Andhra HC (Pre-Telangana)
Sri Chintala Satyanarayana vs Smt. Chintala Kistamma on 21 September, 1995
Equivalent citations: 1996(3)ALT22
Author: Syed Saadatulla Hussaini
Bench: Syed Saadatulla Hussaini
JUDGMENT M.N. Rao, J.
1. This letters patent appeal arises from the judgment of a learned single judge in A.S.No. 477/1980 dismissing the appeal of the plaintiff confirming the judgment and decree passed by the trial Court in O.S.No. 73/1976 dismissing the suit filed by the plaintiff seeking partition of suit A & B schedule properties into two equal shares and allottment and possession of one share in his favour.
2. The suit was laid on the averments that the appellant was the adopted son of the defendant and her husband Agaiah, the adoption having taken place on 3-6-1962. He pleaded that his marriage was solemnized by the adoptive parents on 30-1-1963, that he and his wife lived for a period of eight months with the adoptive parents and that thereafter as disputes arose between the defendant and his wife, he had to leave the house. The adoptive father died on 2-2-1976. It was also averred in the plaint that a panchayat was held before the Vyshya Sangham-the parties belong to Vyshya community-and the Sangham gave an award on 20-11-1964 to the effect that the plaintiff and his adoptive parents should live together and that the properties of the family should not be alienated by the adoptive father. The suit properties consist of A and B schedules. A Schedule property consists of two houses. One of the suit properties, house bearing municipal door No. 10-5-486,situated in Nizamabad was alleged to have been sold by the adoptive father. B schedule property consists of moveable properties viz., golden and silver ornaments etc. The suit was instituted on 22-4-1976. In the written statement filed by the defendant it was asserted that no adoption had taken place. The plaintiff was a stranger and he had no manner of right whatsoever for a share in the plaints schedule properties. She also pleaded that the properties were self acquired properties of her husband Agaiah.
3. We should mention in this context that one more suit O.S. 18/74 was also instituted by plaintiff against his adoptive parents seeking a declaration that he was the adopted son. Both the suits were tried together and a common judgment was delivered. In O.S. 18/74 apart from issue No. 1 viz., whether the plaintiff was taken in adoption by the defendants and the same was binding on the defendants, a specific issue-issue No. 2-was framed in the following terms:
"Whether the plaintiff has any right in the suit moveable and immoveable properties"?
4. So far as O.S. 73/76 from which the present letters patent appeal arises, the two relevant issues are-
(1) Whether the plaintiff is the adopted son of the defendant and her husband? and (2) Whether the plaint A and B schedule properties are the joint family properties of the plaintiff, defendant and her husband Agaiah and whether the plaintiff is entitled to the same?
5. The adoptive father died on 2-2-1976. On 3-9-1978 an additional written statement was filed by the defendant in O.S. 73/76 taking a specific plea that her husband Agaiah had executed a will in September, 1975 bequeathing the property to her brother's daughter and her husband.
6. It needs to be mentioned here specifically that no rejoinder was filed by the plaintiff controverting the aforesaid pleadings and, therefore, the trial Court did not frame any issue on the question relating to the validity or genuineness of the Will.
7. As already stated supra, both the suits were tried together and a common judgment was delivered. O.S. 18/74 by which the plaintiff sought a declaration about his status as adopted son was decreed, while O.S. 73/76 was dismissed. No appeal was preferred by the plaintiff (sic. Defendant) against the judgment in O.S. 18/74. In so far as O.S. 73/76 was concerned, the unsuccessful plaintiff preferred first appeal to this Court. As regards O.S. 18/74, the judgment and decree became final as the matter was not carried in appeal. The consequence of the judgment and decree becoming final in O.S. 18/74 is that the issues decided therein cannot be agitated in any subsequent proceedings.
8. As already stated supra, the common issue in both the suits was whether the plaint schedule properties were self acquired properties of Agaiah or joint family properties? The finding recorded in O.S. 18/74, as well as the suit under appeal (O.S. 73/76) was that the properties were self acquired properties of the husband of the defendant. Insofar as this aspect is concerned, it is not open to the appellant-plaintiff to canvass the correctness of that finding. It is well settled that when two suits are tried together and disposed of by a common judgment and if only one appeal is filed against one of the suits, the judgment and decree in the other having attained finality cannot be disturbed in the appeal preferred against the other judgment (vide K. Krishnan v. T.T. Devasthanam, (D.B.)).
9. Before the trial Court, the Will Ex.X-1 was produced by D.W.11, an upper division clerk working in the office of the Registrar of Assurances. The Will was deposited by late Agaiah in a sealed cover in the Registrar's Office. After his death, it was the evidence of D.W.3 that in the house, he came across the receipt indicating the deposit of the Will. Therefore, steps were taken to summon the document. D.W. 14 is one of the attestors of the Will.
10. The trial Court, as already noted supra, held that the properties were self acquired properties of late Agaiah and that the Will Ex.X-1 was proved validly and, therefore, the plaintiff was not entitled to a share.
11. The learned single judge, after considering the evidence on record came to the conclusion that the Will was genuine and the plaintiff was not entitled to claim a share in the self acquired property of late Agaiah.
12. In this appeal before us, realising the insurmountable difficultly to canvass the correctness of the finding regarding the nature of the plaint schedule properties-whether joint family properties or self acquisitions-the learned counsel for the appellant has confined his contentions to the validity of the Will Ex.X-1. He says that if Ex.X-1, the Will is set aside, the plaintiff will be entitled to claim half share as Agaiah is no more and also there is a decree in O.S. 18/74 in plaintiff's favour declaring his status as that of the adopted son of Agaiah, by which he will have right to the extent of half share in the property. He also says that the condition in the Will to the effect that:
"This Will, will be subject to the result of the suit O.S.No. 18/74 filed by one Satyanarayana against me and my wife Chintala Kishtamma, now pending in the Sub-Judge's Court, at Nizamabad"
clearly implies that after the decree was granted in O.S. 18/74 in favour of the plaintiff-the adoptive son-the Will has lost its validity.
13. We are not inclined to accept either of these contentions. We have no manner of doubt as to the genuineness or validity of the Will Ex.X-1. It was produced from official custody-from the office of the Registrar of Assurances by D.W. 11, a Senior Assistant. One of the attestors of the Will was examined as D.W. 14 and he stated in his evidence that in his presence, the document was signed. He is an independent witness unrelated to the testator. He asserted that the testator was hale and healthy and in a sound and disposing state of mind at that time. As regards identification of the document, the other attestor could not be examined. We have it in the evidence of D.W. 14 that the other attestor lives at another place called Chandoor, he was suffering from illness and he lost his eye-sight. Added to that he was an old managed about SO years. Nothing was elicited in the cross-examination of D.W. 14 to discredit his testimony in any manner.
14. It is the contention of Shri Govind, learned counsel for the appellant that there are several suspicious circumstances suggestive of invalidity and lack of genuineness of the Will. The first and the foremost circumstance is that the testator who was examined earlier on commission said in his evidence that he was suffering from illness and was not in a position to sign. Next, the document Ex. X-1 was not read out to the attestor before it was deposited. These two circumstances should not be lost sight of in deciding this aspect is the vehement assertion of the learned counsel. In the normal circumstances, we would have attached great importance to these two contentions but in the particular circumstances of the case, we have absolutely no manner of doubt that the aforesaid two circumstances do not warrant the inference that the Will was not genuine. There was no need for the Sub-Registrar of Assurances to insist upon the testator to read out the Will before it was signed by him. Equally it is settled law that the attestor need not know the contents of the Will. We have already stated the reasons why the second attestor could not be examined-he was an old man aged about 80 years, lost sight in one eye and was living in a different village called Chandoor.
15. The most important aspect that deserves special notice in this case is the high degree of animosity prevalent between the plaintiff and his adoptive father. The adoptive father had filed two suits O.S.Nos. 158 and 159 of 75 against the plaintiff-appellant, one for restraining the plaintiff-appellant, one for restraining the plaintiff from entering into the house and the other that in the event of the adoptive father dying the funeral rites should not be performed by the plaintiff-appellant herein. We cannot imagine of no greater degree of animosity between an adoptive parent and his adopted son. In this state of evidence it is impossible for us to draw any inference even remotely that the testator was interested in giving any share in the property to the adopted son.
16. Another contention strongly pressed before us is that under the Will no disposition was made in favour of the widow-the defendant in the case. It is true that no item of property was given to the widow but that is a matter for the widow to agitate. On the other hand, it was the defendant who was responsible for causing production of the Will and getting it propounded and she also gave evidence. It is therefore, not possible for us to draw an adverse inference with regard to the genuineness of the Will.
17. As regards the point that the testator was unwell sometime back when he gave evidence in O.S. 18/74 on 3rd December, 1975, having been operated upon for Cancer, and as his evidence shows that he was unable to sign, it could not be believed that he had the requisite strength to append his signature to the Will Ex.X-1. At the first blush this argument sounds attractive but on deeper consideration, we have no hesitation, to reject the same. Merely because when the testator figured as a witness in December, 1975 he was suffering from illness, it could not be reasoned that his illness continued subsequently also totally disabling him from appending his signature. On this aspect, except the inferential suggestions put forward in the form of argument by the learned counsel of the appellant, there is no other evidence.
18. Coming to the second aspect about the conditional clause in the Will Ex. X-1, we are of the considered view that at best it is a neutral circumstance, even without such a clause in Ex. X-1, it would be subject to the result of the suit O.S. 18/74. A specific mention in the document Ex.X-1, that the will would be subject to the result of the suit is, therefore, totally immaterial. Viewed from this point, the decisional law- S. Panchaksharamma v. Chinnabbayi, ; Kaivelikkal v. Ganesh Bhandary, 1995 (5) SCALE 23; K. Venkatasubbaiah v. S. Narayanamma, ; and Narayan v. Pandurang, AIR Bom. 404 -upon which reliance was placed by the learned counsel for the appellant-plaintiff is of no assistance to him.
19. For the foregoing reasons, affirming the view of the learned single judge, we dismiss the appeal but in the circumstances without costs.