Andhra HC (Pre-Telangana)
Medikonda Venkata Subba Rao And 4 Ors. vs Medikonda Sarojini And 4 Ors. on 6 August, 2002
JUDGMENT
1. Plaintiffs in O.S.No.168 of 1994 on the file of the Court of the Subordinate Judge, Eluru, are the appellants. They filed the suit for declaration of their title to the plaint schedule properties and a consequential injunction, and subsequently got amended the consequential relief into that of possession. For the sake of convenience, parties would be referred to as they are arrayed in the trial Court.
2. The case, in brief, of the plaintiffs is that Bhujanga Rao, Ganga Raju and Veeriah were brothers. 1st plaintiff and father of 2nd plaintiff are the sons of Veeriah. 2nd defendant is the brother of 1st defendant, who is the widow of Ganga Raju, 3rd defendant is the son and 4th defendant is the daughter of 2nd defendant. 5th defendant is the husband of 4th defendant. Ganga Raju and 1st defendant fostered the 1st plaintiff since they did not beget children. Prior to his sudden and untimely death on 7-8-1983 due to heart attack, Ganga Raju had on 5-8-1983 executed a Will in a sound disposing state of mind bequeathing the plaint schedule properties to the plaintiffs with absolute rights and expressed a wish therein that 1st plaintiff and 4th defendant should get married. Ignoring that wish, 4th defendant married 5th defendant. 1st defendant under the influence of defendants 2 to 5 obtained possession of the plaint schedule properties and started denying the title of the plaintiffs to the suit properties and executed settlement deeds in respect of the plaint schedule property in favour of defendants 3 and 4. Hence the suit.
3. Defendants filed a common written statement admitting the relationship set out in the plaint and denying the other allegations, including the alleged fostering of the 1st plaintiff by Ganga Raju and 1st defendant and contending that Ganga Raju died intestate very suddenly due to heart attack and the Will set up by the plaintiffs is a forged document and that plaintiffs were never in possession of any of the plaint schedule properties.
4. The learned trial Judge who initially framed seven issues for trial, later recast them into six. Plaintiffs, in support of their case examined the first plaintiff as PW.1 and five other witnesses as PWs.2 to 6 and marked Exs.A1 to A55. In support of their case defendants examined 1st defendant as DW.1 and three other witnesses as D.Ws.2 to 4 and marked Exs.B1 to B28. The learned trial Judge, holding that Will dated 5-8-1983 said to have been executed by Ganga Raju is not true and valid, and plaintiffs were not in possession of the plaint schedule properties on the date of the suit, and the settlement deeds executed by the 1st defendant are binding on the plaintiffs, held that plaintiffs are not entitled to declaration of their title or recover plaint schedule property from the defendants, and dismissed the suit with costs. Hence the appeal by plaintiffs.
5. As rightly observed by the learned trial Judge, question as to whether the settlement deeds executed by the 1st defendant in favour of the defendants 3 and 4 are binding on the plaintiffs or not depends on the validity of the Will said to have been executed by Ganga Raju. If the Will set up by the plaintiffs is held to be genuine, those settlement deeds automatically become invalid. If the Will is held to be not true, the settlement deeds would be valid.
6. The points for consideration are:
1. Whether Ex.A1 Will dated 5-8-1983 i.e., Ex.A1 said to have been executed by Ganga Raju is true and valid?
2. To what relief the plaintiffs are entitled to?
7. POINT NO.1:
The main contention of Sri M.R.K. Choudary, learned Senior Counsel for the plaintiffs, is that the trial Court by misapplying the case law on subject of Proof of Wills did not properly appreciate the evidence adduced by the plaintiffs. It is his contention that when the defendants took a plea in their written statement that the signatures of the 1st defendant and her husband Ganga Raju in Ex.A1 were forged and when it is the specific evidence of 1st defendant, as DW.1 that she never affixed her signature to any blank paper, the trial Court was in error in holding that Ex.B1 was prepared on a document containing the signatures of the deceased and the 1st defendant. It is his contention that when the two attestors and the scribe, stood the test of cross-examination made at length, the Court below ought to have accepted their evidence and upheld the validity of Ex.A1. He relied on the following decisions: H. VENKATACHALA IYENGAR vs. B.N. THIMAJAMMA AND OTHERS, ; SHASHI KUMAR BANERJEE vs. SUBODH KUMAR BANERJEE, ; SMT. SUSHILA DEVI vs. PANDIT KRISHNA KUMAR MISSIR, ; CHARAN SINGH AND ANOTHER vs. BALWANT SINGH AND OTHERS, AIR 1975 Punjab & Haryana 179; SMT. MALKANI vs. JAMADAR AND OTHERS, ; SMT. RAMNIWASI vs. MADANLAL, ; MUNNALAL, MINOR, AND OTHERS vs. MST. KASHIBAI AND OTHERS, AIR 1947 Privy Council 15; BILLESWAR KUMAR vs. SMT. NIRUPAMA DEBI AND OTHERS, ; SMT. RAJESHWARI RANI PATHAK vs. SMT. NIRJA GULERI AND OTHERS, ; SMT. INDU BALA BOSE AND OTHERS vs. MANINDRA CHANDRA BOSE AND ANOTHER, ; SMT. CHINMOYEE SAHA vs. DEBENDRA LAL SAHA AND OTHERS, ; GORANTLA THATAIAH vs. THOTAKURA VENKATA SUBBAIAH AND OTHERS, ; RAMCHANDRA RAMBUX vs. CHAMPABAI AND OTHERS, ; MAJOR SINGH vs. RATTAN SINGH (DEAD) BY LRS. AND OTHERS, ; SADASIVAM vs. K. DORAISAMY, ; GURO (SMT.) vs. ATMA SINGH AND OTHERS, ; GURDIAL KAUR AND OTHERS vs. KARTAR KAUR AND OTHERS, ; S.SUNDARESA PAI AND OTHERS vs. SUMANGALA T. PAI (MRS) AND OTHERS, and BENI CHAND (SINCE DEAD) NOW BY L. Rs., vs. SMT. KAMLA KUNWAR AND OTHERS, and contended that in view of the evidence on record and the ratio in the decisions cited by him, plaintiffs are entitled to the decree sought.
8. The contention of Sri C.S.S. Sastry learned counsel for defendants, is that since the trial Court gave cogent reasons for its conclusion that Ex.A1 is a forged document, there are no grounds to interfere with the Judgment and decree under appeal.
9. In VENKATACHALA IYENGAR case (1 supra) it is held that in case of proof of Wills, as in the case of proof of other documents it would be idle to expect proof with mathematical certainty, and the test to be applied would be the usual test of the satisfaction of the prudent mind. It is also held therein that propounder taking a prominent part in the execution of the Will, and receiving substantial benefit under it, would generally be treated as a suspicious circumstance attending the execution of the Will and so the propounder is required to remove the said suspicion by clear and satisfactory evidence. In SHASHI KUMAR case (2 supra) it is held that merely because the attesting witnesses happen to be chance witnesses it is not a ground to disbelieve their evidence, if the other evidence on record establishes the due execution of the Will by the testator. In this case the Supreme Court was considering a holograph Will, in the last paragraph of which the testator stated that he had signed the Will in the presence of witnesses and the witnesses had signed in his presence. In SUSHILA DEVI case (3 supra) the testator bequeathed most of his property to his son and the husband of a predeceased daughter, and did not provide anything to his only living daughter who was comparatively affluent. The Supreme Court held that when due execution of the Will is established, testator not bequeathing any property to his daughter, in the circumstances of the case, cannot be a ground to suspect the genuineness of Will. In CHARAN SINGH case (4 supra) it is held that as a general rule, until the contrary is established, a testator is presumed to be sane and has the mental capacity to make a valid Will and presumption of testamentary incapacity cannot be drawn merely because the testator was advanced in years, and when execution of the Will is proved by unimpeachable and reliable testimony of the scribe and the attesting witnesses and when the testator had clearly given rational reasons for giving his property to some only of his descendants and disinheriting others, the genuineness of the Will should be taken to have established. MALKANI case (5 supra) is a case where the plaintiff after coming to know that her mother (the testatrix) was about to execute a Will, tried to prevent her from doing so, and the evidence on record showed that the testatrix was determined in bequeathing the property to her husband's brother's son to the exclusion of the plaintiff. In those circumstances the Supreme Court held that the beneficiaries under the Will taking part in execution of the Will is not much of consequence and that that fact cannot be said to be a suspicious circumstance. In RAM NIWASI case (6 supra) it is held that till the propounder removes the legitimate doubts as to (i) execution of the Will (ii) disposing state of the testator, and (iii) improper and unfair dispositions in the Will creating a doubt about its genuineness, the Court will be reluctant to treat it as the last Will of the testator. In MUNNALAL case (7 supra) a Will which was more than 30 years old was produced from proper custody, and evidence as to the state of testator's mind was lacking. It was held that when rational evidence relating to execution of such Will in the presence of witnesses was adduced, presumption that he was of sound mind and understood what he was about, can be raised under Section 90 of Evidence Act. In BILLESWAR KUMAR case (8 supra) it is held that when reasonable grounds exist for disputing the sanity of the testatrix, the propounder should prove that the testatrix was of sound mind on the date of execution of the Will and that she knew and approved the contents thereof, and when insanity of the testatrix is not well founded, the burden of proving insanity of testatrix is on the person impeaching the Will. In SMT.RAJESHWARI RANI PATHAK case (9 supra) the testator by giving sufficient reasons for disinheriting his wife, did not bequeath any property to her. While considering the evidence of attestors, it was held that the attesting witnesses of Wills are not expected to be meticulous in the minute details of the Will, and as the only requirement of law is that they (attesting witnesses) and the testator should affix their signatures in the presence of each other, if the attesting witnesses were sure that the Will had been executed by the testator voluntarily with a free disposing mind and when the Will contains reasons for depriving some heirs, it can be considered as genuine. In SMT.INDU BALA BOSE case (10 supra) while holding that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed by Section 63 of the Succession Act, held that propounder taking prominent part in execution of the Will, which confers a substantial benefit on him is a suspicious circumstance, and so has to be removed by the propounder by clear and satisfactory evidence. In SMT.CHINMOYEE SAHA case (11 supra) it is held that exclusion of some relatives and making bequests to some only of the grand children, by itself, is not a ground to disbelieve a Will when its due execution and attestation, as well as sound disposing state of mind of testatrix are proved. In GORANTLA THATAIAH case (12 supra) it is held that suspicious circumstances in the matter of execution of Wills must be judged from the facts and circumstances of the case and the propounder taking prominent part in execution of the Will, which confers a substantial benefit on him, is a suspicious circumstance attending the executing of the Will. In RAMCHANDRA RAMBUX case (13 supra) the Supreme Court, following the ratio in VENKATACHALA IYENGAR (1 supra) and SUBODH KUMAR BANERJEE (2 SUPRA) held that the Court need not be confined only to the way in which the witnesses have deposed or to their demenor, and that it is open to it to look into the surrounding circumstances, as well as probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses. In KALYAN SINGH, LONDON TRAINED CUTTER, JOHRI BAZAR, JAIPUR vs. CHOOTI AND OTHERS, the Supreme Court held that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder, and in order to judge the credibility of witnesses and disengage the truth from falsehood, the Court is not confined only to their testimony and demeanour, and that it is open to the Court to consider circumstances brought out in the evidence and appear from the nature and contents of the document itself, and that it is open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of evidence adduced by the parties. In MAJOR SINGH case (14 supra) though the execution of the Will was not disputed, the trial Court and the first appellate Court concurrently found that the Will was not validly executed. In Second appeal, High Court reversed the finding holding that rejection of the evidence of the attestors by the Courts below was not correct and upheld the validity of the Will. Holding that the High Court was justified in interfering with the concurrent findings of the Courts below, because the genuineness of the Will was not disputed by the other side, the Supreme Court dismissed the appeal. In SADASIVAM CASE (15 supra) unregistered Will executed in 1979 was made public in 1985 after the son of the testator filed a suit against the legatee under the Will. In the circumstances of that case, holding that the testator calling witnesses in whom he has confidence, and divesting some of his close relations are not suspicious circumstances, the Supreme Court upheld the Will. In GURDIAL KAUR case (17 supra) it is held that unless the conscious of the Court is satisfied that the Will in question was executed and attested in the manner required under Indian Succession Act, 1925, and was the product of the free volition of the executant, and in cases where there are suspicious circumstances, unless the propounder dispels those, Courts should not uphold the validity of a Will. In SUNDARESA PAI case (18 supra) in the facts and circumstances of that case, it was held that uneven distribution of assets amongst the children, by itself, cannot be taken as a circumstance causing suspicion surrounding the execution of the Will. BENI CHAND case (19 supra) is relied on by the learned counsel for the appellant to show the meaning of 'Attesting Witness'. In that decision it is held that an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document, or after receiving the personal acknowledgement from the executant as regards the execution of the document, and where the attestor signed below the thumb impression of the testatrix. In that case since the evidence of the attesting witness shows that he and two others saw the testatrix putting the thumb mark on the Will by way of execution, and that they all signed the Will in token of attestation in the presence of the testatrix after she had affixed her thumb mark to the Will, it can be held that the execution of the Will was proved in terms of Section 63 read with Section 68 of the Evidence Act. Recently the Supreme Court in N.KAMALAM vs. AYYA SWAMY, 2001 AIRSCW 2907 considered the question whether the scribe subscribing his signature to a Will can be taken as his signing as an attesting witness. After reviewing the case law on the subject it was held that since animus to attest the Will should be established, the person signing Will as a scribe cannot be treated as an attestor.
10. The ratio in the various decisions relied on by the learned counsel for the plaintiffs is that the propounder should prove the Will and dispel the various suspicious circumstances creating suspicion in the mind of the Court about the genuineness of the Will set up by him. Propounder taking active part, when substantial benefit is conferred on him, would be a suspicious circumstance. Since the plaintiffs are relying on Ex.A1, it is for them to prove that Ex.A1 was validly executed and attested, and they should also establish that there are sufficient grounds to the testator disinheriting his wife, the 1st defendant, and preferring them.
11. The averment in the plaint is that since Ganga Raju and 1st defendant had no issues, they brought 1st plaintiff to their house when he was 10 years of age, and fostered him as their son, because Veeriah was not agreeable to give him in adoption to them, and that even during the life time of Ganga Raju, 1st plaintiff used to look after the properties of Ganga Raju and was attending to the agricultural operations and was serving Ganga Raju and 1st defendant with all love and affection and regard, though he was not adopted, and so Ganga Raju and 1st defendant had great affection and love towards him, and used to treat him more dearer than a natural son. The recitals in Ex.A1 show that since he i.e., the testator (Ganga Raju), did not beget children, he brought the second son of his elder brother Veeriah i.e., 1st plaintiff, to his house and kept him in his house and is treating him as his own son though he did not actually adopt him, and that it is his sincere wish that 1st plaintiff should marry 4th defendant. If the evidence on record establishes that 1st plaintiff was staying with Ganga Raju and was being treated as the son of Ganga Raju and 1st defendant, it would be one of the grounds to accept Ex.A1 as genuine. Voters list of Medinaraopalem village relating to Female and Male voters for the year 1980 were marked as Exs.B20 and B21 respectively. They do not show that 1st plaintiff was living in the house of Ganga Raju and 1st defendant, but show that he was living with his parents in a different house. It is contended that since 1st plaintiff was not actually adopted his staying with his parents now and then, especially at the time of enumeration, cannot be a ground for holding that 1st plaintiff was not actually living with Ganga Raju and 1st defendant. There is no force in this contention. The plaint averments are that 1st plaintiff was living in the house of Ganga Raju. If it is so his name must be shown as a resident in the house of Ganga Raju, but not as a resident in the house of his parents. Casual visitors at the time of enumeration will not be shown as residents of that house in voters list. Exs.B20 and B21 belie the contention of the plaintiffs that 1st plaintiff was living in the house of Ganga Raju.
12. The fact that invitation cards for the marriage of Venkata Satyanarayana were printed in the name of Ganga Raju, by itself, does not strengthen the case of the plaintiffs that Ganga Raju treated the first plaintiff as his foster son, because in rural area, nay, in many urban places also, out of respect for the elders in the family, invitation cards for marriages etc., would usually be printed in the name of the elder living member in the family. So, merely because invitation cards for the marriage of the son and daughter of Veeriah were issued in the name of Ganga Raju, it cannot be presumed that first plaintiff was fostered by Ganga Raju. Similarly Ganga Raju and 1st defendant getting Ex.A20 photograph taken with the newly married daughter and son-in-law of Veeriah can be of no special significance because newly married couple get photographs taken with elder couples that attended their wedding for happy memories or for other purposes.
13. Ex.B11 is the promissory note executed by 1st plaintiff and his brother i.e., father of 2nd plaintiff for Rs.4,000/- on 9-5-1972 in favour of Ganga Raju. If Ganga Raju had lot of affection towards 1st plaintiff and treated him as his own son, he would not have obtained a promissory note from 1st plaintiff, even if the amount lent under Ex.B11 was borrowed for the necessity of the father of 2nd plaintiff. Plaintiffs have no answer for Exs.B11m B20 and B12. Therefore the trial Court very rightly held that they cut at the root of plaintiffs case that 1st plaintiff was fostered by Ganga Raju. So the recital in Ex.A1 relating to Ganga Raju bringing up 1st plaintiff in his house and fostering and treating him as his own son is not a correct statement of fact. This is one of the circumstances to doubt the genuineness of Ex.A1.
14. There, admittedly, were no disputes between Ganga Raju and his wife, the 1st defendant. No reasons or circumstances for Ganga Raju disinheriting the 1st defendant are established by the evidence on record. Propounder getting substantial benefit, in exclusion of the natural heir, with whom the executor has no difference of opinion, is a suspicious circumstance. For clearing that suspicion, plaintiffs have to establish satisfactory reasons as to why Ganga Raju disinherited 1st defendant and favoured them. The recital in Ex.A1 is that 2 acres 22 cents of land in Medinaraopalem village was purchased by the testator with his own money and took the 'sale deed' in the name of 1st defendant and that that property should be enjoyed by the 1st defendant with absolute rights. Survey number of the said land of 2 acres 22 cents allegedly purchased in the name of 1st defendant is not mentioned. No documentary evidence is adduced by the plaintiffs to show in which survey number the said 2 acres 22 cents of land belonging to the 1st defendant, referred to in Ex.A1, was purchased and from whom. Ex.B9 is the Ryotwari Pass Book of 1st defendant in respect of 2 acres 48 cents in S.No.274/1, 81 cents in S.No.274/3, 1 acre 10 cents in RS.No.237/4, 35-1/2 cents in RS.No.229/4, 65 cents in S.No.273/2 and 47 cents in S.No.273/3 of Medinaraopalem village. It also shows that 1 acre 10 cents in S.No.237/4, 65 cents in S.No.273/2 and 47 cents in S.No.273/3 belonging to Kommana Rattiah and Nandigam Venkata Ratnam, and that 2 acres 48 cents in S.No.271/1 and 81 cents in S.No.274/3 belonging to M. Ganga Raju and 35-1/2 cents in S.No.229/4 belonging to M.Ganga Raju and Bhujanga Rao were mutated in her name. Exs.B17 and B18 relate to 47 cents of land in S.No.273/3 - and 68 cents of land in S.No.273/2 of Medinaraopalem village respectively. The recitals in Exs.B17 and B18 show that the consideration was paid by the 1st defendant herself. The evidence of DW.1 shows that her parents gave her some property and that she purchased the land covered by Exs.B17 and B18 with her own money. There is no cross-examination in respect of that statement. So, it is clear that Ganga Raju did not provide the consideration to 1st defendant for purchase of the lands covered by Exs.B17 and B18. Ex.B16 is the registered sale deed dated 2-6-1969 executed by M.Ganga Krishna and others in favour of 1st defendant in respect of 1 acre out of 1 acre 12 cents in S.No.237/4 of Medinaraopalem. The recitals in Ex.B16 also show that some part of the sale consideration was paid by 1st defendant herself and the balance of Rs.681/- was paid through one Motkuri Satyanarayana at the time of registration. There is nothing in Ex.B16 to show that any part of the consideration for purchase of the land covered thereby was supplied by Ganga Raju (In the appendix of evidence attached to the Judgment of the trial Court, Ex.B16 is wrongly described as the sale deed executed by Motkuri Ganga Krishnamma and others in favour of Medikonda Ganga Raju for Rs.2,975/-. In fact it is a sale deed executed in favour of 1st defendant). From Exs.B16 to B18 it is clear that 1st defendant herself purchased the property of 2 acres 15 cents in S.Nos.237/4, 273/3 and 273/2 all by herself without reference to Ganga Raju and Ganga Raju must be aware that there are three sale deeds in respect of the property in her name. When the land of 1st defendant was purchased under three sale deeds, plural "sale deeds" instead of singular 'sale deed' would have been used in Ex.A1. Obviously 1st plaintiff was not aware that 1st defendant purchased her land under three sale deeds. So the word 'sale deed' was used in Ex.A1. In the later part of Ex.A1 with reference to the property in the name of Ganga Raju it is stated that 2 acres 48 cents in RS.No.274/1, 81 cents in R.S.No.274/1 and 15 cents out of 70 cents in R.S.No.229/4 of Medinaraopalem and 3 acres 84 cents in R.S.No.214/2D of Ramaraogudem villages, should be shared equally by both the plaintiffs. This shows that survey numbers of his land are known to Ganga Raju. While mentioning the survey numbers of land in his name Ganga Raju not mentioning the survey numbers of the land allegedly purchased by him in the name of 1st defendant is a conspicuous lapse. If really Ex.A1 was dictated by Ganga Raju, this omission would not be there. I pause here and make a reference to Ex.A4, an agreement executed by Madala Satyanarayana and Medikonda Trinadha Venkata Satyanarayana (father of 2nd plaintiff), in favour of the first plaintiff and 1st defendant in respect of 4 acres 25 cents in R.S.No.214/B of Ramaraogudem village. The evidence of P.W.1 shows that 1st defendant in pursuance of Ex.A4 obtained the original of Ex.A3 on 5-1-1984 in respect of her half share. Ganga Raju who made a reference to 2 acres 22 cents (allegedly) purchased by him in the name of 1st defendant, would not have failed to make a reference to Ex.A4 agreement dated 19-10-1982 also in Ex.A1, if Ex.A1 is true.
15. The evidence of P.W.2, during cross-examination, shows that 4th defendant was brought up as the daughter of Ganga Raju and 1st defendant from her childhood. P.W.3 admitted during cross-examination, that 4th defendant was brought up by the 1st defendant. P.W.5, who is the mother of the 1st plaintiff, admitted that 4th defendant was brought up in the house of Ganga Raju. Therefore it is clear that Ganga Raju treated 4th defendant as his daughter. If 1st plaintiff was also brought up as the son of Ganga Raju, 4th defendant and 1st plaintiff would, in the eyes of Ganga Raju and 1st defendant, be brother and sister, and so Ganga Raju, as an ordinary prudent man, would never have thought of performing their marriage. So his expressing a wish in Ex.A1 that 4th defendant should marry the 1st plaintiff should rise the eye brows of many. As rightly observed by the trial Court, if in fact Ganga Raju had an intention to perform the marriage between first plaintiff and 4th defendant during his life time, nothing prevented him from performing their marriage, because both of them were of marriageable age by the date of his death. The case of the plaintiffs that the marriage between first plaintiff and 4th defendant could not take place because of the disinclination of the 4th defendant, ex facie appears to be incorrect because P.W.2, during cross-examination on 10-3-1986, admitted that during the life time of Ganga Raju there was betrothal for the marriage of 1st plaintiff with the daughter of Garapati Krishna Rao. PW.5, the mother of the 1st plaintiff, during cross-examination on 25-3-1986, admitted that Satyanarayana (father of 2nd plaintiff) made a proposal for the marriage of first plaintiff with the daughter of Krishna Rao, and that she never enquired 4th defendant whether she was willing to marry PW.1. The evidence on record also shows that the marriage of 4th defendant took place subsequent to the marriage of PW.1. When the betrothal ceremony of first plaintiff with the daughter of Krishna Rao took place during his life time, why would Ganga Raju think of performing the marriage between 4th defendant and 1st plaintiff that too without consulting defendants 2 and 4? Being aware that not making any provision for 1st defendant and 4th defendant towards whom Ganga Raju had great love and affection would not be taken kindly by Court, obviously 1st plaintiff must have pitched upon the idea of getting recitals in Ex.A1 Will made that property standing in the name of 1st defendant was purchased by Ganga Raju for her benefit and that 4th defendant should marry him (1st plaintiff) so that an explanation can be given that because Ganga Raju was thinking that 4th defendant would marry him (1st plaintiff) Ganga Raju did not make a provision for them in his Will Ex.A1.
16. 1st plaintiff as P.W.1, during cross-examination on 6-11-1988, stated that he went to the house of Ganga Raju at about 2.15 PM., when a part of the Will (Ex.A1) was already written on one pial situated outside the house, and that about 10 minutes later Ganga Raju asked him to fetch Bhaskar Rao (P.W.2) and so he went to the house of Bhaskar Rao (P.W.2) and that Veerabhadra Swamy (P.W.3) was with P.W.2 at that time and so all the three of them went to the house of Ganga Raju and by the time they reached the house of Ganga Raju the writing of the Will (Ex.A1) was completed and that he does not know if a draft for Ex.A1 was prepared. He admitted that C. Kotilingam, Sarpanch of his village scribes documents, and at Bhimadole where there is a Sub-Registrar's office, is about 5 or 6 miles from his village and there are licensed document writers at Bhimadole, and his villagers generally get their documents written by the documents writers at Bhimadole, which is about 10 to 11 miles from his village. He admitted that there are 7 or 8 houses of Kammas, including that of Medikonda China Venkata Ramaiah, a cousin of Ganga Raju, near the house of Ganga Raju, who also was a Kamma by caste.
17. The evidence of PW.2 is that when Veerabhadra Swamy (PW.3) was with him, P.W.1 came and informed him that Ganga Raju sent for him and so he and P.W.3 went to the house of Ganga Raju and by the time they reached the house of Ganga Raju, the scribe completed writing of Ex.A1 and after the scribe read over the contents of Ex. Ganga Raju signed it and thereafter 1st defendant signed Ex.A1 in token of her approving to the bequests in Ex.A1 and since PW.1 who was fostered by Ganga Raju, lost his property in litigation, Ganga Raju bequeathed his property to P.W.1. During cross-examination he stated that he has not seen the writing of Ex.A1 and that prior to Ex.A1, its scribe, with whom he has friendship, did not scribe any document of his or of Ganga Raju or any of their villagers. He also admitted that Kotilingam, Sarpanch of his village, is a document writer. He admitted that P.W.1 calls him "Annayya" (elder brother), and stated that by the time he went to the house of Ganga Raju, defendants 2 and 4 were present there. He admitted that though the house of Medikonda China Venkata Ramaiah, son of paternal uncle of Ganga Raju, is adjacent to the house of Ganga Raju, he (China Venkata Ramaiah) was not called by Ganga Raju to attest Ex.A1.
18. The evidence of PW.3 is that when he was at the house of PW.2, PW.1 came and informed P.W.2 that Ganga Raju sent for him (P.W.2) and so he also, at the request PW.2, accompanied P.W.2 to the house of Ganga Raju, and by the time they reached the house of Ganga Raju, writing of the Will Ex.A1 was completed, and that Ganga Raju asked the scribe, whom he saw for the first time on that day, to read Ex.A1 and after the scribe read over Ex.A1, Ganga Raju asked 1st defendant to sign in Ex.A1, and after he signed, the scribe affixed his signature to Ex.A1. During cross-examination he stated that he often goes to the house of PW.2 for advice as both of them are friends, and admitted that he did not sign in any of the documents relating to Ganga Raju earlier, and that 4th defendant also was present at the time of execution of Ex.A1. He admitted that he did not see the scribing of Ex.A1, and stated "I think that the Will Ex.A1 was written in our village". He also admitted that 1st defendant and Ganga Raju were affectionate towards each other, and stated that when 1st defendant filed E.P. to enforce the decree obtained by her against Vadlamudi Achyutha Ramaiah on the foot of a promissory note, Achyutha Ramaiah filed I.P., showing him (P.W.3) as one of his creditors.
19. The evidence of PW.4, the scribe of Ex.A1 is that his brother-in-law, who is a resident of Kandrika, which is at a distance of 1-1/2 miles from Medinaraopalem, introduced him to Ganga Raju, and about 10 days prior to Ex.A1, Ganga Raju met him at Eluru and asked him to visit his house and so on the date of Ex.A1, after calling on his ailing brother-in-law at Kandrika, he went to see Ganga Raju also, and then, at the request and dictation of Ganga Raju, he scribed Ex.A1 in the presence of the wife of Ganga Raju and after two attestors came to the house of Ganga Raju, he read over Ex.A1, and thereafter Ganga Raju signed Ex.A1 with another pen, the attestors saw Ganga Raju signing Ex.A1, and after the attestors signed Ex.A1, he signed Ex.A1 and wrote the words "Induku Sakshulu", and because of friendship between him and Ganga Raju he did not receive any money for scribing Ex.A1 from Ganga Raju. During cross-examination he admitted that the register maintained by him, as licensed document writer, does not disclose his scribing Ex.A1, and except Ex.A1 he did not scribe any other document of any other person from Medinaraopalem, that he has no acquaintance with the attestors of Ex.A1, (this is contrary to the evidence of P.W.2, who stated that he has friendship with P.W.4) that Ganga Raju himself gave the paper for writing Ex.A1, that he does not know up to which class Ganga Raju studied, that Ganga Raju cannot write documents or Wills, but can just say what the contents of the documents should be, and cannot dictate the document, that no draft for Ex.A1 was prepared and denied the suggestion that he prepared the Will Ex.A1 on a paper containing the signatures of Ganga Raju and 1st defendant, and stated that he did not see 1st defendant prior to Ex.A1 and that he cannot describe her physical features and did not see any other female members in the house at the time of scribing Ex.A1, and as Ex.A1 was taken inside for obtaining the signature of 1stdefendant he did not see the 1st defendant signing Ex.A1, and does not know whether the lady who signed Ex.A1 is 1st defendant or not and did not see the attestors of Ex.A1 prior to Ex.A1, that both the attestors i.e., P.Ws.2 and 3, and P.W.1 came after he finished writing scribing Ex.A1.
20. The evidence of P.Ws.2 and 3, figuring as the attestors to Ex.A1, does not show that Ganga Raju saw their signing Ex.A1 as attestors. In fact P.Ws.2 and 3 did not specifically say that they saw Ganga Raju affixing his signature to Ex.A1. The evidence of P.W.2 is "The scribe read over the contents of the Will. Then Ganga Raju signed the Will". He did not specifically say that he saw Ganga Raju signing the Will, or that he signed Ex.A1 in the presence of Ganga Raju. P.W.3 did not even say that Ganga Raju signed the Will in his presence. He stated "Accordingly the scribe read over Ex.A1. Ganga Raju asked 1st defendant to sign Ex.A1. By the time we went there, 1st defendant was present. After we signed, the scribe put his signature in Ex.A1".
Obviously noticing that the evidence of P.Ws.2 and 3 does not establish the due execution and attestation of Ex.A1 as per Section 63 of Succession Act, PW.4 was made to speak about the attestors signing the Will in the presence of Ganga Raju and the attestors affixing their signatures to Ex.A1 in the presence of Ganga Raju. But this evidence of P.W.4 does not cure the lacuna in the evidence of P.Ws.2 and 3, because in N.KAMALAM case (21 supra) the Supreme Court held that a scribe cannot be elevated to the status of an attestor.
21. The three important requirements of due execution and valid attestation of a Will are -
(a) The testator has to sign or affix his mark to the Will, or it shall be signed by some other persons in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will, and
(c) The Will shall be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will in the presence of and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark or of the signature of such other person, and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation is necessary". (see para 18 of H.VENKATACHALA IYYENGAR (1 supra).
In order to show that the requirement of Section 63 of Succession Act are complied with, (in cases where the attestors are alive) atleast one of the attestors to the Will should be examined and he should state that he and the other attestor(s) saw the testator affixing his signature to the Will and that the testator saw his and the other attestor affixing(s) their signatures to the Will as an attestors. Since scribe is not an attestor, his evidence would not cure the lacuna in the evidence of the attestors, if the attestors fail to speak to the requirement of Section 63 of Succession Act in their evidence. Since the evidence of P.Ws.2 and 3 does not show that Ganga Raju saw their signing in Ex.A1, and since they also did not specifically state that they saw Ganga Raju signing Ex.A1 in their presence, there is no proof of due execution and valid attestation of Ex.A1 as contemplated by Section 63 of Succession Act. For this reason alone Ex.A1 has to be rejected.
21. The evidence of P.W.4 is that no other lady except 1st defendant was present at the time of Ex.A1. He did not speak about the presence of the 4th defendant at the time of Ex.A1. The evidence of P.Ws.2 shows that defendants 2 and 4 also were present at the time of Ex.A1. P.W.3 stated that 4th defendant also was present at the time of Ex.A1. If defendants 2 and 4 also were present at the time of Ex.A1 along with 1st defendant, there is no reason for Ganga Raju not making a request to them i.e., defendants 2 and 4 to attest Ex.A1, instead of sending for P.W.2 whose house is not near his house. Ganga Raju would have sent for and requested his cousin and immediate neighbour China Venkata Ramiah to attest his Will. The reasons for Ganga Raju not sending for China Venkata Ramiah, his cousin and immediate neighbour, are not explained by P.W.1. Ganga Raju may not be knowing the number of persons required for attesting his Will, but P.W.4, who is a licensed document writer, would have informed Ganga Raju that two persons have to attest the Will. When defendants 1,2 and 4 were present at the time of Ex.A1 and if they did not object to the bequests therein, there is no reason for Ganga Raju sending for P.W.2 who resides at a distance from his house, without requesting defendants 2 and 4 to attest his Will. His cousin and immediate neighbour would be the next best person that would have been thought of Ganga Raju to attest his Will. So Ganga Raju sending for P.W.2 through P.W.1 is a suspicious circumstance, more so because P.W.2 admitted during cross-examination that P.W.4 (the scribe of Ex.A1) is his friend.
22. Since the evidence of P.W.1 is that Ganga Raju asked him to bring P.W.2 only, it is clear that neither P.W.1, nor Ganga Raju, knew that P.W.3 would be with P.W.2 and would accompany P.W.2 to the house of Ganga Raju. So P.W.3 is but a chance witness, and so his evidence has to be weighed with great caution and cannot be accepted at its face value. SHASHI KUMAR (2 supra) relied on by the learned counsel for appellants, in support of his contention that evidence of chance witness cannot be brushed aside, has no application to the facts of this case, because in that case the Will was a holograph Will in which the testator himself wrote in his own hand that he signed the Will in the presence of witnesses and the witnesses signed in his presence. Ex.A1 is not a holograph Will. Even if P.W.3 accompanied P.W.2, Ganga Raju asking P.W.3 only, who is a stranger to his family ignoring defendants 2 and 4 to attest Ex.A1 is highly suspicious.
23. As per the evidence of P.W.4 Ganga Raju accidentally met him at Eluru and casually extended an invitation to visit his house. If Ganga Raju apprehended sudden death due to pain in his heart, and for that reason only he wanted to execute a Will, he would have sent for a document writer available in his village or the neighbouring village and got a Will scribed by a local document writerThere was no earthly reason for Ganga Raju awaiting the arrival of P.W.4 to scribe his Will, when it is not the evidence of P.W.4 that he informed Ganga Raju the date on which he would visit the house of Ganga Raju. There is also no evidence on record to show that Ganga Raju knew that P.W.4 would visit his house on the date of Ex.A1 dated 5-8-1983. The evidence of P.W.4 is that he went to the house of Ganga Raju after visiting his ailing brother-in-law, which means that had his (P.W.4's) brother-in-law not fallen sick, P.W.4 would not have visited Kandrika where his brother-in-law resides and so there is no scope for Ganga Raju knowing that P.W.4 would visit his house on that date i.e., the date of Ex.A1.
24. The evidence of P.W.4 that he drafted Ex.A1 to the dictation of Ganga Raju without preparing a draft is unbelievable because P.W.4 himself stated that Ganga Raju cannot dictate documents and can just say what the contents of the document should be. In such a case it is difficult to believe the evidence of P.W.4 that he scribed Ex.A1 to the dictation of Ganga Raju. It would be possible for Ganga Raju who had no experience in dictating the contents of Wills or documents to dictate the contents in Ex.A1. The fact that the book maintained by P.W.4 does not show Ex.A1 being scribed by him on that day, as admittedly P.W.4, gains importance. It is no doubt true that P.W.4 not noting about his scribing Ex.A1 does not violate any of the Rules framed under Stamp Act and Registration Act. But in the circumstances of this case it becomes a suspicious circumstance. P.W.4 stated that he did not charge any fees from Ganga Raju for scribing Ex.A1, because of their friendship. What is the special friendship between him and Ganga Raju that prompted him not to charge any fees for scribing Ex.A1 is not stated by P.W.4. According to P.W.4, he was introduced to Ganga Raju by his brother-in-law. When that introduction developed into friendship and reached the stage of rendering free professional service is not stated by P.W.4.
25. As rightly observed by the learned trial Judge, a look at Ex.A1 shows that it should have been prepared on a paper containing the signatures of Ganga Raju and 1st defendant. Otherwise there is no reason for crowding the lines towards the end of the body of Ex.A1 and broader distance between the lines in the top portion of Ex.A1. If Ex.A1 was written normally on a plain paper being an experienced and licensed document writer, P.W.4 would have left the same and equal space between the lines, and instead of crowding the bottom lines in the body of Ex.A1 to complete it in one sheet, he would have written and completed it on two or more pages instead of trying to adjust it on a single sheet. Even by a casual look at Ex.A1 it is easy to say that it was not a document written to dictation. From the way in which it is written it is obvious that it was copied from a draft. So I am of the opinion that the services of P.W.4 an experienced document writer and a stranger to the village were tried to bring into existence Ex.A1 on a blank sheet containing the signatures of Ganga Raju and 1st defendant.
26. It is true, as contended by the learned counsel for plaintiffs, there is no particular format in which the attestors to a document should affix their signatures to it. It is also true the fact that the words "Induku Sakshulu" were written immediately below the signature of the executant, per se cannot be a ground for disbelieving the genuineness of a document. The practice in vogue is the executant affixes his signature on the right side bottom portion and the attestors theirs on the left bottom portion of the document. Where the circumstances show that the signature of a person, who could not have been present at the time of execution of the document, was being utilized to make it appear that such person is an attestor to the document, and if that signature appears at an unusual place, without a proper explanation for deviation from the usual practice, that circumstance has to be taken into consideration for testing the genuineness of the questioned document. As stated earlier the reason for P.W.4 trying to complete the Will of Ganga Raju Ex,A1 on one page only, when it could or ought to be written it on more than one page, is not explained by P.W.4 or P.W.1. PW.4 did not state that he is habituated to write "Induku Sakshulu" immediately below the signature of the executant in all the documents scribed by him. Why he departed from the usual practice of writing 'Induku Sakshulu' on the left side and wrote the words "Induku Sakshulu" immediately below the signatures of Ganga Raju in Ex.A1 should have been explained by PW.4. Since no such explanation came forth from PW.4, the only inference that can be drawn is that the signature of 1st defendant available underneath the signature of Ganga Raju was made use of by PW.4 in preparing Ex.A1, to make it appear that she also was one of the attestors to Ex.A1.
27. P.W.4, during cross-examination on 18-3-1986, stated that he never saw 1st defendant prior to Ex.A1, and cannot describe her physical features and does not know her personally, that as her signature was obtained inside, he did not see her actually signing Ex.A1, and that he does not know whether the lady that signed Ex.A1 is 1st defendant or not. From this evidence of P.W.4 it is easy to see that Ganga Raju did not see 1st defendant signing Ex.A1 as attestor. So the requirement of Section 63 of Succession Act relating to the executant witnessing attestor signing the document in his presence is not fulfilled in the case of the signature of 1st defendant. Here, I also wish to state that the signatures of Ganga Raju and 1st defendant appear to be in one ink, the signatures of P.W.2 and the body of Ex.A1 and the signature of P.W.4 appear to be in one ink, and the signature of P.W.3 is in a different ink. It is no doubt true that the ink of the signatures of attestors being different from that of the ink used by the executant of a document by itself may not be a ground to doubt the genuineness of a document. In this case the fact that the signatures of Ganga Raju and 1st defendant are in one ink and the signature of P.W.2 and the body of Ex.A1 and the signature of P.W.4 is in one ink and the signature of PW.3 being in different ink does create suspicion about the genuineness of Ex.A1 because the evidence of P.W.4 shows that 1st defendant did not sign Ex.A1 in the presence of Ganga Raju or himself and signed it inside the house. When P.W.4 went to the house of Ganga Raju and scribed Ex.A1 to the dictation of Ganga Raju, Ganga Raju would in normal circumstances have signed Ex.A1 with the pen of P.W.4. There was no need for Ganga Raju using a different pen for affixing his signature to Ex.A1. The evidence of P.W.4 does not show that the pen with which Ganga Raju signed in Ex.A1 was taken inside the house to enable 1st defendant signing Ex.A1. There was no reason for 1st defendant not signing Ex.A1 on the pial where it was said to have been scribed by P.W.4 when Ganga Raju himself had affixed his signature there. P.W.3 is a Potter by profession. The evidence of P.W.2 shows that P.W.1 came to him about 2.30 P.M., with a message that he was called by Ganga Raju and at that time P.W.3 was with him to talk about agricultural operations. When P.W.3, a potter, went to the house of P.W.2 to talk about agricultural operations we do not expect him to carry a pen with him. So, his (P.W.3) signing with a different pen in Ex.A1 does create a suspicion about its genuineness. The answers given by P.Ws.2 and 3 during their cross-examination are also the reason for the suspicion. The evidence of P.W.2, during cross-examination, (at page 9 of his deposition) reads-
"I did not see the writing of contents of Will Ex.A1. Ganga Raju told me that he got the will written in my village itself. He gave that answer when I questioned him. Ganga Raju told me that he got written Ex.A1 just before my arrival. The witness again stated that he did not question Ganga Raju as to the village in which Ex.A1 was written. No doubt arose to me as to the time when Ex.A1 was written."
P.W.3, during cross-examination, at page 2 of his deposition stated -
"I did not see the writing of Ex.A1. I think that the Will Ex.A1 was written in our village".
At page 4 of his deposition he (P.W.3) stated-
"Ganga Raju signed with the pen of the scribe. D1 also signed with the pen of the scribe. I signed with my own pen. P.W.2 signed with my pen. The ink of the signature of scribe and the ink for writing the body of Ex.A1 are the same. The ink used for signatures of Ganga Raju and D1 appeared (sic) to be different from the ink used for writing body of Ex.A1. There is difference in ink of the signatures of P.W.2 and the ink of my signature".
From the above extracted portions in the depositions of P.Ws.2 and 3 it is clear that they in fact were not sure as to where Ex.A1 was actually written and that they want to help or assist P.W.1 in his endeavour to prove Ex.A1 as genuine. So the fact that signatures of Ganga Raju and 1st defendant are in one ink, the signatures of P.W.4 and P.W.2 and the body of Ex.A1 in another ink and the signature of P.W.3 in a third type of ink creates a doubt about the genuineness of Ex.A1.
28. When Ganga Raju and 1st defendant were fostering the 4th defendant, there is no reason for Ganga Raju not making any bequest in favour of 4th defendant. The evidence of PW.1 that because Ganga Raju was sure that 4th defendant would marry him, Ganga Raju did not make a provision for 4th defendant cannot be accepted as correct, because, as stated earlier, Ganga Raju by no stretch of imagination would have thought performing the marriage between the first plaintiff and 4th defendant, that too without knowing the mind of 4th defendant. Not making a provision for 4th defendant in Ex.A1 is also a suspicious circumstance.
29. PW.2 during cross-examination admitted that a case was filed against him alleging that he caused injuries with a sickle to one T. Kutumba Rao, a Madiga by caste citing PW.3 as a witness on behalf of the prosecution in C.C.No.24 of 1980, and was sentenced to pay a fine of Rs.100/- in that case, and that he did not prefer any appeal. He stated that he does not know whether PW.3 was declared as hostile witness in that criminal case. Ex.B15, certified copy of the Judgment in C.C.No.24 of 1980 on the file of the Court of the Judicial First Class Magistrate-cum-Special Mobile Court, Eluru, filed against P.W.2 shows that PW.3 was treated as a hostile witness by the prosecution. P.W.3 admitted that he goes to PW.2 for advice. So it is clear that P.W.2 and P.W.3 are close friends. PW.2 during cross-examination admitted that PW.1 calls him Annayya (elder brother). So it is clear that PWs.1 to 3 who are very close to each other must have joined hands in bringing into existence Ex.A1.
30. The evidence of PW.1 shows suit O.S.No.265 of 1980 was filed by Medikonda Satyanarayana, father of 2nd plaintiff, against Madala Satyanarayana and the first plaintiff, and that Ganga Raju gave evidence on his behalf. He also stated that his brother Satyanarayana filed a criminal complaint against him, Ganga Raju and others alleging that they committed theft of electric motor impleading 5th defendant, and his parents as accused and that that criminal case ended in acquittal. He stated that his brother Satyanarayana and Ganga Raju were not on talking terms. When Ganga Raju was not on talking terms with Satyanarayana, it is difficult to believe that Ganga Raju would give half of his property to 2nd plaintiff, son of Satyanarayana, disinheriting his wife and foster daughter. Plaintiffs failed to furnish any ground for such unnatural disposition. Obviously to muster support from 2nd plaintiff also, 1st plaintiff must have brought Ex.A1 into existence.
31. Though proof of a Will does not differ from proof of other type of documents, Courts ought to exercise caution in the matter of proof of a Wills, because the person that executed the document would not be available either to accept or to deny its execution. When 1st defendant and Ganga Raju were cordial, and have no disputes and when they had brought up and fostered 4th defendant as their daughter in their house, without sending her to the house of the 2nd defendant who lived in the house of Ganga Raju for some time, even when 2nd defendant set up a separate residence, Ganga Raju not making any bequest to defendants 1 and 4 in Ex.A1 and bequeathing his entire property to the plaintiffs, for whom he had no special affection is a suspicious circumstance surrounding the genuineness of Ex.A1.
32. I am unable to agree with the contention of the learned counsel for the plaintiffs that since 1st defendant as DW.1 stated that she never signed on any blank paper, the question of preparing Ex.A1 up a blank sheet containing the signatures of Ganga Raju and 1st defendant does not arise. It should be remembered that plaintiffs are the propounders Ex.A1, and are seeking a declaration of their title to the plaint schedule properties on the basis of Ex.A1. In a suit for declaration of title, plaintiff has to succeed on the strength of his own case but not on the weakness of the case of the defendant. There is material on record to show that both Ganga Raju and 1st defendant have either filed or defended suits. The possibility of 1st defendant forgetting her and Ganga Raju signing blank papers in connection with some of the Court cases or on some other occasion cannot be ruled out. 1st defendant as DW.1 must have stated that she did not sign any blank paper probably under an impression that that answer would strengthen her assertion that Ex.A1 is a forged document. As stated earlier a Court in the matter of proof of Wills, cannot close its eyes to obvious facts and realities, and blindly believe the tutored evidence of attestors and scribe of the Will, when it is easy to procure the services of some obliging persons for bringing into existence a Will.
33. As held in RAMACHANDRA RAMBUX case (13 supra) and KALYAN SINGH case (20 supra) apart from the evidence adduced parties Court can take surrounding circumstances also into consideration for deciding the genuineness of a Will. If really 1st defendant gave her consent to the bequests made by Ganga Raju and affixed her signature to Ex.A1, and if defendants 2 and 4, who allegedly were also present at the time of Ex.A1 as stated by P.Ws.2 and 3 and did not object the bequests in ExA1, plaintiffs should establish as to why 1st defendant went back on her consent given earlier to those bequests. If 1st defendant willingly and voluntarily signed Ex.A1, Ganga Raju would have handed over Ex.A1 to her only, and could have kept it in his custody, and would not have handed it over to 1st plaintiff, which is very unnatural. Wills usually would be kept in the custody of testators themselves or with some third parties in whom testators have confidence, but would not be handed over to the legatee, because he (the testator) can at any time revoke his Will and execute a fresh Will. Therefore P.W.1 i.e., 1st plaintiff being in the custody of Ex.A1 also is a suspicious circumstance.
34. As rightly observed by the trial Court if Ganga Raju was suffering from any ailment or disease relating to heart some time prior to Ex.A1, there should be some material to establish that fact. No documentary evidence in that regard is adduced by plaintiffs. The neighbours of Ganga Raju would also know about the ailment of Ganga Raju. They were not examined. Thus there is no independent oral evidence regarding the heart ailment or chest pain of Ganga Raju on record. So the recital in Ex.A1 regarding Ganga Raju's ailment is doubtful.
35. In view of all the above suspicious circumstances, I find that plaintiffs failed to establish the genuineness of Ex.A1. So, I hold that Ex.A1 is not true and genuine. The point is answered accordingly.
36. POINT NO.2:
In view of my finding on point No.1, I find no merits in this appeal. Hence the appeal is dismissed with costs.