Andhra HC (Pre-Telangana)
Reddy Subbarao (Died) Per L.Rs. vs Nunne Venkataramanna And Ors. on 5 January, 2007
Equivalent citations: 2008(1)ALD474, 2008(1)ALT160
JUDGMENT C.Y. Somayajulu, J.
1. Since both these appeals arise out of the same judgment, they are being disposed of by a common judgment. For the sake of convenience, parties to these appeals would hereinafter be referred to as they are arrayed in the trial Court.
2. Reddy Subbarao (Plaintiff) filed the suit for partition of the properties specified in A to C schedules appended to the plaint i.e. wet lands, two buildings and movable properties respectively, into two equal shares by metes and bounds and to further divide one such share into two equal shares and allot a total of 3/4th share in the plaint A to C schedule properties to him. Subsequently, the father-in-law of the plaintiff filed I.A. No. 205 of 1983 seeking amendment of the cause title of the plaint by adding his name as the power of attorney holder of the plaintiff on the ground that he was given a power of attorney by the plaintiff to conduct proceedings on his behalf. That petition was allowed by the trial court on 23.06.1983.
3. The case, in brief, of the plaintiff is that Reddy Chancha! Rao and his wife i.e. the first defendant, who were not having children, had, when he was three years of age, requested his natural parents to give him in adoption to them and had on the consent of his parents, took him to their house and brought him up in their house and had on 08-02-1964 adopted him as per Hindu Sastric rites and ceremonies in the presence of relatives and elders. Subsequently Chanchal Rao had executed a deed of adoption and got it registered on 09-03-1964 and admitted him in the school at Velpur, and died subsequently on 01.08.1973. Reddy Chanchal Rao purchased some of the items of property covered by the suit in the name of the first defendant, benami for his benefit and treated all the plaint A to C schedule properties as the joint family properties. Subsquent to the death of Chanchal Rao he and first defendant lived jointly in the plaint B schedule house till about May 1978 and gave the plaint A schedule properties to defendants 2 to 5 on lease. After the first defendant drove him out of the house with his wearing apparel on 11 -07-1978, sixth defendant, who is the son-in-law of the younger brother of first defendant, started living with the first defendant and began influencing her with a view to knock away the plaint schedule properties. As the telegraphic notices got issued by him on ' 11-07-1978 to defendants 1 and 6 were returned unserved with an endorsement that they left the village, he got issued a registered notice to them seeking partition of the plaint schedule properties for which they sent replies through their advocates on 25-07-1978 with false and untenable allegations. Hence the suit.
4. First defendant filed her written statement denying the adoption of the plaintiff by her and the execution of a deed of adoption by Reddy Chanchal Rao, and as she did not give her consent for the adoption of the plaintiff, and did not join the execution of the deed of adoption, plaintiff cannot be the adopted son of herself and her husband Chanchal Rao. Chundru Venkata Ramarao, father of the plaintiff, taking advantage of the helplessness, old age and blindness of her husband, must have, by exercising undue influence on her husband, obtained his signatures on that deed and might have got it registered, and so that adoption deed cannot confer on the plaintiff the status of her adopted son. All the properties mentioned in plaint A to C schedules were acquired by her from her own income and from the income derived from out of the lands belonging to her and as such they are her streedhana properties. It is she, but not the plaintiff, that had leased out the lands shown in plaint A schedule to defendants 2 to 5. As plaintiff did not reside with her in the house property shown in the plaint B schedule, question of her throwing out of the plaintiff therefrom does not arise. Sixth defendant, being the husband of her niece was helping her. As she sent a reply with correct allegations to the notice got issued by the plaintiff, plaintiff is not entitled to any relief.
5. Separate written statements filed by defendants 2 to 5 contain almost identical allegations. Their case is that the plaintiff was brought up by the first defendant and her husband since his childhood and that the plaintiff was living with the first defendant and her husband as a member of their family. After the death of her husband, first defendant, along with her adopted son i.e. the plaintiff, leased out the plaint A schedule lands to them.
6. First defendant died on 12.07.1980. So Plaintiff filed I.A. No. 930 of 1980 under Rule 10 of Order 1 CPC on 24-08-1980 to bring defendants 6 and 7 on record alleging that they took away the first defendant when she was sick due to filarial fever, and seem to have obtained some gift deeds from the first defendant and forged a Will dated 12-07-1980 as that of the first defendant and so they may be added as parties to the suit for effective adjudication of the questions that arise for consideration in the suit. As defendants 6 and 7 did not file counters in that petition, that petition was allowed by the trial court. Thereafter, the plaintiff got the plaint amended by taking a plea that inasmuch as the settlement deed and Will said to have been executed by the first defendant in favour of defendants 6 and 7 are not genuine, and were not executed by first defendant in a sound disposing state of mind, they are not binding on him.
7. The proceeding sheet dated 27-08-1981 of the trial Court shows that defendants 6 and 7 had on 21-07-1981 filed a memo adopting the written statement of the first defendant and that defendants 2 to 5 reported that they have no additional written statement.
8. Basing on the pleadings, the trial court framed as many as 11 issues for trial. Six witnesses were examined on behalf of the plaintiff as P.Ws.1 to 6 and Exs. A-1 to A-8 were marked on his behalf. Defendants 6 and 7 examined six witnesses as D.Ws. 1 to 6 and marked Exs. B-1 to B-22 on their behalf. No oral or documentary evidence was adduced by defendants 2 to 5.
9. Trial Court held on issues 2 and 3, which relate to the adoption of the plaintiff, that the adoption pleaded by the plaintiff is true and valid and is binding on the first defendant, on issue No. 4, relating to the properties available for partition, held that all items of plaint A schedule except the items covered by Exs. B-6, B-9, B-10, B-12 and B-32 i.e. the streedhana properties of the first defendant, and the plaint B and C schedule properties are available for partition. On issue No. 1 relating to the question whether the suit filed without seeking declaration relating to the validity of adoption, observed that inasmuch as no arguments were advanced on that issue, it is holding that issue in favour of the plaintiff. On issue No. 5 relating to the maintainability of the suit without making the seventh defendant a party to the suit, it held that since the seventh defendant and her husband the sixth defendant were added as parties to the suit, that issue need not be answered. On issue No. 6 relating to the question whether defendants 2 to 5 are the tenants of first defendant only or of plaintiff and first defendant, it held that it is immaterial to give a finding whether those tenants were inducted by the first defendant or the plaintiff into plaint A schedule lands. On issue No. 7 relating to the Court fee, it held that the Court fee paid is correct. On issue No. 8 relating to the maktha from the plaint A schedule properties, it held that since defendants 2 to 5 were added as parties to the suit seeking a direction to them to deposit the rents into Court and since no relief is claimed against them, there is no need to answer that issue. On issue No. 9 relating to the rents from B schedule it held that the plaintiff can file a separate application in respect of the rents at the time of passing of a final decree. On issue No. 10 relating to exemplary costs claimed by the first defendant, it held against her and ultimately on issue No. 11 relating to the relief, passed a preliminary decree for partition of the plaint A to C schedule properties, excluding the items covered by Exs. B-6, B-9, B-12, B-32, into four equal shares and to put the plaintiff in possession of three such shares and held that plaintiff is entitled to mesne profits from plaint B schedule property.
10. Questioning the finding of the trial Court on the validity of adoption of the plaintiff, defendants 6 and 7 preferred AS. No. 1585 of 1988 and questioning the finding of the trial Court that some of the properties covered by the plaint A schedule are not the joint family properties, and are separate Streedhana properties of the first defendant and that defendants 6 and 7 became entitled to those properties by virtue of the Will and settlement deeds executed by the first defendant, subsequent to her death plaintiff preferred ASNo. 1650of1988.
11. During the pendency of these appeals, the legal representative of the plaintiff filed CMP No. 11543 of 2003 seeking to come on record on the ground that plaintiff is not heard for more than seven years and so he must be presumed to be dead. A learned Judge ordered that petition on 14-07-2003. As defendant Nos. 6 and 7 also died during the pendency of these appeals, their daughters and sons were brought on record as their legal representatives in both the appeals
12. The points for consideration in these appeals are:
1. Whether the plaintiff is the adopted son of Chanchal Rao and his wife, the first defendant ?
2. Whether the properties held to be the Sthridhana properties of the first defendant were purchased by Chanchal Rao benami for his benefit in the name of the first defendant ?
3. To what relief is the plaintiff entitled to?
13. The contention of Sri N.V. Suryanarayana Murthy, the learned Senior Advocate appearing for defendant Nos. 8 to 10 is that inasmuch as the plaintiff did not seek declaration of his status as the adopted son of the first defendant and her husband, even though the first defendant specifically denied his adoption, and though it framed a specific issue on that aspect, the trial Court erred in holding that issue in favour of the plaintiff merely on the ground that no arguments were addressed on that issue. It is his contention that since the question relating to the maintainability of the suit without seeking the declaration relating to the status of the plaintiff being a pure question of law, even assuming that no arguments on that issue were addressed before the trial Court, the maintainability of the suit can be canvassed in this appeal and contended that inasmuch as declaration relating to the validity of adoption, as per Article 58 of the Limitation Act, 1963, should be sought within three years from the date of dispute, and as the suit was not filed within three years from the date of dispute relating to the adoption of the plaintiff, the suit is hopelessly barred by time. It is his contention that since the specific case of the first defendant is that she did not participate in any of the ceremonies relating to adoption of the plaintiff, the trial Court erred in not adverting to that aspect and in any event as there is no documentary evidence relating to the actual ceremony of adoption taking place and since no photographs showing the adoption and no invitation cards inviting friends and relatives to the ceremony of adoption are produced, the trial Court was in error in holding in favour of the plaintiff on the issue relating to adoption. It is his contention that the presumption under Section 16 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as "the Act") would be available only when both the natural and adoptive parents execute the deed of adoption but not otherwise, and as Ex. B-1 was not executed by the natural parents of the plaintiff, and is purported to have been executed only by Chanchal Rao, husband of the first defendant, presumption under Section 16 of the Act is not available to the plaintiff. It is his contention that non-examination of the plaintiff or his Power of Attorney i.e. father-in-law of the plaintiff, is fatal to the case of the plaintiff and that fact was not taken into consideration by the trial Court before it held in favour of the plaintiff on the issue relating to his adoption.
He relied on A. Raghavamma and Anr. v. A. Chenchamma and Anr. where it is held that a person pleading adoption must prove the factum of adoption and its validity through evidence; Krushna Chandra Sahu and Anr. v. Pradipta Das and Ors. , where it is held that the burden of establishing that there was a valid adoption, which deflects the ordinary course of succession, is on the party who pleads adoption, Guntuka Rama Rao alias Vadaga Rama Rao v. Vadaga Atcheyamma 1971 (2) An.W. R. 60 where it is held that a deed of adoption perse does not confer the status of an adopted son on the boy and that it is incumbent upon the person claiming adoption to prove that there was a giving and taking him in adoption as required by the Hindu Law; Lakshman Singh Kothari v. Smt. Rup Kanwar where it is held that there cannot be a valid adoption unless the adoptive boy is transferred from one family to another, and as per law the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him and that the ceremony of giving and taking shall have to take place for a valid adoption; Kashibai v. Parwatibai , where it is held that the consent of the wife is essential for a valid adoption in view of Section 7 of the Act, Bholooram (Bhola) v. Ramlal , where it is held that presumption arising from a registered document of adoption is a rebuttable presumption and both the factum and the validity of adoption can be disproved, Krishnabai Shivram Patil v. Ananda Shivram Patil where it is held that presumption under Section 16 of the Act would be available only if the document is executed by both the persons taking and giving the child in adoption, and if the adoption deed is executed only by the person taking the child in adoption, the presumption under that section is not available, Mahadev v. Bainabai AIR 1975 Karnataka 79 where it is held that mere presenting the document of adoption by the person giving the boy in adoption, without his signing the deed of adoption, does not satisfy the requirement of Section 16 of the Act Chairman, Bihar Rajya Vidyut Board v. Chhathu Ram and Ors. 1999 (1) Supreme 195 : 1999 AIR SCW 4874 where it is held that presumption under Section 16 of the Act is not available if the deed of adoption is not signed by the person giving child in adoption and if it is not registered; on Kishori Lal v. Mt. Chaltibai where it is held that as adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations, it is necessary that the evidence to support it should be such that it is free from all suspicions of fraud and so consistent and probable as to leave no occasion for doubting its truth for upholding the claim relating to adoption, Rahasa Pandiani v. Gokulananda Panda and Ors. , where it is held that inasmuch as suspicious claims relating to adoption are frequently coming before Court, if there are circumstances which arouse suspicion of the Court, the Court has to be aware of the risk involved in upholding the claim of adoption; Madhusudan Das v. Smt. Narayani Bai and Ors. where it is held that a person who seeks to displace the natural succession to property by alleging an adoption, must discharge his burden by proving the factum of adoption and its validity and such evidence should be free from all suspicion of fraud and so consistent and probable as to give no occasion for doubting its truth; Iswar Bhai C. Patel alias Bhachu Bhai Patel v. Harihar Behera and Anr. where it is held that an adverse inference has to be drawn if a party abstains from witness box and fails to make a statement on oath in support of his pleading; Vidhyadhar v. Manikrao and Anr. , where it is held that if a party abstains from entering the witness box, an adverse inference would arise against him and a presumption would arise that the case set up by him is not correct can be raised and Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat , where it is held that a party who has knowledge of a material fact does not go into the witness box without any plausible reason, an adverse inference must be drawn against him.
14. The contention of Sri S. Surya Prakasa Rao the learned Counsel for plaintiff is that since the evidence of P.Ws.2 to 5 clearly establishes the ceremony of giving away and taking in of the plaintiff in adoption took place at the time of adoption of the plaintiff, and as the original of Ex. B-1 was with the first defendant, and as the husband of the first defendant always treated the plaintiff as his adopted son and admitted him in the school, claiming the plaintiff as his own son, and since the first defendant or her husband never disputed the status of the plaintiff as their adopted son and since the written statements of defendants 2 to 5 also show that the first defendant claimed the plaintiff to be her adopted son and that both the first defendant and the plaintiff inducted them as tenants in some of the plaint A schedule lands, those admissions by themselves are substantive evidence in view of Sections 17 and 21 of the Evidence Act and the ratio in Bharat Singh v. Bhagirathi . Relying on Pasam Thirupathamma v. Pasam Venkatareddi 1985 (2) An.W. R. 22, where it is held, when evidence of giving and taking the boy in adoption and actually handing over becomes weak due to long lapse of time or due to the demise of the natural and adoptive parents and persons present at the time of adoption or conducting ceremonies of adoption, the conduct of the parties has to be looked into, and contended that in the circumstances of the case consent of the first defendant for adoption of the plaintiff can be implied and relied on S.V. Subbaiah Sarma v. K. Galib Saheb in support of his contention that if oral evidence establishes the factum of giving away and taking in of the child in adoption, the fact that the deed of adoption was signed only by the adoptive father but not the adoptive mother also, is not of any consequence, and since the evidence on record shows that the first defendant participated in the ceremony of adoption, there was no need or necessity for the plaintiff seeking a declaration of his status as the adopted son of the first defendant and her husband, and contended that the failure of the plaintiff to go into the witness box is of no consequence in this case, because, he admittedly was a small boy at the time of his adoption, and so he cannot be expected to have knowledge of the ceremonies that had taken place at the time of his adoption, and as his knowledge thereof can only be through hearsay, and the fact that the father-in-law of the plaintiff, who is looking after the affairs of the plaintiff, was not examined as a witness is also not of any consequence, because he also does not have personal knowledge about the adoption of the plaintiff and contended that the natural parents of the plaintiff not joining in the execution of Ex. B-1, in the circumstances of the case, is not of any consequence. It is his contention that as the first defendant did not possess any property of her own, the entire plaint A schedule property should be deemed to be the property of the joint family of the plaintiff and the first defendant and so the finding of the trial Court that the properties covered by Exs. B-6, B-9, B-10, B-12 and B-32 are the Stridhana property of the first defendant is not sustainable, because the purchases made in the name of the first defendant under those documents, should be treated as benami transactions, and relied on Bilas Kunwar v. Ranjit Singh AIR 1915 Privy Council 196 and Lakshmiah v. Kothandarama AIR 1925 Privy Council 181 where it is held that a purchase in India, by a native of India, of property in India, in the name of his wife, unexplained by other proved or admitted facts, is to be regarded as a benami transaction by which the beneficial interest in the property is in the husband, although the ostensible title is in the wife. Relying on the following observation at page 96 of A. Lakshmamma (Died) v. A. Venkatarama Reddy
10. ...The learned Counsel for the plaintiffs-respondents has, however, contended that by the word 'benami' used in the plaint, the plaintiffs only meant that Lakshmamma was a nominal owner and not that she was a benamidar. In fact, the learned single Judge has accepted that the word 'benami', in the particular context of the plaint, must be understood as a plea of the nominal character of the title of Lakshmamma. The question therefore arises whether in the entire context of the facts of the case, the plaintiffs really meant that Lakshmamma was a benamidar for 3 acres in item 6 of the plaint A schedule.
11. That parties some time describe a sham and nominal transaction as a benami transaction has been judicially recognized by the Supreme Court in more than one case....
he contended that merely because Exs. B-6, B-9, B-10, B-12 and B-32 are taken in the name of the first defendant, she does not become the owner of those properties. It is his contention that since the first defendant executed Ex. B.4 settlement deed in suspicious circumstances, that settlement deed is not binding on the plaintiff. Relying on the following observations in para 12 of Krishna Mohan Kul @ Nani Charan Kul and Anr. v. Pratima Maity and Ors. 2003 (7) Supreme 105 When fraud, mis-representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage.
he contended that the plaintiff is entitled to a preliminary decree as prayed for in the plaint.
15. In reply the learned Senior Advocate appearing for defendants 8 to 10 contended that in view of Section 3(2) of Benami Transactions (Prohibition) Act (45 of 1988) unless contrary is proved, the presumption is that the purchase of property by any person in the name of his wife or his unmarried daughter, as the case may be, is for her benefit. He also relied on Nand Kishore Mehra v. Sushila Mehra where it is held that if defence of a benami transaction, involving purchase of property by any person in the name of his wife or unmarried daughter, is taken plaintiff cannot succeed in such suit unless he proves that the property was not purchased for the benefit of either the wife or the unmarried daughter, as the case may be, in view of the statutory presumption and contended that inasmuch as there is no such evidence in this case, purchases of the property in the name of the first defendant cannot be said to be benami transactions.
A.S.M.P. No. 2433 of 2006:
16. At this stage I feel it relevant to dispose of ASMP No. 2433 of 2006 filed by defendants 7 to 10 to receive the Almanac of Sobhakruthanama year i.e. 1963-64 to show that as there was 'Rahu Kalam' between 9 a.m. to 10.30 a.m. on 08.02.1964 Saturday, the Muhurtham for adoption between 9 a.m. to 10.30 a.m., would be inauspicious and so no ceremony of adoption during that period could have taken place.
17.1 find no grounds to admit the almanac for 1963-64 as additional evidence in this appeal, that too for the reasons mentioned in the affidavit filed in support of this application, because 'Rahu Kalam' will be observed in Chittoor, Cuddapah, Anantapur and may be Nellore districts of this State, which are under the influence of Tamil culture. In Godavari districts of Andhra Pradesh, to which the parties to these appeals belong, 'Rahu Kalam' is not observed. Hindus in those districts do not undertake any important work or hold functions during 'Varjyam' and 'Durmuhurtham' i.e. at the time of commencement of any important work or function there should be no 'varjyam' or 'Durmuhurtham'. The same is the case with 'Rahukalam' also. If after the starting of a function 'Rahukalam' enters, the function will not be suspended during 'Rahukalam.' It will continue. The evidence of P.W. 5 shows that the adoption took place between 8.00 a.m. to 10.00 a.m. In Ex. B-1 the time of adoption is mentioned as 9-20 a.m. i.e. before the ' beginning of the 'Rahukalam'. The above apart no Almanac need be referred to for finding out 'Rahu Kalam' for a week day in a , week because 'Rahu kalam' for every day in the week is fixed and does not vary as in the case of 'varjyam' or 'durmuhurtham' from day to day. The Court can take judicial notice of the fact that 'Rahu Kalam' on every Saturday, the week day on which the plaintiff was taken in adoption, is between 9 a.m. to 10.30 a.m. Hence I find no grounds to receive the Almanac as additional evidence in the appeal and so the A.S.M.P. No. 2433 of 2006 is dismissed.
18. Before taking up the points for consideration, I feel it relevant to refer to the oral evidence adduced by the parties, P.W. 1 is examined to show that the husband of the first defendant admitted the plaintiff in the school describing himself as the father of the plaintiff. The evidence of P.W. 2 is that T. Sitaramaiah, who officiated as Purohit at the time of adoption of the plaintiff, had taken him also to the house of the first defendant for 'Aaseervadam' and that both the natural and adoptive parents of the plaintiff sat on the planks and the ceremony of adoption was performed at about 9 a.m. and the ceremony of giving and taking of the boy in adoption took place and that coconuts also were exchanged and that Dattata Sweekara Patrika was also written subsequently, and that he subscribed his signature to the original of Ex. B-1. During cross-examination he denied the suggestion that first defendant did not give her consent for the adoption and that she was not present at the ceremony of adoption and that everything went on without her consent, and that the adoptive father alone sat throughout the ceremony, which was conducted without the consent of his wife, and that there was no giving away and taking in of the plaintiff in adoption.
19. As stated earlier, first defendant died prior to commencement of trial. It is not the case of defendants 6 and 7 on whose behalf P.Ws. were cross-examined that they attended the ceremony of adoption of the plaintiff. So the suggestion put to P.W. 2 by the counsel for defendants 6 and 7, about the first defendant not giving her consent to adoption of plaintiff can only be on the basis of an assumption on the part of defendants 6 and 7, who have a reason to dispute the adoption of the plaintiff, for them to have the benefit of the documents executed by the first defendant in their favour. So those suggestions can have no value. That apart it is well known that suggestions put to witnesses, which are denied by them, have no evidentiary value.
20. The evidence of P.W. 3 is that the natural and adoptive parents of the plaintiff sat opposite to each other on the planks and the adoptive mother took the child (the plaintiff) from his natural mother in a ceremony where Sitaramaiah officiated as Purohit and that P.W. 2 and another Brahmin also attended the said ceremony and that the husband of first defendant executed the original of Ex. B-1 in which he figured as an attestor. During cross-examination he stated that the first defendant also was present at the said ceremony but no photographs were taken and no invitation cards were printed but only oral invitation was extended and the ceremony of adoption was over within one hour, and at that time the plaintiff was aged about four years, and about 15 minutes after the ceremony of adoption a document was drafted and that three of the attestors to Ex. B-1 died. He denied the suggestion that except writing of the original of Ex. B-1 no adoption in fact took place. From the above suggestions put to P.W. 3 it is clear that execution of Ex. B-1 by the husband of the first defendant is also admitted by defendants 6 and 7.
21. The evidence of P.W. 4 is that he saw the giving away and taking in of the plaintiff in a ceremony of adoption, when the plaintiff was adopted by the first defendant and her husband and after that ceremony, husband of the first defendant executed the original of Ex. B-1, which is attested by him. During cross-examination he stated that no invitation cards were printed, and that he read the original of Ex. B-1 before he attested it, and denied the suggestion that first defendant was not present at the time of the ceremony of adoption and that she did not adopt the plaintiff and that no adoption took place at that time except writing of the original of Ex. B-1.
22. From the suggestions put to P.Ws.3 and 4 during cross examination, it is clear that defendants 6 and 7 are not endorsing the theory of the first defendant in her written statement that Ex. B-1 was obtained by the natural father of the plaintiff by exercising undue influence over her husband, because, through their suggestions they admitted execution of Ex. B-1 by the husband of the first defendant out of his own free will.
23. P.W. 5, the scribe of the original of Ex. B-1, stated that he attended the adoption ceremony of the plaintiff and scribed the original of Ex. B-1 and that the husband of first defendant affixed his signature to the original of Ex. B-1 in his presence and about 10 to 15 people attested the original of Ex. B-1 in his presence and that the adoption took place between 8.00 a.m. and 10.00 a.m. and that the first defendant also sat on the planks at the adoption ceremony and that Sitharamaiah who was the officiating purohit also attested the original of Ex. B-1 and that the plaintiff was aged about 4 years and that giving away and taking in of the boy in adoption took place and shortly after the ceremony of adoption he scribed Ex. B-1. During cross-examination he stated that he does not remember whether invitation cards were printed for the adoption ceremony and that the husband of first defendant who invited him to the ceremony had informed him that he has to draft a deed of adoption and that the natural parents of the plaintiff caught hold of the hands of the plaintiff and gave him to the first defendant and her husband and that that ceremony went on for more than one hour and below two hours and immediately after that ceremony the original of Ex. B-1 was executed and that he does not remember if that document was registered on the same day and if he was present at the time of registration, and denied the suggestions that the first defendant was not present at the time of adoption, and that she did not consent for the adoption of the plaintiff, and as the first defendant was not present at the time of adoption her name is not referred to in Ex. B-1, and stated that all the persons who attested the original of Ex. B-1 attended the ceremony of adoption.
24. As stated earlier, the suggestion put to P.W. 5 during cross-examination about the first defendant not giving consent etc., can only be the wishful thinking of defendants 6 and 7 because it is not their case that they were present either at the time of execution of the original of Ex. B-1 or at the time of adoption of the plaintiff and that suggestion is also not supported by the recitals in Ex. B-1.
25. P.W. 6 is the Finger Print Expert. His evidence is that the thumb impression of the husband of the first defendant in Ex. A-1 application for admission of plaintiff tallies with his thumb impression in Ex. B-2 maintenance deed.
26. Sixth defendant, as J.W. 1, stated that he used to visit the house of first defendant for festivals and other functions and as the first defendant and her husband had no children they fostered his wife, the seventh defendant, as their daughter and gave her in marriage to him and that the husband of the first defendant studied up to 5th or 6lh class and was able to write and that first defendant or her husband never adopted any child or the plaintiff and that plaintiff was only fostered by first defendant and her husband and that one Kadiyala Perayya Sastri gave Ex. B-1 Photostat copy to him, and that it is he, but not the plaintiff, that performed the obsequies of the husband of the first defendant and that the first defendant executed Ex. B-4 settlement deed in favour of his wife in respect of Acs.2-10 cents and had also executed Ex. B-3 Will and by the date of death of the first defendant, defendants 2 to 5 were cultivating the plaint A schedule lands as her tenants and that the father-in-law of the plaintiff, with the assistance of defendants 2 to 5, took forcible possession of the plaint B schedule house and house site after the death of the first defendant. During cross examination he stated that the husband of the first defendant purchased some items of property in the plaint A schedule from his father with his own funds, and some of the properties mentioned in the plaint A schedule were purchased by the first defendant, and that except the transactions where he paid the money on behalf of the first defendant he has no personal knowledge about her other sale transactions and denied the suggestion that husband of the first defendant obtained the documents in the name of the first defendant benami for his benefit, and that the first defendant did not pay the consideration for purchase of the properties standing in her name. He admitted that he has no knowledge as to what are the properties that were given to the first defendant by her parents, and that he has no documentary evidence to show that parents of the first defendant gave any property to her, and denied the suggestion that inasmuch the plaintiff was very young, the obsequies of the husband of the first defendant were performed by Sattiraju i.e. the viyyanka of the first defendant, and admitted that they took the first defendant to Tadepalligudem for registration of Ex. B-3 Will and later took her to Eluru and got registered Ex. B-4 settlement deed, and that there was no specific reason for them to take the first defendant to Eluru for registration of Ex. B-4 and denied the suggestion that he, after the death of the husband of the first defendant created the disputes between the plaintiff and the first defendant, and admitted that it is he that got issued the reply notice to the notice got issued by the plaintiff on behalf of the first defendant also, by going to different advocates at Eluru, and that both his reply and the reply notice of first defendant were sent from the same office but in names of different advocates, and denied the suggestion that he obtained the thumb impressions of the 1st defendant on Ex. B-3 and Ex. B-4 without disclosing the contents thereof to her and that no attestors were present at the time of execution of Exs. B-3 and B-4.
27. The evidence of D.W. 2, an attestor to Ex. B-4, is that he attested the Ex. B-4 at Eluru, after it was drafted near District Registrars Office under a tree opposite to the Office in the same premises after the scribe obtained the details from the parties and that he went on his personal work to District Court at Eluru and that first defendant requested him to attest the settlement deed in favour of the seventh defendant.
28. The evidence of D.W. 3 is that two days prior to Ex. B-3 sixth defendant informed him that the first defendant is going to execute a Will and that his presence would be necessary for attesting the said Will and so he was present when the first defendant executed Ex. B-3 Will and that first defendant was in a sound disposing state of mind at that time and that he, Gajjarapu Venkatarao, Maddukuri Satyanarayana Murthy and Kona Narasimha Murthy attested Ex. B-3, scribed by Parasa Venkata Subbarao and it was registered on the same day and that he figured as an identifying witness at the time of registration and that one week or ten days prior to that first defendant executed Ex. B-4 settlement deed in favour of the seventh defendant and got it registered at Eluru and that he also went to Eluru along with defendants 1, 6 and 7 and attested Ex. B-4. During cross-examination he stated that about two days prior to Ex. B-3,6th defendant (D.W. 1) informed him that he consulted an advocate and that he advised him to obtain a settlement deed instead of Will and so he intended to take a settlement deed from the first defendant and asked them to accompany him and that two years after execution of Exs. B-3 and B-4 first defendant died at Krishnayapalem, after she was brought from Tanuku hospital. He denied the suggestion that by the date of Exs. B-3 and B-4 first defendant was suffering from filarial fever and that the size of her leg was twice the size of a normal leg, and stated that Advocate Vishnureddy also attended the District Registrar's Office and gave necessary instructions to the scribe and denied the suggestion that all of them took the ailing first defendant in a taxi both to Tadepalligudem and Eluru and made her affix her thumb mark on Exs. B-3 and B-4 without informing her the contents thereof. He stated that he did not observe whether any drafts were prepared but saw Vishnureddy giving dictation to the scribe for Ex. B-4 and that the earlier Will executed by first defendant was brought to Tadepalligudem and that Ex. B-3 was scribed as per the contents in the previous Will and admitted that he and the sixth defendant, who are joint owners of a property, move closely with each other, and that D.W. 2 also has got some relation with sixth defendant and denied the suggestion that because of his friendship with sixth defendant he helped him in bringing into existence Exs. B-3 and B-4.
29. The evidence of D.W. 4 the scribe of Exs. B-3 and B-4 is that after the sixth defendant and D.W. 3 brought the first defendant to the Sub-Registrar's office, Tadepalligudem, sixth defendant informed him that first defendant wants to execute a Will and when he asked whether there are any prior documents executed by her, first defendant gave him a prior Will and that he perused the same and as the first defendant informed him that as she bequeathed all the property under the previous Will to her husband and as her husband died she wants to execute a fresh Will giving away all the properties belonging to her and her husband to her niece the seventh defendant, she requested him to draft a Will both in favour of the defendants 6 and 7 and so he drafted Exs. B-3 and read it over to the first defendant, who was in a sound disposing state of mind, and that first defendant affixed her thumb mark to Ex. B-3. During cross examination he denied the suggestion that he did not prepare Ex. B-3 as per the instructions of the first defendant but copied from a rough document brought by defendants 6 and 7 and obtained the thumb mark of first defendant without stating the contents therein to her.
30. The evidence of D.W. 5 is that when he went to Tadepalligudem on his personal work, he found defendants 1, 6 and 7 at Taluk Office compound near Sub Registrar's Office and the 6th defendant who saw him called him stating that his attestation is required on a Will intended to be executed by the first defendant and after Ex. B-3 was drafted it was read over to the first defendant and after the first defendant affixed her thumb impression thereto, he attested Ex. B-3. During cross examination he stated that he does not remember on which work he went to Tadepalligudem, and admitted that he did not go there on any work connected with the Sub-Registrar's office, and that he knows the sixth defendant from six years earlier and denied the suggestion that he, defendants 6 and 7 and others took the first defendant in a taxi to Tadepalligudem and obtained her thumb mark on Ex. B-3 without informing the contents thereof to her and that Ex. B-3 was prepared as per a draft brought by the sixth defendant and that no instructions were given by the first defendant to the scribe of Ex. B-3.
31. The evidence of D.W. 6 is that the sixth defendant is his junior paternal uncle by courtesy and that Ex. B-3 was prepared at the Sub Registrar's office as per the instructions of the first defendant and after the Will was read over to her, first defendant affixed her thumb mark thereto and that he M and others attested Ex. B-3. During cross-examination he stated that sixth defendant requested him to come for attestation of the Will and denied the suggestion that he, sixth defendant and others took the first defendant in a taxi to Tadepalligudem and got prepared Ex. B-3 as per a draft got prepared by sixth defendant and that first defendant did not give any instructions for drafting of Ex. B-3 and that the first defendant was suffering from filarial fever and was not in a position to know what she was doing on the day of Ex. B-3 and that taking advantage of her situation her thumb impression was obtained therein without informing to her the contents therein.
Point No. 1:
32. As per Section 16 of the Act if a document evidencing adoption executed by "the person giving and person taking the boy in adoption" is produced, the Courts shall presume that there was an adoption. In view thereof, it is clear that the presumption contemplated by Section 16 of the Act arises only when the document evidencing the adoption is executed both by the persons giving the boy and taking that boy in adoption and is registered is produced but not otherwise. For that reason and in view of the ratio in Krishnabai Shivram Patil case (7 supra) and Chhathu Ram case (9 supra) relied on by Sri N.V. Suryanarayana Murthy presumption contemplated by Section 16 of the Act is not available in this case, because the natural parents of the plaintiff, who are said to have given him away in adoption to the first defendant and her husband, did not join the execution of Ex. B-1. So the onus squarely rests on the plaintiff to establish that he was taken in adoption by the first defendant and her husband.
33. Since execution of a deed evidencing r adoption is not made mandatory by the Act, an adoption can be proved by independent oral evidence also. It is well known that a " fact can be proved not only by the party to the suit giving evidence, but through the evidence of other witnesses also. Question of drawing an adverse inference against a party for his failure to go into the witness box arises only if he, having personal knowledge of the facts in issue, fails to enter into the witness box and offer himself for cross-examination by the other party. In this case, 1 as rightly contended by the learned Counsel for the plaintiff, non-examination of the plaintiff as a witness, is not of any consequence, because he, as per the evidence on record, was a small boy at the time of his adoption and so his knowledge as to what ceremonies took place at the time of his adoption can be known to him only be through others, as he cannot be expected to remember, and would not also be remembering, all the ceremonies that took place at the time of his adoption in his childhood. Ex. B-1 shows that the adoption took place on 08.02.1964. In Ex. A-1 the date of birth of the plaintiff is shown as 01.06,1959. That date of birth mentioned in Ex. A-1 may not be correct because it was given by the husband of the first defendant, who may not be knowing the actual date of birth of the plaintiff. Plaintiff is described as a person aged 19 years in the plaint filed in 1978. That age of the plaintiff mentioned in the plaint is not disputed by .{he first defendant h her written statement.
34. The evidence of P.Ws.3 and 5 shows that plaintiff was aged 4 years at the time of adoption. They were not cross-examined on that aspect. In fact, the age of the plaintiff at the time of his adoption was elicited only during the cross-examination of P.W. 3. So taking into consideration the age of the plaintiff, mentioned in the plaint and the evidence of P.W. 5, it is clear that the plaintiff was aged about four or five years at the time of his adoption. So he cannot be expected to remember what were the ceremonies that were performed at the time of his adoption, and state the same during trial, which began in 1985 i.e. after a lapse of over 20 years from the date of the alleged adoption. So no adverse inference need be drawn against the plaintiff for his not going into the witness box. Since the general power of attorney of the plaintiff i.e. his father-in-law was not present at the time of the adoption of the plaintiff his not going into the witness box to speak about the adoption of the plaintiff is also of little consequence.
35. As stated earlier, the averment in the written statement of the first defendant that the natural father of the plaintiff, by exercising undue influence on her husband must have brought into existence the original of Ex. B-1 stands belied by the suggestions put to P.Ws.2 and 3 during cross-examination. In fact, defendants 6 and 7 did not adduce any evidence to establish that the original of Ex. B-1 is vitiated by undue influence. The due execution of the original of Ex. B-1 is established by the plaintiff through the evidence of P.Ws.2 to 5. As no grounds to disbelieve their evidence are brought out in their cross-examination, it is clear that the husband of the first defendant executed the original of Ex. B-1 and got it registered.
36. The recitals in Ex. B-1 show that inasmuch as its executant i.e. husband of the first defendant, was aged 65 years and his wife i.e., the first defendant was aged 55 years, they lost the hope to beget children in future and so they, in order to perpetuate their family, made a request to the parents of the plaintiff to give the plaintiff in adoption to them for which they agreed and so they brought the plaintiff to their house and thereafter took him in adoption at 9.20 a.m. on Bahula Dasami (Saturday) of Sobhakruthanama year in the presence of , friends; and relatives as per Sastras.
37. Since Ex. B-1 was produced by the first defendant, the original of Ex. B-1 must be with the first defendant. Since the original of Ex. B-1 was executed by the husband of the first defendant it can be presumed that the original of Ex. B-1 was in the hands of the husband of the first defendant till his death and thereafter it came into the hands of the first defendant. Therefore, first defendant can be imputed with knowledge of the contents of the original of Ex. B-1. In spite of her having knowledge of the original of Ex. B-1, first defendant not questioning either original of Ex. B-1 or the status of the plaintiff as the adopted son till Ex. B-19 reply notice dated 25.07.1978 is a point in favour of the plaintiff and against the first defendant. D.W. 1 admitted during cross-examination that it is he that gave instructions to the advocate for issuance of Ex. B-19 and that his reply Ex. B-21 was also issued from the same office through a different advocate. So it can be presumed that the adoption of plaintiff, in fact, was not denied by the first defendant, and is denied only by D.W. 1, husband of the seventh defendant, obviously with a view to take the benefit under Exs. B-3 and B-4. As stated earlier, first defendant died on 12.07.1980, after filing of the written statement and before commencement of trial, and therefore defendants 6 and 7 were added as parties in pursuance of the order in I.A. No. 930 of 1980. It is the specific case of the plaintiff in para 8 of the plaint that first defendant was under the influence of the sixth defendant. So the possibility of the first defendant subscribing her signature (thumb mark) to the written statement filed on her behalf even without knowing the contents thereof cannot be ruled out.
38. The plaintiff averred in the plaint that he and the first defendant lived in the plaint B schedule house till 11.7.1978 and that first defendant, who used to raise silly disputes and harass him, drove him out on that day. Though the first defendant, in para-16 of her written statement, denied the plaintiff living with her in any of the house properties mentioned in the plaint B schedule, no evidence in that regard is adduced by the defendants 6 and 7. For that reason and since first defendant admitted that the plaintiff was fostered by her and her husband, the averment in the plaint that plaintiff lived in the plaint B schedule house till 11.07.1978 can be taken as true.
39. As per Article 58 of the Limitation Act, 1963, suits for declaration, other than the declarations covered by Articles 56 and 57, have to be filed within three years from the date when the right to sue first accrues. Right to sue for declaration relating to status of adoption arises when the adoption is denied.
40. In this case plaintiff not seeking a declaration relating to his status as adopted son of first defendant and her husband is of no consequence, because the adoption of the plaintiff by her and her husband was denied by the first defendant nay, in her name by the sixth defendant for the first time in Ex. B-19 reply notice dated 25.07.1978 to Ex. B-18 registered notice got issued by the plaintiff to defendants 1 and 6 for partition of the plaint schedule properties on 11.07.1978. Both in Ex. B-19 and in the written statement of the first defendant also it is alleged that her husband, who lost his eyesight even by 1960, never intended to adopt any person, and if any adoption deed was executed by Chenchal Rao on 08-02-1964, it must have been the result of a fraud played by the father of the plaintiff or some interested person in him. Defendants 6 and 7, who were brought on record after the death of the first defendant, filed a memo adopting the written statement of the first defendant. Since sixth defendant as D.W. 1 stated that the first defendant and her husband 'fostered' but have not adopted the plaintiff, it is easy to see defendants 6 and 7 also admit that the plaintiff was brought up in the house of the first defendant and her husband from his childhood till 1978. Defendants 1 and 6 though were aware of the existence of the original of Ex. B-1, did not dispute the adoption of the plaintiff till 25.07.1978. Husband of the first defendant also never disputed adoption of the plaintiff during his lifetime. In view thereof, there was no need or necessity for the plaintiff to seek a declaration of his status as the adopted son of the first defendant and her husband, because he was being treated as such by the first defendant and her husband till 1978.
41. The evidence of P.W. 1 read with the evidence of the expert P.W. .6, clearly establishes that Ex. A-1 and the original of Ex. B-1 contain the thumb marks of the husband of the first defendant, who admitted the plaintiff in a school and got him educated, treating him as his own son. The evidence of P.Ws.2 to 5 clearly shows that a ceremony of adoption took place, and that the plaintiff was, in fact, given away in adoption and was taken in adoption by the first defendant and her husband Chanchal Rao. The recitals of Ex. B-1 also corroborate the evidence of P.Ws.2 to 5. In their written statement defendants 2 to 5 admitted that both the first defendant and the plaintiff leased out the lands to them. Per contra, except the interested evidence of the sixth defendant as D.W. 1, no other evidence is adduced by defendants 6 and 7 regarding the adoption of the plaintiff by the first defendant and her husband.
42. The contention that the husband of the first defendant became blind in 1960 and was confined to house cannot be believed or accepted because Ex. A-1 application dated 25-06-1969 contains the thumb impression of the husband of the first defendant. If plaintiff really was not his adopted son and was merely fostered by him, husband of the first defendant would not have claimed himself as the father of the plaintiff while admitting the plaintiff in the school as seen in Ex. A-1. Non printing of invitation cards and non production of photographs evidencing adoption is of little consequence in this case because the evidence of P.Ws.2 to 5 clearly shows that apart from them several others attended the ceremony of adoption of the plaintiff. Ex. B-1 in fact is attested by several persons. That itself shows that there was due publicity for the adoption of the plaintiff. Invitation cards are for publicity and photographs are for evidence. Ex. B-1 read with the evidence of P.Ws.2 to 5 establishes adoption of the plaintiff by the first defendant and her husband.
43. In a suit for partition on the basis of adoption, if the plaintiff is able to establish that he is the adopted son of the first defendant and her husband, he is entitled to seek the relief of partition, even without his seeking the relief of declaration relating to his status as adopted son, because the first defendant, in spite of the existence of Ex. B-1, failed to file a suit to declare that plaintiff is not the adopted son of herself and her husband. Since adoption of plaintiff was disputed by the first defendant for the first time under Ex. B-19 dated 25.07.1978, the cause of action for filing the suit arose for the plaintiff only on 25.07.1978. The suit was filed on 14.08.1976, within one month from Ex. B-19. So it cannot be said that his claim is barred by time.
44. In view of the above the trial Court rightly held that the plaintiff is the adopted son of the first defendant and her husband and so I confirm that finding. The point is answered accordingly.
Point No. 2:
45. I am unable to agree with the contention of the learned Counsel for the plaintiff that in view of the fact that the evidence on record does not disclose that the first defendant was having any independent source of income and since her husband has property, a presumption has to be drawn that the property standing in the name of the first defendant should be presumed to be the property purchased by her husband benami in the name of his wife, and hence those properties also are available for partition because the sale deeds in favour of the first defendant disclose that first defendant herself paid the consideration mentioned therein. The fact that the property sold by the husband of the first defendant under Ex. B-8, was purchased by the first defendant under Ex. B-9 from the same vendee does not make the purchase by the first defendant as the purchase made by her husband for and on behalf of the first defendant more so because Ex. B-9 shows that the consideration therefor was in fact paid by the first defendant herself before the Sub-Registrar. The recitals in Ex. B-9 also show that it is the first defendant but not her husband that paid the consideration mentioned in Ex. B-9. Similarly, the consideration for purchase of the property covered by Ex. B-10 was also paid by the first defendant herself as disclosed from the endorsement made by the Sub-Registrar on the reverse of Ex. B-10 at the time of its registration. Since the evidence on record does not disclose that the consideration for purchase of the property standing in the name of the first defendant was supplied by her husband, and since first defendant and her ' husband were not having children, there is no reason for the husband of the first defendant acquiring property in the name of his wife for the benefit of himself, nor was there a need for him to screen his property by acquiring it in the name of his wife. In other words the husband of the first defendant had no motive for acquiring properties in the name pi the first defendant benami for his benefit.
Much water has flown under the bridge after Bilas Kunwar case (19 supra) and Lakshmiah case (20 supra). Apex Court laid down the tests for finding out if a transaction is benami or not. Thereafter Act 45 of 1988 also came into force. So the contention of the learned Counsel for the plaintiff that the properties standing in the name of first defendant in fact belong to her husband but not to the first defendant exclusively, cannot be believed or accepted, more so because the property covered by Ex. B-12 was purchased by the first defendant on 02-07-1976 long subsequent to the death of her husband. Therefore, I hold that the properties standing in the name of first defendant are not available for partition, because they are her Streedhana properties. The properties standing in the name of the husband of the first defendant only are available for partition. The point is answered accordingly.
Point No. 3:
46. Since the plaintiff is the adopted son of the husband of the first defendant he is entitled to 1/2 share in the properties belonging to the joint family of himself, his adoptive parents i.e. properties standing in the name of the husband of the first defendant. Consequent upon the death of the husband of the first defendant his 1/2 share in the joint family properties would devolve on both the plaintiff and the first defendant, and so the plaintiff, by the date of filing of the suit, was having 1/2 + 1/4 = 3/4 share in the joint family properties. Consequent upon the death of the first defendant he would have become entitled to the share of first defendant also in the joint family properties and her Streedhana properties also as her adopted son. But the contention of defendants 6 and 7 is that in view of the settlement deed and Will executed by the first defendant in their favour, they became entitled to the properties belonging to the first defendant. So the truth, validity and genuineness of Exs. B-3 and B-4 have to be considered.
47. First defendant, in Para No. 12 of her written statement, admitted her executing Ex. B-4 settlement deed in favour of defendants 6 and 7. Though the written statement of first defendant might have been prepared on the instructions of the sixth defendant only, in view of the proviso to Section 68 of the Evidence Act, it can be deemed that execution of Ex. B-4 by the first defendant is proved. Otherwise also the evidence of D.Ws. 2 and 3 establishes the due execution of Ex. B-4 by them. First defendant did not question Ex. B-4 during her lifetime. So the plaintiff is not entitled to claim any of the lands covered by Ex. B-4 as the properties covered thereby were acquired by her under Exs. B-6, B-9, B-12 and B-32, she has a right to settle those properties on the seventh defendant.
48. With regard to the property covered by Ex. B-11 and the remaining share of the first defendant in the properties left behind by the husband of the first defendant, as stated earlier, in the absence of Ex. B-3 Will said to have been executed by the first defendant, plaintiff only would be entitled to those properties.
49. In her written statement first defendant alleged that she shifted to the house of defendants 6 and 7 because of the threats held out by the plaintiff and others. The case of the plaintiff is that after he was necked out of the house by the first defendant, sixth defendant started living with the first defendant and was influencing her. The evidence of D.Ws. 4 to 6 i.e. the scribe of and attestor to Ex. B-3 shows that they were present at the Sub-Registrar's office at Tadepalligudem at the instance of the sixth defendant. So it is clear that the propounder of Ex. B-3 took a prominent part in execution of Ex. B-3 which itself is a suspicious circumstance. Why the sixth defendant had to take active part in the execution of the Will by the first defendant and why he had to call all the attestors and scribe of Ex. B-3 and why Ex. B-3 Will had to be drafted at the Sub-Registrar's office but not at the place where the first defendant was residing are not explained by defendants 6 and 7. D.Ws. 4 to 6 who are the close friends of the sixth defendant going to the Sub-Registrar's office at the instance of the sixth defendant for scribing and attesting the Will of the first defendant at the office of the Sub-Registrar is but a suspicious circumstance. The evidence of D.Ws. 4 to 6 establishes the prominent role played by sixth defendant in execution of Ex. B-3. The evidence of D.W. 5 is that when he went to Tadepalligudem, sixth defendant (D.W. 1) called him to attest. He admitted that he did not go to Tadepalligudem on any work in the Sub-Registrar's office. So it is clear that D.W. 5 attested Ex. B-3 only at the wish of D.W. 1 who is his friend. D.W. 6 admittedly is a relative of D.W. 1. In the above circumstances there was every scope for the sixth defendant playing fraud on the first defendant with the help of D.Ws. 3 to 6 and obtaining Ex. B-3 without disclosing the contents therein to her. Since the suspicious circumstance surrounding the execution of Ex. B-3 are not repelled, no relief can be granted to defendants relying on Ex. B-3, because it is doubtful if Ex. B-3 is the real Will of the first defendant or if it was executed at the instance of the sixth defendant. In the absence of Ex. B-3 Will, plaintiff becomes entitled to the share of the first defendant in the other properties left behind by her and her husband Chenchal Rao also. The point is answered accordingly.
50. Therefore, I hold that plaintiff is entitled to all the properties covered by the plaint A to C schedules except the properties covered by Ex. B-4 settlement deed. The appeals are ordered accordingly. Parties are directed to bear their own costs in these appeals.