Andhra Pradesh High Court - Amravati
Whether Smt. Vunnava Nagarathnamma ... vs Unknown on 11 July, 2023
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
SECOND APPEAL No.668 of 2018
JUDGMENT:
Whether Smt. Vunnava Nagarathnamma died leaving her estate for succession to be governed by law of succession or whether she left a Will ordering as to how and to whom her properties shall be distributed is the question that troubled the parties and was dribbled before the Courts below and finally reached this Court in the form of second appeal preferred by two out of the six plaintiffs in the suit.
2. 561 square yards of site with a building thereon in Block No.8 with Assessment No.14 in Sangadigunta of Guntur Town is the property in dispute. There was Sri Vunnava Ramalingam and his wife Smt. Vunnava Nagarathnamma. A registered sale deed dated 10.07.1952, the certified copy of which is Ex.A.9, is admitted on both sides as a document under which Smt. Vunnava Nagarathnamma purchased the plaint schedule property. Her husband died. During their wedlock, they were blessed with three daughters and a son. One such daughter was Bharathamma. She also died. Thus, there remained two daughters and a son. One daughter by name 2 Dr. VRKS, J S.A.No.668 of 2018 Smt. Dandamraju Jayalakshmamma filed O.S.No.110 of 2002 as against her sister Smt. P.Sundaramma and her brother Sri Vunnava Venkata Rao seeking partition of the above said property on the premise that their mother Smt. Vunnava Nagarathnamma died intestate and therefore in terms of law of succession each of her three surviving children would get 1/3 rd share. Defendant No.1 contested the suit stating that her mother executed a registered Will dated 30.10.1995 as per Ex.B.1 whereunder the plaint schedule property was bequeathed to testator's grandchildren who are the children of defendant No.1. Therefore, she claimed that properties were not available for partition. Defendant No.2, who is the brother of the plaintiff, contested the suit pleading that though the registered sale deed indicates the name of his mother as the owner of the property, the truth is that his mother had no income and the initial structures that were there in that property collapsed and utilizing his money the building was constructed and narrating other relevant facts he claimed title in himself and finally stated that neither the Will is correct nor the intestate succession claimed in the plaint is correct and he sought for dismissal of the suit. Be it noted, subsequent to the 3 Dr. VRKS, J S.A.No.668 of 2018 pleadings when the trial commenced in the suit, he filed a memo and represented to the Court that he gave up his defence and he agrees with the case pleaded by his sister as defendant No.1 and admits that his mother executed the registered Will.
3. In the written statement of defendant No.1 an objection was taken stating that since the bequest under the Will vested the property with two of the grandchildren of Smt. Vunnava Nagarathnamma and since they were not made parties to the suit, the suit was bad for non-joinder of parties. In those circumstances, the two legatees were impleaded as defendant Nos.3 and 4 by the plaintiff in the suit. While the suit filed by the sole plaintiff was pending, she died and her children came on record as plaintiff Nos.2 to 6 as her legal representatives and it is stated that the sole plaintiff died executing a registered Will dated 09.01.2006 as per Ex.A.8. Throughout the legal proceedings in all Courts the said Ex.A.8-Will was not sought to be proved by the plaintiffs.
4. In the above referred facts and circumstances of the case, learned III Additional Senior Civil Judge (FTC), Guntur framed the following issues for trial:
4
Dr. VRKS, J S.A.No.668 of 2018
1. Whether the plaintiff is in possession of the plaint schedule property and the court fee paid is correct?
2. Whether the suit is bad for non-joinder of necessary party?
3. Whether the plaintiff is entitled for mesne profits?
4. Whether the Will dt. 30.10.1995 is true and correct?
5. Whether the plaintiff is entitled for partition?
6. To what relief?
5. Both parties led their evidence. The original plaintiff died prior to commencement of evidence and therefore, her son who is the 3rd plaintiff testified as PW.1. No other witnesses testified on behalf of the plaintiffs. Exs.A.1 to A.9 were exhibited for plaintiffs. Defendant No.1 testified as DW.1. Defendant No.4, who is one of the legatees, testified as DW.2. DW.3 testified to prove the attestation of the Will. Exs.B.1 to B.27 and Exs.X.1 to X.3 were marked.
6. On considering the oral and documentary evidence and on considering the arguments advanced on both sides, the learned trial Court stated that by impleadment of defendant Nos.3 and 4 there was no more non-joinder of necessary party and all the parties necessary for determination were available on record. It found that plaintiff has never been in possession 5 Dr. VRKS, J S.A.No.668 of 2018 of the plaint schedule property and the joint possession she claimed is incorrect and the fixed Court fee paid is incorrect and in effect it held that there is clear and cogent evidence indicating defendant Nos.3 and 4 have been in occupation of plaint schedule property and therefore, there is an ouster and she should pay advalorem Court fee. It refused to grant mesne profits. It disbelieved the Will propounded by the defendants and answered issue No.4 in favour of the plaintiffs. However, there is total clumsiness in the trial Court's judgment. When it answered issue No.5. Para No.27 of the trial Court judgment answering issue No.5 is extracted here:
"27. In view of the elaborate discussion in issue Nos.1 to 4 it came to light that the Will dt.30.10.1995 is correct and binding on the plaintiffs and thereby the 1st plaintiff is entitled for 1/3rd share in the schedule property along with D.1 and D.2. Since the 1st plaintiff is died PWs.2 to 6 who are her sole legal heirs are entitled 1/3rd share in the schedule property by virtue of Central Act Amendment of Sec.6 of Hindu Succession Act by virtue the daughter is coparcener in the property of their parents and thereby the 1st plaintiff entitled for equal share among defendants 1 & 2 in the Hindu Joint Family properties of the parents. Thereby the plaintiffs are entitled for 1/3rd share in the plaint schedule property." 6
Dr. VRKS, J S.A.No.668 of 2018 Finally it decreed the suit and directed division of property into three shares and granted one share to original plaintiff and since original plaintiff died learned trial Court directed her share to go to her children who are plaintiff Nos.2 to 6. Learned trial Court directed to pass a preliminary decree.
7. Disturbed of the division of properties ordered by the trial Court, the two grandchildren of late Vunnava Nagarathnamma who are defendant Nos.3 and 4 in the suit took the matter in first appeal as A.S.No.483 of 2010. Rest of the parties on both sides were shown as respondents in that appeal. During the pendency of that appeal, defendant No.1 and defendant No.2 in the suit died. Their legal representatives came on record as respondent Nos.9 and 10 in that first appeal. Thus, by the time the matter reached the first appellate Court the very original parties namely one plaintiff and two defendants are dead.
8. Learned first appellate Court heard arguments on both sides and drew the following points for its consideration:
1. Whether the defendants 3 and 4/appellants established that late Vunnava Nagarathnamma executed a Will, dt.30.10.1995, bequeathing the schedule property in their favour?7
Dr. VRKS, J S.A.No.668 of 2018
2. Whether the plaintiffs are entitled for partition of the schedule property as prayed for?
3. Whether the impugned decree and judgment, dt.26.03.2010 in O.S.No.110/2002 on the file of III Additional Senior Civil Judge (FTC), Guntur, is sustainable or not?
4. Result of the appeal?
9. Learned first appellate Court in great detail analysed the evidence, considered the contentions, made note of all the statutory provisions governing execution of a Will and proof of a Will and finally concluded that there is good and sufficient evidence on record proving that Smt. Vunnava Nagarathnamma executed Ex.B.1-Will and therefore, the property was not available for partition and in that view of the matter it set aside the judgment of the trial Court and dismissed the suit for partition.
10. Be it noted that the trial Court as well as first appellate Court have recorded their findings that the plaint schedule property has been in possession and occupation of the grandchildren of Smt. Vunnava Nagarathnamma (respondents in this second appeal) and they have been paying tax and electricity bills evidenced by Exs.B.2 to B.23 and that 8 Dr. VRKS, J S.A.No.668 of 2018 Smt. Vunnava Nagarathnamma mortgaged the property and before discharging she died and after her death her grandchildren repaid that loan and obtained the title deeds and all other papers and that Smt. Vunnava Nagarathnamma was looked after by her daughter/defendant No.1 in the suit till her death and she was looked after by them. These concurrent findings have not been seriously challenged in the present second appeal. It is in the backdrop of these facts, the present second appeal has to be considered.
11. On 14.07.2022 this Court admitted this second appeal on the following substantial question of law:
"Whether the judgment and decree of the lower appellate Court is perverse and contrary to the settled legal provisions of law while dismissing the judgment and decree passed by the trial Court?"
12. As seen from the grounds urged in the appeal and as seen from the arguments advanced before this Court, the entire controversy and the challenge against the judgment of the first appellate Court revolve around due execution and proof of Ex.B.1-Will. It is only in that context the judgment of first 9 Dr. VRKS, J S.A.No.668 of 2018 appellate Court is impugned as perverse and against law. Therefore, though the substantial question of law formulated does not indicate the questions concerning Ex.B.1-Will by any specific terms, it is not in controversy that the only controversy between parties is about this Will, which question inheres in the question formulated.
13. Sri V.S.K.Rama Rao, the learned counsel for appellants and Sri Hanumantha Prasad K.V.R, learned counsel for respondents submitted their arguments and cited legal authorities.
14. For appellants, the learned counsel cited Janki Narayan Bhoir v. Narayan Namdeo Kadam1 and Bharpur Singh v. Shamsher Singh2.
15. For respondents, the learned counsel cited the following legal authorities:
1. H.Venkatachala Iyengar v. B.N.Thimmajamma3 1 AIR 2003 SC 761 2 2009 (2) ALT (SC) 33 3 1959 Supp (1) SCR 426 10 Dr. VRKS, J S.A.No.668 of 2018
2. M.B. Ramesh (Dead) by Lrs. v. K.M. Veeraje URS (Dead) by Lrs.4
3. Bharpur Singh v. Shamsher Singh5
4. Beena v. Manoj6
5. Anand Burman v. State7
16. All the above rulings contain the most necessary wisdom that is required in considering the principles about making of a Will and when it can be said that the testator validly executed the Will and how the Will is to be proved and which witnesses are to be examined in proof of the Will and about the need for examining the attestors of a Will and as to what should be done if the attestors are no more available. These rulings also indicate that the presumption of law that a 30 year old document is presumed to have been duly executed cannot be taken aid of when it comes to proof of a testament/Will. On the principles laid down in these rulings, there is absolutely no controversy. Ex.B.1 is the Will in dispute. It is a Will dated 4 (2013) 7 SCC 490 5 (2009) 3 SCC 687 6 2022 SCC Online P&H 581 11 Dr. VRKS, J S.A.No.668 of 2018 30.10.1995. It is stated to have been executed by Smt. Vunnava Nagarathnamma. It bears the purported signature of the executant of the will. Her signature finds place at such place after the body of the Will indicating that the signatory indicates her assent over the contents written above. This document also bears the signatures of Sri B.Satyanarayana Rao and Smt. Dandamraju Jayalakshmamma as attesting witnesses to the Will. Be it noted, the second attestor Smt. Dandamraju Jayalakshmamma is the very original plaintiff in O.S.No.110 of 2002 and is daughter of the testatrix. One would also see from this document it is a hand written document and the scribe is Sri M.Srirama Samba Murthy Lakshmi Narayana Rao. Though this was executed on 30.10.1995 it was not taken for registration immediately and it was registered only on 12.04.1999. The contents of the Will indicate about several properties and indicate about the children of the testatrix and also the grandchildren of testatrix. It mentions about three schedules of properties as A, B and C. 'A' schedule properties were retained by her for her lifetime and thereafter the bequest 7 ILR (2012) 6 Delhi 152 12 Dr. VRKS, J S.A.No.668 of 2018 was made in favour of her one son and two daughters jointly. 'C' schedule contains of more than one item and one of the items is 561 square yards and a building thereon and it is the suit schedule property in this case.
17. The executant of the Will Smt. Vunnava Nagarathnamma died on 17.08.1999 and that is evidenced by the death certificate as per Ex.A.1. The date of death is not in dispute. One of the attesting witnesses Sri B.Satyanarayana Rao did not give evidence before the Courts below. It is stated that he died on 11.07.2008. Ex.X.1 is his death certificate. His death and date of death are not in dispute. The second attestor is stated to be the original plaintiff in O.S.No.110 of 2002 by name Smt. Dandamraju Jayalakshmamma. She died on 27.01.2006. Her death and date of death are not in dispute. Evidence of first witness for plaintiffs in the trial Court commenced only on 17.09.2009. Thus, by the time the evidence commenced, the testatrix and both the attestors died. Neither side examined the scribe of the Will. These are the basic and undisputed bear facts that are to be noticed before one goes to consider the rival contentions. The arguments advanced on behalf of the appellants/plaintiffs are that:
13
Dr. VRKS, J S.A.No.668 of 2018 Since the execution of Ex.B.1-Will is denied, burden is heavy on the propounders of the Will.
Propounders of the Will have to examine the attestors and the scribe. Scribe was not examined and no explanation was offered.
In the light of the contest raised by the opponents the propounders of the Will should have taken the Will to the handwriting expert but they failed to do so. There are suspicious circumstances and they are not dispelled.
It is incorrect on part of the first appellate Court to have comparison of signature of the executant available in the disputed Will as against her signatures in the pleadings and other documents and thereby taking upon itself the task of proving the Will.
The disputed Will mentions various properties and two of them are non-existent as one of them was acquired by A.P.S.R.T.C. in the year 1992 and one of the items never belonged to the testatrix.14
Dr. VRKS, J S.A.No.668 of 2018 Ex.B.1-Will refers to an earlier registered Will dated 05.03.1986. If Ex.B.1-Will is held not proved, whether the earlier Will can be considered or not.
The approach of the first appellate Court that the Will was acted upon and the legatees discharged the debt of their grandmother and that they have been in possession and enjoyment of the properties cannot deprive the claim of parties.
Ex.B.1-Will is not proved by legal evidence. The huge gap of more than four years between the execution of the Will and its registration is not explained and is a suspicious circumstance.
Judgment of first appellate Court is peripheral without touching upon the core issue.
Requirements of Section 63 of the Indian Succession Act, 1925 and Sections 68 and 69 of the Indian Evidence Act, 1872 remained unfulfilled.
That the judgment of the first appellate Court is erroneous and it incorrectly upset the very well reasoned and considered judgment of the trial Court. 15
Dr. VRKS, J S.A.No.668 of 2018
18. As against this, the learned counsel for respondents submit that many arguments put forth on behalf of the appellants are against principles on pleadings and law. That the Will is to the knowledge of original plaintiff and assailing it there was no whisper in the plaint and there was no rejoinder filed despite the Will being pleaded in the written statements. Signature of the testatrix on the Will is proved by DW.1, who is the very daughter of the testatrix. It's attestation is proved by DW.3, who identified his father's signature who has one of the attestors on Ex.B.1-Will. Scribe cannot be called as an attestor and non-examination of scribe has no bearing in considering the aspects related to Will. There are no suspicious circumstances alleged in the plaint and deposed in the evidence on plaintiffs' side to disbelieve the Will. Cross-examination of DWs.1 to 3 do not challenge the physical and mental disposition of the testatrix when she made the Will and died several years thereafter. It is further argued that the judgment of the trial Court is imperfect and appreciation of evidence was incorrect and several of its findings are contrary and such an ill- considered judgment was well scrutinized by the first appellate Court and it rightly allowed the appeal and set aside that trial 16 Dr. VRKS, J S.A.No.668 of 2018 Court judgment. That without any basis the matter is carried in second appeal and it has to be dismissed with costs.
19. Unlike many other documents a Will is a unilateral document. It is not a document inter vivos. It only modifies the rule of succession. It operates only on the death of the testator and not otherwise. As the testator could not be summoned to say whether it was her intention that was depicted in the Will, law mandates a few safeguards in its preparation and for its proof. Every principle of law concerning proof shall always be pragmatic. Since there is long gap of time between the date of execution of Will and its registration, the following aspects require notice:
Principle Statute The documents shall be presented for Section 23 of the Registration Act, registration within four months from 1908 the date of its execution. From this principle exemption is granted for "Wills".
A Will can be presented for Section 27 of the Registration Act, registration at any time. 1908.
All documents that require Section 28 of the Registration Act, registration shall normally be 1908.
17
Dr. VRKS, J S.A.No.668 of 2018 presented for registration in the office of a Sub-Registrar within whose Sub-
District the whole or some portion of the property to which such document relates is situate.
20. The provisions from the Registration Act indicate that a Will need not be registered. If it is desired to be registered, there is no time limit for its registration. It could be executed on one day and could be sent up for registration at any time in future. In the case at hand, there is about four years gap between date of execution of the Will and date of presentation for registration. Therefore, what was permitted by law was what was done. It is for those who believe that there is anything fishy, they have to establish what it is. Excepting arguing that there is gap of four years between execution and registration, there is no fact that is relevant for consideration is seen from the record to suspect the Will. Therefore, the time gap between execution and registration cannot be considered as a suspicious circumstance in the context of the material on record.
21. One of the contentions raised is that the parties belonged to Guntur and there is Sub-Registrar at Guntur, but the Will was registered at Pedakakani. This submission is also against 18 Dr. VRKS, J S.A.No.668 of 2018 law. A Will could be presented at any place where it was executed or where the property situate or at other places. No infraction of law is pointed out. The fact is argued only to show that as a suspicious circumstance. The learned first appellate Court considered the very same argument and then it stated drawing reference from facts elicited in the cross-examination of DW.1 and DW.2 and said that Ex.B.1-Will could be presented for registration either at Guntur or at Pedakakani and from the place of residence of the testator the Guntur Sub-Registrar is at a distance of 3 Kilometres and the Pedakakani Sub-Registrar is at a distance of 4 to 5 Kilometres and that Guntur being a big town normally there was huge gathering and busy work whereas the Rural Pedakakani holds relatively fewer number of people and therefore, choice of the testatrix to have the document registered at a convenience place could never be considered as a suspicious circumstance. I could not gather any particular argument made before me to think that the above approach of the learned first appellate Court is erroneous either on facts or atrocious in its reasoning.
22. Turning to the contentions concerning execution of the Will, Section 63 of the Indian Succession Act, 1925 provides 19 Dr. VRKS, J S.A.No.668 of 2018 that the Will shall be attested by two or more witnesses. As could be seen from Ex.B.1- Will, it is attested by two witnesses. Therefore, this mandate is complied with. The provision further makes that each of these attestors shall have seen the testator signing the Will and then they shall subscribe their signatures in the presence of the testator. If the attestors are available, then they shall depose as to how the execution and attestation took place. It is then the evidence of those attestors that shall fall for consideration to find out whether the attestators really witnessed the execution and whether the testatrix really saw the attestation or not. In the case at hand, both attestors are dead. Then what has to be done is provided by Section 69 of the Indian Evidence Act. This provision shows that if no such attesting witness is available, the Will shall be proved through a witness who could prove the signature of the attesting witness or at least one of the attesting witnesses. The provision further shows that the signature of the person executing the document is in the handwriting of that person has also to be proved. Precisely it is this Section 69 of the Indian Evidence Act that operates in the case at hand. The very daughter of the testatrix and her very son are arrayed in the suit as defendant Nos.1 and 20 Dr. VRKS, J S.A.No.668 of 2018
2. During trial both of them supported the Will. Defendant No.1 testified as DW.1. At para No.4 of her examination-in-chief she had categorically deposed that her mother made her last Will and testament on 30.10.1995 and she did it while she was in sound and disposing state of mind and that the said Will was taken up for registration on 12.04.1999. She was subjected to cross-examination on behalf of the plaintiffs. The sound and disposing state of mind of the testatrix that was spoken to by the witness was not challenged while questioning her in cross- examination. The evidence of DW.1 that Ex.B.1-Will was executed by her mother and bears her signature is not questioned while cross-examining this witness. In her cross- examination it was elicited that the testatrix suffered from diabetes. It is not known since how long she has been a diabetic. Diabetes is a life style disease and it is no one's case that it affected the testatrix's sound and disposing state of mind or that her diabetes was of such nature which prevented her faculties from proper functioning. Except a stray word that she suffered from diabetes nothing else was brought on record. Be it noted, PW.1 in his evidence never said anything about state of mind of the testatrix or any sickness suffered by her making 21 Dr. VRKS, J S.A.No.668 of 2018 this Court to think that she was unable to execute the Will or that she did not know what she was doing. Thus, through the evidence of DW.1 it is clearly proved that Ex.B.1-Will bears the signature of the executant of the Will.
23. Coming to attestation, as both attestators died, DW.3, who is son of the first attestator Mr. Satyanarayana Rao, said on oath that he could identify the signatures and writings of his father and he verified Ex.B.1 and said that it is his father's signature which is there as an attestor. To bring more credibility to his version, he offered for scrutiny Ex.X-2 which is health identify card of his deceased father containing his signature and Ex.X-3 which is a cheque book containing cheque leaves and also containing the signature of his father. As could be seen from cross-examination of this witness, on behalf of these appellants/plaintiff Nos.3 and 4, they never questioned the correctness of signatures available on Exs.X.2 and X.3 and they did not question the evidence of DW.3 when he said that on Ex.B.1-Will it is his father's signature that is available as first attestator. In fact while cross-examining him plaintiffs suggested to him that his father colluded with the defendants and signed on the Will. That suggestion admits the truth of the 22 Dr. VRKS, J S.A.No.668 of 2018 evidence of DW.3 that the Will bears the signature of the attestator who is father of DW.3. Thus, this evidence established the requirements of proof of Will by attestor with reference to a Will. These aspects were well considered by the learned first appellate Court. The questions raised by the appellants include collusion, conspiracy and impersonation of testatrix. In the first place such aspects are not spoken to by PW.1 and such aspects are not available in the pleadings and such aspects were not suggested to DW.1. It was only in the evidence of DW.2 this new version of impersonation etc. find a vague suggestion which was met with by strong denial from the witness. Harping on those suggestions appellants made their vain attempt to persuade this Court and this Court having considered it in all its details find that the submissions have no merit.
24. Having considered the entire record and the submissions of the learned counsel for appellants and respondents, the following few aspects are required to be noticed so as to gain a proper perspective of the matter at dispute: 23
Dr. VRKS, J S.A.No.668 of 2018 The dispute between parties has not begun with presentation of plaint on 21.03.2002. The dispute between parties commenced much earlier to it. Seeking for partition, the very original plaintiff who is mother of the present appellants issued Ex.A.2-notice to her siblings and that notice is dated 06.04.2001. Thus, almost a year earlier to presentation of the plaint such notice was shot from original plaintiff. There was a prompt reply from her siblings under Ex.A.3-reply notice dated 14.04.2001. The contents of this reply would clinch the facts and circumstances. It made a detailed disclosure of the Will dated 30.10.1995 executed by Smt. Vunnava Nagarathnamma and it notified the plaintiff that by virtue of the Will bequest went to the grandchildren of the testatrix. Thus, original plaintiff fully grasped what was there on the other side. She gave a reply under Ex.A.4 to which her siblings sent a rejoinder under Ex.A.5. These exchange of notices further indicate that her siblings were propounding the Will and she was disputing the Will. All this exchange of notices took place several months prior to institution of the suit. In such circumstances, she was required to make a mention in her plaint about her version towards the Will that was mentioned in the reply notice received 24 Dr. VRKS, J S.A.No.668 of 2018 from her siblings. She did not make a mention. Thereafter defendants filed written statements. They made all the details of the Will in their written statements. The original plaintiff did not choose to put in any additional pleadings questioning the factum of Will or legality of the Will. She was alive till 27.01.2006. Thus, for four years subsequent to institution of the suit she was alive. In all these four years despite having been assisted by her own counsel, she never thought of utilizing any of the provisions contained in Order X to Order XIV C.P.C.
and she never thought of asking the defendants to produce the Will, so that she could verify and say something about it. She did not do it. From all this one could rationally gain an impression that the original plaintiff did not choose to deny the execution of Ex.B.1-Will by her mother. Original plaintiff died without testifying before the Court. It is thereafter her children came on record and one of them gave evidence as PW.1. In his cross-examination PW.1 stated that only after filing of the suit, he had come to know about the Will propounded by the defendants. So far so good. A few interesting things could be seen from the cross-examination conducted on behalf of the plaintiffs as against DWs.1 and 2. It was elicited from DW.2 25 Dr. VRKS, J S.A.No.668 of 2018 that Ex.B.1-Will refers to an earlier Will of the year 1986 which is also a registered Will. It is further elicited from this witness by the plaintiffs that so far as suit schedule property is concerned, under the earlier registered Will the testatrix granted equal share to her two daughters and a son, but in the later Ex.B.1-Will she changed it and gave the properties to the grandchildren. It was suggested to DW.1 that she suppressed the earlier 1986 registered Will and as per that earlier Will the original plaintiff gets 1/3rd share. This cross-examination makes it crystal clear that there was a registered Will by the year 1986 executed by Smt. Vunnava Nagarathnamma and under that Will her properties were bequeathed. When the plaintiffs stand on that footing, it is for them to explain as to why they did plead and strongly mention in their plaint that Smt. Vunnava Nagarathnamma died intestate. When they knew it very well that there was a Will, they should have sought for partition in terms of that Will of the year 1986. They did not do it. On the other hand, the plaint suppressed 1986 Will and gives an impression to the Court that Smt. Vunnava Nagarathnamma died intestate. Thus, we have found a situation where original plaintiff wanted to harass her siblings 26 Dr. VRKS, J S.A.No.668 of 2018 and initiated this litigation after she found that the grandchildren/defendant Nos.3 and 4 relieved the property from encumbrances. Original plaintiff knows about first Will of her mother in 1986 and knows about second Will of her mother under Ex.B.1 and she knows about herself attesting Ex.B.1- Will. Therefore, she did not specifically question the second Will of her mother anywhere in her plaint and she did not seek at least inspection of Ex.B.1-Will in all those years of her lifetime even after commencement of litigation. All this go to show that the circumstances clearly proved participation of original plaintiff and making of the Ex.B.1-Will by her mother.
25. The contention of appellants is about propounders failing to examine the scribe of Ex.B1-Will. I find no merit in this. Attestation is required by law as a special measure as against forgery or fraud. A person who sees the execution and authenticates the fact by subscribing his signature as an attesting witness that furnishes trustworthy fact and evidence and creates confidence in the Court about due execution of Will. Law mandates two witnesses to attest. If a scribe is to be considered as an attestor, then citizens would tend to fall in error and gain an impression that it would be sufficient for them 27 Dr. VRKS, J S.A.No.668 of 2018 to have one witness sign as an attestor since the scribe could be considered as a second witness for attestation. Utilising the scribe as an attesting witness would also make it more convenient for mischief. It is to obviate such things law mandated two attestors. The scribe may or may not have witnessed the execution. He may have prepared the document and left it there and may have gone away and thereafter the executant and the attestors could complete the task of signing the document and making it fully executed. Therefore, presence of scribe and his possibility of witnessing the testator and witnesses signing the document are remote. Original plaintiff with full knowledge of existence of a Will propounded by the opposite party did not choose to whisper in her plaint anything about that Will. It certainly misleads the opposite parties to think that plaintiff was not really challenging the Will. If really plaintiffs believe Ex.B.1-Will was not a genuine document, nothing prevented them to summon any witness to prove their version. That was not done. On the other hand, defendants did everything that was possible. In the manner narrated in the earlier paragraphs they proved the execution and attestation. A reading of the judgment of the learned III Additional District 28 Dr. VRKS, J S.A.No.668 of 2018 Judge indicates full flourish in grappling with the issues and by a very highly reasoned way he considered the substantial facts available on record. It is such well written judgment which is unmeritedly described in this appeal as perverse. This Court finds no perversity in the judgment of the learned first appellate Court. All the points, the findings and reasons offered by the first appellate Court are in accordance with law. It considered all the evidence that was available on record. It did not omit to consider any evidence available on record. It did not consider anything that was not part of the record. The judgment of the learned first appellate Court has to be approved. There is absolutely no merit in this appeal. Point is answered against the appellants.
26. Before parting with, it may be noted here that while considering cases of "Wills", the great Lord Denning made a recollection of what Lord Atkin said about "Wills". It is stated that the group of ghosts of dissatisfied testators wait on the other side of the river amusing to see what the living judges would say about "Wills" they executed. (Broadly drawn from page No.23 of the Discipline of Law, Oxford University Press (Indian Print)).
29
Dr. VRKS, J S.A.No.668 of 2018
27. In the result, this Second Appeal stands dismissed with costs. As a consequence, judgment dated 19.03.2018 of learned III Additional District Judge, Guntur in A.S.No.483 of 2010 stands confirmed.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 11.07.2023 Ivd 30 Dr. VRKS, J S.A.No.668 of 2018 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR SECOND APPEAL No.668 of 2018 Date: 11.07.2023 Ivd