Karnataka High Court
Sunkamma vs H. Ramayya Reddy And Others on 9 December, 1999
Equivalent citations: ILR2000KAR2681, 2000(1)KARLJ366
Author: K.R. Prasada Rao
Bench: K.R. Prasada Rao
JUDGMENT
1. This appeal is filed by the plaintiff against the judgment of the learned Second Additional Civil Judge, Bangalore, in R.A. No. 41 of 1991, dated 13-3-1995 dismissing the said appeal and confirming the judgment of the Trial Court dated 13-2-1991 in O.S. No. 75 of 1986.
2. For the sake of convenience, I shall refer the parties as arrayed in the Trial Court.
3. The plaintiff filed the suit for partition of the plaint schedule properties and for recovery of possession of her 1/4th share alleging that she is the second wife of one Pillareddy and defendants 2 and 3 are her daughters. First defendant is the son of Pillareddy by the first wife late Thimmakka. During the lifetime of Pillareddy, a partition took place between himself and the 1st-defendant under a registered partition deed dated 15-6-1972 and in the said partition the plaint schedule properties fell to the share of Pillareddy. Pillareddy died in or about the year 1980 and after his death plaintiff and defendants inherited the said properties as his legal heirs. Plaintiff is in joint possession and enjoyment of the plaint schedule lands, which are ancestral and joint family properties of Pillareddy. Plaintiff further alleged that in spite of several demands made, first defendant has evaded to effect a partition and separate possession of her 1/4th share in the suit schedule properties, she, therefore, filed the suit in the Trial Court for the relief of partition and separate possession of her 1/4th share in the suit schedule properties.
4. Defendants 2 and 3, who are the daughters of the plaintiff, have filed their written statement admitting the claim of the plaintiff and seeking for recovery of possession of 1/4th share belonging to each of them in the suit schedule lands expressing their readiness to pay necessary Court fee in respect of their shares.
5. Defendant 1 filed his separate written statement, wherein he admitted the relationship of plaintiff as the 2nd wife of his father-Pillareddy and of defendants 2 and 3 as the daughters of Pillareddy by his second wife, who is the plaintiff. He also admitted the fact that a partition took place between himself and his father Pillareddy under a registered partition deed dated 15-6-1972 and that the plaint schedule properties fell to the share of his father Pillareddy. According to him, his father Pillareddy died on 7-6-1981. He denied that after the death of his father, plaintiff, himself and defendants inherited the plaint schedule properties as alleged by the plaintiff. On the other hand, according to him, his father Pillareddy bequeathed the suit schedule Items 1 to 9, 14, 15, 17 and 18 under a registered Will dated 30-10-1972 in favour of the grandsons (his sons) Thimmna Reddy, Keshava Reddy and Ramesh Reddy and he bequeathed the remaining Items 10, 11, 12, 13 and 16 also in favour of the same grandsons under an unregistered Will dated 10-12-1979 during his lifetime. Consequently the said legatees have become the owners in possession and enjoyment of the said items of plaint schedule properties. He further contended that Items 14 and 15 of the plaint schedule properties have been tenanted lands which were in possession and enjoyment of M. Annaiahreddy of Kathraguppa Village under H. Pillareddy and consequently the said M. Annaiahreddy has been registered as an occupant of the said lands under the provisions of the Karnataka Land Reforms Act, 1961, though the said lands are the subject-matter of the registered Will dated 30-10-1972. He further contended that in respect of Item 12 of the plaint schedule, defendant 2 claimed occupancy lights alleging that she is the tenant of the said land under the provisions of the Karnataka Land Reforms Act, 1961 and her claim in this regard has been rejected. He also denied that the plaintiff is in joint possession and enjoyment of the plaint schedule land and contended that the plaintiff has never been in possession of the suit schedule properties and the Court fee paid is insufficient. Lastly, he contended that the suit is bad for non-joinder of necessary parties. So far as Item 19 of the plaint schedule, he claimed that the said land has been in his possession and enjoyment since a very long time without any kind of interference by anybody and consequently he has perfected his right by adverse possession in respect of the said land and therefore the suit is liable to be dismissed.
6. On the basis of the above pleadings between the parties, the Trial Court framed the issues placing the burden of proof on the 1st defendant to prove that his father-H. Pillareddy has executed the registered Will dated 30-10-1972 and unregistered Will dated 10-12-1979 in favour of his grandsons in respect of all the plaint schedule items except Item 19 and that he perfected his right by adverse possession in respect of the said Item 19. The Trial Court also framed an issue placing the burden of proof on the 1st defendant to prove that the plaint schedule Items 14 and 15 have been tenanted lands and one M. Annaiahreddy has been registered as an occupant in respect of the said items.
7. On appreciation of the evidence adduced by both parties, the Trial Court recorded a finding that all the plaint schedule lands except Item 19 have been bequeathed by Pillareddy in favour of his grandsons under the registered Will dated 30-10-1972 and unregistered Will dated 10-12-1979. The Trial Court further held that one M. Annaiahreddy has been registered as an occupant in respect of Item 14 of the plaint schedule lands measuring 3 acres 31 guntas. The Trial Court also rejected the contention of the 1st defendant that he has acquired rights by adverse possession in respect of Item 19 of the plaint schedule property. The Trial Court further held that the suit is bad for non-joinder of necessary parties since the beneficiaries under the said 2 Wills executed by Pillareddy are not parties to the suit. Consequently, the Trial Court dismissed the said suit. The First Appellate Court concurred with all the above findings recorded by the Trial Court and dismissed the appeal R.A, No. 41 of 1991 filed by the plaintiff. The plaintiff, therefore, filed the second appeal.
8. The following substantial questions of law have been formulated for consideration in the present appeal.--
"(1) Whether the Courts below were correct in dismissing the suit for non-joinder of necessary parties without calling upon the plaintiff to implead them as the parties to the suit?
(2) Whether the Courts below ignored the weight of the evidence, suspicious circumstances alleged and the preponderatory circumstances and were influenced by inconsequential matters in holding that the "Wills" -- Exs. D-2 and D-10 are genuine and were duly executed by the deceased -Pillareddy in sound state of mind and whether the said findings are liable to be set aside?"
9. I have heard the arguments advanced by Sri Udaya Holla, learned Counsel for the appellant, Sri P. Krishnappa, learned Counsel for the 1st respondent and Sri Viswanath Associates for respondents 2 and 3 and I have carefully gone through the evidence adduced by both the parties and the reasons given by the Courts below in support of the findings recorded on the material issues framed.
10. The learned Counsel for the appellant-plaintiff has vehemently contended that the Courts below have ignored the fact that the propounder of the two Wills, who is the first defendant, has failed to dispel several suspicious circumstances surrounding the execution of the Wills produced and have erroneously concluded that the Wills Exs. D-2 and D-10 produced arc the Wills executed by the deceased Testator Pillareddy. It is further contended by him that there is absolutely no whisper in the recitals of the Wills produced as to why the Testator has disinherited his nearest blood relations - the plaintiff, who is his 2nd wife and defendants 2 and 3, who are his daughters, by his second wife. It is also contended by him that the Courts below have erroneously accepted the explanation given by the propounder of the Will that the original Will dated 30-10-1972 has been lost when it was given to the custody of Tax Consultant though the said Tax Consultant has not been examined and no steps have been taken to prove that Will by secondary evidence. It is further contended by him that the Courts below have failed to draw a presumption that the original Will must have been destroyed by the Testator himself. It is also his contention that the Courts below have ignored the fact that the Wills produced are not natural in their disposition and that the Propounder has not made any attempt to explain the suspicious circumstances. According to him, a careful scrutiny of the second Will Ex. D-2 discloses that the signature of Pillareddy found on this Will is in the handwriting of the scribe himself. The learned Counsel for the appellant sought for leave of this Court to produce a certified copy of the sale deed dated 11-1-1990 executed in favour of the son of one of the Attestors of the Will-M. Venkataswamy Reddy by the beneficiaries under the Will in respect of the Item 12 of the plaint schedule properties bearing No. 126/1 of Varthur Village, Bangalore South Taluk, measuring 4 acres 34 guntas, by way of additional evidence and contended that the said property has been sold at a paltry sum of Rs. 1.40 lakhs though the market value of the said land was more than Rs. 15/- lakhs at the relevant time and that the said sale transaction took place about 21/2 months prior to the date on which the said Attestor M. Venkataswamy Reddy has given evidence and that the said sale was a kind of gift given by the 1st defendant in favour of the said M. Venkataswamy Reddy in order to make him to give false evidence in the suit. These contentions are taken by the appellant in the affidavit filed in support of I.A. No. I under Order 41, Rule 27 read with Section 151 of the CPC seeking for permission to produce the said document by way of additional evidence. He also pointed out several suspicious circumstances which throw a doubt regarding the genuineness of the Wills produced, in the course of his arguments, to which I shall refer in the following discussion. He finally contended that both the Courts below ignored the weight of preponderating circumstances and allowed the judgments to be influenced by inconsequential matters and therefore this Court is entitled to interfere with the concurrent findings recorded by appreciating the evidence and giving its own independent conclusions in the present second appeal. It is also contended by him that the Courts below have erred in law in holding that the suit is not maintainable for non-joinder of necessary parties, though the provisions of Order 1, Rule 10, CPC, clearly provide that no suit shall be dismissed on the ground of non-joinder of necessary parties and that the Court shall give opportunity to the plaintiff to implead necessary parties, even in the absence of an application seeking for the said prayer. In reply to all these contentions, the learned Counsel for respondent 1 submitted that there is no pleading in the plaint that her husband Pillareddy has not executed any Wills in favour of his grandsons and that the Wills produced by the 1st defendant are not genuine. It is further contended by him that even in the evidence given by the plaintiff she never asserted that her husband Pillareddy has not executed any Wills and that the Wills produced are not genuine and that she only claimed that she has no knowledge about the execution of the said Wills by her late husband. He further contended that the Courts below, on proper appreciation of the evidence adduced by the 1st defendant, have come to the conclusion that both the Wills produced were proved to be the genuine Wills executed by Pillareddy and there are no suspicious circumstances relating to the said Wills and there is nothing unnatural in the disposition since the properties are bequeathed only in favour of grandsons of the Testator. He further contended that the Courts below were justified in holding that the suit is not maintainable for non-joinder of necessary parties, when the plaintiff has not made any attempt to implead the beneficiaries under the Wills in spite of a contention taken in this regard in the pleadings of the first defendant and the question of providing the said opportunity to implead them as parties to the suit in the present second appeal at this belated stage does not arise. It is also contended by him that this Court is not entitled to interfere with the concurrent findings on questions of fact recorded by the Courts below in the present second appeal and no substantial question of law are involved in the present appeal.
11. I shall now proceed to consider the merits of the above contentions with reference to the evidence adduced by the parties, the probabilities in the case and the intrinsic evidence furnished by the recitals in the Wills. Before going into the merits of the matter, I shall first deal with the question whether this Court is entitled to interfere with the concurrent findings recorded on questions of fact in the present second appeal. In a decision of the Supreme Court in the case of Jagdish Singh v Natthu Singh, it was held that.--
"Where the concurrent findings of fact are vitiated by non-consideration of relevant evidence or by essentially wrong approach High Court is not precluded from recording proper findings".
In another decision of the Supreme Court in the case of Kochukakkada Aboobacker (dead) by L.Rs and Others v Attah Kasim and Others, it was held that.--
"Where the Trial Court and the first Appellate Court have not considered relevant documents in proper perspective and effect of those documents on the rights of the parties, the High Court is entitled to reconsider the evidence by drawing inference by the admitted documents".
In another decision in the case of Madan Lal v Mst. Gopi and Another , it was held that.--
"Whether both the Courts below ignored the weight of preponderating circumstances and allowed their judgments to be influenced by inconsequential matters, the High Court would be justified in re-appreciating the evidence and in coming to its own independent conclusions".
In another decision of the Supreme Court in Major Singh v Rattan Singh, it was held that.--
"The Trial Court and the First Appellate Court rejected material evidence on flimsy grounds. High Court has right to interfere on questions of facts in such cases".
In another decision of the Supreme Court in the case of D.S. Thimmappa v Siddaramakka, it was held that.--
"Where the First Appellate Court failed to draw proper inference from proved facts and to apply law in proper perspective, High Court in second appeal justified in drawing proper inference from such proved facts. It being not a case of appreciation of evidence, High Court's interference was proper".
Relying upon the principles laid down in the above decisions, it is contended by the learned Counsel for the appellant that the Courts below failed to draw proper inferences from the proved facts and the concurrent findings recorded by the Courts below are vitiated by non-consideration of relevant evidence, ignoring the weight of preponderating circumstances and by essentially erroneous approach to the matter. But the learned Counsel for the 1st respondent has relied upon a latest decision of the Supreme Court in the case of Kondiba Dagadu Kadam v Savitribai Sopan Gujar and Others , wherein it was held that.--
"Concurrent findings of fact, however, erroneous cannot be disturbed by the High Court in exercise of the powers under Section 100 of the CPC in second appeal".
He also relied upon another decision of the Supreme Court in the case of Dnyanoba Bhaurao Shemade v Maroti Bhaurao Marnor, wherein it was held that.-
"The High Court while exercising jurisdiction under Section 100, CPC could not interfere with pure findings of facts reached by both the Courts below on appreciation of oral and documentary evidence".
He also relied upon the decision of the Supreme Court in Smt. Deokali v Nand Kishore and Others , wherein it was held that.--
"Concurrent finding of fact that execution of Will was duly proved. Examined by High Court, would decline to interfere with the same. Alleged suspicious circumstances were also examined".
He also relied upon another decision of the Supreme Court in the case of Ramanuja Naidu v V. Kannaiah Naidu, wherein it was held that.--
"It is now well-settled that concurrent findings of fact of Trial Court and First Appellate Court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of the Civil Procedure Code".
Relying upon the above decisions, it is contended by the learned Counsel for respondent 1 that this Court is not entitled to interfere with the concurrent finding recorded by the Courts below that the Wills Exs. D. 2 and D. 10 produced are proved to be the genuine Wills executed by the deceased Pillareddy. It is clear from the above rulings of the Supreme Court that normally this Court is not entitled to interfere with the concurrent findings on questions of fact except in cases where it is found that the Courts below ignored the weight of preponderating circumstances and allowed the judgments to be influenced by inconsequential matters, where the concurrent findings of facts are vitiated by non-consideration of relevant evidence or by essentially erroneous approach to the matter or where the Courts below failed to draw proper inferences from the proved facts and to apply law in proper perspective.
12. It is an undisputed fact that the plaintiff is the second wife of deceased Pillareddy and defendants 2 and 3 are their daughters. It is also an admitted fact that under both the Wilts Exs. D. 2 and D. 10 produced by the 1st defendant all of them who are the nearest blood relations are disinherited and no item of property belonging to the Testator has been given to them and no provision is made even for their maintenance. It is further found that not even a reference is made to the said nearest blood relations in the Wills and no reasons are given for excluding them and for not giving any property to them. This is one of the main suspicious circumstance which is to be removed by the Pro-pounder of the Will, who is the first defendant. In fact, there is no evidence on record to show that during the lifetime of Pillareddy and at about the time when the Wills Exs. D. 2 and original of D. 10 came into existence, plaintiff and her daughters defendants 2 and 3 had any sore or sour relations with the Testator. Defendant 1 never stated in his evidence that the relations between plaintiff and her husband Pillareddy were strained for any reason and that they were not residing together at the time of execution of the alleged Wills. There is not even a whisper in the said Wills as to why the Testator has not chosen to provide anything to his second wife, who is the plaintiff and his daughters defendants 2 and 3 from out of his properties and there are absolutely no reasons as to why he excluded them. It is also admitted that the first wife of Pillareddy was not alive at that time and only after the death of his first wife, he married the plaintiff as his second wife. There is also no evidence on record to show that plaintiff has got any other properties of her own or that she has got any other source of livelihood. There is also no evidence on record to show that the marriages of defendants 2 and 3 were performed by Pillareddy during his lifetime and for that reason he did not find it necessary to give them any property. It is pointed by the learned Counsel for the appellant that the Trial Court has erroneously assumed in para 21 of the judgment that the plaintiff is having her own properties to have her livelihood, though no evidence is placed on record in this regard. It is further pointed out by him that in the same para the Trial Court also presumed that the marriages of defendants 2 and 3 were performed by Pillareddy during his life time though the first defendant himself has not stated this fact in his evidence and there is no evidence on record to draw such a presumption. It is also pointed by the learned Counsel for the appellant that the Courts below have totally made an erroneous approach to the matter by observing that the plaintiff herself has not disputed the genuineness of the Wills produced and the execution thereof by the Testator Pillareddy and so there is no reason to disbelieve the evidence given by the scribe and the attestors of the Will, who are examined as D.Ws. 2 to 4. It is further pointed out by him that the Courts below were under an erroneous impression that merely because nothing is brought about in the cross-examination of D.Ws. 2, 3 and 4, the scribe and the attestors of the Wills, their evidence relating to the execution of the said Wills by the Testator Pillareddy can be believed, when the execution of the said Wills is surrounded by several suspicious circumstances which are not removed and when the disposition made under the said Wills by excluding the nearest legal heirs-plaintiff and defendants 2 and 3 is found to be unnatural, improbable and unfair. On a perusal of the evidence adduced by the parties, it is found that there is absolutely no evidence to the effect that the plaintiff had properties of her own and that the marriage of defendants 2 and 3 were performed by H. Pillareddy during his lifetime. It is, therefore, clear that the Trial Court has wrongly assumed the said facts and came to an erroneous conclusion that there are justifiable reasons for the Testator to disinherit his second wife plaintiff and defendants 2 and 3 and in giving away all his properties in favour of his grandsons in preference to his nearest blood relations. Further, the Courts below have overlooked the principle of law laid by the Constitutional Bench of the Supreme Court in the decision in the case of Shashi Kumar Banerjee and Others v Subodh Kumar Banerjee (since deceased) by L.Rs and Others, wherein it was held.--
". . . The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was riot free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations".
In spite of the said clear principles of law enunciated in the above decision, the Courts below proceeded on the basis that because the plaintiff has not pleaded that the said Wills are not genuine and has not specifically denied the execution of the said Wills by her late husband Pillareddy, the evidence given by the scribe and the attestors D.Ws. 2 to 4 can be believed in spite of the presence of several suspicious circumstances surrounding the execution of the Will. The Courts below have also ignored that it is for the first defendant, who is the propounder of the Wills, to satisfy the conscience of the Court by clear and satisfactory evidence. In the present suit, the propounder of the Will could not produce any evidence to show that the dispositions made in the Wilt are not unnatural, improbable or unfair though the wife and daughters, who are the plaintiff and defendants 2 and 3 are disinherited and no reasons are given for excluding them by the Testator under the said Wills. In a decision of the Supreme Court in Smt. Indu Bala Bose and Others v Manindra Chandra Base and Another, wherein it was held that.--
".... A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person".
In the present suit, it is not the normal conduct of a person to bequeath the property in favour of his grandsons in preference to his nearest relations, his wife and daughters by totally excluding them without giving any property belonging to him and without making any provision at least for the maintenance of his wife i.e., for her residence, food and clothing. In this view of the matter, I find that the above said circumstance of exclusion of the plaintiff and defendants 2 and 3 under the dispositions made in the Wills is a suspicious circumstance and the dispositions made in the Will are unnatural, improbable and unfair. First defendant, who is the propounder of the said Wills has made no attempts to remove the doubts in this regard by adducing any clear and satisfactory evidence. In a decision of the Supreme Court in the case of Kalyan Singh v Smt. Chhoti and Others, wherein it was held that.--
"A Will is one of the most solemn documents known to law. The executant of the Will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the Court is not confined only to their testimony and demeanor. It would be open to the Court to consider circumstances brought out in the evidence or which appear from the nature and contents of the document itself. It would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.
The Will in the instant case, constituting the plaintiff as a sole legatee with no right whatever to the testator's wife could be said to be unnatural. It casts a serious doubt on genuineness of the Will. The Will has not produced for very many years before the Court or public authorities even though there were occasions to produce it for asserting plaintiff's title to the property. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty. Therefore, the conclusion that the Will was not genuine was proper".
In the present suit, the Courts below have merely believed the evidence of D.Ws. 2 to 4, the scribe and the Attestors on the only ground that nothing could be brought about in their evidence so as to disbelieve their testimony. But the Courts below have ignored the unnatural kind of disposition made under the Wills by excluding the wife and daughters and the fact that the said suspicious circumstance has not been removed by the 1st defendant by placing satisfactory material on record and that he has failed to discharge his duty. In another decision of the Supreme Court in the case of flow Piari v Bhagwant, wherein it was held that.--
"Where the testator, a father executed a Will bequeathing all his property in favour of sons of one daughter and disinherited the other daughter who had no sore or sour relations with testator and it was found that even though the testator could sign yet he put his thumb mark on Will and the professional scribe fetched by beneficiary's father admitted that when he reached beneficiary's residence where the Will was executed he found testator covered with quilt with whom he did not talk nor enquire about his health, the finding as to genuineness of Will recorded by the Court by erroneous application of principle of law could be interfered with".
In the present suit also, it is not shown that the defendants 2 to 4, who are the grandsons of the Testator were in dire circumstances and as such the dispositions are made in their favour by excluding the wife and daughters, who are not given any property. The Courts below failed to consider the above suspicious circumstances and have ignored the same while recording the finding as to the genuineness of the Wills. So this Court is entitled to interfere with the said concurrent finding recorded by the Courts below.
13. In another decision in the case of Smt. Guro v Atma Ram , it was held that--
"Where no reasons were mentioned in the Will why the appellant, who was the natural heir of the Testator, was being ignored and the propounder failed to remove the suspicions, the Will cannot be considered as a genuine".
In another decision of the Supreme Court in the case of Gurdial Kaur v Kartar Kaur, it was held that.--
"The law is well-settled that the conscience of the Court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925, but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and outstanding the contents of the Will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel the suspicious circumstance. It has been specifically held that in the decision of the Supreme Court in Rani Purnima Debi v Kumar Khagendra Narayan Deb, that the registration of the Will by itself would not sufficient to remove the suspicion".
Thus, in the present case, it is found that the first defendant has not dispelled the above suspicious circumstance of exclusion of plaintiff and defendants 2 and 3, who are the nearest blood relations under the dispositions made in the Wills Exs. D.2 and D.10 by the Testator by adducing any satisfactory evidence by way of reasons for their exclusion or by showing that the Testator himself has given any such reasons in the Wills.
13-A. The next suspicious circumstances pointed by the learned Counsel for the appellant is that the original of the registered Will Ex. D. 10, dated 30-10-1972 has not been produced and no satisfactory explanation is given for non-production of the said original Will and there is no proof that the said original Will contained the signature of the Testator-Pillareddy and that it was executed by the Testator. Though the first defendant has offered an explanation in his evidence that the said Will has been given by him and his father Pillareddy to their Tax Consultant and that the said original Will has been lost and so the same could not be returned by the Tax Consultant, the said Tax Consultant has not been examined by him to prove the said fact. It is further found that there is no acknowledgment from the Tax Consultant to prove that the said Will has been handed over to him by the Testator himself in connection with the filing of returns of agricultural income-tax. It is also admitted by the 1st defendant that his father did not preserve any copies of the documents handed over by him to the said Tax Consultant and he does not know whether his father has made a note regarding the documents handed over by him to the Tax Consultant. In the absence of any such evidence, it is not possible to believe the said explanation given by the first defendant that the said original Will has been lost after it was handed over to his Tax Consultant. Further, it is highly improbable and unbelievable that the said original Will could have been handed over to the Tax Consultant in connection with filing of agricultural income-tax returns when the Will takes effect only after the death of Testator. It is also found that the first defendant has not sought for permission of the Court to lead secondary evidence in respect of the said Will and he has not even summoned the registers from the office of the Sub-Registrar to prove due execution of the Will. Though it is for the propounder of the Will to prove the due execution of the Will, the Trial Court has erroneously observed that the plaintiff could have summoned the said registers from the office of the Sub-Registrar to prove her contention that the said Will is a fabricated document and that Pillareddy never executed the said document. In the absence of the original Will or the register summoned from the office of the Sub-Registrar containing the signature of the executor of the Will, the evidence given by the scribe of the Will M. Annaiahreddy who is examined as D.W. 2 and the Attestor of the Will D.W. 4 that Pillareddy executed the original Will, the certified copy of which is produced and marked as Ex. D. 10 cannot be given any weight and on the basis of the evidence given by these two witnesses it is not possible to hold that the execution of the original of the said Will by Pillareddy has been duly proved. In my view, the Courts below have ignored this important aspect and have erroneously held that the execution of the original of Ex. D. 10-Will has been duly proved by the evidence given by the scribe D.W. 2 and attestor D.W. 4. The learned Counsel for the appellant has relied upon a decision of the Allahabad High Court in the case of Santu v Maiku, wherein it was held that.--
"If a Will traced to the possession of the deceased and last seen there is not forthcoming on his death, it is presumed to have been destroyed by himself, and this presumption must have effect unless there is sufficient evidence to rebut it. The presumption will be more or less strong according to the character of the custody which the testator had over the Will".
In the present suit, since it is found that the explanation given by the Propounder of the Will that the original of Ex. D. 10 has been lost after it was given to the custody of his Tax Consultant by the Testator himself, could not be true, a presumption can be drawn that it must have been destroyed by the Testator himself. A presumption can also be drawn as provided under Section 114, illustration (g) of the Evidence Act that the said original Will has been deliberately withheld from production since it could not be the genuine Will executed by Pillareddy. Thus, it is found that non-production of the said original Will Ex. D. 10 is a strong suspicious circumstance which has not been dispelled by the 1st defendant and the Courts below have ignored this aspect of the matter. It is also found that the Courts below have ignored the fact that there is no proof of execution of the original Will-Ex. D. 10 by late Pillareddy. In the absence of the said document, the evidence given by the scribe D.W. 2 and the Attestor D.W. 4 relating to the execution of the original Will Ex. D. 10 is of no value. The learned Counsel for the 1st respondent relied upon a decision of the Supreme Court in the case of Parsini v Atma Ram, wherein it was held that.--
"In view of respondents' case that the Will was lost, secondary evidencet permitted to be laid by the parties and on examination of witnesses and having regard to all the facts and circumstances, Trial Court and first Appellate Court finding that the Will was duly executed. In second appeal Single Judge of the High Court considering the evidence by himself as if he was the first Appellate Court and concluding that genuineness of the Will was not proved. In the circumstances held, Division Bench of the High Court rightly restored the decree of the Trial Court having gone into the question within the parameters of law".
Relying upon the above decision, he contended that since the Courts below have accepted the evidence given by the 1st defendant that the original of Will Ex. D. 10 has been lost and recorded a concurrent finding that the execution of the original of Will Ex. D. 10 is duly proved, this Court is not entitled to interfere with the said concurrent finding. But, I am unable to accept this contention since it is found that the explanation given by the 1st defendant that the original of Ex. D. 10 is lost, could not be true and it is further found that the permission has not been taken by the 1st defendant to lead secondary evidence in respect of the said Will and the execution of the said Will has not been proved by summoning the registers pertaining to the registered Will from the Sub-Registrar's office and getting the signatures taken in the registers in connection with the said registration of the Will, identified as the signatures of the deceased Pillareddy by D.Ws. 2 and 4. The learned Counsel for the 1st respondent has relied upon a decision of the Supreme Court in the case of R.N. Mukherjee v P. Banerjee , wherein it was held that.--
"Deprivation of natural heirs by testatrix is not by itself a suspicious circumstance... The circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of Will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of Will; of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of the testatrix whereas the objectors descendants of a full blood sister, the disinheritance of the latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the Will".
But the facts in the present suit are completely different and the above decision is not applicable to the facts of the present case. In the dispositions made under the Wills produced, the nearest legal heirs, wife and daughters were totally excluded in preference to grandsons without giving any reasons for excluding them and for not providing anything to them during the lifetime of the Testator. It is also significant to note that the father of the beneficiaries-first defendant has taken his half share in the joint family and ancestral properties under the registered partition deed during the lifetime of the Testator and according to the evidence given by the 1st defendant, himself and his father were not on cordial terms after the date of partition and there was ill-will between him and his father on account of the partition. So, it is highly improbable and unbelievable that soon after the said partition within 31/2 months, when admittedly Pillareddy was not on good terms with his son-1st defendant on account of the partition, could have executed a registered Will dated 30-10-1972 bequeathing some of his properties in favour of the sons of the 1st defendant, totally excluding the plaintiff, who is his second wife and his daughters-defendants 2 and 3 who were not given any property. It is in this background, the non-production of the original Will dated 30-12-1972 assumes all importance particularly when the explanation offered for its non-production that it is lost, is found to be unacceptable and unbelievable. The non-production of the said original Will constitutes a strong suspicious circumstance, which is not removed by the Propounder of the Will. Further, it is found that there was neither any urgency nor there were any compelling circumstances for Pillareddy to execute a registered Will in the year 1972 about 31/2 months after the date of partition when he was in good physical health. It is also found from the evidence of the 1st defendant that his father Pillareddy was fluently reading and writing Kannada and he was also writing documents for others. Thus, when he was himself writing documents for others, it is highly improbable and unbelievable that he would have called D.W. 2-M. Annaiahreddy, who is residing in another Village-Katharaguppe, which is at a distance of 2 k.ms. from Halasa-halli, where 1st defendant was residing, asking him to go over to Anekal to write the first Will in the year 1972 and he would have sent for D.W. 4-Lakshmaiah Reddy, who is also a resident of different village Gona-gattipura to attest the said Will by going over to Anekal as claimed by D.Ws. 2 and 4. It is also not shown by the 1st defendant that there was any necessity for his father-Pillareddy to hand over the original of Will-Ex. D. 10 to the Tax Consultant by going to his office personally, when he never claimed that the said document is produced by the Tax Consultant before the Tax Authorities in any proceedings relating to agricultural income-tax pending at that time and when it is also not shown that the Tax Consultant, whose name he could not give, has given any acknowledgment for having received the said original Will along with other documents handed over to him. Even assuming that the said original Will has been handed over to the Tax Consultant for any purpose, the Testator would not have forgotten to take return of the said document. First defendant, who claimed to have accompanied his father to the office of the Tax Consultant at the time when the said Will was said to have been handed over to the Tax Consultant would not have also forgotten to take return of the said Will from the custody of the Tax Consultant. So, I find it difficult to accept the said explanation given by the 1st defendant that the said original Will has been lost while it was in the custody of the Tax Consultant. The abovementioned suspicious circumstances relating to the execution of the original Will-Ex. D. 10 remained unexplained and the above doubts created in the mind of the Court have not been removed by placing any acceptable evidence on record. There is nothing on record to show that the said original Will has been produced before any public authority at any time. On the other hand, it is found that the said Will has not seen the light of the day after its alleged execution, while according to the scribe D.W. 2-M. Annaiahreddy, the original of Ex. D. 10 was written by him at Anekal in a Temple, which is by the side of the office of Sub-Registrar, Anekal, the attestor D.W. 4 claimed that it was written near the office of the Sub-Registrar by D.W. 2. While, according to D.W. 2, the said Will was presented around 12.00 noon before the Sub-Registrar for registration, D.W. 4 claimed that it was taken to the Sub-Registrar after 4.00 p.m. on that day. At another stage of his cross-examination, he changed his earlier version and claimed that it was presented for registration at 12.00 noon. These conflicting versions given by D.W. 2 and D.W. 4 give room to suspicion that the said original Will might not have been executed by Pillareddy and it might have been a got-up and forged document. According to the scribe-D.W. 2, Pillareddy has sent word to him to go over to Anekal for the purpose of writing the original of Ex. D. 10-Will about 2-3 days prior to the date of execution of the said Will. According to D.W. 4, he was asked by the Testator to go over to Anekal about 8 or 10 days earlier to writing of the Will and on the day of writing the Will he has sent his man to him and so he had been to Anekal. D.W. 2 claimed that Pillareddy informed him to go over to Anekal about 2-3 days earlier to the writing of the first Will by going to his house. Curiously enough, he claimed that he informed Pillareddy that he will write the Will, on his invitation, whenever he send words. But he never claimed that Pillareddy sent words to him even on the date of writing the Will to go over to Anekal. The above evidence given by these witnesses appears to be highly artificial and unbelievable. D.W. 2-M. Annaiahreddy also admitted in his evidence that he has not written any other documents of Pillareddy except the two 'Wills'. He also admitted in his evidence that Pillareddy was literate and he knows writing of Kan-nada well. So, it is highly unbelievable that Pillareddy could have taken the assistance of this witness D.W. 2 for writing the original of Ex. D. 10-Will and the second Will Ex. D. 2 when this witness is a resident of different village Katharaguppe which is a distance of 2 k.ms. from his village, by personally going to his house and asking him to go over to Anekal for writing the Will. This witness also admitted that he is not the scribe of the registered Partition Deed evidencing the partition effected between Pillareddy and his son-lst defendant and he only attested the said document. So, it is highly improbable or unbelievable that this witness could have been asked to write the 2 Wills of Pillareddy. Similarly, the evidence of D.W. 4-Lakshmaiah Reddy, who attested the first Will, shows that he is a resident of different village-Gonagattipura, which is at a distance of 2 k.ms. from the village of Halasahalli. This witness also claimed that Katharaguppe is at a distance of 2 k.ms. from Halasahalli. Except stating that his father was a Patel and Pillareddy was the Patel of Halasahalli, he could not give any other reason why he was specially called by Pillareddy to attest the original of Ex. D. 10-Will. He also admitted that he is not related to Pillareddy. So, it is also highly improbable and unbelievable that Pillareddy could have requested this witness about 8 or 10 days earlier to the writing of the original of Ex. D. 10-Will to go over to Anekal for the purpose of attesting the Will. Though he claimed that Pillareddy sent word to him on the date of writing the Will to go over to Anekal, he could not give the name of the said person who was sent to him for that purpose. So, it is highly doubtful whether this witness could have been present at the time of execution of the original of Ex. D. 10-Will by Pillareddy and whether the said Will has been executed by Pillareddy in the presence of this witness. Further, when the original Will is not shown to this witness, who is the attestor and to D.W. 2, who is the scribe, and when the signature of the Executant on the original Will is not identified by them as that of Pillareddy, no reliance can be placed on the evidence of these witnesses that the said original Will has been executed by Pillareddy and that it bears the signature of Pillareddy. It is also found that the 1st defendant has not made out a case for leading secondary evidence in respect of the said original Will by examining the Tax Consultant to prove that the said original Will has been lost after it was given to the custody of the Tax Consultant and by seeking permission of the Court to lead secondary evidence in respect of the said Will. Thus, it is found that the concurrent finding recorded by the Courts below that the execution of the original of Ex. D. 10-Will by late Pillareddy is duly proved, is not supported by material documentary evidence viz., the "Original Will" and the Courts below ignored the preponderating circumstances and relied upon inadmissible evidence in giving the said concurrent finding. The Courts below have totally ignored the abovementioned suspicious circumstances surrounding the execution of the said Will and the fact that the Propounder failed to dispel them and have erroneously presumed the genuineness of the said "Will". Since the Courts below have failed to draw an inference that the original of Ex, D. 10-Will could not have been executed by Pillareddy on account of failure to furnish satisfactory explanation for its non-production by the 1st defendant and the Courts below failed to apply law in proper perspective, I find that this Court is entitled to interfere with the concurrent findings recorded by the Courts below relating to the execution and genuineness of the original of Ex. D. 10-Will.
13-B. Even in respect of the second Will-Ex. D. 2 produced in the case, it is pointed out by the learned Counsel for the appellant that the disputed signature of Pillareddy found on it, which is marked as Ex. D. 2(c) is in the handwriting of the scribe-D.W. 2 himself, as could be seen from the writing in the last 4 lines in the body of the Will. On a careful perusal of the disputed signature, it is found that the handwriting of the disputed signature appears to be similar and identical to the handwriting of the scribe-D.W. 2, who has written the said Will, though it is not possible to give any clear-cut finding in this regard in the absence of the evidence of the handwriting Expert, it is for the propounder of the Will, who is the 1st respondent to dispel the said doubt by producing any document containing the admitted signature of Pillareddy for comparison, which he has not done. It is also pointed out by the learned Counsel for the appellant that the attestor of the said Will-D.W. 3-M. Venkataswamy Reddy is found to be highly interested witness for the 1st defendant since the beneficiaries under the said Will who are the sons of the 1st defendant and grandsons of Pillareddy have sold 4 acres 34 guntas of land, which is one of the items of the plaint schedule properties under a registered sale deed dated 11-1-1990 in favour of the son of D.W. 3 for a paltry sum of Rs. 1.40 lakhs, though the market value of the said land was more than Rs. 15 lakhs at the relevant time. To prove this fact, he produced a certified copy of the said sale deed along with the Interlocutory Application No. I filed under Order 41, Rule 27 read with Section 151 of the CPC seeking for permission to receive the same by way of additional evidence. In the affidavit filed in support of the said application, the appellant alleged that she came to know about the said sale transaction only recently and so she could not produce the said evidence before the decree under appeal was passed. She also alleged in her affidavit that the real value of the said property sold was over Rs. 15 lakhs at the relevant time. The learned Counsel for the respondents, no doubt, opposed for receiving the said document by way of additional evidence by filing a counter to the said application. But, as it is found that the appellant had no knowledge about the said sale transaction at the time of adducing her evidence in the Trial Court and she came to know about it only during the pendency of the present appeal after securing the certified copy of the said sale deed, which was obtained on 19-8-1999, I find it necessary to permit the appellant to produce the same by way of additional evidence. I am also satisfied that the above said circumstance is a relevant circumstance for the purpose of deciding the question as to whether the second Will Ex. D. 2 is a genuine Will. Thus, it is clear from the above said sale transaction that about 2 months and 12 days prior to the date of giving evidence by D.W. 3, one of the items of the plaint schedule, has been sold in favour of his son Aswathaiah. This circumstance shows that D.W. 3 is an interested witness to the propounder of the Will, who is the 1st respondent. According to the appellant, though the said property was sold for Rs. 1.40 lakhs, the real market value of the same at the relevant time is Rs. 14 lakhs. It is pointed out by the learned Counsel for the appellant that the said property sold is situated in Varthur Village, which is very close to Bangalore City. Though the above contention of the appellant regarding the real value of the said land is not supported by any evidence on record, the said circumstance of the son of D.W. 3 purchasing one of the items of the plaint schedule properties from the beneficiaries under Ex. D. 2-Will about 2 months and 12 days before the date of giving his evidence itself is sufficient to show that D.W. 2 cannot be considered as a disinterested witness and his evidence cannot be believed without careful scrutiny. Further, it is found that he does not belong to Halasahalli Village, where the Testator Pillareddy was residing. On a careful scrutiny of the evidence of D.W.s. 2 and 3 regarding the alleged execution of the Will-Ex. D. 2, it is found that even the said Will could not have been executed by Pillareddy and it could not be the genuine Will of Pillareddy for the following reasons.--
It is in the evidence of the 1st defendant that his father Pillareddy was 80 years old at the time of his death in the year 1981 and he suffered from fever for about 5 days before his death. It is, therefore, clear that by the date of Ex. D. 2-Will which bears the date 10-12-1979, Pillareddy was 79 years old. But, curiously enough the scribe D.W. 2-Annaiahreddy claimed that Pillareddy personally came by walk to his village at the said advanced old age, one day earlier to the date of the execution of the Will Exhibit D. 2 and requested him to write the second Will. So, it is highly doubtful whether Pillareddy could have really gone to the village of D.W. 2 which is at a distance of 2 k.ms. by walk to call him to write the said Will when he was himself capable of writing the documents in Kannada. Further, according to D.W. 2, the second Will Ex. D. 2 was written in the house of Pillareddy around 10 a.m. But the Attestor D.W. 3-M. Venkataswamy Reddy claimed that the writing of the said Will was completed around 12.00 noon. Even this witness claimed that Pillareddy came by walk to his village which is at a distance of 2 miles to call him and requested him to be present at the time of writing of the Will. At an earlier stage of the cross-examination of D.W. 2 he claimed that the Will Ex. D. 2 was written around 2.00 p.m. These conflicting versions regarding the time at which Ex. D. 2 was written clearly go to show that Ex. D. 2 must have been a got-up document and it could not have been executed by Pillareddy. The evidence given by these 2 witnesses that Pillareddy could personally go over to their villages by walk at his advance age of 79 years for the purpose of calling them to be the scribe and attestor of the Will Ex. D. 2 is highly artificial and unbelievable when it is found that Pillareddy himself was writing documents of others. There is no evidence on record to show that, no witness could be secured from Halasahalli Village where Pillareddy was residing to attest the Will or that no document writer is available in that village for writing the Will. Further, the attestor D.W. 3 claimed that the scribe D.W. 2 has read over the document Ex. D. 2 loudly and thereafter handed over the same to Pillareddy, who also read over loudly. He even claimed that when the document was read over to him, he understood the recitals and felt that the contents of recitals are true. Even the said portion of the evidence given by this witness appears to be highly artificial and all the above circumstances give room to suspicion that the Will Ex. D. 2 could not have been executed by Pillareddy in the manner claimed by these witnesses. It is also significant to note that the age of Pillareddy is not mentioned in the said Will. The Will does not also mention about his near and dear relations, who are his second wife and daughters, who are not given any property and the reasons for disinheriting them. This Court has held in an earlier decision in Mariawwa v Kristappa Tam-manna Kavali and Others, that.-
"The propounder of the Will who should prove both execution and the disposing state of mind, becomes also fastened with the liability to remove suspicious circumstances, if any surrounding the execution of the Will. Generally speaking the omission on the part of a testator to make a mention of his near and dear relations who in the ordinary course should have been the object of his bounty, is a suspicious circumstance".
In the present suit also since there is no mention in Ex. D. 2 about the near and dear relations of the Testator, who are plaintiff and defendants 2 and 3 (wife and daughters) it is a suspicious circumstance surrounding the execution of the Will which has not been removed by the 1st respondent, who is the Propounder of the Will. Though the 1st respondent claimed that himself and his father Pillareddy were not on good terms at that time, he claimed that the said Will Ex. D. 2 was handed over to him by his father which could not be the natural conduct of the Testator, if really he was not on good terms with his son 1st respondent. By saying so, though the first respondent made it appear that he has not taken any active part in getting the Will Ex. D. 2 executed by his father and was residing separately from his father, he admitted in his evidence that his father was residing along with his grandsons and in the same house he is also residing in a separate portion. So, the possibility of the 1st defendant taking active part in obtaining the Will Ex. D. 2 from Pillareddy, even if it is a fact that Ex. D. 2 bears his signature, by exercise of undue influence, cannot be ruled out and it is not possible to hold that Pillareddy voluntarily executed the Will Ex. D. 2 in favour of the sons of the 1st defendant particularly when nothing is given to his wife and daughters and when not even a provision is made for the maintenance of his second wife, who is the plaintiff. It is also admitted by him that both the attestors to the Will, have no lands in his village at that time. For this reason also, it is highly improbable and unbelievable that the attestors D. Ws. 3 and 4 could have been called by Pillareddy to attest the Wills Exs. D. 2 and the original of Ex. D. 10, from the neighbouring villages when they are not the residents of Halasahalli Village and that they could have been really present and witnessed the execution of the said Wills by late Pillareddy. On the other hand, it is quite possible that these witnesses might have subscribed their signatures to got-up "Wills". It must be for this reason, D.W. 2 inadvertantly admitted that the scribe D.W. 2 had read over the contents of Will Ex. D. 2 to him and on account of it he understood the recitals and felt that the contents of Ex. D. 2 are true. In fact this witness never claimed that the Testator Pillareddy has admitted before him that the contents of Ex. D. 2 were correctly written as instructed by him, before he attested that Will. Thus, it appears that D.W. 2 blurted out the truth that he attested Ex. D. 2 after the contents were read over to him. The necessity of reading over the contents of the Will Ex. D. 2 to the Attestor D.W. 2 could have arisen only on account of the absence of this witness at the time of execution of the said Will by the Testator and calling upon him to attest the Will subsequently. Thus, all the above suspicious circumstances surrounding the execution of Ex. D. 2 and the original of Ex. D. 10 have not been dispelled by the Propounder of the Will, who is the 1st defendant. One more strong suspicious circumstance pointed out by the learned Counsel for the appellant is that non-production of the said 2 Wills before the Revenue Authorities to get the names of the legatees under the said Wills, who are the sons of first defendant entered in the Mutation Register in respect of the plaint schedule lands, till the year 1991 subsequent to the filing of the suit. It is pointed out by him that in the Trial Court, the plaintiff produced the extracts of Index of Land and Record of Rights to show that the entries were made in the said registers for the first time in the year 1990-91 in respect of the suit schedule lands in favour of 3 sons of first defendant, who are legatees under the said Will. He further pointed out that the first defendant, who is the Propounder of the Wills, has not produced these documents and suppressed the fact that the said mutation entries have not been made in favour of his sons till the year 1990-91. On verification of I.L. and R.R. extracts for the year 1990-91, which are produced in the Trial Court by the plaintiff and which are available in the lower Court records, it is found that the names of the legatees under the said Wills, who are the sons of 1st defendant, were entered in the registers of I.L. and R.R. for the first time only in the year 1990-91 during the pendency of the present suit in the Trial Court. Thus, the fact that the above said Wills have not been produced before the Revenue Authorities for getting the names of the legatees entered in the Mutation Register in respect of the plaint schedule lands till the year 1991 i.e., till about 4 years after the filing the present suit, itself is a strong circumstance which casts serious doubt about the genuineness of the said Wills. As already pointed out by me, it is not shown by the 1st defendant that the original of Ex. D. 10, the first Will has been produced before the Income-tax Authorities, though he claimed to have handed over that Will to his Tax Consultant for the purpose of filing agricultural income-tax returns by going in the company of his father Pillareddy. Thus, both the above said Wills relied upon by the 1st defendant have not seen the light-of-the-day till the year 1990-91 and the original of first Will Ex. D. 10 has never seen the light-of-the-day. As it is also found that the disputed signature of Pillareddy found on Ex. D. 2 second Will is almost similar to the handwriting of the scribe D.W. 2, the said circumstance creates a strong suspicion that Ex. D. 2 could have been a forged Will. This doubt is further strengthened by another circumstance of non-production of the documents containing the admitted signatures of Pillareddy, which are in possession of the 1st defendant, who admitted the said fact. So, the Trial Court had no advantage of comparing the disputed signatures found on Ex. D. 2 with the admitted signatures of Pillareddy to come to a correct conclusion regarding the genuineness of the said Will. If the documents containing the admitted signatures of Pillareddy had been produced by the 1st defendant in the Trial Court, plaintiff could have sought for appointment of a Handwriting Expert for comparison of the disputed signature of Pillareddy on Ex. D. 2 with the admitted signatures of Pillareddy to demonstrate that Ex. D. 2 is not a genuine Will executed by her husband Pillareddy. So far as the first Will Ex. D. 10 is concerned, since it is only a certified copy, the Trial Court had no opportunity to find out whether the original of the same could have been executed by Pillareddy in the absence of the original Will and other documents containing the admitted signatures of Pillareddy for comparison of the disputed and admitted signatures. Since the explanation of-fered by the first defendant for non-production of original of Ex. D. 10 is found to be unbelievable, the only inference that could be drawn from the non-production of the original Will is that it is either deliberately kept back as it is a forged document or that it is not at all in existence as it should have been destroyed by the Testator himself by way of cancellation of the Will by changing his mind, if it were to be a genuine Will executed by him.
14. The Trial Court has made much of the answer given by plaintiff in her cross-examination that she is not aware of any unregistered Will executed by her late husband in favour of sons of 1st defendant in respect of some of the suit schedule properties and that she does not know that her husband has executed any registered Will in respect of some of the properties in favour of the sons of defendant 1 and has drawn an erroneous inference that she has not specifically denied the execution of the said Wills by her husband Pillareddy. But the above said answers given by the plaintiff only go to show that, to her knowledge, her husband Pillareddy has not executed any Wills bequeathing his properties in favour of his grandsons. So, no inference can be drawn from the above statement made by her in her cross-examination that she has not disputed the genuineness of the Wills Ex. D. 2 and original of Ex. D. 10 and has not specifically denied the execution of the said documents by her husband. Apart from this fact, it is made clear in the ruling of the Constitutional Bench of the Supreme Court in Shashi Ku-mar Bunerjee's case, supra, that.-
"Even in the absence of any plea, it is for the Propounder to satisfy the conscience of the Court that the Will produced by him is genuine not obtained by exercising undue influence or by playing fraud or under coercion, when the circumstances give rise to doubts".
In the present suit as it is found that there are suspicious circumstances surrounding the execution of the Wills Ex. D. 2 and original of Ex. D. 10 and as it is further found that the 1st defendant, who is the Propounder of the said Will has failed to explain them to the satisfaction of the Court and to dispel the doubts by clear and satisfactory evidence and it is further found that substantial benefits are conferred in favour of the sons of the 1st defendant under the said Wills to the exclusion of the wife and daughters of Testator for no reasons, it is not possible to hold that the said Wills are genuine and were duly executed by deceased Pillareddy in sound state of mind. The Courts below, in my view, have ignored the weight of the evidence, the fact that the propounder of the Wills who is the first defendant, has not dispelled the suspicious circumstances surrounding the execution of the Will which were referred in the foregoing discussion and were influenced by inconsequential matters in holding that the two Wills relied upon are genuine and were duly executed by deceased Pillareddy in sound state of mind, I find that the said findings are liable to be set aside. I, accordingly, answer point 2 in the affirmative.
15. Since it is found that the Wills produced are not genuine, the legatees under the said Wills, who are the sons of the 1st defendant, do not get any right, title or interest in respect of the plaint schedule lands. So, I find that they are not necessary parties to the suit. Further, the Courts below have clearly erred in law in holding that the suit is liable to be dismissed for non-joinder of necessary parties, overlooking the provisions of Order 1, Rule 9 and Order 1, Rule 10 of the CPC which make it clear that 'no suit shall be defeated by reason of the misjoinder or non-joinder of parties and that the Court may at any stage of the proceedings either upon or without the application of either party and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added'. In an earlier decision of this Court in Mohammed Kasim Ali v Smt. Iyder Zohrabi, it was held that "In a suit for partition the alleged legatees claiming under a Will executed by the deceased as owner of the properties are not necessary parties". So, in view of the above legal position, I find that sons of the 1st defendant, who are claiming to be the legatees under the above said two Wills, are not necessary parties to the present suit, which is a suit filed for partition, particularly when the Propounder of the said two Wills, who is the first defendant is a party to the suit. Since it is also found that the Wills relied upon by the 1st defendant are not the genuine Wills executed by late Pillareddy the legatees under the said Wills are not necessary parties to the present suit, for the said reason also. This Court in a Division Bench ruling in Y.K. Subbanna v Kamaiah, has held that.-
"In a suit for partition, when a person is entitled to share in the properties is not impleaded as a party, the suit cannot be dismissed for non-joinder of necessary parties. The Court has to direct the plaintiff to implead such person as a party and only on plaintiff's failure to do so dismiss the suit".
In view of the above legal position, the Courts below were not correct in law in recording a finding that the suit is liable to be dismissed for non-joinder of the legatees under the Will as parties to the present partition suit.
16. For all the above reasons, I answer Point No. 1 in the negative.
17. In view of my above findings, I find that the plaintiff is entitled to the relief of partition and separate possession of her 1/4th share in all the plaint schedule lands except in Item No. 14 which is a tenanted land in respect of which occupancy rights were granted in favour of one M. Annaiahreddy. The finding recorded by the Courts below that the 1st defendant has not acquired any rights by "adverse possession" in respect of Item No. 19 of plaint schedule property, as contended by him, remained unchallenged since the first defendant has not filed any appeal or cross-objections challenging the correctness of the said finding.
18. In the result, this appeal is allowed, with costs throughout, setting aside the judgments of the Courts below and the suit is decreed for the relief of partition of all the plaint schedule properties except Item No. 14, into 4 (four) equal shares and for recovery of possession of 1/4th share of the plaintiff. Defendants 2 and 3 are also entitled to seek for recovery of possession of their respective 1/4th shares in the plaint schedule properties by paying necessary Court fees. A preliminary decree shall be drawn accordingly. The plaintiff is entitled to file a separate application for recovery of mesne profits in respect of her share, from the date of suit till the date of delivery of possession, to be accounted for, by the first defendant.