Affidavit, when can be use as document
Naresh Kudal
(Querist) 16 December 2013
This query is : Resolved
can we use an affidavit of a person as a document after his death?
A person who was landlord of 4 shops, during his lifetime he gifted his shops orally in favour of his son. Gift deed was not executed but his son started to collect rent from tenants on and issue receipts in his own name. Tenants also deposited rent of certain period in son's bank account.
Now when son filed suits for evictions against tenants u/s 106 T.P. Act, tenants plea is that they are tenants of plaintiff's father so plaintiff is not entitled to sue for eviction.
Due to illness plaintiff's father was not able to appear before the Court but before 5-6 days of his death he wrote an affidavit and got it attested by notary public.
This is general law that affidavits can not be used as document.
Now can we use that affidavit as a document. If yes, under which law. If no, then what should be done.
Please help
ABDUL RAZIQUE
(Expert) 16 December 2013
Deceased affidavit is not use as document because there is lie a matter burden of proof.
The deceased son is a legal successor so he can right to file case or suit against property.
As per my knowledge in judicial Proceeding " Affidavits serve as evidence in civil actions and criminal prosecutions in certain instances. They are considered a very weak type of evidence because they are not taken in court, and the affiant is not subject to cross-examination. Their use is usually restricted to times when no better evidence can be offered. If a witness who has made an affidavit is not available to testify at a trial, his or her affidavit may be admitted as evidence. If the witness is present, his or her affidavit is inadmissible except when used to impeach the witness's testimony, or to help the witness with past recollection of facts.
Affidavits are also used as evidence in ex parte proceedings such as a hearing for the issuance of a Temporary Restraining Order or an order to show cause. The expeditious nature of such proceedings is considered to substantially outweigh the weak Probative value of the affidavits. In addition, there is normally a subsequent opportunity in the course of litigation for the opposing party to refute the affidavits or cross-examine the affiants.
An affidavit based on the knowledge of the affiant is accorded more weight than one based on information and belief. When admissible, affidavits are not conclusive evidence of the facts stated therein.
Rajendra K Goyal
(Expert) 16 December 2013
Very well explained by the expert ABDUL RAZIQUE ji. Affidavits are not conclusive evidences of the facts stated in it.
Naresh Kudal
(Querist) 17 December 2013
But what if executor of affidavit died after making statements on path before notary public.
T. Kalaiselvan, Advocate
(Expert) 17 December 2013
In this situation, the sons as legal heirs to their father can file an eviction suit against the tenants seeking intervention of the court of law on their refusal. The contents of the affidavit in settling the shops in favor of their sons by the father is a family arrangement and will not hold ground as a registered gift/settlement deed does and in the instant case it is not even necessary because the properties will automatically devolve upon the legal heirs of the deceased who died intestate. Better approach a lawyer for further course of action.
Naresh Kudal
(Querist) 20 December 2013
I think none of the experts has read my query properly or I could not explain it. Son of deceased has already filed suits against tenants and now during pendency of suits father of plaintiff also died. Now can we use father's affidavit in suits to tell the court that plaintiff himself was landlord not his father.
ajay sethi
(Expert) 20 December 2013
plaintiff has to lead evidence that he is landlord . his father affidavit if not tested in cross examination has no value
V R SHROFF
(Expert) 20 December 2013
author of affidavit had to be examined, to add as evidence.
Unless aff is 30 years old.
prabhakar singh
(Expert) 20 December 2013
Though an oral gift in a Hindu case is not valid gift due to provisions laid in Transfer of property Act but it transpires from your query that Son has filed a suit of eviction against the tenants claiming him to be land lord during the life time of his father(the owner of the property).
It also transpires from your first post that post to gift(though no legal)son has started to collect rent and to issue receipts for the same and tenant has been depositing rents in bank account of the the son.Hope you have proof of these.
Normally by definition 'a land lord is a person who lets and collects rent for which he does not require to be owner as of necessity.
Tenants can not deny landlordship of a person to whom they have been paying rent as denial would lead to their eviction.
You should look into the rent control Act of your state to see how term landlord is defined there and it supports my view or not?
As regards to affidavit,though notarized,and admissible in evidence,as an admission on oath made by a deceased,but would be of no help in your case if son can not prove himself landlord of tenant, because in that case suit ought to have been instituted through a POA by father in favor of son,if father was suffering with illness.
You can also not plead that as father is no more now,son is the landlord because suit is already there by the son.
Hence you should concentrate on the legal definition of landlord and the proof that
tenants admitted son to be landlord ,paid rent and accepted receipts,and also deposited rent in son's bank account,so now they are estopped from pleading otherwise.
You should forget gift and affidavit is my advice.
prabhakar singh
(Expert) 20 December 2013
If you fail to prove your land lordship in manner suggested by me, then suit is certainly defective and should be withdrawn and a fresh suit , after fresh service of a new notice on tenants, is the proper way.
Naresh Kudal
(Querist) 21 December 2013
Thankyou Prabhakar Sir...
