Andhra Pradesh High Court - Amravati
T.Satyavathi And 11 Others vs G.Veera Venkata Ratnavathi Died 21 ... on 29 January, 2021
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
HON'BLE SRI JUSTICE M.VENKATA RAMANA
APPEAL SUIT No.2922 of 1990
&
ASMP 1007 of 2014 in A.S.No.2922 of 1990
COMMON JUDGMENT :
This appeal filed under Section 96 CPC is directed against the decree and judgment in O.S.No.59 of 1998 dated 25.01.1990 of the Court of the learned I Additional District Judge, Rajahmundry.
2. The defendants 1 to 3 and 5 to 10 are the appellants. The plaintiff is the 1st respondent and the defendants 4 and 11 are the respondents 2 and 3 respectively. The 1st respondent/plaintiff died during pendency of this appeal and her L.Rs. are respondents 8 to 13. The 4th respondent also died and his L.Rs. are the respondents 23 to 27. The 1st appellant died and her L.Rs. are the appellants 4 to 6 and the appellant No.10. The 4th appellant died and his L.Rs. are the appellants 11 and 12. The 2nd respondent died and her L.Rs. are the respondents 14 to 16. Similarly, the 5th respondent died and her L.Rs. are the respondents 17 to
11. The respondents 28 to 31 were brought on record being the L.Rs. of the deceased 8th respondent.
3. The parties as arrayed in the plaint shall be referred to hereinafter for convenience.
4. The plaintiff is no other than the wife of Sri late Grandhi Virraju. They have four daughters viz., the defendants 1 to 4 and six sons. They were residents of Srikrishna Patnam near Rajahmundry, East Godavari District. The defendants 5 to 7 are the children of the 1st defendant and Sri Suryanarayana Murthy. The defendant No.8 is the son of defendant No.2 and Sri Satyanarayana Murthy. The defendant No.9 is his brother.
MVR,J A.S.No.2922 of 1990 2 The defendant No.10 is the son of defendant No.3 and Sri Ramakrishna. The defendant No.11 is the son of defendant No.4 and Sri Sriprasad.
5. The plaintiff laid the suit for the following main reliefs, amongst others.
"(a)for cancellation of the three settlement-deeds dated 24-2-1986, 25-2-1986 and 27-2-1986 in respect of items 1 to 3 of the plaint schedule property respectively and also the sale deed dated 28-
2-1986 in respect of item 4 of the plaint schedule property which were obtained by defendants 1 to 4 fraudulently from the plaintiff;
(b) by granting a permanent injunction restraining defendants from interfering with plaintiff's possession of item 4 of the plaint schedule property;"
6. The property in dispute is described in the plaint schedule as under:
"Item No-1: East Godavari Dt., Rajahmundry Tq., Rajanagaram Mandalam, Srikrishnapatnam Village, R.S.No.243, Jeroiti dry full extent 3-17 (Hc.1.283) Item No.2:
(A) do do do Jeroiti dry
R.S.No.239/2 full extent Ac. 1-98 cents
(B) do do do Jeroiti dry
R.S.No.241/4 full extent Ac. 1-07 cents 3-05 (Hc. 1.234)
Item No.3: do do Jeroiti dry
R.S.No.239/1, full extent 2-37 (Hc.0.959)
Item No.4: do do Jeroiti dry
R.S.No.240 full extent 3-91 (Hc.1.582)
------
12.50 (Hc.5.058)
------"
7. They shall be referred to hereinafter as 'the suit lands', for convenience.
8. The plaintiff was owner of Ac.20-00 of land at Srikrishna Patnam, a major part of which was acquired by her from late husband Sri MVR,J A.S.No.2922 of 1990 3 Grandhi Virrraju under a registered Will dated 23.07.1982. She had absolute right, title and interest to these properties. Sri Grandhi Virraju and his sons got divided their family properties evidenced by a partition list dated 26.02.1980. Thereafter, all of them began to live separately. The defendants 1 to 4 were married even during the lifetime of Sri Grandhi Virraju. He died in or about the year 1983.
9. The suit lands comprising a compact extent out of Ac.20-00, is a garden, where fruit bearing trees like Orange, Lemon, Batavia, Mango etc., were raised. They were all yielding crop and the usufruct was being sold to third parties. There was no cultivation of any type in the suit lands as such since there was growth of these fruit bearing trees. There were a cattle shed and hut for residence of the farm servant in this land, apart from a hayrick yard.
10. It is desirable to consider the pleadings set up by the parties before adverting to the evidence and material on record.
11. The case of the plaintiff in brief as seen from the plaint is as under:
(a) The 8th defendant was then studying Engineering at Hyderabad. During the 1st week of February, 1986, he requested the plaintiff to accompany him to Korukonda-his village, to assist his mother, since his father was undergoing piles surgery at Rajahmundry. Believing the same, the plaintiff went to Korukonda along with the 8th defendant on 9th or 10th February, 1986. During her stay, the 2nd defendant and her son viz., the 8th defendant MVR,J A.S.No.2922 of 1990 4 exerted pressure on her to execute a Will in favour of the defendants 1 to 4 bequeathing her properties in equal shares representing that she could cancel it at her pleasure. It made her to execute a registered Will dated 11.02.1986 at Korukonda bequeathing the suit lands in favour of the defendants 1 to 4 in equal shares, for their enjoyment and vested remainder in favour of their male progeny. Thereafter, she was informed that the proposed surgery of the husband of the 2nd defendant was cancelled and the 2nd defendant took the plaintiff to Peddapuram to the 3rd defendant without disclosing the purpose.
(b) At Peddapuram, the 3rd defendant, her husband and her father-in-law Sri Vemula Jagannadha Murthy, a powerful and influential person as well as a seasoned litigant, coerced her to execute certain documents in respect of her properties and threatened with dire consequences if she refused. The plaintiff refused to oblige such demands stating that she had already executed a Will and did not want to execute any further documents. However, because of her old age and the circumstances in which she was placed, she was made to sign on certain documents. She was forcibly taken to Kakinada by the 8th defendant and Sri Vemula Jagannadha Murthy, making her to sign certain documents and during the period from 24.02.1986 to 28.02.1986, she was made to admit execution of the documents in respect of the suit lands before the District Registrar. She being MVR,J A.S.No.2922 of 1990 5 an illiterate and did not know the contents of the documents, she was threatened and subjected to duress for such purpose.
(c) Three or four days after 28.02.1986, the 3rd defendant, her husband and her father-in-law as well as the 8th defendant allowed her to go, that made her to return to her village Srikrishnapatnam, where she informed what happened to her sons. Upon enquiry she learnt that three settlement deeds dated 24.02.1986, 25.02.1986 and 27.02.1986 purporting to convey items 1 to 3 of the suit lands in favour of the defendants 1 to 4 with life interest to her and after her lifetime, creating life interest in their favour with vested remainder to their male progeny were brought out. A sale deed dated 28.02.1986 was also obtained as if the defendants 1 to 4 purchased item No.4 of the suit lands for a consideration of Rs.39,100/- and that this land was delivered in possession to them.
(d) All the recitals in the above documents are false, never acted upon nor property was delivered in possession in terms of the sale deed dated 28.02.1986. Execution of these documents was never voluntary nor was the plaintiff intending to execute these documents in favour of the defendants 1 to 4 or as per their contents. In those circumstances, she was constrained to lay the suit.
12. The defendants 1 to 4 resisted the claim of the plaintiff as set out in the plaint denying that there was any coercion or duress which she was subjected to in bringing out the documents in question. They MVR,J A.S.No.2922 of 1990 6 contended that she executed all these documents on her free will and voluntarily. They further contended that she visited the 2nd defendant at Korukonda, on her own, where she executed the Will dated 11.02.1986 and got it registered voluntarily, calling necessary attestors and getting it scribed.
(a) The defendants also contended in the written statement that a few days after executing the Will dated 11.02.1986, the plaintiff told that her sons would compel her to cancel the said Will and asked the defendants 2 and 8 to get registered conveyances, so that they would not be cancelled. Since this process required a lot of money, it is contended by the defendants that the plaintiff along with the defendant No.8 went to Peddapuram to consult the husband of the 3rd defendant and her father-in-law. It is also the contention of the defendants that on the advice of father-in-law of the 3rd defendant, she agreed to execute three settlement deeds and when the plaintiff told that she had to discharge debt of Rs.20,000/- to her 2nd son, every one of the defendants 1 to 4 upon contributing Rs.10,000/- each, paid to the plaintiff for the purpose of discharging the above debt as well as meeting the expenses relating to execution of proposed documents. Thus, the defendants 1 to 4 contended that the plaintiff voluntarily and willingly, as per her instructions, executed three settlements deeds and for consideration she executed a sale deed. They also contended that these documents were registered in the office of the District Registrar at Kakinada, knowing their contents and their MVR,J A.S.No.2922 of 1990 7 purpose. They further contended that after executing these documents, she visited her 4th son at Kakinada, where she stayed for a week, thereafter returned to Peddapuram and later to Kakinada. After staying for about 15 days at Kakinada, she went to her village Srikrishna Patnam.
(b) The defendants also contended in the written statement that she was prevailed upon by her sons to file the suit against her will and that she did not know the contents of the plaint nor the purpose of filing the suit. No police report was given nor any legal notice before the institution of the suit according to their contention in the written statement.
13. Basing on the above pleadings, the trial Court settled the following issues for trial:
"1.Whether the three settlement deeds dated 24.2.86, 25.2.86 and 27.2.86 in respect of items 1 to 3 of the plaint schedule property and the sale deed dated 28.2.86 were obtained by defendants 1 to 4 from the plaintiff, fraudulently and under coercion?
2.Whether the plaintiff is entitled for cancellation of those three settlement deeds and the sale deed as prayed for?
3. Whether the plaintiff is entitled for a permanent injunction as prayed for?
4. To what relief?"
14. At the trial, the plaintiff examined herself as P.W.1,P.W.2-an Advocate Commissioner, P.W.3-her 2nd son, while P.W.4 being the document writer, while relying on Ex.A1 to Ex.A10. The 8th defendant examined himself as D.W.1 and the scribe of the originals of Ex.A1 to Ex.A4 as D.W.2, D.W.3 being the father-in-law of the 3rd defendant, MVR,J A.S.No.2922 of 1990 8 D.W.4 a resident of Peddapuram and neighbour of D.W.3, in support of the defence set up by the defendants, while relying on Ex.B1 to Ex.B3.
15. Basing on the material and the evidence, the learned trial Judge held in respect of issues 1 and 2 that the originals of Ex.A1 to Ex.A4 were obtained by fraud, mis-representation and undue influence applying doctrine of 'non est factum'. The relief of Permanent injunction was granted while considering issue No.3. Thereby relief as sought in the suit was granted holding that the originals of Ex.A1 to Ex.A4 are vitiated by fraud and coercion, directing their cancellation.
16. Sri Vedula Venkata Ramana, learned senior counsel, for Sri Prabhakar Peri, learned counsel for the appellants and Sri E.V.V.S.Ravi Kumar, learned counsel for the respondents addressed arguments in this appeal.
17. As seen from the material in this case, A.S.M.P.No.1007 of 2014 under Order-41, Rule-27 CPC was filed by the respondent No.11 to receive additional documents viz., copies of gift deed dated 23.02.1999 and certified copies of judgment and decree in O.S.No.731 of 2005 on the file of the Court of I Additional Junior Civil Judge, Rajahmundry claiming that the suit lands were gifted to him by the plaintiffs and that other legal heirs of the plaintiffs are not entitled to any share in the suit lands. The 11th respondent is one of the sons of the plaintiff and according to his version as seen from the affidavit filed in support of the petition, reception of these documents is essential for effective and proper adjudication of the matter in dispute and to avoid multiplicity of proceedings.
MVR,J A.S.No.2922 of 1990 9
18. In the course of hearing in this appeal, Sri E.V.V.S.Ravi Kumar, the learned counsel for the respondents, referred to this petition. All the legal representatives of the deceased plaintiffs were already brought on record in this appeal and the documents relied on by the 11th respondent, emanated during pendency of this appeal reflecting a post decretal situation. In view of this situation since the proposed documents have no bearing in deciding this appeal, this petition for reception of additional evidence the same has to be dismissed. Accordingly, A.S.M.P.No.1007 of 2014 is dismissed.
19. Now, the following points arise for determination:
1. Whether the originals of Exs.A1 to A4 were obtained from the plaintiff under duress, by coercion and if they are required to be cancelled?
2. whether the plaintiff is entitled for the relief for permanent injunction against the defendants?
3. Whether judgment and decree of the trial Court are proper?
4. To what relief?
POINT No.1:
20. In terms of Section 101 of the Evidence Act, the burden of proof is on the plaintiff. The specific case of the plaintiff is that the originals of Ex.A1 to Ex.A3, which are settlement deeds, and original of Ex.A4 sale deed were obtained subjecting her to threat, coercion and applying pressure on her. It is not her case that she was subjected to undue influence nor a specific case of fraud is projected on her behalf, in the plaint or in the evidence.
MVR,J A.S.No.2922 of 1990 10
21. The nature of relief sought in the suit indicates that execution of originals of Ex.A1 to Ex.A4 is admitted. The manner of their execution or going by the case of the plaintiff, obtaining them is the main question to be decided. In these circumstances, it is for the plaintiff to establish these circumstances whereby she was allegedly threatened, forced or coerced to execute the originals of these documents.
22. Ex.B1 is the Will dated 11.02.1986 admittedly executed by the plaintiff in favour of the defendants 1 to 4. It preceded the execution of originals of Ex.A1 to Ex.A4. The case set up by the plaintiff in the plaint as well as at the trial is that Ex.B1 Will was also obtained from her subjecting her to coercion.
23. According to the case of the plaintiff, 8th defendant (D.W.1) played a predominant role in this entire process and he is no other than her grand-son being the son of the 2nd defendant.
24. There is no dispute in respect of Ex.B1 Will. Sri E.V.V.S.Ravi Kumar, learned counsel for the respondents, contended that Ex.B1 itself did not have any significance in the matter and Sri Vedula Venkata Ramana, learned senior counsel, contended that execution of Ex.B1 is admitted, which is not being disputed by the defendants.
25. Ex.B1 Will has a significant effect impacting the veracity of the claim of the plaintiff in this case.
26. According to the plaintiff as P.W.1, in the 1st week of February, 1986, she went to the house of the 2nd defendant at Korukonda along with the 8th defendant, since she was requested to assist the 2nd MVR,J A.S.No.2922 of 1990 11 defendant, whose husband was undergoing surgery for piles at Rajahmundry. At Korukonda, it is the case of the plaintiff that the defendants 2 and 8 brought pressure on her to execute a Will in favour of her daughters viz., the defendants 1 to 4 and that she did so since, she was given to understand that this Will could be revoked at any time if she intended. In her deposition as P.W.1, the plaintiff specifically stated that she heeded to the compulsion of the defendants 2 and 8 on the premise that the Will could be cancelled at any moment. Details of execution of this Will are stated in the deposition of P.W.1. She stated that she did not carry any documents by then, like title deeds for the purpose of execution of this Will.
27. But, the contents of Ex.B1 belies her statement. There are details of the properties which the plaintiff intended to bequeath in favour of her daughters with recitals relating to the manner of acquisition of the properties by her from her husband under the Will dated 23.07.1982, preceded by a partition among her husband and sons dated 26.02.1980. Apart from the extents conferred upon the defendants 1 to 4, Ex.B1 also refers to a bequest of Ac.2-00 of land in favour of Sri Nageswara Rao, who is her brother after her lifetime with life interest and thereafter, his male progeny to get this property.
28. Cross-examination of the plaintiff as P.W.1 on behalf of the defendants has brought out certain statements, which bear significance in this matter. She admitted that Ex.B1 Will was executed only in respect of Ac.12-00 of land out of Ac.20-00 bequeathed to her by her husband. It is interesting to note that the defendants 2 and 8 had prevailed on her to MVR,J A.S.No.2922 of 1990 12 execute the Will, giving away the properties to all her daughters equally which the plaintiff admitted. She further stated that the 2nd defendant felt that it would not be proper for her to demand execution of the Will for the entire property in her favour and to confer this property on all of them viz., the defendants 1 to 4 to get her share. The property covered by Ex.B1, is the very same property, which is subject matter of Ex.A1 to Ex.A4 transactions.
29. The plaintiff as P.W.1 further admitted that the defendants 2 and 8 did not compel her to execute Ex.B1 for remaining extent of Ac.8-00, out of the property acquired by her from her husband and her own property. She further admitted that these defendants 2 and 8 did not compel her to bequeath some property to her brother viz., Sri Nageswara Rao.
30. Ac.2-00 of land conferred as a bequest upon Sri Nageswara Rao by the plaintiff was purchased by her from Smt. Mandavilli Suryakantham, who is the sister of her husband. It is the property given by means of a settlement under Ex.B2 dated 27.03.1986 to Sri Nageswara Rao. Therefore, from the above statements, it is manifest that neither with reference to remaining property belonging to her or in respect of entire extent, the defendants 2 and 8 did not bring any pressure on the plaintiff. These statements further prove that the 2nd defendant was fair enough to request the plaintiff to execute Ex.B1 Will to have equal distribution of the property among all the sisters. The fact that Ac.2-00 was bequeathed in favour of Nageswara Rao under Ex.B1, which later on manifested in the shape of Ex.B2 settlement deed in his favour, is clear MVR,J A.S.No.2922 of 1990 13 circumstance pointing out that the so-called force or pressure brought on the plaintiff to execute Ex.B1 Will is not correct.
31. When Ex.B1 Will admittedly was executed by the plaintiff making such dispositions of the property, when its contents coupled with the statements elicited from the cross-examination of the plaintiff are considered, they leave no manner of doubt that the transaction under Ex.B1 was a voluntary effort by the plaintiff in order to distribute her properties in a rationale manner.
32. The impact of the same should be considered in respect of the transactions covered by Ex.A1 to A4 and which are sought to be tainted as such transactions, which were forced upon the plaintiff. Thus, the foundation of the case of the plaintiff in this respect suffered a serious dent. Therefore, the contention on behalf of the plaintiff that Ex.B1 Will did not have any effect in this case is not correct.
33. On account of the transactions under Ex.A1 to Ex.A4 and Ex.B2, this Will (Ex.B1) stood revoked undoubtedly. Yet it cannot be relegated to the background of being of no consequences in this case.
34. The case of the plaintiff is also that she was taken to Peddapuram to the house of her third daughter (3rd defendant) by the 8th defendant. She voluntarily accompanied 8th defendant to the above place.
35. The defence version is that the plaintiff was apprehensive of interference of her sons on account of execution of Ex.B1 Will by her in favour of the defendants 1 to 4 and who would prevail upon to revoke the same. Therefore, according to the defendants, the plaintiff expressed her MVR,J A.S.No.2922 of 1990 14 intention to execute registered conveyances in favour of her daughters for which purpose she asked the defendants 2 and 8 and since it would involve a lot of money, as desired by the plaintiff, she along with the 8th defendant came to Peddapuram. The reason to visit the 3rd defendant at Peddapuram was to have an advice from father-in-law of the 3rd defendant in this respect, who was one of the mediators who admittedly settled the partition transaction among her husband and her sons. The 8th defendant as D.W.1 specifically deposed in this respect that, on or about 15th or 16th February, 1986, both of them went to the 3rd defendant at Peddapuram. Father-in-law of the 3rd defendant viz., D.W.3 also deposed in this respect corroborating the version of D.W.1.
36. In seeking assistance of D.W.3 by the plaintiff in respect of Ex.A1 to Ex.A4 transactions, there is no artificiality as such. He as an elder, who settled partition of the properties among her husband and her sons. Being no other than the father-in-law of her daughter, who had helped their family earlier, in the circumstances stated by the defendants, upon execution of Ex.B1 Will, she would have preferred to approach him at Peddapuram to see that her daughters did not face the consequences thereof and in order to see that her intention of conferring certain properties to her daughters, is secured by means of registered conveyances. Apparently in that process she approached D.W.3 at Peddapuram and the transactions thereafter went on.
37. At Peddapuram, as per the version of D.W.1 and D.W.3, with the assistance of D.W.2, who was a document writer and a neighbour of D.W.3 for long at Peddapuram, the extent of expenditure was arrived at.
MVR,J A.S.No.2922 of 1990 15 At the same time, their version is that the plaintiff informed them that she had borrowed Rs.20,000/- from her 2nd son (P.W.3) and to raise Rs.40,000/- to meet the expenditure relating to execution of the registered conveyances in favour of D1 to D4 and to discharge the amount due to her 2nd son. The evidence of these witnesses also reflected that each daughter was asked to contribute Rs.10,000/-. Thus, their evidence is to the effect that Rs.40,000/- was pooled up for this purpose.
38. The plaintiff denied this version of the defendants contending that there was no necessity for her to borrow from any one nor she had borrowed.
39. It is to be noted that the 2nd son of the plaintiff was examined at the trial as P.W.3. As seen from his deposition, no explanation was elicited on behalf of the plaintiff with reference to this specific defence that the plaintiff had borrowed Rs.20,000/- from him and which she should repay. It is the significant omission and cannot be overlooked.
40. The evidence on behalf of the defendants is also that with the assistance of D.W.2 required stamp papers were purchased.
41. In cross-examination of D.W.1, it was elicited that the plaintiff suggested to prepare a sale deed for Ac.4-00 in favour of the defendants 1 to 4 since they contributed Rs.10,000/- each. The version of D.W.3 in this context is on the same lines, corroborating and supporting the testimony of D.W.1. The evidence of D.W.2 is also that he scribed the original of Ex.A4 as per the instructions of the plaintiff, since she had received Rs.40,000/- from her daughters, supporting D.W.1. He further MVR,J A.S.No.2922 of 1990 16 deposed in respect of execution of originals of Ex.A1 to Ex.A3 corroborating the testimony of D.W.1 and D.W.3.
42. The contents of Ex.A1 to Ex.A3 stand similar and alike, except the extents of the land. There is no dispute that they were executed by the plaintiff on 24.02.1986, 25.2.1986 and 27.2.1986 respectively. They were registered in the office of the District Registrar at Kakinada. A limited interest was assigned under the originals of these documents in favour of defendants 1 to 4 and their male progeny to succeed to these properties after their lifetime. They were attested by one Sri P.Nageswara Rao and Sri P.B.Jogi Raju. P.W.2 is the scribe of these settlement deeds.
43. It is the contention of the plaintiff that these persons who attested these settlement deeds were then all stock attestors available at the premises of the Registrar's Office at kakinada, who upon receiving small sums of money like Rs.2/- or Rs.3/- offer their services to attest. Thus, they are sought to be characterised as professional attestors and therefore, these documents did not meet the requirements of attestation in terms of Section 3 of the Transfer of Property Act. There is testimony of the plaintiff as P.W.1 in this context.
44. P.W.3 also deposed in respect of their alleged nature. He further deposed that Sri Nageswara Rao is co-brother of father-in-law of the 3rd defendant. Since D.W.2 is a close associate of D.W.3, it is the contention of the plaintiff that the testimony of all these individuals, who were associated with the transactions of execution of originals of Ex.A1 to Ex.A3, they are suspicious. Contentions are also advanced to the effect that the defendants should have examined the attestors to explain away MVR,J A.S.No.2922 of 1990 17 the circumstances under which the originals of Ex.A1 to Ex.A3 were executed and registered.
45. D.W.2 also stated in his cross-examination that Sri Ch.Govinda Raju and Sri P.V.Jogi Raju are in the habit of attesting documents by taking some money as attestors as their fee. He further deposed that they will be available at registrar's office always. Identifying witnesses to the originals of Ex.A1 to Ex.A3 are also of similar nature as of the attestors. Therefore, having regard to these circumstances it is the contention of the plaintiff that no credence as to voluntary execution of the originals of Ex.A1 to Ex.A3 can be attached.
46. From the material on record, it is clear that originals of Ex.A1 to Ex.A3 were registered on three different dates referred to above. It is also in the evidence of the parties that every day the plaintiff went to registrar's office at Kakinada and in the presence of the concerned Registrar she confirmed execution of these documents. As rightly contended for the defendants by Sri Vedula Venkata Ramana, learned Senior Counsel, at no stage on all these days, the plaintiff had raised any protest or objection and that she quietly admitted execution of these documents in the presence of the registering authorities. In those circumstances, the learned senior counsel contended that in view of Section 34 of the Registration Act, since the registering authorities are under the obligation to enquire the executant about execution, having regard to the duties these authorities discharge in regular course of performance of their activity, in the presence of the nature of the case set MVR,J A.S.No.2922 of 1990 18 up by the plaintiff, execution of these documents voluntarily by the plaintiff, cannot be doubted.
47. In terms of Section 34 of the Registration Act, the registering authorities should enquire the executant of a document before registration. The evidence on record makes out that P.W.1 did attend the concerned registration office at Kakinada and in the presence of the Registrar concerned, apparently she admitted execution of the documents. Obviously, on all the dates when she appeared, she had no occasion to raise any question, protest or inform the concerned registering authority that she was forced or threatened to kill, if she refused to execute these documents.
48. The version of the plaintiff is that at Peddapuram, after she stayed for 4 days, the defendant No.8 and D.W.3 forced her to sign on certain stamp papers going to the extent of threatening her with dire consequences and on account of the pressure so built up, she was made to sign on those papers and present herself before the registration office at Kakinada. This version of the plaintiff is rather difficult to accept. It is not as though on a single day all the transactions took place and in one go. Every day she attended the office of registering authority at Kakinada on all the four days. At no stage, she made her resentment in obtaining these documents, known to anyone on all these days. Though her version is that she did not carry any title deeds or documents relating to these properties as stated above with reference to Ex.B1 Will, it is hard to believe. The version of D.W.1 is clear that she had all necessary MVR,J A.S.No.2922 of 1990 19 documents and D.W.2, as deposed by him, prepared the settlement deeds basing on the documents supplied by the plaintiff herself.
49. In the circumstances, non-examination of the attestors, is not fatal by itself. As rightly contended by Sri Vedula Venkata Ramana, learned senior counsel, it is not the case where execution of the documents itself is denied. Unless there is specific denial in this context in terms of Proviso to Section 68 of the Evidence Act relating to proof of execution of the documents required by law to be attested, it is not necessary to call an attesting witness in proof of their execution. Only exception made out in terms of Section 68 of the Act is 'Will', which is not only governed by Section 68 of the Evidence Act but also Section 63 of the Indian Succession Act.
50. Apart from silence of the plaintiff to raise any object in respect of registration of these documents before the registering authorities, there are further circumstances which make out that the contest offered by her questioning these documents is not proper. She had an opportunity to ventilate about the manner by which she was allegedly forced to execute these documents. It was when Smt. Kamala, who is her sister, visited her at peddapuram. Smt. Kamala is a resident of Pithapuram, who was with the plaintiff on a day during the above period. The plaintiff could have informed Smt. Kamala the manner by which the originals of Ex.A1 to Ex.A4 were obtained. One of the sisters of her husband by name Smt. Mandavilli Suryakantham is a resident of Peddapuram. According to D.W.1, the plaintiff had also visited her at Peddapuram. It is also in the MVR,J A.S.No.2922 of 1990 20 evidence of P.W.1 that she did not inform about these transactions to the son of Sri Mandavilli Suryakantham, who is an Advocate at Peddapurm.
51. The evidence of D.W.4, who is a neighbour of D.W.3, is with reference to movements of the plaintiff, when she was in the house of D.W.3 at Peddapuram. It reflected that the plaintiff was not prevented from meeting any one nor she was confined or restrained in that process. When these positive circumstances are available from the evidence on record, it is rather far-fetched to contend that the plaintiff was subjected to coercion to execute these settlement deeds.
52. Similar is the situation in respect of execution of original of Ex.A4 sale deed. The circumstances discussed supra equally apply to this transaction affecting the claim of the plaintiff fatally and to reject.
53. Sri E.V.V.S.Ravi Kumar, learned counsel for the defendants, strenuously contended that this sale transaction is not supported by consideration and the evidence presented by the defendants themselves glaringly makes it out.
54. Ex.A4 reflected that it was a sale transaction for Rs.39,100/-. Its recitals are that consideration thereunder was received and that possession of the land thereudner was also delivered to the defendants 1 to 4 by the plaintiff.
55. D.W.1 stated that they did not pay Rs.39,100/- to the plaintiff on the date of execution. He further stated that they did not take possession of this land pursuant to it nor the plaintiff has delivered this land to them. D.W.2-the scribe also stated that no money was paid at the MVR,J A.S.No.2922 of 1990 21 time of execution of Ex.A4 and that the land covered by Ex.A4 was not measured in his presence.
56. When the versions of D.W.1 and D.W.2 in respect of pooling up of Rs.40,000/- are considered, these statements from D.W.1 and D.W.2 do not gain importance. Evidence of D.W.1 and D.W.3 is to the effect that Rs.40,000/- was collected on account of the contributions by defendants 1 to 4, to meet the requirement of the plaintiff. When the plaintiff had already received the amount which she was expecting, these statements of D.W.1 and D.W.2 do not have any bearing. Upon execution of the original of Ex.A4 sale deed, in view of recitals of delivery of possession thereunder, want of physical delivery of the land covered by it cannot affect this transaction as such. Added to it, the plaintiff is no other than the mother of the defendants 1 to 4, who had already executed three settlement deeds in their favour and Ex.A4 transaction was the last in the series which took place on 28.2.1986.
57. Therefore, the contentions so advanced on behalf of the plaintiff in this respect needs rejection.
58. If these transactions had been of such nature as sought to be propounded by the plaintiff, she did not choose to get a legal notice issued to the defendants 1 to 4 before institution of the suit. The suit was instituted on 16.04.1986 and within two months of last of these transactions viz., the one covered by Ex.A4 dated 28.02.1986. She could have even presented a complaint to the police making out that she was coerced and threatened to the extent of doing away with her in securing MVR,J A.S.No.2922 of 1990 22 these documents. Silence on the part of the plaintiff in this respect remained unexplained.
59. However, Sri E.V.V.S.Ravi Kumar, learned counsel for the plaintiff, contended that want of legal notice prior to the institution of the suit, is not fatal by itself and the purpose of issuing such notice is only to place the defendants on guard apprising of the proposed action by the plaintiff. It is further contended by the learned counsel for the plaintiff that on account of the close relationship among these parties, no complaint to the police was given particularly when the plaintiff is mother of the defendants 1 to 4. In this context, it is pointed out by the learned counsel that D.W.3 was already an accused in a Sessions Case as admitted by him in cross-examination and in view of such nature of D.W.3, it is rather hard to expect the plaintiff to give a complaint to the police.
60. In her examination in chief itself P.W.1 stated that she did not issue any legal notice before institution of the suit nor present a complaint to the police questioning these transactions. In such event, the defendants cannot be expected to cross-examine this witness further.
61. The material on record from the evidence of the plaintiff as P.W.1 is clear that at the instance of her sons she began this litigation. She approached her Advocate to file the suit along with her sons. She secured Ex.A1 to A4 registration extracts through her 4th son Sri Subrahmanyeswara Raju, a resident of Kakinada. When her sons were prepared to enter into litigation in respect of these transactions with their sisters through the plaintiff, issuing a notice before institution of the suit MVR,J A.S.No.2922 of 1990 23 questioning them, would have been proper. It is the expected reaction and response in the circumstances from the plaintiff and particularly when her evidence is that 4 days after execution of the original of Ex.A4 she returned to her village, where she informed her sons as to what happened leading to execution of Ex.B1 and Ex.A1 to Ex.A4.
62. Involvement of D.W.3 in a sessions case could not have prevented her and her sons to give a complaint to the police atleast against the 8th defendant and D.W.3.
63. These circumstances reflecting conduct of the plaintiff do lend credence to the contention of the defendants that this entire litigation was forced upon the plaintiff by her sons for their benefit and that she was never a willing party for this purpose.
64. One of the contentions of Sri E.V.V.S.Ravi Kumar, learned counsel for the plaintiff, is that none of the defendants 1 to 4 came forward to depose and they being the direct beneficiaries in the transactions, want of their evidence amounts to suppression of the material evidence. The contents of these settlement deeds are that the ultimate beneficiaries are sons of the defendants 1 to 4. When D.W.1 is no other than one of the sons of the 2nd defendant, when the entire case of the plaintiff as seen from the plaint and her evidence is against him as if he was responsible for all the alleged troubles she was made to run through in executing these documents, he is the witness who is proper to examine. Therefore, he entered the box at the trial and deposed in respect of all these transactions.
MVR,J A.S.No.2922 of 1990 24
65. On the other hand, the evidence let in on behalf of the plaintiff is dependent only on her highly interested testimony as P.W.1 without any supporting or corroborating evidence. Though P.W.3, her son was examined at the trial, he was categorical in stating that he did not have any personal knowledge of all the transactions that commenced during the 1st week of February and went on upto last week of the same month. Thus, he clearly gave out that he did not know about Ex.B1 and Ex.A1 to Ex.A4 transactions.
66. Ex.B2 and Ex.B3 further demonstrate that the plaintiff was conscious of the nature of documents she was executing. In the sense she had voluntarily executed Ex.B2 settlement deed on 27.03.1986 in favour of her brother Sri Nageswara Rao. Ex.B3 is another settlement deed dated 02.03.1986 executed in favour of her sons giving away Ac.6-00 remaining land belonging to her. When the plaintiff had executed such documents, it cannot be inferred that she was not oblivious of nature of transactions covered by Ex.A1 to Ex.A4.
67. In the above circumstances, when the material on record clearly projects that the transactions covered by Ex.A1 to Ex.A4 were willingly attended to by the plaintiff, conscious of their nature on her own volition with a free mind, her version has to be rejected.
68. In this context, the conduct reflected with reference to execution of Ex.B1 Will by her, as discussed supra, in respect of which she had chosen to implement a part of her desire and intention reflected therein in giving away properties to her brother Nageswara Rao is a definite pointer that she was a willing party to all these transactions.
MVR,J A.S.No.2922 of 1990 25
69. It is manifest from the material on record that she was made to enter this litigation only at the instance of her sons, who were obviously not satisfied with the properties they had on account of the family partition. It is obvious that they intend to retain the whole property for themselves.
70. Sri E.V.V.S.Ravi Kumar, learned counsel for the plaintiff, also referred to a ruling of the then High Court of Andhra Pradesh in K.Tulasamma vs. Ch.Singamma1 in this respect which was relied on by the learned trial Judge. The contention in this context by Sri E.V.V.S.Ravi Kumar is that the plaintiff is an illiterate who had known only to sign. However, for the reasons stated supra and the manner in which she could manage the properties, with certain amount of precision, is an indicator that this illiteracy did not come in her way. The question only is degree of literacy and if a person is worldly-wise, this alleged deficiency cannot be a reason.
71. Thus, on a conspectus, when essentially the burden is on the plaintiff to establish tainted nature of these transactions, particularly when coercion, force etc., are alleged not only that there should be specific pleading furnishing all required particulars in terms of Order-6, Rule-4 CPC but also specific and acceptable evidence on which the Court can implicitly and unhesitatingly rely on. The material and the evidence of the plaintiff did not meet these requirements. Therefore, she failed to discharge the burden in this context. The defendants by the material on record have 1 .1988(3) APLJ 36 (SN) MVR,J A.S.No.2922 of 1990 26 probablised their case in preponderance. Therefore, inference to draw is that the originals of Ex.A1 to Ex.A4 were executed by the plaintiff in favour of the defendants 1 to 4 consciously out of free will, knowing their nature and with an intent to confer the properties thereunder in their favour.
72. The learned trial Judge erroneously placed burden on the defendants in this regard. As seen from the judgment under appeal the evidence on record did not receive required attention. There is no discussion at all with reference to the effect of Ex.B1 to Ex.B3. In these circumstances, for the reasons stated above, the findings recorded on issues 1 and 2 by the learned trial Judge are required to be interfered with and setting aside the same.
73. Thus, this point is answered in favour of the defendants and against the plaintiff.
POINT NO.2:-
74. Neither there is any pleading nor any proof laid by the plaintiff at the trial in this connection. The learned trial Judge in view of the findings on issues 1 and 2 apparently assumed that this relief for permanent injunction should be extended to the plaintiff.
75. In view of the findings recorded on point No.1 reversing the judgment of the trial Court on issues 1 and 2, now it is held that the plaintiff did not make out a case for grant of permanent injunction restraining the defendants from interfering wit her alleged possession and MVR,J A.S.No.2922 of 1990 27 enjoyment of the suit lands. On this score also, the judgment of the trial Court requires interference.
POINT NO.3:
76. In view of the findings on points 1 and 2, the decree and judgment of the trial Court have to be set aside. Consequently, the suit has to be dismissed.
77. In the result, this appeal is allowed setting aside the decree and judgment of the Court of the learned I Additional District Judge, Rajahmundry in O.S.No.59 of 1988 dated 25.01.1990. Consequently, the suit is dismissed. Permanent injunction granted thereby is dissolved. Having regard to the close relationship among the parties, they are directed to bear their own costs throughout.
As sequel thereto, pending miscellaneous petitions, if any, shall stand closed. Interim Orders, if any, shall stand vacated.
________________________ JUSTICE M.VENKATA RAMANA Dt: 29.01.2021 RR MVR,J A.S.No.2922 of 1990 28 HON'BLE SRI JUSTICE M.VENKATA RAMANA APPEAL SUIT No.2922 of 1990 Dt:29.01.2021 RR