Andhra HC (Pre-Telangana)
Chanumolu Nirmala And Ors. vs Chanumolu Indira Devi on 16 April, 1994
Equivalent citations: 1994(1)ALT673
Author: T.N.C. Rangarajan
Bench: T.N.C. Rangarajan
JUDGMENT M.N. Rao , J.
1. Defendants 1 to 3 in O.S. No. 116 of 1987 on the file of the Subordinate Judge's Court, Nuzvid are the appellants. The suit was instituted by the respondent herein for a declaration that she is the absolute owner of the plaint A and B Schedule properties - immovable property comprising lands and a rice mill -and gold ernaments weighing 51 grams (C Schedule) pledged with the State Bank of India, Ibrahimpatnam Branch.
2. The suit was grounded on Ex.A-1, unregistered will, dated 14-8-1987 executed by late Chanumolu Bhaskar Rao, who died on 1-9-1987. It was alleged by the plaintiff that she was married to Bhaskar Rao on 15th March, 1978 at Bhadrachalam. The first defendant (appellant No. 1) is the first wife of Bhaskar Rao. Defendants 2 and 3 (appellants 2 and 3) are the son and daughter respectively of Bhaskar Rao by his first wife. For the sake of convenience, the parties are referred to in this appeal as they are arrayed in the suit.
3. The case of the plaintiff is that her husband - Chanumolu Bhaskar Rao -had landed property in Velagaluru and Kothuru villages and a rice mill in Velagaluru. The rice mill was constructed by obtaining loan from the Andhra Pradesh State Financial Corporation, the sixth defendant in the suit, and defendants 4 and 5 had taken the rice mill on hire. The gross income Bhaskar Rao was getting from the rice mill was between Rs. 8,000/- and 9,000/-. On 5-6-1969, there was partition between Bhaskar Rao and the second defendant, Rajeev, who was a minor at that time, and in that partition, Ac.27-52 cents of land was given to the minor represented by the minor's maternal grand-father - Ramakrishnayya. Bhaskar Rao had gifted Ac. 10-00 of land in favour of his daughter, the third defendant, under a registered gift deed, the certified copy of which is Ex.A-17, on 30th May, 1985 and on the same day he also gifted an extent of Ac.5-00 of land in favour of the first defendant, his first wife, under Ex.A-71. Her husband, Bhaskar Rao, stayed with her in a house at Vijayawada and during that period, he was visiting defendants 1 to 3. Bhaskar Rao's life was made miserable by the harsh attitude adopted by defendants 1 and 2 and so, he executed the gift deeds in favour of defendants 1 and 3 in order to satisfy them and thereafter, he made it very clear to the three defendants that so far as the rest of his properties - plaint 'A' and 'B' Schedule properties -are concerned, he had decided to settle them upon the plaintiff, who alone was looking after his comforts, treating him affectionately and arranging for his medical treatment by doctors. Very harsh and bitter letters were written by defendants 1 and 2 to Bhaskar Rao for his association with the plaintiff. She also alleged that Rs. 26,000/- of her money, she spent on Bhaskar Rao for his needs and this money, she borrowed by pledging her gold ornaments ('C Schedule) with the State Bank of India, Ibrahimpatnam Branch. The will - Ex.A-1 was executed by Bhaskar Rao on 14-8-1987 in a sound and disposing state of mind.
4. Resisting the suit, the first defendant, in her written statement, while admitting that her husband Bhaskar Rao died on 1-9-1987, alleged that he died intestate without executing any will and that the plaintiff was "living in adultery" with him and "she has no status of a wife at all". She also denied the plaint averment that Rs. 26,000/- was spent by the plaintiff on Bhaskar Rao. The will, Ex.A-1, according to the first defendant, is a rank forgery. The plaintiff is known only as Alapati Indira Devi and she was only "a kept mistress with no higher status". Her husband was a chronic heart patient and the income from the rice mill is very meagre, fetching only about two to three thousands. Defendants 2 and 3 adopted the written statement filed by the first defendant.
5. In the rejoinder filed by the plaintiff, she took a specific plea that there was an oral partition on 5-6-1969 between Bhaskar Rao and the second defendant, and the details of the said partition were subsequently recorded in the partition list dated 29-6-1969 (Ex.A-69) in the hand-writing of Bhaskar Rao and this statement was filed before the Land Reforms Tribunal in C.C. No. 1971 of 1975. The Land Reforms Appellate Tribunal accepted that statement in L.R. A. Nos.54 of 1979 and 55 of 1979 and the revisions filed against that by the State Government were dismissed by this Court in C.R.P. Nos. 7479 and 7480of 1979.
6. The first defendant - Chanumolu Nirmala - instituted O.S. No. 88 of 1989 in the same Court for a declaration that Indira Devi (the plaintiff in O.S. No. 116/87) is not the wife of late Bhaskar Rao. Both the suits were clubbed and tried together by the learned trial Judge. The plaintiff in O.S. No. 116/87 gave evidence as P.W.1. P.Ws.2 to 5 are the attestors of the will, Ex.A-1, who testified that in their presence, Bhaskar Rao executed the will by signing his name. P.W.6 is the person who claims to have supervised the construction of the rice mill and also acted as a mediator along with two others for securing delivery of land and rice mill covered by Ex.A-1 in favour of the plaintiff. P.W.7 is one Dr. Uma Maheshwara Rao, a private medical practitioner, in whose nursing home Samantha Nursing Home, Vijayawada - Bhaskar Rao was treated as an inpatient from 1-11-1986 to 30-11-1986 for "Cerebral infraction and Hypertension". The second defendant in O.S. No. 116/87 - Rajeev - figured as D.W.1. D.W.2 is one Kameswara Rao, the husband of D.W.1's sister. D.W.3 is the Manager, Krishna District Co-operative Central Bank, who spoke about the loans obtained by Bhaskar Rao on his behalf and on behalf of his minor son. D.W.4 is Field Officer in the Union Bank of India and D.W.5 is an accountant in Velagaluru Primary Agricultural Co-operative Society and they spoke about the loans obtained by Bhaskar Rao.
7. After considering the oral and documentary evidence, the learned trial Judge decreed both the suits. He held that the plaintiff in O.S. No. 116/87 did not prove her marriage with Bhaskar Rao but she has been living with him. Her marriage with Bhaskar Rao could not be termed as legal since Bhaskar Rao had a spouse living at the time of the alleged marriage and, therefore, she is not his legally wedded wife. Accordingly, O.S. No. 88 of 1989 filed by Nirmala Devi, the first wife of Bhaskar Rao, was decreed. The suit - O.S. No. 116/87 - filed by Indira Devi for declaration of her title and possession of the plaint schedule properties was also decreed by the learned Judge accepting the testimony of the attestors - P.Ws.2 to 5 - the circumstances under which Bhaskar Rao had to execute the will and the available record as to the estrangement between Bhaskar Rao and his first wife and children. This appeal, by the first wife and children of Bhaskar Rao, is directed, as already stated supra, against the judgment and decree in O.S. No. 116/87.
8. It is contended for the appellants by Sri T. Veerabhadrayya, learned Counsel, that Bhaskar Rao died as an undivided member of the joint family and that there was no partition at all and, therefore, he was not legally competent to execute a will bequeathing specific items of the joint family properties. The document, Ex. A-69, relied upon by the plaintiff and accepted by the trial Court was not intended to be acted upon and it was brought into existence only for the purpose of evading surrender of one family unit to the State under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973. The second defendant - Rajeev - was only an infant aged 3 years on the date of the alleged oral partition dated 5-6-1969 and it is difficult to believe that Bhaskar Rao could have effected a partition and the maternal grand-father of Rajeev could have acted as the guardian. Throughout during his life time, Bhaskar Rao was treating the entire properties as belonging to the joint family properties and this is evident from the fact that he executed mortgage deeds even in respect of lands covered by Ex. A-69 allegedly allotted in favour of the minor son - Rajeev. The will, Ex.A- 1, set up by the plaintiff is a forged document and there are several suspicious circumstances indicating that Bhaskar Rao, who had obtained two Masters' Degrees, could not have executed a document of that nature. One of the attestors to Ex.A-1 is none else than the brother of the plaintiff and the other attestors are men of no social status and in the normal circumstances, Bhaskar Rao could not have asked them to attest the document, Ex.A-1. Absence of registration is one more suspicious circumstance for invalidating the will.
9. The first aspect to be considered is: whether there was partition of joint family properties between Bhaskar Rao and his son, Rajeev (the second defenant)?
10. Ex.A-69 is the partition list in the hand-writing of Bhaskar Rao. It reads that in 1961, consequent upon the death of Bhaskar Rao's father, to his share, he got 1/8th of the properties and that on 5-6-1969, there was a partition between Bhaskar Rao and the second defendant, Rajeev, represented by the latter's maternal grand-father- Ramakrishnayya. It also gives the details of lands that fell to the share of Bhaskar Rao and the lands allotted in the partition to the second defendart-Rajeev in Velagaluru and Kothuru villages. A total extent of Ac.27-52 cents of land in Survey Nos. 349/2, 343/1 and 276 of Velagaluru and Survey No. 34 of Kothuru was allotted to the share of the second defendant. On the basis of Ex.A-69, a claim was made before the Land Reforms Tribunal that inasmuch as the lands that fell to the share of the minor were in the possession of tenants, having been leased out to them by the guardian - the maternal grandfather of Rajeev - subsequent to the partition, the same should be excluded from the computation of the family holding of Bhaskar Rao. That plea was accepted by the Tribunals under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973. Ex. A-76 is the certified copy of the order of the Land Reforms appellate Tribunal in L.R.A. Nos.54 and 55 of 1979. One of the questions that fell for consideration before the appellate Tribunal was whether the primary Tribunal was justified in excluding Ac.27-52 cents of land, the property of the divided minor, from the holding of Bhaskar Rao's family unit on the ground that the same was in the possession and enjoyment of the tenants on the notified date. It is, no doubt, true that the law obtaining at that time was that any lands in possession of tenants were to be excluded from the computation of the declarant's holding. Ex.A-76 clearly shows that by the date of the partition, Ramakrishnayya, the maternal grand-father of the minor was aged 71 years and "he is a victim of old age and arthrities and as he could not cultivate the lands personally, he had leased out the properties. He leased them out in 1969 and the tenants are continuing in possession even to this date". Several affidavits also were filed before the Land Reforms Tribunal that the guardian of the minor was leasing out the properties because of his inability due to old age and physical disability to cultivate the same. The lands were leased out soon after the partition took place between Bhaskar Rao and his minor son, Rajeev. After considering elaborately this aspect, the Land Reforms Appellate Tribunal held that the minor's share of Ac.27-52 cents of land was rightly excluded from the declarant's holding. The said order of the Land Reforms Appellate Tribunal was affirmed by this Court in C.R.P. Nos.7479 and 7480 of 1979-Ex.A-77.
11. It is not possible to accept the plea of Sri Veerabhadrayya that there was no need at all for effecting partition of the joint family properties and even without Ex.A-69, the minor's properties could have been excluded from Bhaskar Rao's holding. The law existing at that time was that lands in possession of tenants were liable to be excluded from the declarant's holding. A reading of the order of the Land Reforms Appellate Tribunal, Ex. A-76, clearly shows that it had accepted the leasing out of the lands that fell to the share of the minor, Rajeev, because Ramakrishnayya, the maternal grand-father of the minor, was aged 71 years in 1969 and he could not cultivate the lands personally. That difficulty was not faced by Bhaskar Rao; the Land Reforms Appellate Tribunal, Therefore, recorded the finding that the lands belonging to Rajeev were genuinely leased out to tenants, and so they were liable to be excluded from the computation of Bhaskar Rao's holding. To say now, in retrospect, that there was no need for partition of the joint family properties, in our view, would be totally unrealistic.
12. The interpretation placed on Ex.A-69 by the Land Reforms Tribunals was affirmed by this Court in C.R.P. Nos. 7479 and 7480 of 1979. Although there was no specific reference to Ex.A-69 in the order passed by this Court in the civil revision petitions, the fact that the appellate order of the Tribunal was affirmed by this Court, conclusively establishes that the interpretation placed upon Ex.A-69 by the appellate Tribunal was accepted by this Court. An order of affirmance in revision by this Court, it is settled law, need not contain elaborate reasons. The order of this Court in the aforesaid civil revision petitions affirming the view of the Land Reforms Tribunals that Ex.A-69 is the document evidencing partition between Bhaskar Rao and his minor son, Rajeev, constitutes a judicial precedent in all subsequent proceedings even between persons who are not parties to the original proceedings, Madho Das v. Mukand Ram; (AIR 1955 SC 481 at 485 para 24).
13. That Rajeev, the second defendant, got to his share the lands referred to in Ex.A-69 was also adverted to by the first defendant in her letter Ex. A-7 dated 17-5-1987 addressed to her husband - Bhaskar Rao. Under Ex.A-7, the first defendant pleaded for settling the rice mill in the name of Rajeev. Ex. A-16 is the Ryot Pass Book prepared under the Andhra Pradesh Record of Rights in Land Act, 1971. It contains the details of the lands standing in the name of Bhaskar Rao. Excluding an extent of Ac.1.14 cents of land in Survey No. 336/2 on which the rice mill was constructed, the rest of the lands admeasuring Ac.7-85 cents are covered by the Will, Ex.A-1. Under Section 6 of the Andhra Pradesh Record of Rights in Land Act, 1971, every entry in the Record of Rights shall be presumed to be true until the contrary is proved or until it is otherwise amended in accordance with the provisions of the said Act. Ex.A-16, the Ryot pass book, contains the signatures of the Revenue Inspector and the Village Officer. Its authenticity, therefore, cannot be doubted. In fact, before the trial Court, this was not in issue at all; no suggestion was made when the same was produced by P.W.1 the plaintiff, that the same was devoid of legal validity. The documentary evidence - Exs.A-7, A-16, A-69, A-76 and A-77 - clearly establishes that there was partition as far back as 1969 between Bhaskar Rao and the second defendant, Rajeev.
14. Evidently, some time after 1969, Ramakrishnayya, the materinal grand father of Rajeev, had passed away; even by the date of Ex. A-69, in 1969, he was aged 71 years. After the death of Rajeev's maternal grand-father, who was his guardian, it was but natural that Bhaskar Rao, as father, in all property transactions, was acting as the guardian of the minor. That is why under Exs.B-83 and B-84 when Bhaskar Rao mortgaged certain lands including an extent of Ac.10-80 cents in Survey No. 276 belonging to his minor son, Rajeev, he executed the mortgage deed not only on his behalf but also as the guardian of his minor son, Rajeev. From this, we find it difficult to draw the inference that the partition as adverted to in Ex.A-69 was not acted upon. We must also take notice of the fact that whenever interests of a minor are involved in any transaction - whether directly or remotely - the parties insist upon the father or the guardian executing the document on behalf of the minor also.
15. In certain revenue records like No. 2 adangals, Exs.B-3 and B-4 (1394 to 1396 Fasli) and B-5 (1395 F), the name of Bhaskar Rao was shown as the pattedar of a portion of the land allotted to the second defendant in the partition. Like wise, Ex.B-2 -10(1) account - shows mat Survey No. 276 which was allotted to the second defendant in the partition as per Ex.A-69 was shown in the possession of Bhaskar Rao. Based upon this, it was argued for the appellants that if Ex.A-69 is true, there ought to have been necessary mutations in the revenue records in conformity with what was recited in Ex.A-69. In our view, this contention is devoid of merit. The entries in the revenue records are not upto date and that is the reason why in Ex.B-2 -10(1) account - the name of Bhaskar Rao's father was still being shown as the pattedar.
16. The partition between Bhaskar Rao and Rajeev, the second defendant, as evidenced by Ex.A-69 cannot be said to be unfair or unjust in any manner. Bhaskar Rao, as father and kartha of the family, was entitled, under the Mithakshara Hindu Law, to effect partition between himself and his minor son. The second defendant, Rajeev, who was born in 1964 attained majority in 1982 and within three years after attaining majority, he had a right to challenge the partition as unfair or unjust, but he did not do so . Evidently, he realised that the share of his father's property by 1985 came to less than Ac.8-00 after the execution of the gift deeds in favour of defendants 1 and 3 and, therefore, presumably, he thought that no useful purpose would be served in challenging the 1969 partition under which, undoubtedly, he was a beneficiary. We, therefore, reject the contention advanced for the appellants that the 1969 partition as evidenced by Ex.A-69 was not acted upon.
17. The next aspect that needs to be considered concerns me truth and validity of the will, Ex.A-1.
18. By the date of the alleged marriage of the plaintiff with Bhaskar Rao, the latter was not entitled, in law, to contract a second marriage since his marriage with the first defendant was subsisting. In the year 1968, the plaintiff was married to one Alapati Parameshwara Rao of Yeturu village and at the time of her marriage, her parents had given her towards 'pasupu kumkuma' Ac.7-00 of land. Parameshwara Rao died in 1972 in a boat capsize and after his death, the plaintiff, according to her own admission as P.W.I, was given Ac.10-00 of land from Parameshwara Rao's estate. There is cogent and convincing evidence about the plaintiff and Bhaskar Rao living together in Vijayawada. The learned trial Judge elaborately discussed with reference to the documentary evidence in the form of ration card, voters' list and the letters addressed by defendants 1 and 2 to Bhaskara Rao to his Vijayawada address, where he was living with the plaintiff, and came to the conclusion that atleast from 1986 onwards, Bhaskar Rao and the plaintiff lived together. The plaintiff also belongs to a respectable family and about her family background nothing adverse was suggested. It is, therefore, not a case of Bhaskar Rao's accidental entanglement with the plaintiff due to momentary infatuation. Consciously and deliberately, Bhaskar Rao married the plaintiff although the marriage could not be termed legal because of the salutary provision of 'monogamy' enacted by Section 5(1) of the Hindu Marriage Act.
19. The suspicious circumstances surrounding the execution of the will, Ex.A-1, pointed out and commented upon quite elaborately by the learned Counsel for the appellants are that a man of the stature of Bhaskar Rao, holding two Masters' degrees, could not have executed a will in Telugu and the status of the attestors would have been definitely much higher than P.Ws.2 to 5. The absence of registration is another serious suspicious circumstance, according to the learned Counsel.
20. The will, Ex.A-1, is type-written in Telugu; it is in four pages and at the end of each page it contains the signature of Bhaskar Rao in Telugu. Evidently, it was got prepared after consulting an advocate and this is clear from the systematic manner in which all the details concerning the family background, the bitter animosity of defendants 1 and 2 towards Bhaskar Rao, the settling of properties on Rajeev, the eldest son of Bhaskar Rao, the gifting of Ac.10-00 in favour of the third defendant and Ac.5-00 in favour of the first wife, the alienations made and the rest of the properties - Ac.7-90 cents and the rice mill that stood in the name of Bhaskar Rao, were mentioned. What is clearly noticeable is the use of the expression "persona designata" with reference to the plaintiff, in whose favour Bhaskar Rao had bequeathed, under Ex.A-1, plaint A and B Schedule properties.
21. Apart from what was referred to in Ex.A-1 as-to the bitter feelings entertained by defendants 1 and 2 towards Bhaskar Rao, there is documentary evidence clearly supporting that recital. Ex.A-7 is a letter dated 17-5-1987 written by the first defendant to Bhaskar Rao, in which she expressed bitterness and anguish about Bhaskar Rao's association with the plaintiff and she also referred the plaintiff as Bhaskar Rao's "keep". Ex.A-6 is another letter dated 20-8-1986 wherein, while depicting her pathetic condition, the first defendant wished Bhaskar Rao and the plaintiff, "a happy married life". Ex.A-64 is yet another letter from the first defendant to Bhaskar Rao in which she described the position of Bhaskar Rao as the one who lost deposit in an election and Rajeev, the second defendant, as the one who was elected unanimously. She also cautioned Bhaskar Rao that she, as the wife, and Rajeev, as the son, alone had the power to command him but none else.
22. Another noteworthy feature is that when Bhaskar Rao was admitted as an in-patient in the month of November, 1986 in the nursing home of P.W.7, Dr. Y. Uma Maheshwara Rao, in Vijayawada, neither the first defendant nor the second defendant came to see him. The evidence of P.W.7, Dr. Uma Maheshwara Rao, is to the effect that when Bhaskar Rao was in-patient in "Samantha Nursing Home" in Vijayawada from 1-11-1986 to 30-11-1966, the plaintiff was with him and that the medical bill for his treatment was paid by the plaintiff. Bhaskar Rao was, therefore, not disposed to bequeathing any property in favour of either the first defendant, his wife, or his children by his wife, defendants 2 and 3. This attitude of Bhaskar Rao, in the particular circumstances of the case, was neither suspicious nor unnatural.
23. Although Bhaskar Rao was a highly educated person - with two post-graudate degrees to his credit - there is no warrant for the presumption that he was not in the habit of writing letters in Telugu. On the other hand, there is positive evidence to show that he used to sign in Telugu and write letters in Telugu. Ex. A-60 is a letter written by Bhaskar Rao from Madras to the plaintiff. Ex.A-69, the properties list drawn up after the partition between Bhaskar Rao and Rajeev, the second defendant, is also in Telugu in the hand-writing of Bhaskar Rao. We do not, therefore, discern any suspicious circumstances from the fact that Ex.A-1 is typewritten in Telugu and Bhaskar Rao signing it in Telugu.
24. The absence of registration is not at all a circumstance, in our view, to doubt the authenticity of Ex.A-1, will. Ex.A-1 was executed on 14-8-1987. Bhaskar Rao died a fortnight later on 1-9-1987 and his end came abruptly. On 1-9-1987, it is in the evidence of D.W.1, Rajeev (the second defendant) that Bhaskar Rao went to a temple, where he suffered a heart attack and on his own, he went to the hospital of Dr. K.V. Chalapathi Rao for treatment. He also testified that the doctor informed him that before Bhaskar Rao could explain the heart attack, he had another stroke and died. The doctor sent the dead body in a taxi along with the compounder to the village. 15 days is not an unduly long time to make arrangements for registering the will. Bhaskar Rao, perhaps, was contemplating to get the document registered but his end came suddenly. He himself did not visualise that his end was so near. He was not bed-ridden; on his own he went to the temple, where he had a stroke and even after the stroke, he could go to the doctor, where he sufferred a second stroke and died. From the absence of registration of Ex.A-1, in the aforesaid circumstances, no suspicious circumstance can be inferred.
25. P.Ws.2 to 5 are the attestors of the will, Ex.A-1. P.W.2 is a friend of P.W.1's sister's son. P.W.3 is a gold-smith who made jewels for the plaintiff. P.W.4 is the brother of the plaintiff and P.W.5 is the son-in-law of P.W.1's eldest sister. The argument advanced for the appellants is that as all the attestors - P.Ws.2 to 5 - are interested in the plaintiff, either by their close association or relationship, their evidence is devoid of credence. We do not agree. Taking into consideration the crucial facts that emerge from the evidence - Bhaskar Rao was living with the plaintiff for a considerable period of time prior to the execution of A-l, the awareness on the part of defendants 1 to 3 about Bhaskar Rao marrying the plaintiff and living with her, the documentary evidence in the form of correspondence wherein there is reference to Rajeev (the second defendant) getting Ac.27-52 cents in the partition of the joint family properties and the testator gifting Ac. 10-00 in favour of his daughter, the third defendant, and Ac .5-00 in favour of his wife, the first defendant and the total lack of harmony between Bhaskar Rao and defendants 1 to 3 - there is no reason to entertain any doubt that Bhaskar Rao was not inclined to bequeath the rest of his properties in favour of the plaintiff. Obviously he thought that he has provided enough for his first wife and the children by her and as he "married" the plaintiff, with whom he lived and who rendered service to him when he was taken ill, he decided to execute the will bequeathing the rest of his properties to her. It is not possible to entertain any doubt that Ex.A-l1 was the result of fraud or undue influence.
26. The plaintiff, as P.W.1, testified that Bhaskar Rao was in a sound and disposing state of mind when Ex.A-1, will, was executed. In her chief-examination she said that she witnessed Bhaskar Rao executing the will and the attestors attesting it. In the cross-examination/she said that Bhaskar Rao told her on 14-8\l987 between 7.00 and 8.00 p.m., at their house that he executed a will in her favour. She also said that Bhaskar Rao delivered the ryot pass book, Ex. A-16, along with the will to her. P.W.2 is a friend of the plaintiff's elder sister. He came to the house of the plaintiff on 14-8-1987, where he saw P.W.3, Siva Ram Brahmam, P.W.4, Ram Mohan Rao, the brother of the plaintiff, and P.W.5, Koganti Sikinder. P.Ws.2 to 5 have testified that in their presence, Bhaskar Rao signed on each page of the will. P.W.3, Siva Rama Brahmam gold smith, went to the house of the plaintiff on that day at about 6.30 p.m., to deliver some jewels which she had given for polishing and repair. P.W.4, who is the brother of the plaintiff, attended the marriage of the plaintiff with Bhaskar Rao at Bhadrachalam. He testified that, on 14-8-1987, Bhaskar Rao told him that he wanted to execute a will and that the advocate, who was consulted, asked him to come in the evening and so, P.W.4 stayed on at the house of the plaintiff till the evening. Bhaskar Rao returned at about 6.00 p .m. P.W.3 came there to return the jewels. He also spoke about the presence of P.Ws.2, 3 and 5. In their presence Bhaskar Rao read out the contents of the will and signed his name on each of the four pages. All the above witnesses testified that they attested the will. We do not find any discrepancies or inconsistencies in their evidence suggestive of absence of credibility. Their evidence shows that Bhaskar Rao was in a fit condition, both physically and mentally to execute Ex.A-1 will. The only circumstance which can be described as a discrepancy in their evidence is that according to P.W.4, the plaintiff was present when the will was read out but P.W.5 said that the plaintiff was not present. P.W.1's sister also was in the house on that day. When the witness said that P.W.1 was present, it does not necessarily mean that she was present when the contents of the will were read out; it only means that she was present in the house. It is common knowledge that among middle class Hindus, women, especially if they are not educated, do not participate in discussions with other men, who are not members of the family. We are, therefore, of the view that the inconsistency regarding the presence of the plaintiff at the time when Ex.A-1 was executed is too trivial to deserve notice. None of these witnesses -P.Ws.2 to 5 -could be said to be chance witnesses. Their presence at the house of the plaintiff on 14-8-1987 was satisfactorily explained. The plaintiff, as the propounder of the will, Ex.A-1, has discharged the onus which rests upon her.
27. As obsered by the Supreme Court in H. Venkatachala v. B.N. Thimmajamma, .
"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."
28. The precedents cited for the appellants are of little assistance to them. Ram Piari v. Bhagwant, concerns with the validity of a will executed by the testator one day before his death bequeathing all his property in favour of his grand-children - sons of one of his daughters - and disinheriting his other daughter. The will contained the thumb mark of the testator although he could sign. Such cases warrant stricter scrutiny. In that context, the Supreme Court observed:
"Even though it cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same and if the courts below failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review."
Kalyan Singh v. Chhoti, is a case in which the disputed will purported to have been executed in 1916 was produced for the first time in 1959 when the suit was instituted. No provision was made for the maintenance of the wife of the testator in the will. The Supreme Court, while cautioning that trustworthy and unimpeachable evidence should be produced before the Court to establish the genuineness and authenticity of the will, observed:
"In order to judge the credibility of witnesses and disengage the truth from falsehood, the Court is not confined only to their testimony and demeanour. It would be open to the Court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party."
29. For the reasons already stated and discussed supra, we hold that Ex.A-1, Will, is a true and valid document.
30. In view of our finding that there was partition of the joint family properties between Bhaskar Rao and the second defendant, Rajeev, and that the Will, Ex. A-l, is true and valid, the contention that Bhaskar Rao, being a member of the coparcenary, could not have executed a will bequeathing specific items of the joint family property, does not survive for consideration.
31. In the result, the appeal fails and accordingly it is dismissed, but in the circumstances, without costs.