Andhra HC (Pre-Telangana)
Savitri Bai vs Om Prakash Gupta And Ors. on 11 October, 1995
Equivalent citations: 1996(3)ALT424
JUDGMENT Neelam Sanjiva Reddy, J.
1. This appeal is preferred by the second defendant in O.S.No. 562 of 1977 against the judgment and decree passed therein by the I Additional Judge, City Civil Court, Hyderabad on 15-7-1982.
2. Facts culminating in this appeal and necessary for its disposal briefly stated are that the defendants 1 and 2 are son and daughter respectively of Smt. Hari Pyari Bai, who was the absolute owner of the plaint schedule property. Hari Pyari Bai had agreed to sell the said property on 22-3-1975 to Chandulal for Rs. 40,000/- and received Rs. 20,000/- as advance consideration. Smt. Hari Pyari Bai passed away on 9-4-1977 before she could execute any sale deed in favour of Chandulal after receiving the balance of sale consideration. After her demise, Chandulal demanded the first defendant to refund the money paid by him under the agreement. As the first defendant had no money, he agreed to sell the suit house for Rs. 42,000/- to the plaintiff and also received Rs. 20,000/- as part of the consideration to pay Rs. 20,000/- to Chandulal and executed the agreement of sale in favour of title plaintiff, which is the basis for the present suit The first defendant agreed to obtain relevant clearance certificates from different authorities for completion of the contract of sale. In me meantime, the second defendant informed the plaintiff that her mother late Hari Pyari Bai had executed a will bequeathing the suit property to her and that the plaintiff should not go ahead with the agreement of sale. The first defendant failed to execute and register the sale deed as agreed upon by the parties in spite of exchange of notices between them. Under the above circumstances, the plaintiff filed the suit for specific performance of agreement of sale against the first defendant only.
3. The first defendant resisted the suit denying all the plaint allegations and further pleaded that the plaintiff played fraud on him by getting some forms and the stamp papers signed by him, representing that the papers were required to be submitted to the Central Bank, Bank Street, Hyderabad to receive the amount from the joint account of the first defendant and his mother, late Hari Pyari Bai. He also pleaded that to his knowledge, no will was executed by his mother in favour of his sister, Savitri Bai. On the basis of above pleadings, as many as ten issues were framed.
4. Thereafter, Smt. Savitri Bai, sister of the first defendant, Brij Mohan, got impleaded as second defendant in the suit. She filed written statement opposing the suit, pleading inter alia, that the suit was collusive one, and that her mother executed a will dated 19-4-1976 bequeathing the suit house to her. She thereby became sole and absolute owner of the house. She, having learnt about the collusive agreement of sale between the plaintiff and her brother, first defendant, informed them not to go ahead with their deal in view of the fact that she succeeded to the suit house, being the sole beneficiary of the will executed by her mother.
5. After filing of written statement by the second defendant, the following two additional issues were framed:
"1. Whether D-1 has right, title and interest in the suit property; if so, whether D-l is competent to enter into agreement of sale with the plaintiff?
2. Whether the suit agreement of sale is binding and enforceable against D-2?
6. Parties went to trial on the above issues. The plaintiff examined himself as P.W.I and also examined P.Ws.2 to 7 and marked Exs.A-1 to A-26 and X-l to X-12 (b) on his behalf. The first defendant as D.W.1, second defendant as D.W.2 and D.W.3 were examined and Exs.B-1 to B-19 were marked on behalf of the defendants.
7. After the arguments, the learned trial Judge recast the ten issues framed earlier into four issues as follows:
"1. Whether the suit agreement of sale by the first defendant in favour of plaintiff dated 9-6-1977 is true and valid; If so, whether it is obtained by fraud?
2. Whether the plaintiff has been ready and willing to perform his part of the contract?
3. Whether the plaintiff is entitled for specific performance?
4. To what relief?"
8. The learned trial Judge, besides the two additional issues framed after filling of written statement by the second defendant, also framed the following additional issue:
"Whether Hari Pyari Bai executed a registered will on 19-4-1976 in favour of the second defendant; if so, whether the said will is true, valid and binding on the first defendant."
9. The findings of the trial Court are that late Hari Pyari Bai did not execute the registered will dated 19-4-1976 in favour of the second defendant and that it is not true, valid and binding on the first defendant; the first defendant has no absolute right, title or interest in the suit property and that it belongs to both defendants 1 and 2 and therefore, the first defendant is not competent to enter into an agreement of sale with the plaintiff to sell whole of the property; the suit agreement of sale is not binding and enforceable against second defendant; the suit agreement of sale dated 9-6-1977 by the first defendant in favour of the plaintiff is true and valid and was not obtained by fraud; the plaintiff has been ready and willing to perform his part of the contract and is entitled to specific performance of agreement of sale with respect to undivided half share of the first defendant in the suit scheduled property only. There is no difficulty in decreeing the suit for specific performance in respect of the first defendant's half share only for the full consideration amount of Rs. 42,000/- as the plaintiff was prepared for it. Consequent upon the said findings, the suit against the second defendant was dismissed without costs, and in fact, no relief was sought by the plaintiff against the second defendant. The suit against the first defendant was decreed in the following terms: that the first defendant shall receive the balance of Rs. 20,000/- from the plaintiff and execute the sale deed in respect of his undivided interest in the suit scheduled property, namely, half share in respect of the house bearing Nos. 15-9-294, 294/1 and 294/2 situated at G.L. Bungalow, Afzalgunj. The first defendant was granted one month's time to execute and register the sale deed in favour of the plaintiff and on his failure to do so, the plaintiff shall get the sale deed executed by the Court on behalf of first defendant. The plaintiff was directed to deposit the balance of sale consideration amount of Rs. 20,000/- into Court within 30 days and to bear the expenses of stamp and registration of the sale deed. Parties were ordered to bear their own costs.
10. The second defendant, aggrieved by the findings of the Court regarding will dated 19-4-1976 executed by late Hari Pyari Bai, has preferred this appeal.
11. Main thrust in this appeal by the learned counsel for appellant is against framing of additional issue by the trial Judge during the course of writing the judgment. He contended that the said additional issue ought to have been framed before commencement of the trial to afford opportunity and enable the parties to adduce evidence on the issue. The framing of the said additional issue during the course of writing judgment is contrary to law and precedent and has resulted in injustice to the appellant and the finding of the trial Court in this regard is liable to be set aside and the case has to be remitted back to the trial Court for framing proper issue and to give opportunity to all the parties to adduce evidence. Learned counsel for the appellant relied on a Division Bench decision of Bombay High Court in D. Dharmappa v. P. Venkappa, AIR 1926 Bombay 33 at 37 wherein it has been held that a Court has under Order 14 Rule 5 of Civil Procedure Code power to frame additional issues. But the additional issues authorized by this rule are such as may be necessary for determining the matters in controversy between the parties and that is a clear indication that it was not the intention of the legislature that the Judge should travel outside the actual averments and counter-averments of the parties. What is to be considered is the case made by a party and not the case as "moulded by the astuteness of the Judge." It has been further held in that case:
"... The Subordinate Judge on a perusal of the record has made out a case for defendant 4, which he never set up and never intended to set up, because apparently it was not within his knowledge that the representation had been made which is mentioned by the Subordinate Judge, who confirmed the sale. And this applies all the more to a case like the present, where the additional issues are framed after the whole trial has been finished and the case is reserved merely for judgment. The mere fact that the parties were given an opportunity of adducing additional evidence in regard to the further issues does not suffice to validate a procedure op posed to the law, laid down by the Civil Procedure Code and the Privy Council in the matter. No doubt there are exceptions when a Court is justified in holding a thing invalid on a ground which has not been pleaded."
12. In the instant case, the second defendant- appellant got impleaded in the suit at her instance only to see that her rights under the alleged will are determined. The plaintiff did not seek any relief against the second defendant in the suit. The material allegations made by the second defendant in her written statement amply make it clear that she intended to establish that her mother late Hari Pyari Bai executed a will on 19-4-1976 bequeathing the plaint schedule property to her and thereby, she became the sole and absolute owner of the said property and that her brother, first defendant, had no right or interest in the said property to enter into an agreement of sale with the plaintiff and the suit for specific performance of said agreement of sale is liable to be dismissed. These allegations of the second defendant were specifically denied by her brother, the first defendant, in his written statement. In view of these material allegations made by the parties, the two additional issues were framed before the commencement of the trial. To answer those two additional issues, it is incumbent upon and necessary for the Court to decide the execution of the alleged will on 19-4-1976 by late Hari Pyari Bai in favour of the second defendant and how far it is true, valid and binding on the first defendant, and in fact, the findings of the trial Judge on the additional issues 1 and 2 were on the basis of his finding on the additional issue framed by him while writing the judgment. It is quite apparent from the pleas and evidence adduced by the parties on additional issues 1 and 2 that the second defendant-appellant tried her best to establish the Will propounded by her. The additional issue framed by the learned Judge while writing judgment is not a figment of his imagination and not beyond the material pleas of the parties and in fact, it is in a way recasting of additional issues 1 and 2. Even in the absence of additional issue framed, while writing the judgment, the same question has to be dealt with and decision rendered to answer the additional issues 1 and 2. The decision relied upon by the learned counsel for the appellant does not apply to the facts of this case, and on the other hand, it supports the view that the framing of additional issue while writing the judgment in this case is not beyond his jurisdiction. For the aforesaid reasons, I do not find any force in the submission of the learned counsel for the appellant for remand of the case.
13. Learned counsel for the appellant contended that the learned Additional Judge erred in coming to the conclusion that the alleged will dated 19-4-1976 was not executed by late Hari Pyari Bai and that it is not true, valid and binding on the first defendant. It is settled law that the propounder of the will has to establish it. The second defendant-appellant, who has set up the will alleged to have been executed by her mother on 19-4-1976 bequeathing the suit house to her, has to establish it and that it was the last will and testament executed by the testatrix in a sound and disposing state of mind and also to remove all suspicious circumstances. The Supreme Court in Kalyan Singh v. Chhoti, held:
"A will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the Court is not confined only to their testimony and demeanour. It would be open to the Court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party."
In that case, it was further held:
"The will in the instant case, constituting the plaintiff as a sole legatee with no right whatever to the testator's wife could be said to be unnatural. It casts a serious doubt on genuineness of the Will. The will has not been produced for very many years before the Court or public authorities even though there were occasions to produce it for asserting plaintiff's title to the properly. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty. Therefore, the conclusion that the will was not genuine was proper."
14. The second defendant-appellant tried to establish the alleged will Ex.P-4 by examining D.W.3, one of the attestors of the will. Except D.W.3, no other person connected with the execution and registration of the will was examined. D.W.1, brother of D.W.2, denied execution of any will by their mother and further testified that after the demise of their mother, he and his sister, D.W.2 partitioned the properties including the suit property.
15. Admittedly, D.W.2 was not aware of the Will Ex.B-4 till Kapur Chand, one of the alleged attestors disclosed this fact to her after her mother's death when he came to attend the obsequies. Ex.B-4 was found in the box in the house of her mother after her death by daughter of D.W.2 and she gave it to her. From it, it is evident that her testimony would not help to establish the circumstances under which Ex.B-4 was executed by her mother.
16. Then remains the sole testimony of D.W.3, one of the attestors of Ex.B-4 to establish the circumstances under which it was executed. D.W.1 and his mother Hari Pyari Bai lived in the same house which is about 3 miles away from the residence of D.W.2. D.W.3 who is a goldsmith by profession, resides and works in a house opposite to the kirana shop-cum-residence of D.W.2 His evidence is that late Hari Pyari Bai used to come to his shop whenever she visited her daughter D.W.2 and that about 5 years prior to his testimony, she met her at his shop in the evening and asked him to come on the next day at about 9 or 9.30 a.m. to Esamia Bazar to the law office of Mr. B.C. Jain, Advocate, for her work. He went there on the next day morning and noticed Kapur Chand and another person with Hari Pyari Bai, who took the papers form the Advocate and came out. The Advocate asked them to go to the registration office. They went to the registration office around 10 a.m. and documents were presented before the Sub-Registrar. Hari Pyari Bai signed it. He and another signed it as attestors. It is clear from his evidence that Ex.B-4 was written in the lawyer's office in the absence of this witness. He does not know the language of the document. Though he attested Ex.B-4, it cannot be said that he was aware of its contents, and that it was written as per the intentions and directions of Hari Pyari Bai. The explanation of this witness that the Sub-Registrar explained the nature of the document to Hari Pyari Bai who admitted it to be true, does not inspire confidence. Though this witness is nearer to D.W.2 in every respect, he did not disclose about Ex.B-4 for a long time. The learned trial Judge considered his evidence in detail and came to the conclusion that this witness was very much interested in D.W.2 and he even went to the extent of fabricating some of his records to show that he was closer to late Hari Pyari Bai and that she had confidence in him. He clearly admitted in his cross-examination that Ex.B-4 was neither drafted in his presence nor instructions were given for its drafting in his presence. For the above reasons. I am of the view mat the learned Additional Judge was right in not relying on the interested and doubtful testimony of this witness.
17. The learned trial Judge considered the evidence of D.Ws.2 and 3 in detail regarding execution of Ex.B-4 will by late Hari Pyari Bai and related all the suspicious circumstances surrounding it and not removed or cleared by the second defendant-appellant. The material suspicious circumstances noticed are that there was no need to write a will on stamp paper, but Ex.B-4 was drafted on a stamp paper purchased by the son of the second defendant, who is the beneficiary under the will. The son of the appellant, who purchased the stamp paper for Ex.B-4, is a grown up by, but there is no explanation as to how the appellant was not aware of it till she was told about it by Kapur Chand, one of the attestors, who was not examined. In Ex.B-4, at one place date of the will was corrected with ink, and was not attested or initialled by the executant or the attestors. The signatures of the testatrix were obtained in Ex.B-4 at inappropriate places and that too more than the required signature. There was no reason or explanation as to why the suit house was given to the appellant to the exclusion of the first defendant son. Admittedly, Hari Pyari Bai and her son, first defendant were living in the same house and her son was looking after the cases relating to her properties. From this it is apparent that relations between the mother and the son were cordial. In that background, the absence of any reason or explanation to exclude her son in Ex.B-4 creates a serious and genuine doubt about the truth of it. Hari Pyari Bai did not know English. The attestors were not her neighbours. There is absolutely no material as to when, how and by whom Ex.B-4 was got drafted. If really the existence of Ex.B-4 will was revealed on the day of obsequies, the first defendant would not have ventured to sell the property to the plaintiff. The manner and circumstances in which D.W.2 came into possession of Ex.B-4 does not appear to be probable and natural. Admittedly, there are other properties left by the husband of Hari Pyari Bai in which she, her two children - defendants 1 and 2 have equal shares. But, there is no mention about them in Ex.B-4 as to how her share in the said properties should devolve upon her death. The suspiciousness surrounding the above circumstances remained uncleared.
18. For the aforesaid reasons, I am not inclined to interfere with the finding of the trial Court that the will Ex.B-4 is not genuine. In the result, the appeal is dismissed. In the circumstances of the case, parties shall bear their own costs.