Andhra HC (Pre-Telangana)
Pinnaka Hanumantha Rao (Died Per L.R.) ... vs Garlapati Dhanalakshmi Alias Andallu on 25 January, 2007
Equivalent citations: 2007(2)ALD435, 2007(3)ALT75
JUDGMENT G. Bhavani Prasad, J.
1. Aggrieved by the judgment and decree in Original Suit No.70 of 1983 on the file of the Subordinate Judge's Court, Addanki, dated 30-08-1994 granting declaration of title to and possession of plaint A and B schedule properties to the plaintiff with future mesne profits and costs, while making the delivery of plaint B schedule properties subject to payment of the amount paid by defendants 1 and 2, by the plaintiff, the unsuccessful defendants filed the present appeal. The facts leading to the appeal are that the plaintiff filed the suit as an indigent person claiming that the 1st defendant is the son and the 2nd defendant is the wife of Pinnaka Nageswara Rao, and due to differences, the 2nd defendant left to her parents house along with the 1st defendant a few months after the birth of the 1st defendant and she demanded through elders settlement of her claim for maintenance and the 1st defendant's share in the family properties. Pinnaka Nageswara Rao agreed and the 1st defendant was given his share in the family properties under registered partition deed dated 22-07-1962, in which the 2nd defendant represented the minor 1st defendant. The 2nd defendant also executed a relinquishment deed in favour of Nageswara Rao in respect of her maintenance claim and since then Pinnaka Nageswara Rao and the defendants were living separately, enjoying their properties separately in their own right. Nageswara Rao was living with Ravi Rangaiah, his maternal uncle, since 1962 and was looked after by Ravi Rangaiah's family including the plaintiff, as there was none else to look after him. As he developed chest discomfort prior to 23-10- 1982, Pinnaka Nageswara Rao executed a Will in a sound and disposing state of mind on 23-10-1982 bequeathing the plaint A and B schedule properties to the plaintiff, the daughter of Ravi Rangaiah. Nageswara Rao died on 25-10-1982. While item 1 of plaint A schedule fell to the share of Nageswara Rao in the partition, items 2 and 3 were acquired by him after the partition. He pledged plaint B schedule gold jewels to the Union Bank of India, Ravinuthala and Andhra Bank, Ravinuthala borrowing Rs.6,000/-, and borrowed Rs.3,000/- from the Primary Agricultural Co-operative Society, Pamidipadu, which debts have to be discharged by the plaintiff as per the Will. The defendants filed caveats against the plaintiff and forcibly dispossessed her from the plaint A schedule properties, a week prior to the suit. Hence, the plaintiff filed the suit as an indigent person.
The defendants resisted the suit contending that immediately after the marriage with the 2nd defendant, Nageswara Rao developed bad habits like gambling and debauchery and Nageswara Rao and the 1st defendant partitioned their properties under a registered partition deed in 1962. After partition, Nageswara Rao sold some properties and purchased items 2 and 3 of plaint A schedule with the income from the land sold. In spite of partition, Nageswara Rao was living with the defendants and leading marital life with the 2nd defendant till his sudden death intestate on 25-10-1982 due to heart attack. The defendants succeeded to the plaint A and B schedule properties as the sole heirs of Nageswara Rao and the Will dated 23-10- 1982 is a rank forgery. Nageswara Rao being looked after by Ravi Rangaiah or the plaintiff since 1962, is false. The creditors of Nageswara Rao filed suits against the defendants for recovery of their debts. The pledge of gold jewellery mentioned in the plaint B schedule to the Union Bank of India and Andhra Bank, Ravinuthala by borrowing some amounts, is true. The plaintiff added as a party in O.S. No.21 of 1983 of the Principal District Munsif's Court, Addanki, contested as 3rd defendant claiming testamentary succession, while the defendants herein remained ex parte and the suit was dismissed on 20-06-1989 with the observation that the plaintiff is not the debtor under testamentary succession. The same operates as res judicata and the cause of action and valuation are incorrect. Hence, the suit be dismissed with costs.
The plaintiff in her rejoinder claimed that the money suit in O.S. No.21 of 1983 ended in dismissal against the plaintiff herein giving a finding for purpose of A.P. Act VII of 1977 by which time the plaintiff's claim is sub judice herein and the entire estate of Nageswara Rao was under the possession and enjoyment of the defendants herein. For raising the frivolous plea of res judicata, the defendants are liable for exemplary costs. On such pleadings, the trial Court framed the following issues for trial.
1. Whether the Will-deed dated 23-10-1982 is true, valid and bind(ing on) the defendants ?
2. Whether the plaintiff is entitled for declaration and possession of 'A' schedule property as prayed for ?
3. Whether the plaintiff is entitled for declaration of 'B' schedule property as prayed for ?
4. Whether the suit is not properly valued and C.F. paid is not sufficient ?
5. Whether the plaintiff is entitled to any profits and if so, at what rate ?
6. To what relief ? Additional issues framed on 15-04-1993:
1. Whether the plaintiff is entitled to the relief of possession of B schedule movables ?
2. Whether the relief of possession of B schedule property item No.6 is barred by limitation ?
Additional issue framed on 20-06-1994:
1. Whether the suit is hit by Res judicata ? After examining P.Ws.1 to 5 and D.Ws.1 to 7 and marking Exs.A.1 to A.10 and B.1 to B.12 during trial, the trial Court rendered the impugned judgment holding that the suit is not barred by res judicata as the scope was limited in the simple money suit to the question whether the plaintiff herein, who impleaded herself as a party, was liable to pay or not and as the plaintiff herein had no chance even to prefer an appeal as the suit was dismissed against her. It further held that the valuation of the suit under Section 24 (a) of the Andhra Pradesh Court Fees and Suits Valuation Act is correct. It noted the admitted facts about the death of Nageswara Rao on 25-10-1982, the relationship of the parties, Nageswara Rao living with the plaintiff's father Ravi Rangaiah in the same house in the adjacent portion purchased by him, the execution of Ex.A.3 relinquishment deed and Ex.A.4 partition deed, the defendants living in Bellari since 16 years prior to the suit and the plaintiff being a young widow with children. While observing that the 1st defendant was not examined, the trial Court noted the admissions of the 2nd defendant as D.W.1 about the vices of Nageswara Rao, payment of Rs.1,500/- towards maintenance, partition and separate living. It noted the absence of any evidence about any visits by Nageswara Rao to the defendants and the non- production of original partition deed in their possession by the defendants. The trial Court observed that the defendants were not present before or at the time of the death of Nageswara Rao and did not enquire about the Will. The trial Court considered the evidence of D.Ws.2 to 7 and Exs.B.1 to B.12 to be inconsequential and was of the opinion that Ex.A.1 Will giving all details of partition and the relinquishment deed and mentioning why the natural heirs were eliminated, could not have been fabricated. The trial Court compared the signatures of Nageswara Rao on Ex.A.1 Will and Ex.A.2 original sale deed and found them to be similar. The trial Court accepted the evidence of P.Ws.1 to 4 and found any discrepancy about the illness of Nageswara Rao prior to his death to be not material. It did not consider P.W.3 alone referring to some pocket book referred to by Nageswara Rao at the time of execution of Ex.A.1 or the claim of P.W.1 to be looking after Nageswara Rao since the 2nd defendant left him by which time she would have been aged only 2 or 3 years, etc., to be not affecting the consistent evidence about the Will. It also considered the absence of registration of the Will to be due to lack of time between its execution and the death of Nageswara Rao, and the trial Court held Ex.A.1 Will to be a genuine document. Consequently, it concluded the defendants in possession of the suit properties to be liable to the suit reliefs subject to payment of the amount paid by defendants 1 and 2, by the plaintiff for recovery of the plaint B schedule properties. It held the suit to be within time being within three years from the date of the Will and made the defendants liable to pay the Court fee due to the Government.
The defendants challenged the impugned judgment contending that there were no specific reasons for eliminating the natural heirs, more so, when there was no divorce between the wife and the husband. The partition deed, sale deeds and the relinquishment deed were executed at the instance of the elders to safeguard the family properties only, as Nageswara Rao was spoiling the properties due to vices, and the interested evidence of P.Ws.2 to 5 closely related to the plaintiff should have been rejected in the absence of any independent witnesses. The evidence about the health of Nageswara Rao was inconsistent and Nageswara Rao was not even taken to any doctor in spite of several doctors being available at Ravinuthala at a distance of 2 K.Ms. The Registrar's office is at Ammanabrolu at 10 K.Ms., but the Will was not registered. In the light of very strong suspicious circumstances surrounding the Will, which were not removed by the evidence, and in the absence of proof of its execution in a sound and disposing state of mind, the Will should not have been accepted and if really Nageswara Rao executed the Will, he would have mentioned all his debts in the Will. The defendants never admitted that Nageswara Rao was living with Ravi Rangaiah, and Nageswara Rao living at Pamidipadu to cultivate his lands, was visiting the defendants now and then at Bellari, which is not uncommon. No adverse inference could have been drawn for non-production of the original partition deed, more so, when the plaintiff did not seek for the same, and the attendance of Nageswara Rao at the 1st defendant's marriage was consistently spoken by the witnesses of the defendants. The funeral and obsequies were performed by the defendants, which were not attended by the plaintiff and her family members, though the defendants could not be present when Nageswara Rao died. There was no necessity for the defendants to enquire about the Will, and Exs.B.1 to B.8 promissory notes executed by Nageswara Rao in 1970 could not have been discredited when even the plaintiff did not question them. The findings in the money suit that the plaintiff was not the legal representative of Nageswara Rao, have become final and are binding and the signatures of Nageswara Rao in Exs.A.1 and A.2 are completely different. There was no occasion for Nageswara Rao to execute a Will when he suddenly died due to heart attack, and the defendants discharged several debts of Nageswara Rao and got the gold ornaments also released from hypothecation and the plaintiff did not discharge any debts. Any sympathy to the plaintiff could not have led to the Will when Nageswara Rao has a son and wife, who are his legal representatives. Hence, the defendants sought for reversing the impugned judgment and decree. The appellants filed A.S.M.P. Nos.1620, 1621 and 1622 of 2006 to condone the delay, set aside abatement and bring the son of the 1st appellant (grand son of the 2nd appellant) on record as the legal representative of the deceased 1st appellant who died suddenly on 10-06-1999. The petitions were allowed and the 3rd appellant was brought on record as per orders dated 24-08-2006. But an obvious error crept in, in describing him in the petitions and the consequential amendment of the cause title of the appeal mentioning him as the son of Nageswara Rao, while he is, in fact, the son of Hanumantha Rao, the deceased 1st appellant. The Registry shall correct the cause title in the appeal showing the 3rd appellant as P. Gopikrishna, son of Hanumantha Rao.
The plaintiff filed A.S.M.P. No. 1717 of 2006 to receive receipt No.002802 dated 28-06-2002 issued by the Prakasam District Co-operative Central Bank Limited, Paidipadu as additional evidence in the appeal to show that she paid Rs.1,435/- towards the loan due from Nageswara Rao. Sri T. Rajendra Prasad, learned Counsel for the appellants extensively referred to various suspicious circumstances against Ex.A.1 Will and argued that the defendants not present when Nageswara Rao died, could not have enquired about any Will nor could have known as to how the plaintiff got Nageswara Rao's signature. The learned Counsel argued that merely because D.W.2 is a coolie, he could not have been disbelieved and D.W.3 related to Nageswara Rao and D.Ws.4 to 7 officials who spoke about the discharge of the debts of Nageswara Rao by defendants, could not have been disbelieved. Suits for recovery of debts of Nageswara Rao could not have been brought into existence by the defendants and when there were no disputes between the son and the father, there was no reason for Nageswara Rao to exclude the defendants from succession. The learned Counsel pointed out that P.Ws.2 to 4 tried to deny their relationship with P.W.1 in the first instance but had to admit the same later and the pocket note book allegedly referred by Nageswara Rao for writing the Will stated by P.W.3 and nobody else, did not see the light of the day. The very claim of P.W.1 to be looking after Nageswara Rao from her age of 2 or 3 years is unnatural and there was no reason for non-registration of the Will, if it were true. Death of Nageswara Rao was allegedly expected but he was not taken to any hospital for three days, which is also a factor to doubt whether Nageswara Rao was in a sound and disposing state of mind. There was no evidence at all that the contents of the Will were read over to the executant and the executant admitted the contents. It is not for the defendants to prove the case of the plaintiff by producing the original registered partition deed. Ex.A.1 was signed only in the last page and the wife was totally excluded from the properties both in the earlier partition and the Will. The burden of proof is heavily on the propounder in the light of such strong suspicious circumstances, which she failed to discharge. The learned Counsel referred to a number of precedents, which will be referred to in due course.
Sri Ramakanth, learned Counsel representing Sri M.S.N. Prasad, learned Counsel for the respondent strenuously contended that the defendants were living separately from Nageswara Rao for more than 20 years and the son never saw the father since his age of 8 months. There was no independent evidence of Nageswara Rao living with defendants 1 and 2 or visiting them, and the attestors and the scribe of the Will were examined proving due execution of the Will. When the instructions for the Will were given by the executant himself and it was written in Telugu, the language of the executant, there was no need to specify the same being read over to the executant. Court's comparison of the disputed signature with the admitted signature is valid and if any debts were discharged by the defendants, they can recover the same from the plaintiff and the defendants never intimated any such payments or redemption of plaint B schedule properties, to the Court or the plaintiff. The learned Counsel referred to Sections 63 and 68 of the Indian Succession Act and referred to various precedents, which will be referred to in due course. He, therefore, desired the additional evidence in proof of part payment by plaintiff to be received and the appeal to be dismissed.
The following points arise for consideration in the appeal:
1. Whether the Will dated 23-10-1982 by Pinnaka Nageswara Rao in favour of the plaintiff is true, valid and binding on the defendants ?
2. Whether the plaintiff is entitled for declaration of title, possession and future mesne profits in respect of plaint A and B schedule properties against the defendants ?
3. To what relief ?
Point No.1:
2. In Baru Ram v. Smt. Prasanni dealing with the mode of proof of signature of a person, the Supreme Court pointed out that:
Section 67 of the Indian Evidence Act (1 of 1872) provides inter alia that if a document is alleged to be signed by any person the signature must be proved to be in his handwriting. Sections 45 and 47 of the said Act prescribed the method in which such signature can be proved. Under S. 45, the opinion of the handwriting experts is relevant while under S.47 the opinion of any person acquainted with the handwriting of the person who is alleged to have signed the document is admissible. The explanation to the section explains when a person can be said to be acquainted with the handwriting of another person. Thus, there can be no doubt as to the manner in which the alleged signature of the appellant could and should have been proved; but even assuming that the signature of the appellant can be legally held to be proved on circumstantial evidence the principle which governs the appreciation of such circumstantial evidence in cases of this kind cannot be ignored. It is only if the court is satisfied that the circumstantial evidence irresistibly leads to the inference that the appellant must have signed the form that the court can legitimately reach such a conclusion.
3. In H. Venkatachala v. B.N. Thimmajamma , the true legal position in matter of proof of Wills was laid down as:
Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss.45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties.
The Supreme Court pointed out that in discovering truth even in such cases, the judicial mind must always be open though vigilant, cautious and circumspect. The Supreme Court also pointed out that what circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated and that inevitably would be a question of fact in each case.
4. In Guru Dutt v. Durga Devi AIR 1966 JAMMU & KASHMIR 75, the principles were reiterated and it was observed that the mere fact that the signature appearing on the will is a genuine one, is not by itself sufficient to prove the genuineness of the will, where the execution of the will is shrouded by suspicious and unnatural circumstances.
5. In Purnima Debi v. Khagendra Narayan , while reiterating the principles it was pointed out that if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering.
6. In Ajit Kumar v. Mukunda Lal , it was held that the onus of proving a Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, the proof of testamentary capacity and the signature of the testator, as required by law, are sufficient to discharge the onus. Where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the Will could be accepted as genuine. It was further pointed out that the onus as a determining factor of a case can only arise if the evidence pro and con is so evenly balanced that no conclusion can be derived therefrom. But if a tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it and need not be further considered.
7. In Dasari Uma Maheswara Rao v. S.V. Ramachandra Murthy 2002 Suppl. (2) ALD 277 (DB), the unregistered Will was disbelieved on facts, as there was delay in filing the Will and only the scribe but not the other living attestor was examined and there was no explanation for his non-examination, apart from the absence of any steps to act upon the Will and further due to nothing preventing the testator from signing with shaken hands.
8. In V. Venkateswara Rao v. Y. Nageswara Rao and Ors. 2000(1) CCC 142 (A.P.), it was held that in a case where the propounder of the will is the beneficiary and he takes active part, the burden is upon him to remove the suspicious circumstances surrounding the Will.
9. In State of Haryana v. Raj Kaur , the original Will was not produced. The attestor did not speak of due execution of the Will. The daughters of the testator were excluded. The Sub-Registrar, who registered the document, was not produced. The testator was not proved to be in a sound disposing mind free from all extraneous influences and hence, the Will was held not proved to the satisfaction of the conscience of the Court.
10. In Ramchandra v. Champabai , while the principles are reiterated, the suspicious circumstances relied on by the High Court for rejecting the evidence of the attesting witnesses and the scribe and the propounder, were upheld including the circumstance that the Will gives almost the entire property to a distant relative who was neither brought up by the testator nor was a person who looked after the testator during his declining years. Though the relations between the testator and his wife were strained and very bad, still the testator continued to live with his wife till his death, who was cooking his food. The conscience of the Court about the genuineness of the Will by removing all suspicions flowing from various circumstances, was, hence, not satisfied.
11. In Sridevi and Ors. v. Jayaraja Shetty and Ors. 2005 (2) ALD 99 (SC), it was pointed out that proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters and as to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case. It was held that the propounder of the Will has to show that the Will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of two witnesses who attested in his presence and in the presence of each other.
12. In Guro v. Atma Singh , among the suspicious circumstances noted by the appellate Court was the illness of the testator since a long time and serious illness at the time of the Will, apart from the absence of any reasons for exclusion of the natural heir and the Will being an unregistered document which could be prepared at any time. The testator died within eight days of the Will and the propounder and the scribe made contradictory statements. The Supreme Court held the High Court to be not justified in reversing the findings of fact recorded by the appellate Court based on proper appreciation of the evidence on record.
13. In Shashi Kumar v. Subodh Kumar AIR 1964 Supreme Court 529, while reiterating the principles, the Supreme Court held that if there is hardly any suspicious circumstance attached to the Will, it will require very little evidence to prove due execution and attestation of the Will. The Supreme Court further pointed out that a slight discrepancy in the evidence of attesting witnesses is not serious as to distrust their evidence and there is nothing impossible in advantage being taken of the accidental presence of chance witnesses to attest the Will.
14. In K. Nookaraju v. P. Venkatarao , it was held that it would be sufficient even if one attestor has been examined. But, that attestor should speak to all the elements of clause (c) of Section 63 of the Succession Act. The attestor witness should speak not only about the testator's signature or affixing his mark to the Will or somebody else signing it in his presence and by his direction or that he had attested the Will after taking acknowledgement from the testator of the signature or mark, but also should speak that each of the witnesses had signed the Will in the presence of the testator. It was also held that registration of a Will though not required under law is only a piece of evidence of the execution and cannot take the place of due attestation of the document.
15. In Shri Kishan Chand v. Smt. Basanti Devi 1996(2) ICC 283, it was held that the reason to exclude the wife from her rightful claim not only is to be recorded in the document - Will - but to be justified as well and when no such explanation has been given in the Will for her exclusion, that by itself is sufficiently suspicious circumstance to ignore the Will.
16. In Pushpavati v. Chandraja Kadamba , it was further held that where the signature of the testator is challenged as a forged signature and the Will does not come from the custody of a public authority or a family Solicitor the fact that the dispositions made in the Will were unnatural, improbable or unfair, would undoubtedly create some doubt about the Will, especially, when the document is unregistered and comes from the custody of a person who is the major beneficiary under the Will.
17. In Jaswant Kaur v. Amrit Kaur , it was held that:
In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.
18. In Girja Datt v. Gangotri Datt , it was held that under Section 68 of the Indian Evidence Act an attesting witness has to be called as a witness to prove the due execution and attestation of the Will and mere signatures of the persons appearing at the foot of the endorsement of registration cannot lead to any presumption of attestation.
19. In D. Suryanarayana v. I. Suryakanthamma , it was held that though there was no specific denial relating to execution of the Will and an issue was not framed in that regard, due execution of the Will has to be proved in accordance with Section 68 of the Indian Evidence Act.
20. In Ajit Savant Majagavi v. State of Karnataka , it was held that as a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature, as this power is clearly available under Section 73 of the Evidence Act.
21. It was also held in Lalit Popli v. Canara Bank and Ors. 2003 (5) ALT 3.4 (DN SC) that irrespective of an opinion of the Handwriting Expert, the Court can compare the admitted writing with disputed writing and come to its own independent conclusion, which is permissible under Section 73 of the Evidence Act.
22. In E. Anantha Ramana v. State Bank of India, Kothakota, Visakhapatnam , it was pointed out that normally the Court shall not embark upon such exercise having regard to the fact that it does not possess the expertise in this regard. But it may be a case where the Court had no option but to do it having regard to the fact that the disputed signatures were not sent for comparison to the handwriting expert; as a result whereof the Court is not in a position to get the assistance of an expert. The decision of the trial Court based on oral evidence and comparison of the disputed signatures with the admitted signatures was held to suffer from no infirmity.
23. In Guru Govindu v. Devarapu Venkataramana 2006 (2) L.S. 151, it was held that it is always competent for the Court to undertake comparison of signatures of disputed document by itself and the opinion rendered by expert is only supporting material and cannot be treated as conclusive. It was pointed out that if the Court is capable of forming an opinion on the strength of oral and documentary evidence before it, in exercise undertaken under Section 73 of the Evidence Act, the necessity to send the document for expert's opinion may not arise.
24. In Indu Bala Bose v. Manindra Chandra Bose , it was held that needless to say that any and every circumstance is not a 'suspicious' circumstance and a circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.
25. In Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande , it was held that in view of Section 63 of the Indian Succession Act, the requirement of law would be fully satisfied if only one of the attesting witnesses is examined to prove the Will. It was also pointed out that a Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir and if a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will.
26. In Meenakshiammal (dead) through LRs. and Ors. v. Chandrasekharan and Anr. 2004 (8) Supreme 418, the testator was a bachelor living with his step sister as his relationship with his real sister was not cordial and after suffering fracture at the age of 85 years, he was looked after by the defendants. The testator was mentally alert and the plaintiffs were nowhere in sight during his hospitalization or his treatment. Hence, it was held that the reason for excluding the plaintiffs from the benefits under the Will was proved.
27. In Janki Narayan Bhoir v. Narayan Namdeo Kadam , it was held that one attesting witness examined should be in a position to prove the execution of the Will, on which the examination of other attesting witness can be dispensed with.
28. In Daulat Ram and Ors. v. Sodha and Ors. 2004 (8) Supreme 1, it was held that the burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing fraud is on the person who alleges it to be so.
29. In Chinmoyee Saha v. Debendra Lal Saha , it was held that the Will is the Will of the testator and he has, under the law, the freedom to give his property to whomsoever he likes. What strikes the Court as an eccentric or an unjust or an unnatural disposition can certainly be taken as a consideration on the main question of finding out whether the testator was acting as a free agent and with a sound disposing and understanding mind. But once it is established that the testator was free and had a sound disposing mind, it is no longer the duty of the Court to go further to inject its own ethics of what is or not a moral or a fair disposition according to the Court's own standard. It was further held that the absence of endorsement that the Will was read over to the executant is not a suspicious circumstance when it is stated in the Will that at the instance of the testator, the scribe wrote the Will and that after reading and knowing all the contents of the Will, the testator put her signature. It was also observed that nobody would normally invite a stranger or a foe to be a scribe or a witness of a document executed by or in his favour and normally a known and reliable person, a friend or a relation, is called for the purpose.
30. From the various precedents cited by the learned Counsel referred to above, the following principles broadly emerge.
1. Whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of Sections 67, 68, 45 and 47 of the Evidence Act and Sections 59 and 63 of the Indian Succession Act.
2. A Will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act.
3. Proof with mathematical certainty is not expected and the test to be applied would be the usual test of the satisfaction of the prudent mind.
4. The propounder would be called upon to show by disinterested, satisfactory and sufficient evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind free from all extraneous influences, that he understood the nature and effect of the dispositions and put his signature to the document of his own free Will and that he had signed it in the presence of two witnesses who attested in his presence and the presence of each other.
5. The onus on the propounder to prove the due and valid execution of the Will can be taken to be discharged on proof of the essential facts.
6. The execution of the Will may be surrounded by suspicious circumstances like, --
(a) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(b) The condition of the testator's mind may be very feeble and debilitated.
(c) The dispositions made in the Will may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provision for the natural heirs without reasons.
(d) The dispositions may not appear to be the result of the testator's free Will and mind.
(e) The propounder takes a prominent part in the execution of the Will conferring substantial benefit on him.
(f) The testator used to sign blank papers.
(g) The Will did not see the light of the day for long.
(h) Incorrect recitals of essential facts.
(i) The unregistered Will challenged as forged comes from the custody of major beneficiary.
7. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated and that inevitably would be a question of fact in each case.
8. Each and every circumstance is not a suspicious circumstance and a circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.
9. All such legitimate suspicions should be completely removed by the propounder before accepting the document as the last Will of the testator and satisfactory discharge of such initial onus is very heavy and the test of satisfaction of judicial conscience is pivotal in deciding the solemn question.
10. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will.
11. A testator has the freedom to give his property to whomsoever he likes and once it is established that the testator was free and had a sound disposing mind, it is no longer the duty of the Court to go further to inject its own ethics of what is or is not a moral or a fair disposition according to its own standard.
12. No hard and fast or inflexible rules can be laid down for the appreciation of the evidence and application of general and broad principles would always depend on the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties.
13. Allegations of exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded have to be proved by the person making such allegations.
14. Circumstantial evidence to prove the signature of the testator can lead to a legitimate conclusion only if it leads irresistibly to the inference that the person must have signed the document in question, but the presumption of execution of the Will by the testator on proof of the signature may be rebutted by proof of suspicious and unnatural circumstances.
15. The registration of the Will by the testator will be a strong circumstance to support the genuineness of the Will, but will not by itself be sufficient to dispel all suspicions without subjecting the evidence of registration to a close scrutiny.
16. Onus as a determining factor of a case can only arise if the evidence pro and con is so evenly balanced that no conclusion can be derived therefrom, but not when a determinate conclusion can be arrived at after hearing and weighing the evidence.
17. The presumption under Section 90 of the Evidence Act in respect of a Will 30 years old and produced from proper custody, is one of due execution and attestation as well as of testamentary capacity of the testator, but does not extend to the truth of the contents of the Will.
18. To judge the credibility of the witnesses, the demeanour of the witnesses, surrounding circumstances and the probabilities arising out of the evidence and nature and contents of the document have to be looked into.
19. It is more usual to call a known and reliable person, a friend or a relation, to be a witness when a person is intending to execute a Will and advantage may be taken of the accidental presence of chance witnesses also in this connection.
20. It would be sufficient even if one attestor is examined, if he speaks about all the required elements.
21. The Court has the power to compare the disputed signature with the admitted signature, which power is available under Section 73 of the Evidence Act, but it should not normally take upon itself such responsibility and should leave the matter to the wisdom of experts in the event of slightest doubt.
22. If the Court is capable of forming an opinion on the strength of oral and documentary evidence by undertaking comparison under Section 73 of the Evidence Act, the necessity to send the document for expert's opinion may not arise and the opinion rendered by an expert being only a supporting material, the Court can come to its own independent conclusion.
The above principles deduced from the cited precedents are only enumerative and not exhaustive and their application to the facts and circumstances of each case should be strictly contextual but not mechanical.
The facts and circumstances of the present dispute as discernible from the oral and documentary evidence on record need be appreciated and assessed in the light of the above legal position.
The scribe and two attestors of Ex.A.1 unregistered Will were examined as P.Ws.2 to 4. P.W.2, the scribe, stated that Pinnaka Nageswara Rao of Pamidipadu executed Ex.A.1 Will about two days prior to his death due to heart attack, since he was feeling heart trouble for one or two days. He claimed that Nageswara Rao was hale and healthy and in a disposing state of mind and gave instructions for writing the Will bequeathing the properties to the plaintiff and that P.Ws.3 and 4 and Ravi Subbarao were the attestors of the Will. He stated that he and the attestors were present and witnessed when Nageswara Rao signed the Will and that he and the attestors signed and attested respectively to the seeing of the testator. Though he does not remember whether the testator and the witnesses signed the Will with his pen, he stated that after Nageswara Rao signed Ex.A.1, the attestors signed and then he signed and handed it over to Nageswara Rao. He could not say whether there were corrections in Ex.A.1 without looking into the document and stated that it was executed at the house of Nageswara Rao. He claimed that the testator called him to his house at 8.30 A.M. on the date of Ex.A.1 and supplied paper and pen and also called the attestors. He stated that Ex.A.1 was the only Will written by him and that Nageswara Rao gave instructions orally and gave boundaries and survey numbers also, but he has no documents or papers with him. He also claimed that Nageswara Rao told him what all properties and debts he was having at that time and that Ex.A.1 was completed within one hour.
P.W.3, the attestor of Ex.A.1, also deposed similarly about the execution of Ex.A.1 Will and he also stated that Nageswara Rao called him on that day at about 8 or 8.30 A.M. to his house. Besides himself, the testator, the other attestor and scribe; two old women were sitting. He stated that Nageswara Rao gave instructions to P.W.1 looking into the pocket book, such as survey numbers and boundaries. He claimed that first Nageswara Rao signed in Ex.A.1 and later he signed, though he does not know whether he signed with the pen of Nageswara Rao. P.W.4, the other attestor of Ex.A.1, also deposed similarly and though he could not give the date or the day when Nageswara Rao called him to attest the Will, he stated that by the time he went to the house of Nageswara Rao P.W.2, P.W.3, Ravi Subbarao and two other old ladies were present at about 8 A.M. He could not name the old ladies and he claimed that Nageswara Rao told him that he was suffering from heart trouble since two years prior to the Will. He stated that Nageswara Rao started giving instructions to the scribe after he went there and that after writing of the Will by the scribe, Nageswara Rao signed and then P.W.3 followed by Ravi Subbarao and then he attested. He does not remember whether Nageswara Rao signed in Ex.A.1 with the scribe's pen or with whose pen he signed, but denied any overwriting of the letter ' ' in the signature of Nageswara Rao. He stated that it took 1 to 11/2 hours for drafting the Will, the contents of which were read over to them after which they put their signatures. He first stated that the deceased did not state that he was suffering from heart disease at the time of writing the Will and again stated that he does not remember whether the deceased stated so. He further stated that Nageswara Rao gave the survey numbers to the scribe and that Nageswara Rao also informed that he took gold loan from Ravinuthala banks of Rs.6,000/- to Rs.7,000/- and also from Pamidipadu society of Rs.3,000/-.
The plaintiff as P.W.1 claimed that Nageswara Rao died at the age of 45 years due to heart disease with which he suffered for three days prior to death and that he executed a Will in a sound and disposing state of mind furnishing the particulars for preparation of the Will. She also stated about the scribe and the attestors and the testator signing in the presence of the attestors and the attestors signing in the presence of the testator. She claimed that Nageswara Rao bequeathed his properties to her and she has to discharge his debts. She further stated that the Will was written in a veranda of the house of Nageswara Rao two days prior to his death and that Nageswara Rao was not doing well since two months earlier and was taking medicines, which was recited in Ex.A.1. She could not give the survey numbers, but claimed that Nageswara Rao gave the details and her evidence is, thus, as though she was present at the time of execution of Ex.A.1.
The other attestor-Ravi Subbarao, was not examined and the 2nd defendant as D.W.1 denied execution of Ex.A.1 by Nageswara Rao and claiming that she can identify the signature of her husband, claimed the signature found in Ex.A.1 to be not belonging to her husband. She denied her husband being in a sound state of mind and executing Ex.A.1 in favour of P.W.1 or that he suffered from chest pain before his death. She claimed to have come to know that her husband died suddenly. She further claimed that the scribe and attestors of Ex.A.1 are closely related to P.W.1 and that Ex.A.1 was pressed into service to knock away her husband's property. She admitted that she did not enquire about the truth or otherwise of the recitals made in Ex.A.1 with regard to P.W.1 and that P.W.1 was living with her parents as her husband died. She admitted that her husband died on 25-10-1982 but denied his suffering heart trouble on 22-10-1982. D.W.2, who claimed that Nageswara Rao was hale and healthy before his death and denied his suffering from any cardiac trouble or bequeathing his property to P.W.1, claimed her connection with the family due to her father Kanakayya working as a farm servant under the father of Nageswara Rao and as they used to go as coolies to the fields of Nageswara Rao and the 2nd defendant. D.W.3 claiming to be a neighbour to the 1st defendant and to be living at a distance of one furlong from Nageswara Rao's house, denied any knowledge about Ex.A.1 or the death of Nageswara Rao due to heart ailment or the execution of Ex.A.1 in favour of P.W.1 who was looking after the needs of Nageswara Rao.
Thus, D.Ws.1 to 3 could not claim any personal knowledge about the execution or otherwise of Ex.A.1 Will by Nageswara Rao except the denial of D.W.1 about the signature of Nageswara Rao on Ex.A.1. It is true that P.Ws.2 to 4 denied any relationship with P.W.1, but during their cross-examination the probability of their being distantly related to P.W.1 was brought out. When P.W.1 is the maternal uncle's daughter of Nageswara Rao, P.Ws.2 to 4 may, thus, be distantly related to Nageswara Rao also and Nageswara Rao requiring such known persons to be parties to the execution of Will by him cannot be considered unnatural. The discrepancy between P.W.3 who stated about Nageswara Rao giving instructions by looking into the pocket book about the survey numbers and boundaries and P.Ws.1, 2 and 4 who deposed as though Nageswara Rao gave oral instructions and made no reference to his looking into any book or document, cannot be considered a fatal flaw when the witnesses were deposing about an event which happened 7 to 9 years earlier and lapse of human memory due to lapse of time is natural. The denial by P.Ws.2 to 4 of any relationship with P.W.1 may be attributable to their anxiety to establish their independentness, which circumstance alone cannot falsify their version on oath. Even the 2nd defendant as D.W.1 admitted that she or the 1st defendant has no enmity with P.Ws.2 to 4 and that they did not enquire P.Ws.2 to 4 and Ravi Subbarao about Ex.A.1 up to her evidence. Though she claimed that they are not related to her through her husband, she admitted P.Ws.1 to 4 and Ravi Subbarao belonging to the same caste and except the suggested relationship with P.W.1, P.Ws.2 to 4 were not alleged or shown to be having any strong reason or convincing motive to resort to falsehood to help P.W.1, a lone widow living with her parents.
The background for execution of Ex.A.1 by Nageswara Rao was claimed to be firstly the estrangement between Nageswara Rao and the defendants. D.W.1 herself deposed that after her marriage with Nageswara Rao about 30 years earlier, the 1st defendant was born after two years and that she and Nageswara Rao led family life till 6 or 7 months later. She claimed that her husband became addicted to bad vices like gambling and debauchery and began to spoil their properties in spite of advice and that on the advice of elders, Nageswara Rao gave Ac.4-50 cents of land and a debt of Rs.4,000/- to be discharged, to the 1st defendant in partition, apart from giving Rs.1,500/- to her towards maintenance. She further stated that after partition three years after her marriage they are living separately at Pamidipadu. She again claimed, when she was recalled on a later date, that her husband was residing along with them at Pamidipadu even after the partition in the house allotted to them in partition. However, she admitted that she and the 1st defendant were residing at Bellari camps raising cotton crops on lease for about 6 years and that the 1st defendant thereafter established a fertilizer shop at Bellari about 8 years earlier to her deposition. As per her own version, she and the 1st defendant were residing at Bellari thus since about 14 years and she added that when they left the village Pamidipadu, her husband purchased a house in which he is residing. That Nageswara Rao purchased a house for his residence of necessity, is evident from the evidence of D.W.1 who stated that the house was allotted to their share and her husband took only tobacco barn. D.W.1 further admitted that the house in which Nageswara Rao was residing is situated by the side of the house of Ravi Rangaiah, father of P.W.1. She also admitted that during their living at Bellari since 16 years her husband was always living at Pamidipadu, cooking his own food. She again claimed that Nageswara Rao lived in the house of his maternal grand parents for about one year after partition and thereafter again shifted to their house. Her claim that it was mentioned in the written statement, is not correct and Ravi Rangaiah, father of P.W.1, is no other than the maternal uncle of Nageswara Rao. D.W.1 also admitted that prior to her marriage, Nageswara Rao lived in one house with Ravi Rangaiah and his father China Venkayya and she claimed ignorance as to whether Nageswara Rao and Ravi Rangaiah were shown as voters in door No.4-25. Her alleged correspondence with Nageswara Rao from Pamidipadu to Bellari through post, was not probablised by production of any such letters and she admitted that there were no letters from her husband to them for 5 months till his death, only prior to which they last saw him. She also admitted about the partition being 27 or 28 years earlier to her evidence and that Nageswara Rao gave some landed property in lieu of the amount due to her and executed a registered document dated 17-10-1960, the certified copy of which is Ex.A.3. She also further stated that she executed a relinquishment deed giving up her right of maintenance on adjustment from her husband. She further admitted Ex.A.4 to be the certified copy of partition deed dated 22-07-1962 between Nageswara Rao and the 1st defendant. Though in custody of the original of Ex.A.4, D.W.1 did not file the same into Court and even according to D.W.1, Pinnaka Sriramulu, Pinnaka Bapanayya and other related elders who mediated for partition, are no more. D.W.2 corroborated D.W.1 on these aspects and she also stated that the defendants are residing at Bellari since 16 or 17 years. Like D.W.1 she stated that Nageswara Rao used to go to Bellari even after partition. But she did not state about Nageswara Rao living together with the defendants when the defendants were staying in Pamidipadu after partition. She does not know where the defendants are residing at Bellari and had never been there and according to her, Venkayya, junior paternal uncle of Nageswararao, who acted as an elder for partition is alive, but he is not examined. Contrary to D.W.1, D.W.2 stated that Nageswara Rao was not addicted to any other vices except gambling but she did not even see when Nageswara Rao was playing cards. She admitted that Nageswara Rao used to be a gentleman in dealing with others and D.W.3 tried to claim that by the time of his death Nageswara Rao was amicable with defendants 1 and 2. He also claimed that even after partition, Nageswara Rao used to reside with the defendants and also in his house and used to go to Bellari now and then. He stated that Nageswara Rao used to prepare his food for himself and he claimed that the defendants residing at Bellari since 15 or 16 years used to reside in their village for about 3 months in a year, which was not the specific claim of D.Ws.1 and 2. D.W.3 does not know in which house Nageswara Rao was registered as a voter and thus, D.Ws.1 to 3 tried to say that in spite of defendants 1 and 2 separating themselves from Nageswara Rao 27 or 28 years earlier due to differences due to the alleged vices of Nageswara Rao, Nageswara Rao was still residing with the defendants whenever they were at Pamidipadu and was also visiting them at Bellari. D.W.1 further claimed that Nageswara Rao even participated in the marriage of the 1st defendant about 12 years prior to her evidence. The claims of D.Ws.1 to 3 are not corroborated by any documents and D.W.2's connection with the family was allegedly based on her and her father working as farm servants or coolies under Nageswara Rao and his father, for which there is no corroboration even from D.W.1. D.W.3 admitted that the elder sister of P.W.1 was the wife of his brother Singayya, which marriage was dissolved by a divorce and it was suggested that there are inimical feelings between the families due to the same, which is not unnatural. While the evidence of D.W.1 is self-serving and interested, the recitals in Exs.A.3 and A.4 which are admitted by D.W.1, do not suggest the possibility of any rapprochement between Nageswara Rao and defendants after separation. Ex.A.3 dated 17-10-1960 is a sale deed by Nageswara Rao in favour of D.W.1, for which the consideration was the money of Rs.5,000/- given by the parents of D.W.1 to D.W.1, which was utilized by Nageswara Rao and which D.W.1 insisted to be paid. The wife getting Ac.1-62 cents of land conveyed to her by her husband under such circumstances, is no indication of the existence of any cordiality between them. Ex.A.4 is the registered partition deed dated 22-07-1962 between Nageswara Rao, the minor 1st defendant represented by the 2nd defendant and the 2nd defendant. It was specified that the reason for partition was the misunderstandings between the husband and wife since three months earlier. It was also recited that in lieu of full settlement of her claim for maintenance, some cash was paid and she executed a registered relinquishment deed in his favour. It was further recited that as per the decision of the relations and elders, the family properties are divided between Nageswara Rao and the 1st defendant. It was further stated that the parties will have no responsibility for the debts of each other and that the property of the 2nd defendant was given as security against any possible disputes that may be raised by the 1st defendant after attaining majority. Ex.A.4, thus, shows total distrust between Nageswara Rao and the defendants leading to complete parting of ways and any claim that Nageswara Rao continued to live with defendants continuously or intermittently is but unnatural.
The plaintiff as P.W.1 claimed that after estrangement between Nageswara Rao and the defendants, Nageswara Rao depended upon her father, his maternal uncle, for maintenance, preparation of food, etc., and that after the death of her husband 10 years earlier she is residing with her son and daughter in her parents house in Pamidipadu. She claimed that her husband had no properties and that she was looking after Nageswara Rao also along with her parents. She again claimed that she was looking after Nageswara Rao from the time D.W.1 left him and that she and her parents looked after Nageswara Rao. She also stated that she was married 20 years back and her husband died 15 years back. She also stated that she does not know why D.W.1 left Nageswara Rao or what properties were divided between Nageswara Rao and defendants or what maintenance was provided to D.W.1. The statement that P.W.1 was looking after Nageswara Rao since D.W.1 left him, was criticized as P.W.1 aged about 30 years by the time of her evidence, could have been an infant by the time of Exs.A.3 and A.4. But the solitary sentence cannot be read in isolation and what P.W.1 claimed in effect and substance is that Nageswara Rao was depending on her parents since separation from D.W.1 and that since her return to her parents house after her husband's death, she was also looking after Nageswara Rao along with her parents. She might have also meant that she was helpful to Nageswara Rao in his daily chores even before her marriage when Nageswara Rao was staying with her parents. In fact, P.W.1 again stated that she used to look after Nageswara Rao since 10 years prior to his death. P.W.2 stated that after the defendants left Nageswara Rao, P.W.1 and her parents looked after his comforts and that the house of the parents of P.W.1 and the house of Nageswara Rao are portions in one house. He claimed that Nageswara Rao himself informed him about his being looked after by P.W.1 and her parents. P.W.3 also deposed similarly and he stated that original family house was under the occupation of defendants' family, while Nageswara Rao was living in the house purchased by him, which is the second house from his house. P.W.4 stated that the defendants left Nageswara Rao about 20 years prior to the Will Ex.A.1 and that there was no cordiality between them. He also stated that Nageswara Rao was living in the house abutting the house of P.W.1's father and that P.W.1 and her parents used to look after the affairs of Nageswara Rao. He claimed that the defendants never looked after the welfare of Nageswara Rao after partition. He stated that by the time of Nageswara Rao's death, he was living in the Southern portion and P.W.1's father was living in the Northern portion of the house. P.W.5 was examined to state about Ex.A.2 registered sale deed dated 05-08-1982 executed by Pinnaka Nageswara Rao and Ravi Rangaiah, father of P.W.1, in favour of his father. Ex.A.2 specifies that Nageswara Rao and Ravi Rangaiah purchased the property jointly on 05-07-1959. The 2nd defendant as D.W.1 admitted EX.A.2 and that P.W.5 is the son of the purchaser under Ex.A.2. She also admitted the signatures of Nageswara Rao on Ex.A.2. She also stated that Nageswara Rao sold away some of the properties that fell to his share in partition and that after sale of 11/2 acres two years after partition, he purchased Ac.2-40 cents and also the house in which he lived. She stated that the purchases and the sales were of almost equal value. She also admitted that the house in which Nageswara Rao was staying when they were at Bellari, is by the side of P.W.1's father's house. D.W.2 also stated about Nageswara Rao also purchasing a house subsequent to partition from Ravi Nagabhushanam, the junior paternal uncle of P.W.1, and that the house of Ravi Rangaiah, father of P.W.1, and the house purchased by Nageswara Rao are portions of one house. Contrary to the admission of D.W.1, she tried to claim that the sale under Ex.A.2 was by Nageswara Rao alone and she also admitted that she did not see at any time whether Nageswara Rao depended upon the family of Ravi Rangaiah after division with the defendants, as she never used to go to that house. D.W.3, who does not know in which house Nageswara Rao got his vote, denied any assistance by P.W.1 and her parents to Nageswara Rao. The evidence, thus, probablises that after separation of the defendants from Nageswara Rao, he purchased a portion of the house in which he was residing, from P.W.1's junior paternal uncle, while P.W.1's parents and P.W.1 lived in the other portion of the same house. Nageswara Rao and his maternal uncle, P.W.1's father, purchased some property jointly and sold it jointly. With Nageswara Rao staying alone since separation from the defendants in the same house, the maternal uncle and his daughter looking after his needs, is not unnatural.
D.W.1 claimed that she was informed about the death of her husband by D.W.3 and Kondru Anjayya who sent a car to them from Pamidipadu, in which they came. She stated that the dead body was kept at the house purchased by Nageswara Rao and the 1st defendant performed the obsequies and 'Chinnadinam' at that house, while 15th day ceremony was performed by the 1st defendant at the house that fell to their share. She claimed that she observed all the formalities as per caste custom as a wife and all the relations attended the functions. D.W.2 and D.W.3 also deposed similarly, but D.W.3 does not remember who gave the information to him regarding the death of Nageswara Rao and could not say who were present when Nageswara Rao died. He claimed to have gone to Nageswara Rao's house within 15 minutes after the death, but he did not claim to have sent word to the defendants or to have sent a car to fetch them as claimed by D.W.1. The plaintiff as P.W.1 was not questioned on this aspect, while P.W.2 was not present when Nageswara Rao died and does not know whether the 1st defendant performed the obsequies. P.W.3 admitted that the 1st defendant performed the obsequies of Nageswara Rao. P.W.4 also does not know who performed the obsequies and ceremonies of Nageswara Rao and whether the 2nd defendant observed all the formalities of a widow and the 1st defendant performed the obsequies. The 1st defendant performing the obsequies of his father as the only son and the 2nd defendant observing all the formalities of widowhood due to subsistence of marriage between her and Nageswara Rao, are probable, but they may not by themselves probablise any rapprochement between the defendants and Nageswara Rao before his death or improbablise the total estrangement between them till his death.
The plaintiff, who claimed as P.W.1 that Nageswara Rao suffered from heart disease for three days prior to Ex.A.1, stated that Nageswara Rao got item 1 of plaint A schedule in the partition and purchased items 2 and 3 of plaint A schedule after sale of the properties got in the partition. She claimed that Nageswara Rao pledged his gold ornaments in Andhra Bank and Union Bank in Ravinuthala for Rs.6,000/- and also had to pay a loan of Rs.3,000/- to Co- operative Society, which debts she has to discharge under Ex.A.1. She also claimed to have been dispossessed after filing of caveat by the defendants into Court. She claimed to have been informed about the partition, sales and purchases by Nageswara Rao himself. While her claim that Nageswara Rao was not doing well and was taking medicines since two months prior to his death which was recited in Ex.A.1, is not corroborated by Ex.A.1 or otherwise, she admitted that she did not discharge the debts due to Nageswara Rao. While P.W.2 was not personally aware of the debts of Nageswara Rao, he stated that Nageswara Rao gave details of the debts. P.W.3 was also unaware of the debts of Nageswara Rao. P.W.4 stated that Nageswara Rao informed about the gold loan from Ravinuthala banks and the loan from Pamidipadu society. The 2nd defendant as D.W.1 claimed that her husband was indebted to Talluri Subbamma, Tadiboyina Subbarao, Boddukuri Acharyulu, Navakoti Narayana and Vikram Mohanarao about which he informed them and that they came to know about the pledge of gold articles to Union Bank and Andhra Bank and the society loan due to the officials visiting their house. She claimed that they paid the amounts and got the gold articles released to avoid their auction and that they took possession of the properties immediately after the death of her husband and denied any forcible entry into the properties. She also claimed that the attempt by P.W.1 to implead herself in the suits filed by the creditors of Nageswara Rao failed and she produced Exs.B.1 to B.12 to corroborate her claims. She stated that they filed a caveat in C.P. 35 of 1982 before the Principal District Munsif's Court, Addanki before the suit. While her claim that her husband was not suffering from any ailment before his death as per the information of others, was not corroborated by P.W.2 or any other named person, she was unaware for what purpose Nageswara Rao took loans. She admitted that there were no money dealings between them and Nageswara Rao after partition. She further admitted that P.W.1 was a party to the suit covered by Exs.B.1 to B.3, wherein she contended about this suit and that P.W.1 was not impleaded in other suits. D.W.2 stated that defendants 1 and 2 promised to pay Rs.6,000/- due from Nageswara Rao to her brother Subbarao if they succeed in this suit, which was suggested to be the motive for her to resort to falsehood. D.Ws.2 and 3 stated about some debts due from Nageswara Rao by the time of his death. D.W.4, the Supervisor of the Co-operative bank spoke about Ex.B.11 notice to Nageswara Rao for repayment of the loan and Ex.B.12 notice to the 2nd defendant giving credit of Rs.4,269/- under a debt relief scheme leaving a balance of Rs.4,164/-. He stated that the 2nd defendant never made any payments towards the loan account. D.W.5, the Officer of the Central Bank of India, spoke about filing O.S. No.259 of 1984 against the defendants and the guarantors for recovery of crop loan due from Nageswara Rao. D.W.6, the Rural Development Officer of the Union Bank of India, spoke about Ex.B.10 notice to D.W.1 and D.W.1 getting the gold articles released under two gold loans due from Nageswara Rao. Contrary to the claim of D.W.1, D.W.6 stated that D.W.1 did not inform the bank about this suit and he admitted about Ex.A.5 identity card, Ex.A.6 appraiser value, Ex.A.7 loan identity card and Ex.A.8 appraiser value in respect of two loans produced from the custody of P.W.1. D.W.7, Branch Manager of Andhra Bank, stated about the 1st defendant paying amounts under two gold loans on 08-08-1986 and retaining the gold articles. He stated that Exs.A.9 and A.10 produced by P.W.1 are the debit advices to Nageswara Rao and that if they were informed that a suit is pending, they would not have returned the gold articles. What Exs.A.5 to A.10 and B.1 to B.12 and the oral evidence show is that Nageswara Rao contracted these loans and that after his death the gold loans were discharged by the defendants, while the creditors filed suits for recovery of the other debts. Exs.B.1 and B.2 show that in O.S. No.21 of 1983 filed by a creditor, the defendants and the plaintiff were also parties and the plaintiff was impleaded because of this suit. Ex.B.2 shows that the trial Court did not consider the plaintiff to be a legal heir of Nageswara Rao due to lack of proper material and hence, decreed the suit against the defendants only. But it is also clear from Exs.B.2 and B.3 that the plaintiff raised the same contentions as herein in that suit. Any question relating to Ex.A.1 was not decided in that suit. Exs.B.4 and B.5 show that in O.S. No.17 of 1983 by another creditor also the defendants and the plaintiff were made parties and the suit was ultimately dismissed at the instance of the plaintiff therein, but not on merits. Exs.B.6 to B.8 show that in those three suits filed by the creditors, the plaintiff was not made a party. But in view of the admitted relationship between the defendants and Nageswara Rao, the creditors obviously filed the suits against them and they cannot be attributed any notice of the unregistered Will or this suit. Similarly, Ex.B.9 notice was also given by another creditor only to the defendants like Exs.B.10 and B.12. The plaintiff cannot be asked to explain as to why the creditors did not give notices or file suits against her. But it is to be noted that Ex.A.1 Will mentions only about the gold loans to Union Bank and Andhra Bank and the loan to the society, but no other debts. While the notices and suits relating to other debts cannot be considered to be manipulated by the defendants in the absence of any material, the plaintiff or the scribe or the attestors cannot explain as to why Nageswara Rao did not give instructions about the debts due to private individuals in Ex.A.1. The debts due to the banks and the society are admitted and those details could not have been known to the plaintiff or the scribe or the attestors, but for the information from Nageswara Rao. Ex.A.1 Will is on a single sheet of paper folded into the middle and was written on the first three pages in continuity. It described in detail about the misunderstandings between Nageswara Rao and D.W.1, mediation by elders, partition with the 1st defendant, payment of money towards maintenance and execution of registered documents. It further stated that Nageswara Rao had nothing to do with the defendants since then and that he sold major properties that fell to his share for discharge of his debts and family debts and purchased a house from his maternal uncle Ravi Nagabhushanam and some land. It also stated that Ravi Rangaiah, father of P.W.1, was providing food and looking after his comforts since partition and that since a day earlier to Ex.A.1, Nageswara Rao was feeling heaviness and pain in the heart due to which he wanted to make arrangements regarding his properties during his life itself. It further recited that the plaintiff with a son and a daughter came to her parents house since her husband's death six years earlier and that the plaintiff was looking after his comforts and maintaining him since then, due to which he desired to give his entire property to her. Therefore, he bequeathed all his properties with absolute rights to the plaintiff, while directing her to discharge the gold loans to the banks and the society loan. The Will had to come into force after his death and Ex.A.1 was attested by P.Ws.3 and 4 and Ravi Subbarao and P.W.2 put his signature as the scribe. Nageswara Rao's signature found place on the 3rd page at the end of the Will and not on pages 1 and 2. While the spacing between the lines on page No.3 of Ex.A.1 in contrast with the uniform spacing on pages 1 and 2 may be claimed to raise some suspicion about the adjustment of the contents of Ex.A.1 on a signed paper, such suspicion cannot form the basis of any concrete conclusion in the face of the positive evidence of P.Ws.1 to 4 and the admitted circumstances about the life of Nageswara Rao. Only the signature of P.W.4 as attestor appeared to be in a different ink than the other signatures and the body of Ex.A.1 and if Ex.A.1 were to be on a paper signed earlier by Nageswara Rao, the uniformity in ink except for the signature of P.W.4 might not be possible. The signatures on Ex.A.2 by Nageswara Rao were admitted by D.W.1 and a close examination of the said signatures on Ex.A.2 in comparison with the signature on Ex.A.1 does not disclose any glaring differences as to suspect the signatures to have not been made by one and the same person. Had the defendants produced the originals of Exs.A.3 and A.4 admittedly executed by Nageswara Rao, there would have been the availability of further material for making comparison. But the defendants did not produce such documents. Neither party had taken any steps to obtain the opinion of any handwriting expert about the genuineness of the signature of Nageswara Rao on Ex.A.1 in comparison with his admitted signatures and the sufficiency of evidence on record does not make it compelling for the Court to seek any such expert opinion on its own. The fact that Ex.A.1 was not registered is attributable to Nageswara Rao suffeing from illness even by the time of Ex.A.1 and dying within two days. The circumstances which persuaded Nageswara Rao to bequeath his properties to the plaintiff, cannot be more or less in dispute as seen from various circumstances elicited earlier. Though defendants 1 and 2 are the natural heirs of Nageswara Rao, the reasons for excluding them from inheritance appear justified and natural due to the admitted estrangement since about two years after the birth of the 1st defendant with no indication of any restoration of cordiality or affinity between them at any time subsequently. With no proof of addiction of Nageswara Rao to any vices, the 2nd defendant cannot be considered to be justified in deserting her husband. It is true that Nageswara Rao was not stated to have been taken to any doctor or admitted in any hospital after he started suffering from heaviness and pain in chest till his death, but it is not known whether such heaviness and pain before his ultimate collapse were of such magnitude as to rush him to a hospital and in the absence of any evidence as to whether Nageswara Rao took any treatment from any doctor or hospital in the meanwhile, the absence of it cannot be a matter of negative presumption. There is nothing to suspect that Nageswara Rao was not in a sound and disposing state of mind, more so when the defendants themselves claimed him to be hale and healthy till his death. The two old women said to be present at the time of Ex.A.1 were neither named nor examined, but the quality and not the quantity of evidence counts and the examination of the scribe and two attestors cannot be considered insufficient. The presence of P.W.1, the beneficiary under the Will, at the time of Ex.A.1 as spoken to by her is not unnatural when the execution took place at the house and when her presence in the house in which she is residing is but natural. The 1st defendant himself did not enter the witness box and Nageswara Rao was not claimed to have given up his vices after separation removing the cause of friction for the defendants. No correspondence or photographs showing the reunion of Nageswara Rao and defendants 1 and 2 at any time during three decades were produced and the trial Court not only analysed the evidence, but also found the comparison of signatures on Exs.A.1 and A.2 to indicate the genuineness of the signature of Nageswara Rao on Ex.A.1. When the findings of the trial Court cannot be considered perverse or unreasonable, any interference with them in the appeal requires clinching and stronger grounds, which are absent.
Thus, a close, careful and circumspect scrutiny of the evidence on record probablises that Pinnaka Nageswara Rao and the defendants separated by all means when the 1st defendant was an infant. Even irrespective of the reasons for separation, it was at the instance of the 2nd defendant that her claims for maintenance, refund of money given by her parents and the share of the 1st defendant in the family properties were settled by Nageswara Rao by execution of the required registered documents. Nageswara Rao purchased a portion of the house from his junior maternal uncle with his other maternal uncle P.W.1's father residing in the other portion of the same house. While the alleged continued living of Nageswara Rao with the defendants at Pamidipadu or at Bellari continuously or intermittently was not proved to be true or probable or natural, Nageswara Rao was admittedly residing in the house purchased by him and allegedly cooking his own food in the absence of the defendants from Pamidipadu. The defendants were admittedly residing at Bellari since 16 or 17 years earlier and while Nageswara Rao's visits to Bellari now and then were not proved, he admittedly never lived with the defendants in Bellari. P.W.1, the daughter of the maternal uncle of Nageswara Rao, lived with her parents till 20 years earlier up to her marriage and returned to her parents as a widow with two children about 10 years earlier and the claim that during such stay P.W.1 looked after the comforts of Nageswara Rao apart from her parents looking after him throughout, is natural and convincing. When the wife and son never looked after him and when his maternal uncle and his widowed daughter took care of him in his lonely life, Nageswara Rao deciding to bequeath his properties to P.W.1 to the exclusion of his wife and son cannot be termed as unfair or unnatural. The reason for Nageswara Rao executing a Will was stated to be his suffering heaviness and pain in the heart a day earlier to Ex.A.1 and his not being to taken to hospital, the minor discrepancies in the evidence of P.Ws.1 to 4 about the illness or the execution of Ex.A.1, etc., do not destroy the credibility of P.Ws.1 to 4. The trial Court, which had the opportunity of observing the demeanour of the witnesses in person, considered P.Ws.1 to 4 to be more reliable than D.Ws.1 to 3, to depart from which there are no compelling reasons. While neither party provided the assistance of expert opinion to the Court, the trial Court's comparison of the disputed signature with the admitted signatures is not found to be incorrect. When Ex.A.1 Will was written on the instructions of Nageswara Rao in Telugu and it is clear that the contents were as per his opinion and on his dictation, any mechanical requirement of the witnesses stating that the contents were read over to him and he admitted them, need not be insisted upon when that was what the witnesses stated in effect and substance.
Under the circumstances, it has to be concluded that the Will dated 23-10-1982 by Pinnaka Nageswara Rao in favour of the plaintiff is true, valid and binding on the defendants.
Point No.2:
31. While the plaint A and B schedule properties admittedly belonged to Pinnaka Nageswara Rao and were bequeathed to the plaintiff under Ex.A.1, the defendants redeemed the plaint B schedule properties from the bank loans after the suit. The trial Court rightly directed delivery of plaint B schedule properties only on payment of the amount paid by defendants 1 and 2 by the plaintiff and the plaintiff admittedly did not discharge any debts due from Pinnaka Nageswara Rao to others and the defendants admittedly made some payments like towards the bank loans and might have been compelled by the creditors in the meanwhile up to date to discharge their debts in full or in part. If the plaintiff desires to have all the properties of Nageswara Rao under the Will, she is duty bound to reimburse the defendants of all the payments made by them towards the discharge of the debts of Nageswara Rao. Her right to mesne profits from plaint A and B schedule properties should be made subject to such reimbursement.
32. In A.S.M.P. No.1717 of 2006, the plaintiff desired to receive the receipt for payment of Rs.1,435/- to the Co-operative Central Bank towards the debt due from Pinnaka Nageswara Rao as additional evidence. But the said payment after the suit and during the pendency of the appeal is not relevant for determination of the questions in controversy in the suit and that petition has to fail.
33. The trial Court burdened the defendants with the costs of the suit and also the liability to pay Court fee due to the Government in the suit filed in forma pauperis. The defendants being the wife and son of the deceased unaware of the unregistered Will cannot be considered totally unjustified in contesting the plaintiff's claim and they need not be burdened with the costs of the suit or appeal or the Court fee payable in the suit.
34. The objections as to the valuation of the suit, Court fee, limitation and res judicata raised before the trial Court were suitably answered in the impugned judgment and were not seriously canvassed in this appeal. The findings of the trial Court in that regard need no interference in any view.
35. The plaintiff sought for only future profits from the date of the suit on the suit properties which have to be determined on a separate application and the amounts reimbursable by the plaintiff to the defendants can be duly debited from such future mesne profits on their determination if the plaintiff does not pay them in the meanwhile to the defendants and whichever party is due to the other on such accounting can be accordingly directed by the trial Court to pay. The plaintiff is entitled to the suit reliefs accordingly.
Point No.3:
36. In view of the foregoing discussion, the appellants should fail, but the impugned judgment and the decree have to be made subject to the modification and clarifications stated above.
In the result, --
(a) A.S.M.P. No.1717 of 2006 is dismissed without costs;
(b) The judgment and decree in Original Suit No.70 of 1983 on the file of the Subordinate Judge's Court, Addanki dated 30-08-1994 are confirmed subject to the modifications that
(i) the parties shall bear their own costs;
(ii) the plaintiff shall pay the Court fee due on the suit to the Government;
(iii) the plaintiff shall reimburse the defendants of all payments made by the defendants to the creditors of Pinnaka Nageswara Rao since his death up to the date of such reimbursement by the plaintiff;
(iv) the defendants shall provide proof of such payments to the Court before seeking reimbursement from the plaintiff;
(v) if the plaintiff does not reimburse such payments to the defendants, such payments on proof before the Court shall be debited from the future mesne profits to which the plaintiff may be found entitled on enquiry on a separate application;
(vi) on such accounting, whichever party is due to the other shall be directed by the trial Court to pay accordingly; and
(c) The appeal is dismissed without costs accordingly subject to the above directions.