to be attested : If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.” Section 69 : Proof where no attesting witness found: If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.” The very opening sentence of Section 68 of the Act mandates that if a document is required by law to be attested, it “shall not be used as evidence”, unless at least, once attesting witness has been called for to prove its execution. Section 69 of the Act prescribes procedure to be followed where attesting witnesses are not found are available. Unless the person who relies upon a document which requires to be attested in law takes the measures contemplated under Sections 68 and 69 of the Act, he just cannot use it as evidence. Even among the category of documents, which are required to be attested in law, a Will stands on a different footing. In all other categories of documents, there is every possibility of the executant being alive. If a party relying upon such a document is able to procure an admission as to execution of the document from the executant, rigour under Section 68 of the Act can, to substantial extent, be watered down. However, such a possibility does not exist in respect of a Will. The reason is that a Will gets its life only from the grave of its executant, and it cannot be pressed into service during the lifetime of its author. Therefore, summoning of the executant of a Will to prove it does not arise. A person, who relies upon a Will, has invariably to fall back upon the procedure, prescribed under Sections 68 and 69 of the Act, if he intends to reap the benefits under the Will. Reverting to the facts of the case, the defendant relied upon Ex.B3-the Will, said to have been executed by Pakiramma in favour of Drowpadamma, and Ex.B4 the deed of Gift, said to have been executed by Drowpadamma in favour of the defendant. Both the documents are required to be attested. However, she did not examine any person who figured as attestor of Ex.B3. Assuming that the persons who figured as attestors in Ex.B3 are not alive, the defendant was under obligation to comply with Section 69 of the Act. Even that was not done. The trial Court and the lower appellate Court were mostly impressed by the fact that the Ex.B3 was more than 30 years old, and the presumption provided for under Section 90 of the Act would apply. However, the presumption provided for is limited in its purport. When a person relies upon a document, which is more than 30 years old, and the same is opposed by the other party, the necessity still remains to prove the contents and other particulars of the document as regards, which no presumption as such is provided. It is only on proof of such contents of the documents, that they become enforceable. In this behalf, there is no evidence whatever adduced by the defendant vis-à-vis Ex.B3. Section 90 of the Act does not have the effect of totally absolving a person, relying upon a document of more than 30 years old, from taking any steps whatever, to prove it. Many a time, the very plea as to that the age of the document, may be at issue. In case the document is registered, there may not be any dispute as to its age and the contents do not face any problem in extending the benefits under Section 90 of the Act, once the existence of the document dates back to 30 years. When the document, in its entirety is disputed, at least the fact that it came into existence, in contrast to execution, more than 30 years ago must be proved to the satisfaction of the Court. It is only thereafter, that the presumption provided for as to execution, attestation, or other aspects can be drawn. It needs to be mentioned that Ex.B3 is not a registered document, and there is no evidence whatever to demonstrate that it has been acted upon by the plaintiff. The evidence, on the other hand, is that the plaintiff and the defendant were enjoying the property jointly. Ex.A5 and Ex.A6 are the cist receipts for the years 2007 and 2008, issued to the plaintiff and Ex.A7 is the pass book showing that he availed Agricultural loan against his share of the suit schedule property. The defendant also obtained a pattadar pass book. Therefore, the defendant cannot be said to have proved Ex.B3 as required under law. DW.2 examined by the defendant is said to be an attestor of Ex.B5, the deed of rectification in respect of a Gift deed-Ex.B4. When no attestors of Ex.B3 and Ex.B4 were examined, there is no way, that the defendant could have resisted the partition of property, left by late Pakiramma. Learned counsel for the defendant has placed reliance upon the judgment of the Supreme Court in Smt Meera Bharja Vs Smt Nirmala Kumari[2] in support of his contention that review can be maintained only when the error apparent on the face of the record, and not a mere error in the judgment is shown. While dismissing the Second Appeal, this Court did not at all take into account, the purport of Sections 68, 69 and 90 of the Act, and the authoritative precedents, which interpreted the said provisions. This Court is of the view that a valid case is made out for reviewing the judgment dated 29.10.2011, rendered by this Court in S.A.No.1255 of 2010. Accordingly, Review SAMP.SR.No.4260 of 2010 is allowed and the judgment dated 29.10.2011 is reviewed. In view of the reasons mentioned in the preceding paragraphs, the Second Appeal is allowed and the judgment and decree passed by the Court of the III Additional District Judge, Guntur in A.S.No.229 of 2009 and that of II Additional Junior Civil Judge, Guntur in O.S.No.486 of 2005 are set aside. A preliminary decree is passed in the suit, directing that the suit schedule property shall be divided into two equal parts and one part shall be allotted to the plaintiff and another part to the defendant. There shall be no order as to costs. __________________________ L.NARASIMHA REDDY, J. Date : 07.03.2014 Note: L.R.Copy to be marked. B/o THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY Review SAMP No.639 of 2014 And S.A.No.1255 of 2010 Date: 07 .03.2014 Gvl [1] AIR 1969 SC page-1151 [2] 1995 SC page 455