Procedural law is often character as adjective law, as accessory to giving execution and effect to the substantive law. Procedural law do quite often play more important role than substantive law because it provides a mode, a path through which working in law courts have to be streamlined. The primary object of this article is to complement, to breath life into and give reality to the some important legal principles relating to civil cases which are very useful for the bench and bar for disposal of old civil cases. To make this article more useful I have given selective and latest legal principles with support of case law, a fortiori, His Lordship Hon’ble Sri Justice B.Siva Sankara Rao in the case of Cheedella Padmavathi (died) per LRs and others Vs. Cheedella Lakshminarasimha Rao (died) per LRs and others, 2015 (5) ALT 634, elaborately delineated more than 94 legal principles are enunciated and those are very useful for judicial officers and advocates for daily reference.
(1) When there can be no valid execution of Document?:- There can be no valid execution of a document which is required by law to be attested without the proof of its due attestation and if due attestation is also not proved; the fact of execution of the WILL is of no avail.
(2) What is the position of one co-owner’s possession?:- Possession of one co-owner is possession of all on the basis of joint title of all on the principle that co-owner in possession would become constructive trustee on behalf of the others not in possession.
(3) How to prove ‘Joint Family nucleus’? :- Initial burden is on plaintiffs to show that the property is joint family property and then it shits on the defendants to show that the same was not purchased from out of the joint family nucleus and it was purchased independent of them.
(4) On whom burden lies? :- Burden lies on the person who asserts that a particular property is joint family property.
(5) How to prove the presumption of Joint Family? :- If the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be the joint family property.
(6) When can court take adverse inference?:- The non-filing of the material document by the defendant of the so called partition list said to have been executed leads to adverse inference.
(7) What is the effect of non-Examination of material witness:– Non-examination of a material witness to speak the so called partition is also fatal to draw adverse inference against the case of the defendant of alleged partition.
(8) How to question genuineness of Will? :- Once genuineness of Will is questioned the other evidence required is in discharge of the duty of propounder to dispel the surrounding suspicious circumstances, if any.
(9) What is the purpose of statement on Oath:- Law is settled that statement on oath or previous deposition even of a living person is admissible in evidence only for purpose of corroboration that too on calling to witness box and draw his attention to refresh his memory to speak therefrom if any under Section 157 Evidence Act or otherwise to confront with the same for any contradiction under Section 145 r/w Section 155(3) Evidence Act.
(10) Can a plaintiff take alternate and inconsistent Pleas? :- A plaintiff can at best take alternative pleas, but cannot proceed on inconsistent pleas and even any pleas taken inconsistent to one another, he got the doctrine of election of one of the pleas thereby the other inconsistent plea being taken waived, for not entitled to approbate and reprobate.
(11) Whether a defendant can take any number of pleas? :- Defendant can take any number of pleas to non-suit the plaintiff “ In that course one plea may be inconsistent to the other “ If defendant makes a counter claim, he is at par with the plaintiff.
(12) What is the status of a beneficiary of a Will? :- He, who accepts a benefit under a deed or Will or other instrument, must adopt the whole contents of the instrument, must confirm to all its provisions and renounce all rights that are inconsistent with it.
(13) What is election of Rights? :- Election is obligation imposed upon a party by courts of equity to choose between the two inconsistent or alternate rights or claims in cases where there is a clear intention of the person from whom he derives the one, that he should not enjoy both.
(14) How to understand the word ‘Election’ as to right? :- Every case of election therefore, presupposes plurality of rights, with an intention of the party who has a right to control one or both, that one is suitable for others.
(15) How to understand an ‘Admission’?:- Admissions are relevant and must be read as a whole.
(16) Can an admission be split up? :- Admission cannot be split up to rely upon a part of statement to the advantage to ignore the other part which is to the disadvantage of same party.
(17) How to understand the word ‘Admission’ in view of Order VIII Rules 3 to 5 of CPC? :- As per Order 8, Rules 3 to 5, every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability.
(18) How to explain ‘Admissions’? :- Admissions can be explained away and retracted.
(19) What is important to rely on Admissions?:– In placing reliance on admissions, conduct of parties and all subsequent events have to be conjointly examined.
(20) Evidentiary value of admissions:- Evidentiary value of admissions is very weak and as such those are not conclusive proof of the matters admitted.
(21) What weight is to be attached to an admission?:- Admission is substantive evidence of the fact admitted “ What weight is to be attached to an admission made by a party is a matter different from its use as relevant and admissible evidence.
(22) What is essential to prove adverse possession? :- A party claiming adverse possession must prove that his possession is peaceful, open and continuous.
(23) Whether the plea of adverse Possession is pure question of law? :- Plea of adverse possession is not a pure question of law, but a blended one of fact and law.
(24) Whether the question of ‘Equities’ favours the plaintiff seeking adverse possession?:- A person pleading adverse possession has no equities in his favour, since he is trying to defeat the rights of the true owner, thus it is for him to clearly plead and establish all facts Necessary for adverse possession.
(25) What is to be considered to receive additional evidence? :- The applicant must show the ingredients as condition precedent required for adducing additional or further evidence.
(26) What the appellate Court should consider? “ It is the duty of appellate court to consider the entire case on record and come to an independent conclusion in arriving at a just decision under Order 41 Rule 33 from the entire matter and in doing so, additional evidence can be received to do justice to the parties.
(27) Why should receive additional evidence? “ Additional evidence cannot be received to patch up the weakness of the evidence of any party.
(28) What does ‘conferring of Jurisdiction’? “ Where an act confers a jurisdiction, it impliedly also grants the power of doing all such acts or employing such means as are essentially necessary to its implementation.
(29) What is inherent power? “ Section 151 of CPC gives inherent power to the court to do justice unless expressly prohibited.
(30) Whether there is any bar to file withdrawal of Application?:- There is no express bar in filing withdrawal application as the courts not to act upon the principle that civil procedure is to be taken as prohibited, unless it is expressly provided by the code.
(31) How to understand the word ‘Prohibition by Law’? :- “ Civil procedure is to be understood as permissible till it is shown to be prohibited by the law.
(32) Whether withdrawal of application deletion of pleadings?:- “ Permitting for withdrawal of application filed earlier for deletion of item-2 is maintainable to sub-serve the ends of justice.
(33) Whether fresh suit for partition suit on recurring cause of action is maintainable?:- “ In a partition suit, there is no bar under Order 23 Rules 1 and 3 to institute a fresh suit on recurring cause of action even the earlier suit was withdrawn.
(34) What are the principles in partition suit?:- “ Even any principles of obiter or estoppels or waiver or res judicata are not applicable in a suit for partition.
(35) What is the power of appellate court?:- “ While sitting in appeal, appellate court got power under Order 41 Rule 33 CPC not only to pass an order or decree that the trial court ought to have passed, but also got power to grant any further decree or order within the scope of relief, though not beyond, as the case may require within the facts and circumstances which include subsequent events.
(36) Whether judging is merely a Job?:- “ Judging is not merely a job, but a way of life based a spiritual wealth that includes by obligation on an impartial search for truth.
(37) What is appreciation of evidence?:- “ Appreciation of evidence is thus part of the process in search for truth “ In case of conflict between stability and truth, truth is preferable as truth should be the guiding star in the entire judicial process.
(38) What is ‘Truth’?:- “ Truth alone has to be the foundation and justice “ Entire judicial system has been created only to find out the truth as truth alone triumphs, not falsehood.
(39) What is the duty of Judge?:- “ It is the bounden duty of judges in the journey of trial/enquiry to discover truth by application of procedural and adjectival law to decide the substantial rights.
(40) What are the kinds of ‘Truth’? “ Truth implies reality in two kinds “- (1) Paramartha known as eternal truth and (2) Yathartha known as factual truth.
(41) To what evidence, court will give preference?:- “ Under Evidence Act, court will prefer the documentary evidence over oral evidence and it will prefer primary/direct-oral evidence from that of indirect oral evidence/circumstantial evidence, other than hearsay, subject to exceptions on admissibility of hearsay evidence.
(42) What appreciation of Evidence? “ Appreciation of evidence is a judicial function and there shall not be any element of arbitrariness in appreciating the evidence.
(43) What are the rules of Evidence? “ Rules of evidence laid down in the Evidence Act have special value to a Judge.
(44) What is foundation of proof?:- “ Evidence Act is the foundation for proof “ Appreciation of evidence to mean evaluation, assessment and estimation etc.
(45) How to ascertain substantial rights? :- “ The substantial rights are to be ascertained with reference to adjectival law.
(46) How construct pleadings? :- Pleadings are not statutes and legalism is not verbatim “ Common sense should not be kept in cold storage, when pleadings are construed.
(47) How pleadings should be?:- Pleadings shall receive a liberal and not pedantic approach as meant to ascertain the substance and not form, it only requires the opposite party to know.
(48) What is the effect of evidence in absence of pleadings? In the absence of pleadings, any evidence produced by parties generally cannot be considered “ No party shall be permitted to travel beyond its pleadings.
(49) When plea not made specifically? “ Even a plea not made specifically from deficiency in pleadings, but if covered by implication and evidence let in and parties know the case, it can be looked into and even to give finding no issue framed is of no bar to formulate a point and decide.
(50) What is burden of proof and onus probandi? – Onus probandi is important in the early stages of the case. It may assume importance where no evidence at all is let in on the question in dispute by either side “ The party on whom onus lies to prove a certain fact must fail.
(51 On what factors evidence is to be let in?:- If evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place and truth or otherwise of the case must always be adjudged on the evidence led by the parties, burden of proof in such matters, loses its importance and pales its significance.
(52) How to consider evidence:- The duty of Judge to consider the evidence objectively and dispassionately, examine it in the light of probabilities and decide within which exactly the truth lies.
(53) How Judicial mind reacts to the evidence?;- All judicial minds may not react in the same way to said evidence and it is not unusually that evidence which appears to be respectable and trustworthy to one Judge may not appears to be so to the other.
(54) What do ‘Rules of Justice’ require? “ Rules of justice require that the party cross examining must put the crucial and important part of his case to the witness of the other side in his cross-examination and if no question is put to the witness in the cross examination with regard to a certain fact challenging the same, then such fact has to be presumed to be true.
(55) Proof of facts:- Proof of facts out of the facts in issue to the extent of relevant facts concerned, it depends upon the nature of the lis and in civil matters proof is always by preponderance of probabilities.
(56) Courts Confinement:- “ Court is not confined merely to look into the form of the transaction between the parties concerned “ Court is not confined merely to look into the form of the transaction between the parties, but the true legal position that arises out of it in which the transaction was embodied and for that the court may even look at the surrounding circumstances in construing the fact covered by oral statement or document, with reference to the substance and subject to the limitations for admissibility of oral over documentary evidence under Sections 91 and 92 of the Evidence Act.
(57) Burden of Appellant/Cross-Objector:- “ The burden of showing that the judgment or even a finding therein under a challenge in appeal is wrong or incorrect either wholly or in part lies on the appellant and same is also the proposition in the course of the cross-objections as the cross-objections are at part with appellants so far as their contentions in the cross objections concerned, in the course of the cross-objections in shifting the burden on them, from hearing the main appeal.
(58) Powers of First Appellate Court:- “ Normally a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law “ Where if he fails to do so, no relief should ordinarily be given to him even under Order 41 Rule 33 of CPC.
(59) Power of Appellate Court:- “ While dismissing the appeal, modifying the decree in favour of the appeal-respondent in the absence of cross-appeal or cross-objections is interference by the appellate court that has reduced the appellant™s to a situation worse than in what they would have been if they had not been appealed.
(60) Reversing of Judgment:- “ If the first appellate court if desires to reverse the judgment and decree of lower court; it should discuss the findings and set-aside those which are unsustainable either on fact or on law.
(61) Proof of documents and contents vis-a-vis Interpretation and construction of deeds and documents:- “ Interpretation is in fact a matter of communication of what wants to know and understand from what is said, in giving the meaning to the words of the document from mind of the person who has executed/written it, by reading the document as a whole and not from nomenclature or pick and choose sentences.
(62) Proof of Document :-“ Once a document is properly admitted, the contents of those documents are also admitted in evidence, though those contents may not be treated as conclusive evidence.
(63) Admissibility of document:- “ When original not produced but copy of it for no objection raised after admissibility, the objection cannot later be raised being deemed waived; whereas proof of contents of the document is being substantive, the non-raising of objection is not a waiver.
(64) Raising of objection:- “ Failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence.
(65) Proof of Will:- “ Will has to be proved by attestation as a part of execution contemplated by Section 63 of Indian Succession Act “ Without the statutory requirements of due execution of Will, it cannot be admitted.
(66) Nature of Documents:- “ Documents may contain either unilateral or bilateral dispositions or even with reciprocal.
(67) Construction of Instruments:- “ In construction of instruments, courts must have regard not only to the presumed intention of the parties but also to the meaning of the words which they have used.
(68) Interpretation of Instrument:- “ Every instrument has to be so interpreted as to accord with the intention of its maker having regard to the language used; though one cannot ignore actual words used and go after the supposed intention of maker, since that would amount to entering the arena of speculation, but all the same said principle is unexceptionable.
(69) Recital in a document:- “ Recital in a document of neighbouring land, referring one of its boundary as a suit land and it belongs to a particular person, for the person to rely on it, is not legal evidence and the same is not even admissible under Section 32 (2) of the Evidence Act.
(70) Estoppel “ Recitals in documents operates as an estoppels against the author of the document “ The only restriction is that an estoppels is confined to the transaction covered by the document and the recital cannot be treated as an estoppels in a collateral transaction.
(71) Statements:- “ Statements or declarations before persons of competent knowledge made ante litem motam are receivable to prove ancient rights of a public or general nature.
(72) Admissibility of documents:- Declarations or statements made post litem motam would not be admissible because in cases or proceedings taken or declarations made ante litem motam, the element of bias and concoction is eliminated.
(73) Presumption of Document:-If the document happens to be signed by the agent of the person against whom the presumption is sought to be raised and there is no proof that he was an agent, Section 90 does not authorize the raising of a presumption as to the existence of the authority on the part of the agent to represent that person.
(74) Conclusive presumption:- Law recognizes a conclusive presumption in favour of due execution of insured deeds and Wills when those instruments are 30 years old and are unblemished by any alterations and are produced from natural custody, they are said to be proved themselves.
(75) Attestation of Document:- Mere attestation of document does not affect as an estoppels “ Attestation does not fix the attesting witnesses with knowledge of contents of the document or implying consent for the contents of the document, unless it is established by the independent evidence that to the signature was attached the express condition that it was intended to convey something more than mere witnessing to the execution and was meant as involving consent to the transaction.
(76) Attestation of Document:- Attestation in relation to a document means and shall be deemed always to have meant, attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument “ 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.
(77) Proof of attested instrument :- Regarding proof of an attested instrument, it is unnecessary to call any attesting witnesses, unless execution of the deed is specifically denied by the person by whom it purports to have been executed.
(78) Denial of execution of document:- If execution is specifically denied, one attesting witness must be called upon to prove the deed.
(79) Non-Availability of attesting witnesses:- “ If attesting witnesses are dead, their signature can be proved by other evidence of person acquainted with or opinion from comparison with signature/handwriting/thumb impression as the case may be.
(80) Testamentary disposition:- “ A document which operates to dispose of properly in prasenti in respect of few items of the properties is a settlement and in future in respect of few other items after the deeds of the executants, it is a testamentary disposition.
(81) Will:- “ While appreciating the documents of unilateral dispositions and testamentary dispositions like Wills, the true intention of the testator has to be gathered.
(82) Intention of executant “ The nomenclature given by the parties to the transaction in question is not decisive, but the contents and the intention of the executants, which must be found in the words used in the document.
(83) Test to decide the document:- The real and the only reliable test for the purpose of finding out whether the document constitutes a Will or a gift/settlement is to find out as to what exactly is the disposition which the document has made, whether it has transferred any interest in prasenti in favour of the beneficiaries or it intended to transfer interest in favour of the beneficiaries only on the death of the executant.
(84) Will :- Will means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death “ It is a legal declaration of a person™s intention to take effect after death of that person.
(85) Registration of Will:– Registration of Will is optional and not compulsory and non registration is by itself not a ground to doubt, registration is one of the positive circumstances to infer in favour of due execution, unless evidence on record shows otherwise.
(86) Operation of Will:- Will operates after the death of the testator “ In his life time, he can alter or cancel the bequeaths by codicil or fresh Will any number of times as facts and circumstances shown permitted and thereby also the last disposition prevails over the earlier even in same document for same property in case of inconsistent bequeaths.
(87) Intention of testator:- The intention of the testator must be ascertained not only from the words used, but also from surrounding circumstances with reference to the unimpeachable evidence regarding genuineness and authenticity as well as probabilities and improbabilities and unnatural or unfair bequeaths with reference to the direct or indirect beneficiaries of the bequeaths in the Will/testament.
(88) Proof of Will:- To prove the Will, it shall be attested by the two attesting witnesses at least who saw the testator sign the Will or the testator must personally acknowledge the signature on the Will that of him in the presence of the two attesting witnesses and they themselves signed the same in the presence of the testator “ Without attestation, execution of the deed of Will is not valid.
(89) Absence of Suspicious Circumstances:- “ In the absence of suspicious circumstances, it is suffice to prove testamentary capacity and due execution of Will with attestation and where there are suspicious circumstance, the onus is heavy on the propounder to dispel the same for the court acceptance as genuine and last Will and testament.
(90) Proof of execution by other evidence:- “ It is clear from the language of Section 71 of Evidence Act, that if an attesting witness examined denies or does not recollect execution of the document, its execution, may be proved by other evidence.
(91) Mandate of Law relating to proof of execution of Will:- “ Section 71 of the Evidence Act cannot be read so as to absolve a party of his obligation under Section 68 of the Evidence Act read with Section 63 of the Indian Succession Act to liberally allow him, at his choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court and confer a premium upon his omission or lapse, to enable him to give a go-bye to the mandate of law relating to the proof of execution of Will.
(92) Proof of document for colletaral purpose:- Section 68 of Evidence Act applies not only to cases where document is admitted to be enforced to prove the legal right or relation it creates, but in case where such document is sought to be proved for a collateral purpose.
93) Using of document for other collateral purpose:- Non-compliance with the provisions of Section 68 of Evidence Act, however does not prevent the document from being used in evidence under Section 72 for any other or collateral purpose.
(94) Proof of document:- “ Section 68 of Evidence Act makes it clear that it does not permit the utilization of a document, which is required by law to be attested as evidence until it is proved strictly in accordance with the provisions of the section.
A salient feature of this article is that most of the above legal principles are available in the ruling reported in 2015 (5) ALT 6341 and so one can easily refer to the full text of the judgment. A well planned and short comment on the point will enable the busy judicial officers and legal practitioner to obtain legal principle on the requered point quickly from this article. I hope that this article will highly useful for the members of the Bar, judicial officers and law students. Readers can see full text of the ruling 2015 (5) ALT 6341 in http://www.altdot.in.