Andhra HC (Pre-Telangana)
V. Venkateswara Rao vs Y. Nageswara Rao And Others on 13 October, 1999
Equivalent citations: 1999(6)ALD602, 1999(6)ALT715
Author: I. Venkatanarayana
Bench: I. Venkatanarayana
ORDER
1. The first defendant is the appellant. A suit OS No.80 of 1995 has been filed by the plaintiff on the file of the sub-Court, Avanigaada for declaration of title and possession of the suit schedule property from the defendants.
2. For the sake of convenience the parties to this appeal would be referred to in accordance with their ranking in the suit.
3. The suit schedule property is a terraced house constructed in 375-1/4 square yards of site in assessment No. 1131 of the village Mopidevi. The suit schedule property was purchased by 4th defendant on 5-3-1983. Originally it was a vacant site, but subsequent to purchase the 4th defendant has constructed a house. The defendants 1 and 3 are the son and daughter of 4th defendant. The 3rd defendant is the unmarried daughter of the 4th defendant. The 4th defendant executed the gift deeds on 10-8-1987 on 21-8-1987 regarding the suit property benefiting the 3rd defendant with absolute rights. The 3rd defendant in her turn sold the suit property to the plaintiffs on 7-9-1988 under a registered sale deed. The plaintiff has contended in his plaint that he is neighbour to the defendants 3 and 4 and defendants i, 3 and 4 promised him to vacate the house soon after they secured alternative accommodation. But the first defendant has served a caveat notice on the plaintiff according to which the suit property belongs to him and he sold the same under the agreement of sale to the second defendant. In such circumstances the plaintiff was contrained to file the present suit seeking declaration of title and for recovery of possession of the suit property.
4. The suit is resisted by the first defendant. He fifed the written statement which was adopted by the second defendant. According to the written statement of the first defendant the suit property was acquired originally by his father Damodhar Rao with self earnings but obtained the sale deed dated 5-3-1982 in the name of his wife 4th defendant. So the 4th defendant has no title to gift the property to third defendant. The first defendant also contended that his father Damodhar Rao has executed his last will and testament bequeathing the suit property to him and after the death of Damodhar Rao the will marked as Bx.B6 came into effect under which the fourth defendant has only a limited right of residence leaving the vested remainder to the 1st defendant, it is his contention that the plaintiff has played fraud and undue influence over defendants 3 and 4 due to the disputes between defendants 1 and 4 in these days. It is also his contention that the 3rd defendant was a minor at the time of the gift and also at the time of sale and therefore she could not have validly accepted the gift and validly executed the sale deed.
5. The defendants 3 and 4 have filed independent written statements contending that the first defendant refused to look after the welfare of the defendants 3 and 4 and the 3rd defendant was yet to be married.
The plaintiff" was living next to their house started influencing the 4th defendant promissing that he would see that the property will be saved from 1st defendant. He gained the confidence of the defendants 3 and 4 induced the plaintiff to execute the registered gift deeds with respect to the property in favour of the 3rd defendant. In short they supported the case of the plaintiff but also set up an independent plea that the first defendant has not been looking after them. After the framing of issues and before the commencement of the trial defendants 3 to 4 have given up their defence.
6. Based on the pleadings the trial Court has addressed itself to issue "whether the registered gift deed dated 10-8-1987 and 21-8-1987 are true and valid and whether the sale deed dated 7-9-1988 is true and valid and whether the will dated 28-2-1985 is true and valid?" Based on the oral and documentary evidence the trial Court has decreed the suit holding that Ex.B6 will is not executed by late Damodhar Rao and that gift deeds executed by the 4th defendant are true and valid and that the plaintiff was entitled to the decree of declaration and possession.
7. Aggrieved by the decree and judgment, the first defendant has filed the present appeal.
8. Sri V.V.L.N. Sharma the learned Counsel for the appellant has vehemently contended that Ex.B6 will is valid and binding and that the attestors have been examined. It is also his contention that defendant No.3 was a minor and he is incapable of accepting the gift and hence it should be held as void. Before the case is taken up for the trial the defendants 3 and 4 have given up their defence and hence the first and second defendants alone contested the suit.
9. I will first address myself to the issue as to whether the will dated 28-2-1985 is true and valid. It is a well settled proposition that in a case where the propounder of the will is the beneficiary and he takes the active part the burden is upon him to remove the suspicious circumstances surrounding the will. It is also well established that the burden of proof of the will is on the propounder and that apart from the suspicious circumstances the propounder takes prominent role in execution of the wills which confers upon him substantial benefit, the burden is heavily upon him to remove those suspicions circumstances regarding the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It has been held by the Courts that the propounder has to satisfy the judicial conscience. The test emphasises that in determining the question as to whether an instrument produced before the Court is the last will of the testator the propounder of the will is under a greater obligation to prove by clear evidence that the will was executed by the testator and at the time of executing the will he was free and possessed of sound and disposing state of mind. The law is well settled that the 'onus probandi lies on the person who propounds the will and this onus is in general discharged by proof of capacity and the fact of execution from which the knowledge and assent to its contents by the testator will be assumed. Their Lordships of the Supreme Court have also considered the question of burden of proof of will in H. Venkatachala v. B.N. Thimmajamma, A!R 1959 SC 443. Their Lordships have observed thus:
"Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the India Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to except proof with mathematical certainly. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks front 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 statement of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same inquiry 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 testator, 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 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, the Courts would be justified in making a finding in favour of the propounder In other words, the onus of the propounder can be taken to be discharged on proof of the essential facts just indicated."
10. In the present case Ex.B6 is an unregistered will alleged to have been executed in the hospital of Dr. B.K. Raju by the testator. This will was executed 10 days prior to his death and DWs.2 and 3 belonging to another village are the attestors. According to their evidence they are supposed to have visited the hospital to see ailing Damodara Rao. On information by the testator about his intention to execute the will, they are supposed to have attested the will. In the normal course of things and circumstances, where the testator is in a hospital the doctor will be one of the attestors to testify about the sound state of mind of the testator. It is also in evidence that the testator has dictated the will for one and half hours and the attestors were not present at the time of his dictation. The fact that the testator was able to dictate the will for about one and half hours is clouded with suspicious circumstances. Another important circumstance that throws lot of doubt about the bonafide execution of the will is that the will has been produced into Court after five years of the filing of the suit. In fact, the will is produced with a petition under Order 13, Rule 2 CPC seeking to condone the delay in filing the documents. The affidavit supporting the petition does not furnish as to why the will is being filed after five years period. All these circumstances create suspicion over the genuineness of Ex.B6 and it does not satisfy the judicial conscience of the Court. Apart from this, the property covered by the will belongs to the 4th defendant as is evident from Ex.B5. Ex.B5 sale deed dated 5-3-1982 executed in favour of the 4th defendant clearly shows that it was purchased out of her Stridhana property. Even the 1st defendant in his written statement has clearly admitted in Para 6 of the written statement that his mother has purchased three acres of wet land situate in the village Peddaprolu with her Streedhana. Taking into consideration the above admissions, it has to be held that the testator had no right to convey the suit schedule property under the will Ex.B6. From the aforementioned discussion it has to be held that Ex.B6 will is not a genuine document and it does not confer any right on the 1st defendant.
11. Now coming to the question whether the plaintiffs sale deed is true and valid, the evidence of the plaintiff clearly establishes that he purchased the plaint schedule property from the 3rd defendant under the registered sale deed dated 7-9-1998 for Rs. 1,15,000/- under Ex.A1 and that he paid the entire sale consideration as stated in Ex.A1 to the 3rd defendant. He has also deposed regarding the capacity to raise the sale consideration. He has clearly stated that he got Ac.3-00 of land which he sold in the year 1982 and also asserted that he purchased the suit schedule property under Ex.A1 with those sale proceeds. Besides this, he was a deafer in kerosene and diesel. All these factors would conclusively establish that the plaintiff lias purchased under registered sale deed the suit schedule property for a valid consideration and the trial Court has rightly decreed the suit. Insofar as the gift deeds are concerned, the learned Counsel for the appellant lias contended that the 3rd defendant was only 17 years and 6 months and she was not competent to receive the gifts. In a judgment of this Court reported in Julakanti Krishna Murthi v. A.y. Ramanaiah, AIR 1958 AP 213, it was held that acceptance of a gift is not something which was necessarily to take place only after the transfer is complete or effected. If a near relation seeks a gift and a gift deed is drawn up because of that request, it is open to the Court to hold on the basis of that antecedent request at any rate in the light of the surrounding circumstances that the intended transfer of properly was accepted. The law does not require that there should be proof that there was acceptance only after the deed was executed.
12. In view of the aforementioned discussion, I hold (a) that the suit schedule property was validly conveyed under Ex.A1 to the plaintiff, (b) that the will Ex.B6 is clouded with suspicious circumstances and hence invalid and (c) that the gift deeds executed by the 4th defendant in favour of the 3rd defendant are true and valid,
13. For all the afore-mentioned discussion, I hold that the trial Court has rightly decreed that suit. The appeal fails and is, therefore, dismissed. There will be no order as to costs.