Andhra HC (Pre-Telangana)
Veeramallayyagari V. Sitaram vs Payala Chandrasekhar, Minor Guardian ... on 13 March, 2001
Equivalent citations: 2001(6)ALD143
JUDGMENT
1. In the Appeal Suit as well as Transferred Appeal suits, the appellants are aggrieved by the common judgment and the decrees dated 11.11.1981 in four different suits. It is convenient to dispose of all the four appeals by this common Judgment.
2. A.S.No.3025 of 1982 (which may be treated as main appeal) arises against the Judgment and decree in O.S.No.1 of 1977 (which is the main suit) on the file of the Court of Subordinate Judge, Madanapalle and Tr. Appeal Nos.3519, 3520 and 3521 of 1985 arise against O.S.Nos.32 of 1978, 30 of 1978 and 32 of 1978 respectively on the file of the said Court. All the four suits are concerned with all or some of the items of the properties owned by one Payala Kondappa (also described as kondaiah) of Somula village near Madanapalle, Chittoor district. The items of properties include dry lands, wet lands as well as house site. Alt the parties in all the suits are closely related either by birth in the same family or by marriage. During the pendency of the suits. Kondappa died. His second wife Mallamma who is the first plaintiff in the main suit also died. The death of these two has given scope to the learned counsel for the parties to raise new grounds which were not pleaded, proved or raised before the trial Court properly nor raised in these appeals.
3. Be that as it may, before noticing the pleadings, it is convenient to notice the relationship of the parties. One Payala Kondaiah had some agricultural properties viz. coconut, mango, lemon and beetle leaf plantations in Somula village. He had two sons - Payala Kondappa and Payala Siddappa. The brothers lived jointly and even jointly purchased some properties after the death of their father. Kondappa married one Atcliamma and through her he had a daughter by name Parvatamma. After the death of Atcliamma, Kondappa married Mallamma and through Mallamma he begot Chandrasekhar and Reddemma. The marriages of the daughters - Parvatamma and Reddemma - were performed. Reddemma was given in marriage to one Veeramallaiahgari Sitaram. The younger brother of Kondappa viz., Siddappa had two sons by name Sitaramaiali and Kodandaramaiah.
Payala Mallamma and her son Chandrasekhar filed suit for partition being O.S.No.1 of 1977 adding Kondappa (Dl). Sitaram (D2). Seetharamaiah (D3). Kodandaramaiah (D4), Parvatamma (D5) and Reddemma (D6). Sitaram filed a suit being O.S.No.757 of 1976 on the file of the Principal District Munsif, Punganur which was later transferred and numbered as O.S.No.103 of 1978 on the file of the Subordinate Judge's Court, Madanapalle. This suit is for perpetual injunction restraining Kondappa from interfering with the possession of the lands, which were allegedly demised to Sitaram under a registered lease deed dated 29.3.1976. The third suit 0 S.No 30 of 1978 by Kondappa against Sitaram and his brother Krishnamurthy is for cancellation of the lease deed made in respect of items 3 to 10 of the suit schedule properties and a sale deed dated 27-3-1976 in respect of item No.2 which is a house site, on the ground of fraud and misrepresentation. The fourth suit i.e. O.S.No.32 of 1980 is filed by Reddemma, the daughter of Kondappa through his second wife for partition of 1/6th share in all the properties left behind by Kondappa.
4. The parties shall be referred to as they are arrayed in O.S No 1 of 1977. In A.S.No.3025 of 1982, Tr.A.S.Nos.3520 of 1985 and 3521 of 1985. Sitaram is the appellant who is the second defendant in O.S. No.1 of 1977. Whereas Reddemma sixth defendant in O.S No.1 of 1977 filed Tr.A.S.No.3519 of 1985.
Pleadings in A.S.No.3025 of 1982:
5. In the suit O.S.No.1 of 1977 Mallamma, the plaintiff and minor plaintiff. Chandrasekhar pleaded as follows. The plaint schedule properties, items 3 to 9 (agricultural properties) item No 1 (house) item 2 (house site admeasuring 4 1/2 cts.) are joint and undivided properties of Kondappa, the first defendant. The first defendant had two sons Reddeppa and Chandrasekhar and one daughter Reddemma. The first son Reddeppa died when he was 19 years and as per Hindu Succession Act all the properties that may have fallen to the share of Reddeppa devolved to his mother, the first plaintiff. As such, the first plaintiff and the first defendant who are enjoying the properties of the latter are entitled to 1/3rd share each because they are ancestral and joint family properties and acquired by the first defendant out of ancestral properties. The first defendant became disabled and the first plaintiff is supervising the affairs of the family including cultivation. Kondappa installed oil engine to the well in the agricultural lands and cultivating paddy. Taking advantage of misunderstandings between the first plaintiff and the first defendant, the second defendant who is the husband of the sixth defendant instigated the first defendant to keep the family jewellery and cash with the second defendant. As the second plaintiff is a minor and the first plaintiff is a woman, defendants 1 and 2 colluded with each other. The first defendant without there being any legal necessity executed a lease deed in respect of the plaint schedule properties in favour of the second defendant for a lease amount of Rs.5,000/- per year though the properties will yield more than Rs.5,000 or Rs.6,000/-
per annum. The lease deed is not intended to be acted upon, that it was not acted upon and in any event the same is not binding on the plaintiffs. As the action of the first defendant is adverse to the interest of the plaintiffs, they filed the suit for partition. During the pendency of the suit, the first plaintiff died and Siddappa the younger brother of the deceased Kondappa was appointed as guardian of the minor second plaintiff as per the order dated 9-11-1979 in I.A.No.778 of 1979. Kondappa also died on 24-11-1979. therefore, an amendment was sought and ordered in the plaint to the effect that after the death of Mallamma and Kondappa, the minor plaintiff is entitled to 11/18th share whereas sixth defendant is entitled to 5/18th share and Parvatamma 2/ 18th share. Defendants 2 and 3 were made parties as Kondappa allegedly executed a will dated 13-11-1979 bequeathing his share in the property to the second plaintiff and defendants 3 and 4 equally.
6. The first defendant (Kondappa) filed a written statement. He denied any collusion with the second defendant. He further stated that while he was in an unsound state of mind, the second defendant fraudulently got the lease deed executed exerting undue influence, that the consideration for the lease is disproportionate when compared with the minimum yield from the agricultural land which is Rs.10,000/-, that he has not delivered possession of the lands to the second defendant and that he has no objection for partition of suit schedule property giving 2/third share to the plaintiffs.
7. The second defendant who is the husband of sixth defendant filed a written statement as follows. The plaintiffs and the first defendant are members of Hindu joint family. The first defendant himself was managing the joint family properties. The first plaintiff is not looking after the affairs and she never managed the plaint schedule property which include agricultural land, coconut, mango, lemon and beetle leaves gardens and soap nut bushes. There are misunderstandings between the plaintiff's and the first defendant. The first defendant as manager of the joint family, for legal necessities leased out items 3 to 9 of plaint schedule property by a registered lease deed dated 2-3-1975 to him for ten years at the rate of Rs.5.000/- per year and put him in possession on the same day. Since then he is in continuous possession of items 3 to 9 of plaint schedule property and raising crops thereon. The first defendant in collusion with the first plaintiff tried to interfere with the peaceful possession of the land and therefore, he filed O.S.No.757 of 1976 on the file of the Court of the District Munsif. Punganur for perpetual injunction and the said Court granted interim injunction in I.A.No.818 of 1976. Therefore, the first defendant in collusion with the plaintiffs got O.S.No.1 of 1977 filed for partition. It is not correct to say that the lands will fetch more than Rs.6.000/- per year. The plaintiffs are aware of the lease deed executed by the first defendant in favour of the second defendant as there is a sale deed in respect of item No.2 and hence they are estopped from questioning the lease deed and the sale deed. The plaintiffs never raised any crops after execution of lease deed in favour of the first defendant and the first defendant acted upon lease deed and sale deed by putting the second defendant in possession The first defendant executed sale deed on 27-3-1976 for proper and valid consideration and put the second defendant in possession of the property. The plaintiffs are not entitled to question the same as the sale deed is binding on them The second defendant is not concerned with the division and partition of the property which is between the plaintiffs and the first defendant. The second defendant also filed additional written statement on 8-9-1980 inter alia stating that defendants 3 and 4 are not necessary and proper parties to the suit, that they have no right interest or title in the suit property that defendants 3 and 4 are the sons of the guardian and next friend of the minor plaintiff at whose instance defendants 3 and 4 are made parties that the next friend of minor plaintiff has got adverse interest against the minor second plaintiff, that while the first defendant was on death bead and when he was not in a sound state of mind, the next friend of the minor second plaintiff obtained a will bequeathing his share to defendants 3 and 4, that the sixth defendant filed a suit in O.S.No.30 of 1980 questioning the said document and that the shares mentioned in the plaint are not correct and that the plaintiffs are entitled to 11/18th share.
8. The third defendant is the son of the younger brother of Kondappa. He filed a written statement inter alia stating that Kondappa executed registered will on 13-11-1979 in a sound disposing state of mind voluntarily out of affection in view of the services rendered by him during his old age so as to defray the expenses of the treatment. Under the Will, Kondappa discharged the property into three equal shares giving one share each to the second defendant and defendants 3 and 4. After the death of Kondappa defendants 3 and 4 became entitled to the property left behind Kondappa as per the will dated 13-11-1979. Therefore, the 2/3rd share may be ordered to be partitioned in favour of defendants 3 and 4.
9. The fifth defendant, as noticed above, is one Chinna Mallappagari Parvatamma, who is daughter of Kondappa through his first wife Mallamma. In her written statement she denied the allegation that the plaint schedule properties are joint family properties. She states that the plaint schedule properties are self acquired properties of Kondappa and they are not ancestral properties. She is not aware whether the first defendant colluded with the second defendant and registered a lease deed in favour of the latter. She has no objection for partition of the properties giving a due share to her. She is also not aware of the Will executed by Kondappa. Being the daughter of the first defendant she is entitled to share the property acquired by Kondappa and therefore, she prayed for allotment of her share.
10. The sixth defendant who is the wife of the second defendant also filed a separate written statement. In her written statement she stated that the plaintiffs are not entitled to a share as claimed in the plaint nor the first plaintiff is not entitled for 1/3rd share. Though she is not aware of her share, she is also entitled for share in the property as the first defendant is her father. When the first defendant was taking medical treatment, the guardian of the minor second plaintiff by fraud and misrepresentation and undue influence obtained the Will without consent and knowledge of the first defendant, that the first defendant was not in a state of understanding things properly that she filed O.S.No.32 of 1980 for partition and the contents of the plaint may be read as part and parcel of the written statement of the sixth defendant. Based on the pleadings, the trial Court framed the following issues for trial.
1. Whether the suit properties are the separate properties of the first defendant?
2. Whether the defendants are liable for payment of the suit costs to the plaintiff?
3. Whether the suit properties are not the joint family properties of the first defendant?
4. Whether defendants 3 and 4 are entitled to any share in the suit properties?
5. Whether the minor second plaintiff's next friend has no adverse interest against the minor second plaintiff and whether he played fraud upon in knocking away the share of the heirs of the deceased first defendant?
6. Whether the alleged Will obtained by the next friend of the minor second plaintiff in favour of 3 and 4 defendants is not vitiated by fraud misrepresentation and undue influence?
7. Whether the defendants 3 and 4 are entitled to any share in the suit lands?
8. To what relief?
Pleadings in Tr.A.S.No.3519 of 1985:
11. This appeal arises against O.S.No.32 of 1980. The suit was filed by the sixth defendant in 0. S. No. 1 of 1977 as informa pauperis. In the plaint, she alleged that the plaint schedule properties are the ancestral and joint family properties of the deceased Kondappa, that the schedule properties fell to the share of Kondappa under a registered partition deed dated 7-6-1977, that after the death of Kondappa, she and her sister Parvatamma and brother Chandrasekhar (plaintiff No.2 and defendant No.5 in O.S.No.1 of 1977) succeeded to his property, that she is entitled to 1/6th share, that Parvatamma is entitled to 1/6th share that Chandrasekhar is entitled to 4/6th share and that the joint Possession and enjoyment is detrimental to the interest of the plaintiffs. Her further case is as follows. While Kondappa was sick and bedridden, Siddappa and his son. Sitaramaiah took Kondappa to Kalikiri for medical treatment and at the Sub-Registrar's Office at Kalikiri, they played fraud and obtained a Will by misrepresentation and undue influence in respect of the plaint A schedule properties that the Will is vitiated by fraud and misrepresentation and does not bind her and that her right is not in any way affected, Further, Siddappa also obtained an agreement of sale from Kondappa. The Will and the agreement are not binding on the plaintiff and they do not deprive their right in the plaint schedule properties. After the death of Kondappa there was a mediation of elders in which Siddappa admitted that he obtained the Will and the sale deed by fraud and misrepresentation when Kondappa was not in a sound and disposing state of mind. Defendants 1 and 2 (defendants 5 and 6 in the main suit) are not cooperating for the partition of 1/6th share of the plaintiff and therefore, she prayed for partition of plaint A schedule property and for allotment of 1/6th share.
12. It may be noticed that the plaint A schedule property is the same as that of items 3 to 9 in plaint schedule properties in O.S.No.1 of 1977. In O.S.No.32 of 1980, Parvatamma, Chandrasekhar, Sitaramaiah, Kodandaramaiah (who are defendant No.5, plaintiff No.2 and defendants 2 and 3 in O.S.No.1 of 1977) are the defendants besides Siddappa as sixth defendant, who is the next friend and guardian of plaintiff No.2.
13. Parvatamma as D. 1, Chandrasekhar as D.2 and Sitaramaiah as D.3 filed written statements. The contents of the written statements filed by Chandrasekhar and Sitaramaiah are same as in O.S.No.1 of 1977. It is, however, interesting to note that Parvatamma who is the defendant No.1 in O.S.No.32 of 1980 in her written statement categorically stated that plaint A schedule properties are ancestral and joint family properties of Kondappa and that after his death she is entitled to 1/6th share along with the plaintiffs. In her written statement in O.S.No.1 of 1977 as already noticed, she stated that the plaint schedule properties are self acquired properties of late Kondappa. Be that as it may, it is not necessary to again summarise the written statements filed by the defendants in O.S No.32 of 1980. On the basis of the pleadings, the trial Court framed the following issues for consideration.
1. Whether the plaintiff is entitled to any share in the suit properties?
2. Whether the Will dated 13-11-1979 is valid and vitiated by fraud?
3. Whether this defendant is liable for costs?
4. Whether the suit as framed is maintainable?
5. To what relief ? Pleadings in Tr.A.S.No.3520 of 1985:
14. This Transferred Appeal arises against O.S.No.30 of 1978 on the file of the Court of the Subordinate Judge, Madanapalle. The suit was filed by Kondappa for cancellation of lease deed and sale deed executed by him. The lease deed was executed in favour of Sitaram his son-in-law, the first defendant and the sale deed was executed in favour of Sitaram (D.3) and Krishna Murthy, the latter being the brother of Sitaram. In the plaint it is alleged as follows. The plaintiff (D.1) had a son aged 19 years, who died in or about 1974. He was in distress on account of his death. His wife became seriously ill due to cancer and he was suffering from infirmities of old age. When he was in that condition, his agricultural operations slackened. Therefore the first defendant who was till then living in Kolar gold fields and eking out livelihood in a tea stall, proposed to the plaintiff that he would help him in the cultivation and management of the immovable properties. The first defendant also suggested that a document authorising him to manage the properties be executed undertaking to render periodical account of the income from the estate of Kondappa by taking a reasonable share in the income. As the plaintiff had to go to Tirupati monthly for the treatment of his wife he requested the first defendant to get a suitable document prepared. The first defendant went to Punganur to go to the plaintiff, got the document prepared the plaintiff signed on it and got registered under the impression that the document was prepared on the terms as agreed upon. He executed the document in a hurry as he was in a restless condition and that he did not know that the documents signed by him on 29-3-1976 are lease deed and sale deed. He never agreed to lease out the property for Rs.5,000/- per year for ten years. He never agreed to sell the house site to the defendants. He would not have signed the documents and agree for registering them if he had known that they were lease deed and sate deed. The yearly lease amount is grossly inadequate when compared to the actual annual income of Rs.8,000/- to Rs.10,000/-. There is a well with adequate water filled with oil engine for irrigation of paddy and sugarcane crops. The landed property is worth about Rs.30,000/- and house site is worth about Rs.10,000/-. Thus, the sale deed and lease deed are vitiated by fraud misrepresentation and undue influence. The first defendant was not put in possession of the suit property as alleged and the lease deed was not acted upon. When the first defendant misappropriated the profits and did not render accounts, the plaintiff protested when he was informed by the first defendant about the lease for ten years and about the documents executed on 27-3-1976 and 29-3-1976. The plaintiff was not paid Rs.5,000/- or any other amount either before or after execution of the lease deed. When the plaintiff protested, the first defendant filed O.S.No.757 of 1976 on the file of the Court of the District Munsif, Punganur and obtained interim injunction against the plaintiff. The lease deed has become an impediment to the defence in O.S.No.757 of 1976 and hence the plaintiff filed suit for cancellation of tease deed and sale deed which were executed by fraud misrepresentation, and undue influence, Items 3 to 9 are the subject matter of the lease deed and item 2 is the subject matter of the sale deed.
15. The suit was opposed by the first defendant stoutly denying any fraud, misrepresentation, coercion or undue influence as alleged by the plaintiff. In a nutshell it is the case of the defendants in O.S.No.30 of 1978 that the plaintiff, Kondappa himself approached and requested Sitaram to advance some amount to meet the expenses of medical treatment of his ailing wife that he would lease out the plaint A schedule properties and also sell the plaint B schedule house that defendants 1 and 2 agreed for the same and that as there was a pressing legal necessity for Kondappa he voluntarily, in a state of sound mind and in a state of good physical health sold plaint B schedule properties for an amount of Rs.1,500/- and registered the sate deed on 27-3-1976 after duly receiving the consideration. The defendants were put in possession of the property. The plaintiff also leased out the agricultural lands in plaint A schedule for an amount of Rs.5,000/- for ten years to be enjoyed by Sitaram and to re-deliver possession after the period to the plaintiff. Accordingly, registered lease deed dated 29.3.1976 was executed in favour of Sitaram after receiving the consideration of Rs.5,000/- for ten years at the rate of Rs.500/-per year. Since then Sitaram is in possession and enjoyment of the same, that he is raising crops that late Kondappa tried to disturb the first defendant with his peaceful possession and, therefore, the first defendant filed O.S.No.757 of 1976 on the file of the District Munsif Punganur and obtained interim injunction in I.A.No.819 of 1976 on 29-12-1976, which was confirmed on 10.3.1977. It is not correct that the first defendant, Sitaram made Kondappa to believe that the latter is required to execute a document enabling Sitaram to manage the property who at that time was required to go to Tirupati for his wife's treatment. It is not correct to say that both the lease deed and sale deed are prepared and registered on the same day. The sale deed was registered on 29-3-1976 and the lease deed was registered on 27-3-1976 and the plaintiff agreed to the terms mentioned in the lease deed, who voluntarily read both the documents and they were also read out to him. The consideration for both the documents is adequate. It is wrong to state that the annual income of the suit property is Rs.8,000/-to Rs.10,000/- and that the same is exaggerated. The landed property itself is not worth more than Rs.50,000/- The house site does not cost Rs. 10,000/- The lease deed and the sale deed are not vitiated by fraud, misrepresentation and undue influence. The plaintiff is estopped from questioning the documents. On the above pleadings the learned Judge framed the following issues and additional issue.
1. Whether the sale deed dated 27-3-1976 and lease deed dated 29-3-1976 are vitiated by fraud and misrepresentation'?
2. To what relief ?
Additional issue:
1. Whether the Will executed by the first plaintiff is true and valid?
Pleadines in Tr.A.S.No.3521 of 1985:
16. This appeal arises against the decree in O.S.No.103 of 1978 on the file of the Court of Principal District Munsif. Punganur. Originally, the suit was filed as O.S.No.103 of 1978 on the file of the Court of the Subordinate Judge, Madanapalle. Initially the suit being O.S.No.757 of 1976 was filed on the file of the Court of Principal District Munsif, Punganur and later transferred to the Court of the Subordinate Judge. Madanapalle to be tried along with the connected suits.
17. Sitaram, the son-in-law of Kondappa filed the suit seeking permanent injunction restraining his father-in-law from entering upon his suit lands - items 3 to 10 of plaint A schedule in O.S.No.1 of 1977 and interfering with his alleged possession and enjoyment thereof. In the plaint he alleged that the defendant executed 'Gutha Muchilika' (lease deed) covering the plaint schedule properties on 29-3-1976 for ten years after receiving an amount of Rs.5.000/-that as per the lease deed the defendant delivered possession of the property to the plaintiff who is in continuous possession and enjoyment of the suit schedule property by raising crops, that the defendant's wife his divided brother and his son and other family members are obstructing him in ploughing the land and transplanting paddy seedlings with an intention to occupy the plaint land by force and violence wrongfully and hence permanent injunction may be granted restraining the first defendant his family members and men from interfering with his peaceful possession and enjoyment of the same.
18. Kondappa filed written statement and resisted the suit. The averments in his written statement are the same as the averments in the plaint in O.S.No.30 of 1978 filed by him for cancellation of lease deed and sale deed. He reiterated that he never intended to execute any lease deed in favour of the plaintiff and never received any lease amount from him and that the plaintiff was not entitled to remain in possession and enjoyment of the suit property. As noticed earlier, after the death of Kondappa, Chandrasekhar. Parvatamma and Reddemma (plaintiff No.2 and defendants 5 and 6) were added as legal representatives. The fifth defendant. Parvatamma filed a separate written statement alleging that the lease deed executed by Kondappa in favour of Sitaram is not valid and he is not entitled to remain in possession and for permanent injunction as prayed in the suit. The fourth defendant who is the wife of Sitaram, plaintiff in O.S.No.103 of 1978 (O.S.No.757 of 1976) filed a separate written statement alleging that she is entitled to 11/6th share in the suit property and that she is not in any way causing obstruction to the plaintiff's enjoyment of the suit property. The second defendant, Chandrasekhar filed a memo adopting the written statement filed by Parvatamma.
19. On the basis of the above said pleadings the following issues and additional issues were framed.
1. Whether the plaintiff is entitled to the permanent injunction prayed for?
2. Whether the suit lease deed is vitiated by fraud and undue influence as pleaded by the defendant'?
3. To what relief?
Additional Issues:
1. Whether the document dated 29-3-1976 is true valid and binding?
2. Whether the plaintiff is entitled for injunction?
3. To what relief?
20. The trial Court tried the suits jointly. Entire evidence was recorded in O.S.No.1 of 1977 treating the same as evidence in other three suits. Except the second defendant (Krishna Murthy) in O.S.No.30 of 1978. the parties in O.S.No.30 of 1978. O.S.No.103 of 1978 and O.S.No.32 of 1980 are also parties in O.S.No.1 of 1977. Therefore, as already indicated, all the parties will be referred to by their status in O.S.No.1 of 1977.
21. The guardian of the minor second plaintiff, Payala Siddappa the is also described as Siddaiah) was examined as P.W.1 and one K.Chandramachari was examined as P.W.2. Besides this oral evidence, the plaintiff marked Exs.A.1 to A.4 which are photographs and negatives showing the suit property and irrigation well. Fourteen (14) witnesses were examined as defendants' witnesses D.W.1 is the third defendant. D.W.4 and D.W.5 are defendants 5 and 6 and D.W.7 is the second defendant. D.Ws.2, 3, 6 and 8 to 14 were examined in an attempt to prove important documents marked in the suit. Exs.B1 to B 24 were marked for the defendants. The registered Will dated 13-11-1979 (Ex.B.1) and registered lease deed dated 20-3-1976 (Ex.B.2) executed by Kondappa in favour of Sitaram. the registered sale deed (Ex.B.4) dated 27-3-1976 by Kondappa in favour of Sitaram and his brother Krishna Murthy are the important documents relevant for deciding the controversy. Besides this, the registered partnership deed dated 17-6-1974 between late Kondappa and Siddappa (P.W.1) is also one of the important documents.
22. The issues framed in the four different suits mainly deal with the questions-
1) Whether the suit properties are joint family properties of Kondappa or separate properties? (issues No. 1 and 3 in O. S. No. 1 of 1977)
2) Whether the Will set up by defendants 3 and 4 (sons of P.W.1) is true and valid and is not vitiated by fraud, misrepresentation and undue influence? (issue No.6 in O.S.No. 1 of 1977)
3) Whether the lease deed and sale deed (Ex.B.4) are liable for cancellation on the ground of fraud and misrepresentation? (issue No.1 in O.S.No.30 of 1978 and Issue No.2 and additional issue No.1 in O.S.No.1 of 1977)
4) How and why the property of late Kondappa is to be partitioned among the heirs who are entitled to it? (Issues No.4 and 7 in O.S.No.1 of 1977 and issue No.1 in O.S.No.32 of 1980)
23. The other incidental questions which were also adverted to by the trial Court are not very much pressed before me and therefore they are not specifically pointed out though they will be dealt with at appropriate place in the judgment.
24. The trial Court on consideration of oral and documentary evidence, on the first question held that the properties are joint family properties and not self-acquired properties of Kondappa. On the second question it was held that Ex.B.1 will was validly executed by Kondappa during his lifetime and that the same is true valid and binding on all the parties to the suit including defendants 5 and 6. As to whether Exs.B.2 and B.4 - lease deed and sale deed executed by Kondappa are vitiated by fraud misrepresentation and undue influence, the trial Court, while holding that Exs.B.2 and B.4 are not supported by consideration and were obtained by practicing undue influence, fraud and misrepresentation upon Kondappa and they are not binding upon his legal heirs. On the last question, the trial Court taking into consideration the fact that the first son of Kondappa and Mallamma by name Reddeppa predeceased his mother, upon which his 1/3rd share in the joint family devolved on Mallamma, the trial Court held that the second plaintiff is entitled to 11/18th share, defendants 3 and 4 (sons of P.W.1) are entitled to 2/l8th share each under Ex.B.1 will and that the sixth defendant, Reddemma is entitled to 3/18th share inherited to her mother Mallamma.
25. Feeling aggrieved by the judgment and decree, the second defendant filed A.S.No.3025 of 1982 before this Court. The unsuccessful parties in O.S.No.30 of 1978. O.S.No.103 of 1978 and O.S.No.32 of 1980 filed appeals before the District Court, Chittoor which were later transferred to this Court to be adjudicated along with A.S.No.3025 of 1982, which is the main appeal. Though technically some of the contentions and grounds urged by the appellant in A.S.No.3025 of 1982 are not permissible as being alleged tenant of items 3 to 10 of plaint A schedule property, he cannot be said to have any grievance either regarding Ex. B. 1 Will or the shares apportioned by the trial Court. However, as he is aggrieved by the judgment and decree in O.S.No.30 of 1978 as well as O.S.No.103 of 1978 and all the matters are being heard together I have finally heard the matters. Further, the same counsel who is appearing for the defendants is also appearing for the plaintiff in O.S.No.32 of 1980 and from this point of view also I heard the learned counsel for the appellant in detail.
Submissions of the learned counsel in brief
26. Learned counsel for the appellant, Sri K.V.Reddy submits that the suit schedule property is self, acquired property of Kondappa and therefore on his death the second plaintiff and defendants 5 and 6 being class 1 heirs alone are entitled for partition in equal shares. Secondly, he submits that Ex.B1 Will executed by Kondappa is dated 13-11-1979 and the same is not valid and the execution of the same is surrounded by various suspicious circumstances. The Will is forged and brought into existence by P.W.1, the father of defendants 3 and 4. In any event, the Will is not properly proved in accordance with Sections 59 and 63 of Indian Succession Act. 1925 and Section 68 of Indian Evidence Act, 1872, if the Will is disbelieved, defendants 3 and KMs. 4 will not be entitled to 2/18th share each and the entire property, assuming it as a separate property of Kondappa, will have to be partitioned among second plaintiff and defendants 5 and 6. The learned counsel further submits that Exs.B.2 and B.4 are voluntarily executed by Kondappa and they are not vitiated by fraud or undue influence. The trial Court erred in drawing an inference based on the alleged unconscionable consideration for the lease deed that Ex.B.2 lease deed is vitiated by fraud. Indeed, there is no finding that the amount of Rs.1500/- the sale consideration for Ex.B.2 sale deed is unconscionable. In any event, the learned counsel submits that fraud and misrepresentation should be specifically pleaded and proved beyond doubt and no action or no document can be nullified on mere assumption of fraud and misrepresentation.
27. Sri K.F.Baba, learned counsel appearing for the second plaintiff (who is since declared as major) submits that the suit schedule property is joint family property of Kondaiah and his sons. Except the fifth defendant, Parvatamma, the daughter of Kondappa through his first wife, none of the defendants disputed the joint family nature of the property in the written statements. The evidence of the second defendant as D.W.7 also shows that the property is joint family property. Exs.B.2 and B.4 which are the two documents sought to be cancelled by Kondappa in O.S.No.30 of 1978 do not suggest that the property allegedly demised under Exs.B.2 and B.4 is separate property of Kondappa. Exs.B.2 and B.4 contain unconscionable terms and therefore it has to be held, that they are vitiated by fraud and misrepresentation. The learned counsel contends that Ex.B1 will is not true and valid and is not binding on the second plaintiff if Ex.B.1 Will is disbelieved, according to the learned counsel, the second plaintiff would be entitled to 15/18th share and Reddemma being the daughter of Mallamma alone would be entitled to 3/18th share and defendants 3 and 4 will not be entitled to any share in the property of joint family of Kondappa and his family.
28. The learned counsel for respondents 3 and 4, Sri Vijayachandra Reddy submits that Ex.B.2 lease deed is not supported by consideration and therefore under Section 25 of the Indian Contract Act the same is void. The lease deed executed by Kondappa in favour of the second defendant is not for the benefit of the estate and not binding on the second plaintiff. The second defendant is not a benefitted transferee under Exs.B.2 and B4 and therefore he cannot seek any injunction in the suit. Adverting to Ex.B.1 Will, the learned counsel submits that under Section 30 of the Indian Succession Act, a Hindu is entitled to dispose of his undivided share by Will and therefore the will executed by Kondappa bequeathing his l/3rd share in the joint family property in equal shares to defendants 3 and 4 is legally valid and binding on all the parties. There are no suspicious circumstances surrounding the execution of the will by Kondappa and that P.W.2 and D.W.2 are attestors of Ex.B.1 Will and there is nothing to disbelieve the evidence of these witnesses. Therefore, he would urge to dismiss the appeals.
Points for consideration :
29. Having regard to the pleadings in the suits, the findings recorded by the lower Court and the rival contentions before this Court, the points that arise for consideration in these appeals are-
1) Whether the suit properties are joint family properties of Kondappa or separate properties?
2) Whether the Will (Ex.Bl) set up by defendants 3 and 4 (sons of P.W.1) is true and valid'?
3) Whether the lease deed (Ex.B.2) and sale deed (Ex.B4) are liable for cancellation on the ground of fraud and misrepresentation'?
4) To what relief.?
In re Point No.1:
30. The appellant in Tr.A.S.No.3519 of 1985 (plaintiff in O.S.No.32 of 1980) is the sixth defendant in O.S.No.1 of 1977. In other three appeals, the second defendant who is her husband is the appellant. The second defendant did not specifically plead that the properties are self-acquired properties of Payala Kondappa, In his written statements in O.S.No.1 of 1977 and in O.S No.30 of 1978 and in his plaint in O.S.No.103 of 1978 the second defendant did not specifically plead that the suit schedule property in O.S.No 1 of 1977 is not joint family property. The first defendant, Payata Kondappa, defendant No.6 and defendants 3 and 4 admit in their written statements that the property is joint family property. It is interesting to note that defendant No.5 who is the daughter of Payala Kondappa through his first wife alone disputed the claim of the plaintiffs that it is joint family property. It is also interesting to note that she (defendant No.5 in O.S.No. 1 of 1977) filed written statements in O.S.No.32 of 1980 (partition suit by defendant No.6) and in O.S.No.103 of 1978 - suit for injunction by defendant No.2). But in these written statements the pleading by defendant No.5 that it is not joint family property is absent. In the appeals, the learned counsel who appears for the daughter as well as son-in-law of Payata Kondappa (defendants 2 and 6) however submits that when the suits were tried jointly and a common judgment is rendered the absence of plea in the pleadings of defendant No.2 have to be ignored, as the plaintiffs did not discharge the burden which is on them that the property is joint family property. The lower Court erred in determining the issue Nos.1 and 3 in O.S.No.1 of 1977 in favour of the plaintiffs. The learned counsel also relied on the Will - Ex.B.1 and contends that the same does not specifically describe the property as joint family property. Before examining further, it is necessary to briefly notice the relevant pleadings.
31. In the written statement in O.S.No.1 of 1977, the second defendant states that "plaintiffs and the first defendant are members of a Hindu joint family.......and that he has no concern with the division of the property which is between the first plaintiff and the first defendant". His wife, the sixth defendant mainly attacks Ex. B. 1 Will and does not specifically aver that it is self-acquired property of Kondappa. It is only the fifth defendant, the daughter of Kondappa through his first wife who alleged that 'plaint schedule properties are self-acquired properties of the first defendant and they are not ancestral properties. In O.S.No.32 of 1980 filed by the fifth defendant after the death of her father claiming 1/6th share in the property, in paragraph 4 of the plaint in O.S.No.32 of 1980, she avers that plaint schedule properties are ancestral and joint family properties of Payala Kondappa and that after his death she became entitled to 1/6th share. It is interesting that Paravathamma who is fifth defendant in O.S.No. 1 of 1977 and first defendant in O.S.No.32 of 1988 in her written statement in the latter suit in paragraph 3 categorically admits that plaint A schedule properties are ancestral and joint family properties of Payala Kondappa. These are the necessary pleadings. Absolutely there is no evidence either oral or documentary to support the plea of the appellant in A.S.No.3025 of 1982 that it is self-acquired property of Kondappa. P W 1 and PW2 admit that it is joint family property of Kondappa. P.W 1 who is the younger brother of Kondappa deposes that he and his brother defendant No.1 got divided and the suit schedule properties fell to the share of Kondappa who along with his wife Reddemma constituted joint family. There are no new acquisitions by Kondappa. D.W.5 who is fifth defendant in O.S.No.1 of 1977 and plaintiff in O.S.No.32 of 1980 is silent in her evidence as to the nature of the property. Indeed, D.W 6 who is defendant No.6 and who took a specific plea in the written statement that it is self-acquired property of Kondappa does not even whisper in the evidence that it is self-acquired property. Her entire deposition deals with execution of Ex.B.1 Will by Kondappa. Reading the pleadings and evidence on record it is not possible to accept the contention of the learned counsel for the appellants that the suit schedule property is self-acquired property of Kondappa, The learned counsel relied on the judgments of this Court in Subbayya v. Sitaramamma, 1958 (2) An.WR 59 (DB) and S. Udayabhaskara Rao v. V. V.Kanaka Durga Rao, 1955 (2) ALT 534 and the judgment of the Supreme Court in Mudigowda v. Ramachandra, and submits that when P.W.1 and Kondappa partitioned the properties there is a severance of joint status and therefore, when the plea of plaintiffs is denied, the burden lies on the plaintiffs to prove that the property is joint family property.
32. Sri K.F.Baba, learned counsel for the second plaintiff submits that the appellants admitted that the property is joint family property of Kondappa and hence there was no necessity for the plaintiffs to prove specifically that it is joint family property. He also submits that the plaintiffs and the first defendant alone constituted point family and when they themselves go to the Court for partition admitting the joint nature of the property, the second defendant who is son-in-law and alleged lessee of the property cannot question the nature of the property. He also submits that though Parvatamma raised a plea she herself admitted in the written statement filed in O.S.No.32 of 1980 that it is ancestral and joint family property and that though the appellant in Tr.A.S.No.3519 of 1995 (filed by Reddemma) was in the witness box. She never deposed against the plea of the plaintiffs. Therefore, he submits that the question does not arise at all in the appeal.
33. According to Mitakshara Law property inherited by a male Hindu from his father, grand-father or great grand-father is ancestral property, sons grandsons and great-grandsons acquire an interest in the ancestral property by birth. As between the son and the father, they have equal interest in the ancestral property and the son's interest is independent of his father's interest. Such property is divisible as it is always equated with coparcenary property, See principles of Hindu Law, by Mullas (15th Edn.) Pp.221, 223, 224 and 303.
34. In Bhagwati Prasad v. Rameshwari Kuer, , their Lordships of the Supreme Court laid down the principles as under.
The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved. There is no presumption on the plaintiff's side too that because one member of the family separated himself there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other co-parceners or that they remained united The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief.
35. In Raghavamma v. Chenchamma, . His Lordship Subba Rao, 1, (as His Lordship then was) relied on the above statement of law and reiterated the principle as under.
Whether there is a partition in a Hindu joint family is therefore a question of fact, notwithstanding the fact that one or more of the members of the joint family were separated from the rest, the plaintiff who seeks to get a specified extent of land on the ground that it fell to the share of the testator has to prove that the said extent of land fell to his share, but when evidence has been adduced on both sides the burden of proof ceases to have any practical importance.
36. In Mudigowda's case (supra) the Supreme Court dealing with the question on burden of proof as to the nature of joint family property relied on the judgment of the Privy Council in Appalaswami v. Suryanarayanamurti, AIR 1947 PC 189, and observed as under.
The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint possesses any joint property. The burden of proving that any particular property is joint family property is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the jointly family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired it is only after the possession of an adequate nucleus is shown that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate
37. The other two judgments relied on by the learned counsel for the appellants in Subbayya' case and Udayabhaskara Rao's case (supra) are also to the similar effect and it is not necessary to refer to the same in view of the settled legal position. Applying the above principles, is it possible to agree with the learned counsel for the appellants'?
38. Admittedly after partition between P.W.1 and Kondappa, the latter did not acquire any property and he continued to manage the ancestral property in which plaintiff No.2 acquired a right by birth. The first defendant late Kondappa agreed that they are joint family properties and indeed his two daughters also agreed either positively or by not denying and proving otherwise that it is Joint family property. Therefore, the appellants cannot be permitted to take a plea at this stage that the plaintiffs failed to discharge their burden on them. The plaintiffs have discharged their burden by pleadings and evidence that the property of late Kondappa is joint family property. Therefore, on Point No. 1, I hold that the suit schedule properties in O.S.No.1 of 1977 are joint family properties of Kondappa.
In re Point No. 2:
39. Payala Siddappa (P.W.1) is the younger brother of Payala Kondappa. After the death of Payala Mallamma (first plaintiff), as per the orders of the trial Court dated 19-11-1979 in I.A.No.778 of 1979 P.W.1 was appointed as guardian for the minor second plaintiff Defendants 3 and 4 are the sons of P.W.1. In the written statements filed by defendant No.3, the case set up is that Payala Kondappa executed registered Will - Ex.B1 in a sound disposing state of mind voluntarily out of affection in view of the services rendered by him during Kondappa's old age towards defraying the expenses of the treatment, that under the Will, Kondappa bequeathed his property in three equal shares to the second plaintiff, third and fourth defendants and that after the death of Kondappa all the three became entitled to his property left behind him. Therefore, defendants 3 and 4 claimed 2/3rd share in the property of Kondappa. The written statement of Kondappa filed in O.S.No.1 of 1977 before his death is silent on the execution of the Will. This could be because the Will came into existence after filing the written statement or the beneficiaries wanted execution of the Will to be known after his death. Be that as it may, the second defendant who is the husband of sixth defendant also did not make any allegation with regard to the Will. It is only the sixth defendant, the wife of the second defendant (serious contender against the Will - Ex. B. 1) who states in her written statement as well as in her plaint in O.S.No.32 of 1980 that P W.1 by fraud and misrepresentation and exerting undue influence obtained a fraudulent document and that Kondappa was not in a state of understanding things properly when PW.1 obtained Ex.B.1 Will. It is also to be noted that Payala Kondappa died on 24-11-1979 and thereafter defendants 3 to 6 were added as defendants as per the orders in I. A.No.302 of 1980 dated 26-7-1980.
40. It is also necessary to notice the pleadings of the sixth defendant in her separate suit in O.S.No.32 of 1980. The averment/allegation in para 5 of the plaint in O.S.No.32 of 1980 filed by Reddemma is as follows :
While the plaintiff's father Payala Kondappa was sick and bedridden and under medical treatment and was not in a sound and disposing state of mind, the third defendant and the fifth defendant took him to Kalikiri on the pretext that he would be given medical treatment there and at the Sub-Registrar s office at Kalikiri defendants 3 and 5 by undue influence and by fraudulent means and by misrepresentation obtained a will on 13-11-1979 in respect of the plaint A schedule properties in favour of defendants 2, 3 and 4 with a view to gain wrongfully against the interest of the plaintiff and defendants 1 and 2. The alleged Will dated 13-11-1979 obtained by defendants 3 and 5 is vitiated by fraud and misrepresentation and undue influence and will not bind the plaintiff and her right is not in any way affected. While obtaining the Will from the deceased Payala Kondappa the propounder was in a dominating position and the testator was not in a position to understand the nature and effect of disposition and so the Will is invalid and unenforceable and void. The testator's mental power was impaired due to old age, he possessed no memory and intelligence to form a proper judgment as regards disposition-
(defendants 2, 3, 4 and 5 referred to in the above para are PW1 the second plaintiff and defendants 3 and 4 in 0 S No.1 of 1977.)
41. Defendants 3 and 4 examined P.W.2 and D W.2. the two attestors and D.W.3 who scribed Ex.B.1 Will. The learned counsel Sri K.V.Reddy however attacked the Will. He submits that P W.2 did not speak about the attestation in the chief examination and when he was recalled in his cross-examination by the defendant No.3 he spoke about the attestation. D.W.2, the alleged other attestor is the brother-in-law of the third defendant and, therefore, there is no valid proof of EX B 1 Will. Referring to the evidence of D.W.3, the scribe of Ex.B.1 the learned counsel submits that the evidence of the witness does not inspire confidence as he himself states that Kondappa first signed Ex.B.1 Will and later when there was a shaking in the hands he put his thumb impression on the advice of the Sub-Registrar. Relying on these circumstances, the learned counsel submits that Ex.B.1 Will is not properly proved as required under Sections 67 and 68 of the Indian Evidence Act as well as Sections 59 and 63 of the Indian Succession Act.
42. The learned counsel for the appellants alternatively also submits that the Will is forged, for the very appearance of Ex.B1 shows that it is a forged document, that the alleged signature of Kondappa was scored off, that there are inconsistencies in the evidence of P W.2. D.W.2 and D.W.3 as to who scored off the signature of Kondappa and that there is no signature of Kondappa on page No.2 of Ex.B.1 Will. As to the affixation of thumb impression also, the evidence is inconsistent as to whether Kondappa affixed his thumb impression in the presence of the Sub-Registrar as per his advice or in the adjoining room as spoken to by D.W.2. It is also submitted that Kondappa was blind when he allegedly executed the Will and he died eleven days after the execution. The learned counsel, therefore, submits that the Will was brought into existence under suspicious circumstances and hence the same cannot be considered as the last testament of Kondappa. The learned counsel pointed out that the Will is unnatural Will, in that Kondappa gave the property to the sons of his brother ignoring his own daughters defendants 5 and 6 that defendant No.3 took active interest in the execution of the Will, that the document itself is suspicious as the thumb impression of Kondappa on Ex.B.1 Will is improper that there was no necessity for Kondappa to execute the Will that though the other family documents were registered at Punganur Sub-Registrar's office peculiarly, Kondappa was taken to Kalikiri and Ex.B.1 Will was executed and registered there. In the absence of any acceptable evidence to prove the Will the shaky signature of Kondappa on the Will disproves the same. These are some of the suspicious circumstances pointed out by the learned counsel for the appellants The learned counsel placed reliance on the judgments of the Supreme Court and the judgments of this Court. He relied on H.Venkatachala v. B.N.Thimmajamma, , Purnima Devi v. Khagendra Narayan, , Shashi Kumar v. Subodh Kumar, , Ramchandra v. Champabai, , Indu Bala v. Manindra Chandra, , Kalyan Singh v. Chhoti, , Raj Kumar Deen v. A.S.Din, 1996 (4) ALD 651 and V.S.Mane v. R.V.Ganeshkar, . All these judgments deal with the law of proof of Will and also deal with suspicious circumstances under which the Will cannot be relied on.
43. There are a large number of judicial pronouncements on the subject of proof of Will. Section 68 of the Indian Evidence Act requires examination of one attesting witness to prove the document required by law to be attested. Section 63 of the Indian Succession Act requires that every person of sound mind disposing of his property by Will, shall sign or affix his mark on the Will or it shall be signed by some other person in his presence and by his direction and such execution shall be attested by two or more witnesses as prescribed. It is well settled that 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 Sections 67 and 68 of the Indian Evidence Act and Sections 59 and 63 of Indian Succession Act. The test to be applied in appreciating the evidence is the satisfaction of the prudent mind in such matters. Whether the testator signed the Will? Whether the testator understood the nature and effect of the execution of the Will? and Whether the testator put his signature being aware of the contents of the Will are the basic questions required to be kept in mind. A decision as to these questions and evidence as to affixation on the Will would prima facie prove that the Will has been executed and that it is the last testament of the testator. Though the 'Will" and or other 'document' requires same legal proof, difference is that the Will speaks from the death of a testator introducing an element of solemnity in the decision of a question as to validity and proof of the will. In Venkatachala's case (supra), the Supreme Court stated the special requirements in the matter of proof of Will as under.
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 of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounded In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
44. If the execution of the Will is challenged in a Court as surrounded by suspicious circumstances, the propounder should remove all such legitimate doubts in the matter, by producing cogent, satisfactory and sufficient evidence to dispel suspicion. What would be the suspicious circumstances? I may again refer to the following passage from Venkatachala's case (supra) The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator.
45. Even when undue influence, fraud or coercion in the execution of the Will is alleged, the propounder has to remove all the doubts and satisfy the 'test of satisfaction of judicial conscience'. Whenever fraud is alleged or suspicious circumstances are alleged, the onus on the propounder of the Will is heavy and unless the Court is satisfied, even if the Will is proved to have been executed, the Court shall not treat the document as the last Will of the testator.
46. In Purnima Devi's case (supra), the Supreme Court held that if a Will is registered, that is a circumstance of the genuineness of the Will, but the mere fact that the Will is registered will not by itself is sufficient to dispel all suspicion regarding the Will where suspicious circumstances existed and alleged.
47. In Shashi Kumar's case (supra), a Constitution Bench of the Supreme Court approved the law declared in Venkatachala's case. The view was again followed in Ramchandra's case (supra). The following statement of law in Shashi Kumars case is apposite.
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 not 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.
48. The above principles were reiterated in Indu Bala's case (supra) and Kalyan Singh's case (supra).
49. In the light of the above principles, I shall examine three aspects relevant to the proof of the will.
1) Whether the execution of the Will is proved?
50. P.W.2 and D.W.2 are the attestors of Ex.B.1 Will whose evidence cannot be avoided as contended by the learned counsel for the appellants. I do not find any infirmity in P.W.2 speaking about the attestation in the cross-examination by third defendant. P.W.2 was called to the witness box to speak about the nature of the suit property and naturally one cannot expect plaintiff No.2 represented by P.W.1 to examine him with regard to proof of the attestor. As propounder of the Will, it is only third defendant who has to prove the Will and, therefore, in his cross-examination he elicited the relevant evidence from P.W.2. Even ignoring the evidence of P.W.2 as suggested by the learned counsel for the appellants, in my considered opinion, the evidence of D.W.3 who said that he saw Kondappa executing the Will cannot be disbelieved merely because he is the brother-in-law of third defendant. It is common place knowledge that when documents like settlement deed or Will are executed in the family it is only family members who are requested to attest the document and ordinarily strangers or pedestrians on the road are not invited to attest the documents. Therefore, I hold that reading the evidence of P.W.2, D.W.2 and D.W.3, the execution of the Will has been proved in accordance with law.
2) Whether the execution of the Will -Ex.B1 is vitiated by fraud, coercion or undue influence?
51. As held by the Supreme Court in Shashi Kumar Banerjee's case (supra), where the caveator alleges fraud or undue influence, the onus is on the caveator to prove the same. The second defendant has not averred anything about Ex.B.1. Sixth defendant as plaintiff in O.S.No.32 of 1980 alleged that Kondappa was not mentally sound and P.W.1 played fraud, took him to Kalikiri and got executed the Will by playing fraud and undue influence. Therefore, the burden is on sixth defendant (D.W.5) to prove this aspect of the matter. But the sixth defendant has not produced any independent evidence except denying the suggestion that defendants 3 and 4 were maintaining Kondappa and taking good care of him during his illness. In the absence of any independent satisfactory evidence, I cannot agree with the submission of the learned counsel for the appellants that Ex.B.1 Will is vitiated by fraud, coercion and undue influence or that thumb impression on Ex. B. 1 is forged.
3) Whether Ex.B1 Will can be treated as last Will of Kondappa ignoring the suspicious circumstances surrounding the execution of the will ?
52. It is well settled that even when a Will is proved as required in law, the Court would be reluctant to treat the document as the last Will of the testator if there are suspicious circumstances. When the propounder takes a dominant role in the execution of the Will by the testator it is strong pointer to suspicious circumstances surrounding the execution of the Will. The learned counsel for the appellants points out that there is no signature of Kondaiah on page 2 of Ex.B.1 Will, that the writing on the Will is of unnatural flow, that under the Will Kondaiah has not given anything to defendants 5 and 6, his daughters, that though defendants 3 and 4 are sons of D.W.1 who was representing the minor second plaintiff, P.W.1 was not informed about the execution of the Will, that when all the documents by the family members of Kondappa were registered at Punganur Sub-Registrar's office, peculiarly, Ex.B.1 Will was registered at Kalikiri which is a far off place, that as per the evidence of D.W.2, Kondappa was signing very well prior to execution of Ex.B.1, but suddenly on the date of execution of Ex.B.1, Kondappa could not sign properly and, therefore, allegedly his thumb impression was obtained on the Will and that defendant No.3, D.W.2, the brother-in-law and D.W.3, a resident of Somula took Kondappa to Kalikiri for execution of the Will. These circumstances, according to the learned counsel are suspicious and therefore Ex.B.1 Will cannot be treated as last Will of the deceased testator.
53. When the caveator raises suspicious circumstances, the propounder has to dispel the doubts in the mind of the Court. Defendants 3 and 4 who are the beneficiaries of the Will did not come to the witness box to explain the suspicious circumstances. The evidence of P.W.2 and D.W.2, the attesting witnesses and the evidence of D.W.3, the scribe is not of much help to explain away the suspicious circumstances. The Will was executed on 13-11-1979 and within eleven days thereafter Kondappa died on 24-11-1979 D.W.1, the father of defendants 3 and 4 expressed ignorance about the execution of Ex.B.1 Will. A perusal of Ex.B.1 Will would also show that the learned counsel for the appellants is correct that there is no signature or thumb impression of Kondappa on page 2. Further, Kondappa was aware that defendant No.5, Parvatamma lost his mother (first wife of Kondappa) at the young age and it is but natural to expect Kondappa to give some property to her. This may be the reason why defendant No.5 in her evidence as D.W.5 states that she was present at Kalikiri on the date of presentation of the Will when Kondappa promised her to give share in the property. This is also not explained by defendants 3 and 4. As on the date of execution of the Will there are already suits being O.S.No.1 of 1971 and O.S.No.30 of 1978 and O.S.No.103 of 1978 among the family members and in spite of this the Will is silent as to the position of defendants 5 and 6 who are daughters of Kondappa.
54. Sri Vijayachandra Reddy, learned counsel for defendants 3 and 4 submits that Ex.B.1 is a registered Will and, therefore, it should be presumed to be validly executed. In Purnima Devi's case (supra), the Supreme Court held that though the fact that a Will is registered, it is crucial to prove its genuineness and that registration is not sufficient to dispel the suspicious circumstances. Therefore, the submission made by the learned counsel for the appellants commend to this Court and it must be held that Ex.1 Will cannot be treated as the last testament of late Payala Kondappa and the same cannot be given effect to in law. Accordingly, on Point No.2, I hold that Ex.B.1 Will set up by defendants 3 and 4 is not true and valid. The Point No.2 is answered accordingly.
In re Point No.3:
55. Payala Kondappa filed O.S.No.30 of 1978 for declaration that Ex.B.2 lease deed dated 29-3-1976 in respect of items 3 to 10 of suit schedule property and Ex.B.4 sale deed dated 27-3-1976 executed by Payala Kondappa in favour of second defendant and his brother, Krishna Murthy are vitiated by fraud and misrepresentation. The trial Court came to a conclusion that the consideration of Ex.B.2 and Ex.B.4 is unconscionable and therefore both the documents are vitiated by fraud, misrepresentation and undue influence. It relied on the evidence of P.W.2, D.W.7 and D.W.14 in arriving at the conclusion.
56. In the plaint, Payala Kondappa alleged that on account of the death of his elder son he was in distress, that on account of serious illness of his wife, Mallamma he was in a disturbed state of mind and he had to go to Madras and Tirupati frequently for treatment, that the second defendant proposed to him that he would help in his cultivation and therefore required the documents of authorisation to deal with the property and therefore he executed the lease deed and sale deed in question. According to Kondappa, D.W.7 misrepresented and obtained the lease deed for ten years for a consideration of Rs.5,000/- (Rs.5001-per annum) whereas the annual income itself would be anywhere between Rs.8,000/-and Rs.10,000/-. It was also alleged that the lease deed was not acted upon. One interesting aspect of the allegations made in the plaint in O.S.No.30 of 1978 filed by late Kondappa is that there is no specific allegation in relation to Ex.B.4 sale deed executed by Kondappa in favour of D.W.7 and his brother. In his written statement, D.W.7 as defendant No.1 in O.S.No.30 of 1978 denied the allegation stating that Kondappa himself voluntarily approached and requested D.W.7 some advance to meet expenses for medical treatment of Mallamma, that there was no pressing legal necessity for Kondappa to voluntarily execute the lease deed and sale deed. Though plaintiff No.2 came on record as legal representative after the death of Kondappa, there is no evidence in proof of the allegations made in the plaint in O.S.No.30 of 1978. Whether fraud has been properly pleaded in accordance with Order 6, Rule 4 CPC and whether fraud and misrepresentation have been proved by cogent, convincing and satisfactory evidence are the questions that fall for consideration.
57. Fraud includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust or confidence and are injurious to another or by which an undue or unconscientious advantage is taken of another. All surprise, trick, cunning, dissembling and other unfair way that is used to cheat any one is considered as fraud (See "A Treatise on the Law of Fraud and Mistake" by Kerr). When fraud is properly pleaded and proved in a Civil Court of Justice, the same would vitiate the transaction and the plaintiff would be entitled for declaration.
58. In Bharat Dharma Syndicate v. Harish Chandra, AIR 1937 PC 146, the Privy Council laid down that a litigant who alleges fraud or other important conduct should be compelled to place on record the precise details of the charges and that in the absence of such precise and specific allegations of fraud, the person should not be allowed to proceed with the case.
59. In Bhishundeo v. Seogeni Rai, , a Constitution Bench of the Supreme Court laid down as under.
Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice, however, strong the language in which they are couched may be and the same applies to undue influence and coercion.
60. In Narayanan v. Official Assignee, Rangoon, AIR 1941 PC 93, the Privy Council ruled that fraud must be established beyond reasonable doubt and finding as to fraud cannot be based on suspicious conjectures,
61. In V. S. Vishwavidyalaya v.
Rajkishore, , the Supreme Court referred to Bishundeo's case (supra) and reiterated that general allegations of alleged collusion by which the plaintiff seemed to imply some kind of fraud are not sufficient to an allegation of fraud and misrepresentation.
62. I have already referred to the pleadings in O.S.No.30 of 1978. Except making general allegation as to his condition of mental status and as to the need for someone to look after the lands, there are no specific allegations of fraud or misrepresentation. Except stating that D.W.7 kept the lease deed and sale deed ready and obtained the signatures, nothing is coming forward. It is indeed beyond one's comprehension to infer any ignorance on the part of Kondappa for it is in evidence that Kondappa was personally cultivating the lands on commercial basis and was also having money lending business. Can we give credence to the plaint allegation that Kondappa subscribed his signature on Ex.B.2 and Ex.B.4 without reading the documents? in any event, after the death of Kondappa, plaintiff No.2 was included as legal representative of his father. No witness even spoke about the allegation in O.S.No.30 of 1978. Sri K.F.Baba as well as Sri Vijaya Chandra Reddy, realising this, have raised very ingenuous argument that as per the allegations in the plaint in O.S.No.1 of 1977 as well as the allegations in O.S.No.30 of 1978, the annual income from out of the land covered by items 3 to 10 was anywhere between Rs.8,000/- and Rs. 10,000/- per annum and therefore the consideration for Ex.B.2 lease deed is unconscionable. They would like this Court to draw an inference that the unconscionable consideration is itself a species of fraud. They placed reliance on the judgment of Bombay High Court in Vinayakappa v. Dulichand, .
63. In Vinayakappa's case, a learned single Judge of Bombay High Court held that mere pecuniary inadequacy of consideration will not generally make the terms of contract too unfair for enforcement unless the degree of inadequacy of contract rendering itself void and unenforceable and that the ground of fraud is altogether different from a contract which renders unenforceable on account of unconscionable consideration. In the case of fraud, the document is vitiated and void whereas in the case of a contract supported by unconscionable and unethical consideration, the same is not rendered void but voidable and the plaintiff can only claim damages in such an event. In fact, the Bombay High Court refers to the following statement of law enunciated by the U.S. Supreme Court in Scot v. United States, (1870) 79 US 577 = 20 Law Ed. 438.
If a contract is unreasonable and unconscionable but not void, a court of law will give to the party who sues for its breach damages, not according to its letter, but only such as he is equitably entitled to....
64. Therefore, even if it is accepted that the lease amount of Rs.500/- per annum is unconscionable, the same does not amount to fraud. In view of this, I feel, it is not necessary to refer to the evidence of P.W.1, P.W.2, D.W.7 and D.W.14 who mainly spoke about the approximate annual yield from the agricultural lands.
65. Accordingly, on Point No.3, I must hold that Exs.B.2 and B.4 are not vitiated by fraud and misrepresentation and the trial Court erred in recording a finding that Exs.B.2 and B.4 are vitiated by fraud and misrepresentation.
In re Point No.4:
66. In the result, the judgment of the trial Court decreeing O.S.No.1 of 1977 is affirmed. The decree of the lower Court in O.S.No.30 of 1978 is set aside and reversed. The suit filed by defendant No.6 (Reddemma) being O.S.No.32 of 1980 is also decreed subject to the decree in O.S. No. 1 of 1977 as indicated hereinafter. The judgment and decree in O.S.No.1 03 of 1978 (injunction suit by defendant No.2) is dismissed as infrucutous as lease period which was for ten years with effect from 21-3-1976 already expired and possession was already taken from D.W.7. In view of the finding that the property of Payala Kondappa is joint family property and also in view of the finding that the Will - Ex.B.1 cannot be treated as the last Will of Kondappa and unenforceable, Payala Chandrasekhar, plaintiff No.2 in O.S.No.1 of 1977 will be entitled to 15/18th share in plaint schedule properties and Reddemma, defendant No.6 will be entitled to 3/18th share.
67. A.S.No.3025 of 1982 arising out of O.S.No.1 of 1977 and Tr. A.S.No.3521 of 1985 arising out of O.S.No.103 of 1978 are accordingly dismissed. Tr. A.S.No.3520 of 1985 arising out of O.S.No.30 of 1978 is allowed and Tr.A.S.No.3519 of 1985 arising out of O.S.No.32 of 1980 is partly allowed declaring that Reddemma, the plaintiff therein is entitled to 3/18th share in plaint schedule properties in O.S.No.1 of 1977. In the circumstances of the case, there shall be no order as to costs.