Andhra HC (Pre-Telangana)
Suram Indira Devi vs Suram Bhoodevi And Others on 17 August, 1999
Equivalent citations: 1999(6)ALD177, 1999(5)ALT745
Author: I. Venkatanarayana
Bench: I. Venkatanarayana
JUDGMENT
1. The unsuccessful plaintiff in the suit is the appellant. The plaintiff instituted OS No.5 of 1977 on the file of the District Judge, Warangal for partition of plaint 'A' schedule properties into four equal shares and for allotment of three such shares to the plaintiff.
2. For the sake of convenience the parties to this appeal will be referred to in accordance with their ranking in the suit.
3. The minor plaintiff Suram Indira Devi represented by their next friend and father Suram Pratap Reddy has instituted the present suit for partition of her 3/4th share in the plaint 'A' schedule properties and also seeking an injunction against defendants 2 and 3 from in any manner interfering with her right in the properties since she was adopted by late Suram Kanakaiah who owned plaint 'A' to 'C' schedule properties and that by virtue of the adoption that took place on 21-4-1969 and also by virtue of Ex.A.20 (will) executed by late Kanakaiah on 17-3-1971 she became entitled to 3/4th share in the plaint 'A' schedule properties and all the moveables in plaint 'B' and 'C' schedule properties and that the 1st defendant became entitled to life interest in the remaining 1/4th share in the plaint 'A' schedule properties with the vested remainder in favour of the 3rd defendant. The plaintiff subsequently impleaded defendants 4 to 11 on the ground that they obtained sale deeds and agreements from the 1st defendant in respect of various items of properties covered by the plaint schedule properties. Defendants 12 to 18 have been impleaded as legal representatives of the 4th defendant who died during the pendency of the suit and defendants 19 and 20 have later been added as legal representatives of the 1st defendant who died during the pendency of the suit. It is the case of the plaintiff that after the death of Suram Kanakaiah, his wife Suram Bhudevi, the 1st defendant, on the evil advice of 2nd defendant and her brother, began acting adversely to the interests of the plaintiff and colluded with the 2nd defendant. She filed OS No.80 of 1971 on the file of the Subordinate Judge. Warangal, claiming partition of the properties between her and 3rd defendant alleging that the 3rd defendant was taken in adoption by late Suram Kanakaiah on 29-4-1964 although there was no such adoption. Ultimately the said suit ended in a collusive compromise which did not affect the rights of the plaintiff. In order to protect the legitimate interests of the plaintiff she sought to be impleaded herself as defendant in the said suit but the trial Court dismissed the said application and the said order was confirmed by the High Court in CRP 112 of 1972. These proceedings would not in any manner affect the rights of the plaintiff and hence this suit for partition has been filed. Filing of the present suit has become inevitable since the 1st defendant has been adopting hostile attitude and has not been co-operating with the minor plaintiff in seeking proper and equitable division of properties.
4. Defendants 1 to 3 filed written statement resisting the suit. The averments in the written statement are as set out hereunder:- The averment that the plaintiff was adopted by Kanakaiah is not correct and that the printed invitation card produced or filed is a fabricated document and late Kanakaiah could not have adopted the plaintiff with the intention of performing her marriage with the 3rd defendant who was his adopted son as they would evidently be within the prohibited degrees of marriage. Late Kanakaiah neither brought up nor adopted the plaintiff. The 3rd defendant was adopted by Kanakaiah on 29-4-1964 and later a registered adoption deed was executed by Kanakaiah on 15-5-1970 which was registered in the office of the Joint Sub-Registrar, Warangal. Neither the plaintiff nor anyone on her behalf, muchless the next friend have been or are in possession of the properties left behind late Kanakaiah and all the properties of late Kanakaiah after his death have devolved by succession on defendants 1 and 3 and have been in their continuous and uninterrupted possession. The pattas of the lands have been mutated in the name of the 3rd defendant after the death of Kanakaiah. It is absolutely untrue that the plaintiffs father either assumed the management of the suit lands or he continued to be in possession of the same after the death of Kanakaiah. Certain disputes arose after the death of Kanakaiah between defendants 1 and 2 which resulted in institution of a partition suit in OS No.80 of 1971 by the 1st defendant. The plaintiff's father who was casting an evil eye to devour the properties of late Kanakaiah and was waiting for an opportunity to take advantage of differences between the defendants availed that opportunity and filed a petition on behalf of the plaintiff in OS No.80 of 1971 to implead his daughter as party to the suit basing her claim on the will alleged to have been executed by late Kanakaiah without even a whisper about the alleged adoption of the plaintiff by late Kanakaiah. The plea of adoption had been thought of at the time of filing of the suit only as an after thought with a view to usurp the properties of defendants 1 and 3 and to harass them. Late Kanakaiah never adopted the plaintiff and he could no have adopted the plaintiff without the consent of the 1st defendant and the 1st defendant never gave such consent and the adoption set up by the plaintiff is void ab initio. The plaintiff never stayed with the 1st defendant or her husband Kanakaiah and the plaintiff's father tried to get the plaintiff impleaded in OS No.80 of 1971 by making false representations which was, however, dismissed and confirmed by the High Court. The suit OS No.80 of 1971 ended in a compromise between the 1st defendant and the 3rd defendant herein which created heart burning and disappointment of the plaintiff's natural father and the compromise effected between the 1st defendant and 3rd defendant in the other suit OS No.80 of 1971 was on the advice of the lawyers. The plaintiff being out of possession of the suit property should seek the relief of possession also which she failed to do. Subsequent to the compromise in OS No.80 of 1971 defendants 1 and 3 partitioned and are in separate possession of their respective shares. In the event of the plaintiff relying on the will they should obtain the probate proceedings and establish the bona fides of the Will. Hence the suit is liable to be dismissed.
5. Defendants 4 to 11 have been, impleaded as parties to the suit on the ground that they are alienees of the properties from the 1st defendant. Defendants 4 to 11 filed a separate written statement to the following effect:- These defendants vehemently denied that the plaintiff is the adoptive daughter of late Kanakaiah or that she was brought up by him as an adopted daughter. The 3rd defendant is the adopted son of late Suram Kanakaiah as is evident by a registered adoption deed. The plaintiff has described herself merely as one brought up by Kanakaiah and in order to advance herself as the alleged adopted daughter she suppressed the fact that the 3rd defendant is their adopted son. The 2nd defendant managed the estate of late Suram Kanakaiah after the death of Kanakaiah and after the disposal of the suit OS No.80 of 1971. The 1st defendant as the absolute owner sold away the properties that fell to her share to defendants 4 to 11. The plaintiff is put to strict proof that she was adopted by Kanakaiah and that Kanakaiah executed the will. Defendants 4 to 6 and 8 purchased from the 1st defendant Ac.4-00 of land situate in survey No.469/c under the registered sale deeds dated 1-5-1973 and 2-5-1973 for proper and valid consideration and these defendants who are brothers since partitioned that land and are in possession of their respective shares. Defendants 4 to 6 and 8 who are divided coparceners from 1974 further purchased from the 1st defendant on 10-6-1976 under an agreement of sale executed by her for and on behalf ofthemselves and their brother the 7th defendant an extent of Ac.2-30 guntas in Survey No.177/B and 198, Ac.0-12 guntas iirS.No.191 and Ac0-03 guntas in S.No.356/A along with a rear yard with a small house being the l/4th of the family housing property at Yelakurthi Haveli which went to the share of the 1st defendant herein in the family partition and remining 3/4th share therein is held by the 3rd defendant and the same was leased to the 8th defendant who is in occupation as a lessee. These defendants having paid valuable consideration to the 1st defendant have obtained possession and after delivery of possession they are holding the lands bearing survey Nos.177/B and 198 as a 'Kancha' land and S.No.356/A as 'Peradu' land. They partitioned the rest of the properties purchased by them. The 9th defendant purchased from the 1st defendant an extent of Ac,3-OS guntas in Survey No.482/B under the registered sale deed dated 1-5-1973 and is in possession and enjoyment of the same. Defendant No.10 purchased from the 1st defendant on 17-8-1975 under a sale agreement executed by her admeasuring Ac.0-21 guntas out of Survey No.281 and is in possession of the same having paid the entire sale consideration of Rs.2,800/- in part performance of the said contract. On 17-8-1975 the 11th defendant purchased about Ac.0-32 guntas of land in Survey Nos.178/B and 193 under the sale agreement executed by the 1st defendant and she received the entire sale consideration of Rs.4,140/-. The defendants thus are bonafide purchasers for value without notice of the claims of any other persons or the litigation initiated or of the suit filed by or pursued by Suram Pratap Reddy in the name of his minor daughter. These defendants are not aware of the suit and the 1st defendant has assured these defendants showing the final decree for partition between herself and the 3rd defendant and hence she is entitled to sell the same.
6. On the death of the 4th defendant, his legal representatives defendants 12 to 18 have been added and on the death of 18th defendant his legal representatives defendants 19 and 20 have been added in the year 1981. These legal representatives did not file any separate written statement.
7. The plaintiff has filed a rejoinder contending that defendants 4 to 11 have won over the 1st defendant after the death of Kanakaiah with view to set up false plea and the partition suit between the 1st defendant and the 2nd defendant was the creation of defendants 4 to 11 for their own purpose with a view to deprive the plaintiff of her legal rights. The adoption pleaded by the defendants is fictitious. The 1st defendant was won over by the defendants and has created a false partition and false deeds and false agreements without her knowledge and consent.
8. The trial Court framed appropriate issues on the validity of the will dated 17-3-1971 and the validity of the adoption of the plaintiff and the 3rd defendant. The trial Court has put the parties to trial and on the basis of the oral and documentary evidence let in by both the parties has dismissed the suit disbelieving the will and the adoption set up by the plaintiff. Hence the present appeal.
9. Sri N. V. Suryanarayana Murthy the learned Counsel for the plaintiff has made a detailed and elaborate submission on the validity of the will Ex.A20 executed by late Suram Kanakaiah in favour of the plaintiff and the adoption of the plaintiff into the family of late Kanakaiah and the 1st defendant. It is his contention that late Suram Kanakaiah took in adoption the minor plaintiff with a view to give her in marriage to the 3rd defendant and in turn take him as an illatom son-in-law. He placed strong reliance on Ex.A.20 will dated 17-3-1971 executed by late Suram Kanakaiah which according to him is a genuine testament under which the plaintiff has been given 3/4th share in the immovable property and life interest in the remaining 1/4th share to the 1st defendant with vested remainder in favour of the 3rd defendant.
10. At the out set I would address myself to the question of validity of the adoption set up by the plaintiff. It is the case of the plaintiff that she has been adopted by late Kanakaiah on 29-4-1969 under Hindu Adoption and Maintenance Act. In the instant case the burden is on the plaintiff to prove that there was such an adoption. For discharging that burden PWs.1 to 3 have been examined and Exs.A1 to A7, A9 and A29 were marked on behalf of the plaintiff. The principal witness to speak about the adoption on behalf of the plaintiff is PW1 who is no other than the father of the minor plaintiff and also her next friend conducting the suit. He speaks of the performance of the adoption ceremonies on 21-4-1969 at Elkurthi Haveli and at that time he along with his wife sat on the planks opposite to Kankaiah and his wife the first defendant herein and plaintiff was given new clothes and that the ceremony took place at about 10-00 or 10-30 a.m. and in that ceremony he and his wife placed the minor plaintiff Indira Devi in the hands of Kanakaiah and the 1st defendant and they took the minor and relations have attended the function for which invitation card Ex.Al was printed and that the relations attended the function and gave presents which were recorded in Ex.A9, noted by one Suram Venkata Reddi of Devannapet and that photos were also taken at the time of the ceremony as evidenced by Ex.A2, A3, A4 and A5 which is enlarged copy of Ex.A6. In the cross-examination he has stated that Kanakaiah was his grand father's younger brother Narasaiah's son and that defendants 4 to 6 are also related to Kanakaiah, According to PW1, one Venkateswarlu officiated as Purohit at the time of adoption and also for the obsequies of late Kanakaiah, PW2 Suram Rami Reddi is a resident of Devallapet which is nearer to Elkurthi and he claims that he is related to Kanakaiah. He is alleged to have attended the adoption ceremony on invitation and he speaks about the Purohit conducting the ceremonies and presenting new clothes to PW1 and his wife and the plaintiff. PW3 who is related to PW1 speaks of having attended the function of adoption and also he wrote a list of names who have attended the' function and gave presents which were noted in the book Ex.A9. This witness stood as a surety to PW1 in a criminal case and his evidence does not apear to be trustworthy. PW4 Mohd. Yakub Ali was engaged for playing band outside the house and he does not speak about the ceremony of giving and taking. PW5 is a resident of Pedda Pendyal village and he speaks to having attended the function. PW6 claims that he is the one who has initiated the idea of adoption. PW7 belongs to Elkurthi and he speaks of the adoption ceremony but he was not present when photographs were taken, PW8 is Suram Bhudevi who is the 1st defendant who in her written statement has denied adoption of the plaintiff by her husband and herself and strangely has come as a witness on behalf of the plaintiff and denied having filed the written statement and having engaged a layer and having filed prior suit. Contrary to her stand in the pleading, now she supports the theory of adoption of the plaintiff. She has completely turned hostile to her own statement filed earlier and has supported the plaintiff during the trial. Her total denial of everything and she even to the extent of stating that the adoption and execution of will took place on the same day which is not the case of the plaintiff clearly shows that she is not speaking the truth. Her evidence is totally unreliable and liable to be discarded as untrustworthy. The evidence let in on behalf of the plaintiff is through the persons belonging to Elkurthi village and their version of adoption is quite inconsistent, contradictory and unnatural. The blurred photographs Exs.A2 to A7 do not infuse confidence and no photographer has been examined to prove its bona fides. Ex.A9 book giving the list of persons who gave presentations appears to be artificial and could not have been prepared on the date of adoption. Most of the documents relied on by the plaintiff were procured long after filing of the suit and they do not establish the bona fidies.
11. It is the case of the defendants that PW1 is a chronic litigant known for manoevering documents. It is also in evidence that PW1 has been prosecuted by Police (Ex.B25) in Crime No.42 of 1972 for having broke-open the lock of the record room of the Tahasil Office and committed theft of five pahanies and forged the documents. Ex.A26 is certified copy of the judgment showing that he has been acquitted in CC No.477 of 1975. He was accused in Crime No.498/2/58 for an offence under Section 379 IPC. Ex.B44 is the judgment copy in CC 426/2/52 in which the Principal Magistrate, Warangal has released PW1 on probation of good conduct under Section 562 Cr.PC in respect of allegation that he posed as CID Constable and wore uniform to look like a Police and cheated a person. PW1 denied the aforementioned facts but admits that there were 10 to 15 criminal cases filed against him. He has also been a accused of committing theft of camera with the films taken at the time of the alleged adoption of 3rd defendant which was spoken to in the cross-examination of PW9. All these facts would show that PW1 who signs in English is an intelligent person and is a chronic litigant. At this juncture it is relevant to state that the 1st defendant filed OS No.80 of 1971 on the file of the Subordinate Judge, Warangal for partition in respect of Kanakaiah's properties against the 3rd defendant claiming half share devolved on her and the other half on the 3rd defendant and for partition. The stand taken by the 1st defendant at that time was that 3rd defendant has been adopted by the said Kanakaiah and therefore he became entitled to half share. At that time the 1 st defendant did not think of plaintiff as a heir of late Kanakaiah, muchless as an adopted daughter of Kanakaiah in 1971. Ex.Bl is the petition filed by the present plaintiff seeking to implead her in OS No.80 of 1971 contending that the plaintiff has been living with late Kanakaiah treating her like a foaster daughter and that PW1 has been managing the properties and that the Will Ex.A20 dated 17-3-1971 has been executed according to which the implead petitioner has got a right in Kanakaiah's properties. This application was dismissed and that order was confirmed by the High Court. In these proceedings PW1 has merely relied on the will Ex.A20 and curiously did not ever whisper about the adoption. PW1 who is a seasoned litigant would not have failed to bring the factum of adoption to the notice of the Court if really the adoption has taken place in 1969 as claimed by him. Taking into consideration all these facts, evidence and probabilities, it has to be held that the plaintiff failed to prove the adoption and the trial Court has rightly held that there was no adoption as claimed by the plaintiff.
12. Now I will address myself to the will set up by the plaintiff. Plaintiff claims 3/4th share in the plaint 'A' schedule immovable properties of late Kanakaiah by virtue of a will Ex.A20 said to have been executed by fate Kanakaiah. This will dated 17-3-1971 has been attested by Suram Venkata Reddi, Gunda Sai Reddi, Chinna Kami Reddi and one Jagannadham. The scribe is one Talluri Sarabhachary. Under this will the plaintiff is a beneficiary entitled to 3/4th share in the immovable properties of late Kanakaiah to devolve on the minor plaintiff with absolute rights and life interest in 1/4th share on the 1st defendant for her life time with vested remainder to the 3rd defendant. For proving the will the plaintiff examined PW1, the father of the plaintiff, PW2 an attestors of the plaintiff and PW8 the 1st defendant who is the widow of late Kanakaiah, and PWs.10 and 11 the attestors of the will. PW1, the father of the minor plaintiff, has stated in his evidence that Kanakaiah died on 28-4-1971 in Dharmasagaram village due to tuber culosis and that he got him treated for two years and relied on the presciption chits Exs.A10 and A11 and the reports of the doctors Exs.A12 to A16 and the identification card of T.B.Hospital Ex.A17 and the medical bills dated 17-3-1971 Ex.s.A18and 19. According to the evidence of PW1 this will was written at a weaver's house at Kommanapalli and that after the death of Kanakaiah the plaintiff has been in possession of the plaint schedule properties. PW1 does not actually speak to the factum of execution of will in his presence and the attestors attesting the will in his presence. The scribe of the will was not examined. Gunda Sai Reddy, one of the attestors, is admittedly the father-in-law of PW1 and another witness Chinna Rami Reddi is also from Devannapet to which place the father-in-law belongs. Suram Venkata Reddi who is examined as PW10 is an attestor of the will. He is the brother of PW1. PW11 Jagannadham is the last attestor and his identity has been questioned and it is the contention of the defendants that his name is not Jagannadham and he is an imposter. A perusal of Ex.A20 unregistered will written on a stamp paper furnishing details of all survey numbers with particulars of extents and assessments for each survey number running into four pages would throw suspicion about the execution of the will. In fact the will need not be written on a stamp paper but it has been written on a stamp paper with a view to show the bona fides of the date of execution. In the present case the propounder himself took prominent role in the execution of the will. Since the propounder took a prominent role in the execution of the will and has received substantial benefit under it that itself is treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion from the mind of the Court, by clear and satisfactory evidence.
The Supreme Court dealing with proof of the will and the suspicious circumstances attending on it, has clearly stated that the onus of proof is on the propounder. In H. Venkatachala Iyengar v. B.N. Thimmajamma, : the Supreme Court held as follows:
"However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the tester, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law Courts would be justified in making a finding in favour of the propounder. In other words the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature, the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators, but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts to the matter.
Apart from the suspicious circumstances above referred to in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decision of English Courts often mention the test of the satisfaction of judicial conscience. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been vatidly must be fully satisfied that it had been validly executed by the testator who is no longer."
In view of the above judgment of the Supreme Court it is the duty of the Court to see whether Ex.A.20 executed by the testator just before his death reflects the true mind of the testator. In the present case the scribe of the will was not examined and the contents of the will conferring benefit on the minor plaintiff throws any amount of suspicion. The present version of the plaintiff that she was adopted in 1969 with due ceremonies performed is not at all referred to in this will and the plaintiff has not been referred to as the adopted daughter. As stated earlier, PW1 who is a seasoned litigant would not have ignored this important fact. This clearly throws suspicion on the bona fides of Ex.A20 will. The contents of the will in Ex.A20 reveal that both minor plaintiff Indira Devi and the 3rd defendant Gopala Reddy were brought to his house by late Kanakaiah and both were adopted by him. It also reads that Kanakaiah desired to give his properties after his life time to minor plaintiff 3/4th share and life interest in the remaining 1/4th share to his wife and the vested remainder to the 3rd defendant. This arrangement does not reflect the natural disposition of the testator. All the immovable properties excluding the house have been divided under the will and out of them 3/4th share in 'A' schedule was given to the plaintiff and life interest in 1/4th share to the 1st defendant and the vested remainder to the 3rd defendant. There is no provision in the will to provide residence to the wife. The anxiety on the part of the loving husband would be to provide residence for his widow after his death. This is totally absent in the will. Further he gave away all the moveables to the plaintiff which is not natural when his wife was expected to survive him. It is also in evidence that Kanakaiah filed OS No.50 of 1970 (Ex.B.16) on the file of the Principal Munsif Managistrate, Warangal against PW1 for recovery of amounts. This clearly shows that there was no love lost between Kanakaiah and PW1, the father of the minor plaintiff. It is highly improbable that with strained relations between PW1 and Kanakaiah he would have executed Ex.A20 will just prior to his death. The disposition made in the will appears to be unnatural, improbable and unfair in the relevant circumstances. The contents of the will are not the result of the free will and mind of the testator.
13. For all the afore-mentioned discussion, I hold that both the will and the adoption set up by the plaintiff cannot be accepted. The trial Court has rightly dismissed the suit I do not see any valid grounds to interfere with the same.
14. The appeal, therefore, fails and is accordingly dismissed. There will be no order as to costs.