Andhra HC (Pre-Telangana)
Raj Kumar Deen (Died) Per L.Rs. vs Dr. A.S. Din on 3 October, 1996
Equivalent citations: 1996(4)ALT360
JUDGMENT P. Rama Krishnam Raju, J.
1. The first appellant and the respondent are brothers and sons of late J.D.M. Din. Their father died on 25-10-1970 at Raichur, survived by his two sons, mentioned above, a foster daughter Premalatha leaving a house bearing Na.3-6-423 situated at Himayatnagar, Hyderabad together with furniture and other moveables in the said house. Although he was a permanent resident of Hyderabad, he went to Raichur to stay with the first appellant one-and-half years prior to his death i.e., on 25-3-1970. During his life-time he voluntarily executed a Will dated 15-2-1970 in a sound and disposing state of mind. As the parties are Christians, the first appellant filed O.S. No. 6 of 1981 renumbered as O.S.No.147 of 1981 under Section 213 of the Indian Succession Act for the issue of a Probate or Succession Certificate on the basis of the said Will against the respondent. The first appellant examined three more witnesses besides examining himself as P.W. l and marked Exs.A-1 to A-44; while the respondent examined three witnesses besides examining himself as D.W.1 and marked Exs. B-l to B-52. The trial Court on a consideration of the entire evidence on record dismissed the said suit holding that the first appellant had failed to prove the disputed Will (ExA-1) as a true and genuine Will and as such, he is not entitled for the giant of probate- Aggrieved by the said decree and judgment, this appeal.
C.C.CA. No. 44 of 19842. The first appellant in C.C.C.A, No. 28 of 1987 is the first appellant in this appeal. The respondent filed O.S.No. 176 of 1976 which was later re-numbered as O.S.No.5 of 1982 against the first appellant for partition and separate possession of his half share-in the house bearing No. 3-fr423 situated at Himayatnagar, Hyderabad consisting of ground floor and first floor together with Gut-Houses and open space.
3. The case of the respondent is that the plaint schedule property was owned by his father late J.D.M Din who died on 25-3-1970 intestate and as such, he is entitled to a half shar-2 in the said property along with his brother, the first appellant. He examined 4 witnesses including himself as P.W.I and marked Exs.A-1 to A-66; while the first appellant examined himself as D.W.I and marked Exs.B-1 to B ' (sic)\24, On a consideration of th" entire evidence on record, the trial Court decreaded the suit as prayed for. Hence this appeal.
4. The facts which are no, in dispute may bo narrated. The parlies will be referred to as arrayed in O.S (sic) . The first appellant is the elder brother of the respondent Their father J.D.M. (sic) died on 25-3-1970 at Raichur in Gulbarga District.There mother predeceased their father on 11-12- 1954. The respondent who is the younger brother studied Medicine and also married Dr. Lilly Abraham at Vija (sic)yawaila in the year 1934. He worked in the Indian Navy for sometime. He worked at Nizambad and other places before he settled down in U.K. in the year 1965. The first appellant joined the Hyderabad Army in the year 1941. He retired form the Army having worked for about a decad?. Later he settled down in (sic) and underet business under the name of Raj Agricultural and Machinery Company. lie was appointed as Commandant of Home Guards and was kept in charge of (sic) District He purchased a site of 1400 sq. yards at Kaichur and constructed a workshop and he claims that the purchase of site and the investment made in the business are out of his personal earnings. Their parents brought up a girl, by name Premalatha and she remained as spinister. The respondent filed the suit for partition of the house property which was left by his father. The first respondent disputes his brother's right to claim a half share on the ground that his father left his last Will and testament where under he bequeathed the said house property to him with absolute rights. The lower Court tried both the suits and disposed of them by separate judgments. As the parties are common and as the dispute is about the respondent's right to claim a half share in the house property left by late J.D.M. Din, I am of the view that both the appeals arising out of those two suits may be conveniently disposed of by a common judgment.
5. The first appellant in both the appeals is the elder brother. As he died during the pendency of those appeals, his legal (sic) presentatives are brought on record as appellant Nos. 2 to 4. As the relationship between the parties is admitted and as the respondent-plaintiff would be entitled to seek for partition, but for the Will alleged to have been executed by lute J.D.M. Din. I fee1 that the issue relating to the truth and validity of the Will should be decided first as that will have a bearing on the disposal of the partition suit. Of course I may state at this stage that the first appellant hay also taken the plea that he has constructed first floor of the building in dispute and as such the respondent cannot claim any share in the said portion.
6. The points that arise for consideration in these appeals are:
(1) Whether the unregistered Will dated 15-2-1970 is true; and (2) Whether the respondent can seek partition of the suit house and separate possession of a half share in the said property including the first floor?
Point No. 1:
7. The first appellant and the respondent are brothers and sons of J.D.M. Din. Their mother died on 12-12-1954. Late Din fostered a girl by name Premalatha who remained unmarried. The first appellant filed the suit for grant of Probate on the basis of an unregistered Will dated 15-2-1970 alleged to have been executed by his father late J.D.M. Din. The respondent denies the execution of any will by his father. Under the Will the first appellant claims that late J.D.M, Din had bequeathed to him the double storeyed building bearing No. 3-6-423 with Out-Houses and open space situated at Himayatnagar, Hyderabad. Late J.D.M. Din was residing in the suit house, except for a few months before his death during which period he stayed with his eldest son, the first iippelbnuitRaichur.lt is stated, that he had executed the Will on 15-2-1970 in the office of one Basanna Goud, an Advocate. The said Will was attested by Dr. Rangoji Rao and Sarnad Sidic, who was examined as P.W.2. Dr. Rangoji Rao died on 27-3-1975 and Basanna Goud also died in the year 1978. Late Din died on 25 3-1970. The first appellant claims that the dead body was taken to Hyderabad from Raichur for burial and after the final ceremonies were over at Hyderabad, he returned to Raichur on 9-4-1970 and on that day Basanna Goud, Advocate who resides in the same street a few houses away from him, handed over the Will (Ex.A-4) stating that it was the Will executed by late Din. The first appellant as P.W.I states in his evidence that on 10-4-1970 he wrote a letter to the respondent to his U.K. address informing him about the ceremonies performed and the Will left by their father, enclosing a copy of the said will to that letter. Ex. A-4 is the copy of the said letter. However, the respondent denied the receipt of the original of Ex.A-4. Ex.A-4 does not advance the case of the first appellant as it is a self-serving document. He further states that the respondent came to Raichur in the last week of July, 1971 and at that time he showed the Will to him. The two attestors of the Will also informed the respondent about the existence of the Wil1. He also states that after the death of his father, he filed an application through an Advocate (P.W.3) before the Municipal Corporation, Hyderabad for mutation of his name in respect of the suit house in the Municipal records enclosing a copy of the Will. He further states that the respondent was taking his permission to stay in the suit house at Himayatnagar as he knew that he was not the owner. Exs.A-26 and A-27 are two such letters. One of the attestors was examined as P.W.2. P.W.2 states in his evidence that he knows late Din. He attested the will executed by late Din at the house of Basanna Goud. He states that he informed the respondent in July or August, 1971 when he came to Raichur about the existence of the Will. He identified the signature of Dr. Rangoji Rao in the Will who is no more. P.W.3 is an Advocate practising at Hyderabad. He states that he cannot say whether he had issued any notice on behalf of the first appellant unless the original is shown to him. He states that he does not remember to have corresponded with the Municipal Corporation of Hyderabad on behalf of the first appellant P-W.4 is an examiner of documents, who examined the disputed signature of the testator in the Will and opined that the signature tallies with the admitted signature of late Din. The respondent was examined as R.W.1. He states that he is staying in U.K. He used to come to Hyderabad now and then and he is holding an Indian Passport. He admits to have come to Hyderabad in July, 1971, but did not visit Raichur. During that visit he was not shown any Will of his father by his brother, but he told him that his father did not leave any Will. When he broached the topic of division of properties, his brother suggested that they should seek the advice of family friends like Chandulal Dangoria, When they approached him, Dangoria asked for the plans and title deeds to enable him to settle the matter, but the first appellant informed him that those papers were at Raichur and he would bring them in a fortnight. The respondent had to leave for U.K. He wrote a letter to Dangoria to which Dangoria replied stating that his brother did not show his face to him. In 1974 he again came to Hyderabad. R.W.2 an Officer of the U.K. Bank produced the documents bearing the signatures of late Din. R.W3 is the Pastor of St. Luke Hindustani Church. R. W.4 is another hand writing expert.
8. Sri M.V. Rarnana Reddy, the learned Senior Advocate appearing for the appellants submits that late Din executed Ex. A-l Will out of his free will in a sound and disposing state of mind and the same has to be upheld in view of the evidence of P.W.2, one of the attestors. The said Will also contains necessary recitals as to why the testator preferred the first appellant for bequeathing the property as the respondent is well-settled and happily living in U.K. and the first appellant alone is looking after him and his family since several years serving him as a worthy and obedient son during his old age incurring expenditure for his treatment. He also contends that there is no love lost between the respondent and his father as the respondent never looked after his father with due regard and courtesy. He also married Dr. Lilly against the wishes of his father. He relies on Ex.A-34 dated 19-5-1954 criticising his father for showing extraordinary concern and interest in Lilly Santhappa; Ex.A-18 dated 16-11-1955 for criticising his father for not sending money for the treatment of his mother; and Ex.B-10 for asking a statement of account from his father when the litter asked him to share the expenses. Sri Bal Gopal, on the other hand, contends that there are no circumstances to infer that the relationship between the respondent and his father was strained so as to exclude him from inheritance of the father's properties. He relies on Ex.A-65 letter written by late Din to the Father-in-law of the respondent requesting him to give his daughter in marriage to the respondent. Therefore, there was no misunderstanding between the respondent and his father on this account. True, Ex.A-65 dearly shows that late Din accepted the proposal of marriage of the respondent with Mrs. Lilly. Even assuming that the respondent was unhappy with the attitude of his father for not giving proper treatment to his mother who was laid up with Cancer and not sending money for her treatment when she was admitted in hospital, but this happened during the year 1954, before the death of Mrs. Din. Thereafter there is nothing brought on record to suggest that late Din was not on cordial terms with the respondent. It is in the evidence that the respondent was frequenting his visits from U.K. to India often and was staying in the same house in which his father stayed. In my view, there must be a very strong reason for late Din to exclude one of his sons from inheriting his property. No such circumstance is existing or brought out at any rate in this case.
9. The Will is alleged to have been executed on 15-2-1970atRaichur. The Will was prepared at the instance of an Advocate Basanna Gouda. Curiously he did not figure as an attestor to the said Will. It is also admitted that he died even before this litigation started. Therefore it appears that the first appellant has conveniently took shelter by bringing out his name as the person that prepared the Will. Even the other attestor by name Dr. Rangoji Rao also died on 27-3-1975. The reason for including his name as an attestor in the Will appears to be that Ex. A-6 dated 4-11-1974 a letter written by the respondent addressed to the first appellant, shows that the respondent has got respect for Dr. Rangoji Rao's family. P.W.2appears to be aged about 31years at the time when the alleged will was executed. He admits that he is a member of the Family Club along with the first appellant at Raichur. He identifies the signature of Dr. Rangoji Rao in the will. Rangoji Rao is also a member of the said Club. His wife and son are residing at Raichur. The first appellant would have done well by examining one of them to prove the signature'of Dr. Rangoji Rao. This was notdone.P.W.2 has seen him only once while signing the Will. Therefore, the non-examination of any of the family members when they are available at Raichur certainly throws any amount of doubt about the signature of Dr. Rangoji Rao in the Will. The first appellant wants to establish the existence of the will through P.W.3, an Advocate. According to the first appellant he addressed a letter to the Municipal Corporation of Hyderabad after the death of his father through his Advocate (P.W.3) for mutation of the house in his name enclosing a copy of the Will. Exs.A-7 and A-8 are the postal acknowledgments received by his Advocate. But P.W.3 does not support this version. He states that he cannot recollect whether Exs. A-7 and A-8 were received in his office and handed over to the first appellant. He states that he does not remember if he has issued any notice on behalf of the first appellant unless the original is shown to him. The first appellant could have summoned the original notice and the enclosed copy of the Will from the Municipal Corporation to establish his contention, more so, when P.W.3 is unable to recollect whether he had Issued any such notice to the Municipal Corporation on behalf of the first appellant. Therefore, the attempt on the part of the first appellant to establish the existence of the will In the year 1971 remained abortive.
10. O.P.No.147 of 1981 (O.S.No.6 of 1982) was filed as a counter blast to the suit for partition filed by the respondent. In the original application while typing blanks were left where the names of Dr. Rangoji Rao and P.W.2 were to be incorporated and the said blanks were filled up with the names of Or. Rangoji Rao and P.W.2 in writing which also indicates that at the time of typing, the first appellant was not sure of the names of those attestors. The respondent has stated in his evidence that he came to India in the year 1971 and raised the topic for partition of the properties. The first appellant has suggested that the matter can be settled through the family friends like Chandulai Dangoria. Dangoria had asked for the plans and the title deeds to enable him to settle the matter which the first: appellant promised to bring from Raichur. However the respondent left for U.K. and Dangoria wrote to the respondent that the first appellant did not show his face again. Ex.A-52 is the letter written by Dangoria to the respondent stating that the first appellant is a selfish brother. This letter was addressed to the respondent to his U.K. address, but the same was returned to the sender as the addressee left the address. When the respondent visited India later on, the returned letter was handed over to him. Of course as Dangoria was ill he died thereafter. His son was examined to prove the hand- writing of this letter. From this and also from the suggestions made to the respondent, it is clear that Dangoria made attempts for some sort of settlement between the brothers with regard to the division of properties which of course could not fructify. This letter also belies the existence or talk of any Will at that time.
11. As already stated the evidence of P.W.2 cannot be believed regarding the identity of the signature of Dr. Rangoji Rao as it is admitted by him that he has not seen Dr. Rangoji Rao signing anywhere except in the disputed Will. Even the prescription chits containing the signature of Dr. Rangoji Rao were not filed for comparison with the disputed signature of Dr. Rangoji Rao. In fact the learned Judge observed that the ink that was used for the signature of Dr. Rangoji Rao (Ex.A-l(a)) appears to be recent one and it does not appear to have been used 10 years back. Therefore, I entirely agree with the observation of the trial Court that the first appellant had miserably failed to prove the signature in Ex.A-l(a) as the genuine signature of Dr. Rangoji Rao.
12. P.W.2 is also a member of the Family Club along with the first appellant. I have no hesitation to state that it is improper to requisition the services of P.W.2 by the deceased for purpose of attesting the Will. P.W.2 stated that the Wilt was executed in the office of Basanna Gouda, Advocate on 15-3-1970 at 5.30 p.m. A servant boy from the Din family came to him at 11° Clock and again 4.30 p.m. on that day to call him. Neither the name of the said servant boy was given nor was he examined in the suit. P.W. 2 did not (sic) when were the instructions given by the deceased to Basanna Gouda, who prepared the said will. But he states that the will (Ex.A-1) was kept with the advocate in a sealed cover. The first appellant claims that he was not present at the time when the Will was executed, but after his return from Motor Rally, he met P.W.2 and Basanna Gouda number of times, but they did not inform him about the execution of the Will. Therefore, the lower Court has rightly commended on the conduct of P.W.2 in not informing the first appellant after 15-2-1970 and before the death of Din about the Will which throws any amount of doubt on the execution of the will on 15-2-1970.
13. There is any amount of suspicion about the execution of the will in the office of late Basanna Gouda, Advocate on 15-2-1970. P.W. 1 admits that Basanna Gouda was not his Advocate at any time and his father also did not engage him at any time as an Advocate. Therefore, it is highly improbable that late Din would have approached Basanna Gouda all alone without even accompanied by P.W.I, as Basanna Gouda was an utter stranger to him. Even the initials of Basanna Gouda were not found on the said Will. Except the ipse dixit of P.W.2 that the Will was prepared by Basanna Gouda, there is no corroboration from the evidence on record that Basanna Gouda prepared the Will, except of course the interested version of P.W.I that Basanna Gouda handed over the will to him after the death of his father which again is highly artificial and unbelievable. As already seen the will has not seen the light of the day till 1980 and even at the time when the Original Petition was filed, the names of the attesting witnesses were not typed and the blanks were filled later in hand writing. However P.W.I maintains that he wrote Ex.A-4 letter dated 10-4-1970 to the respondent with a copy or' the will and the said letter was returned. According to him he returned to Raichur after performing the funeral ceremonies of his father at Hyderabad and on the same day (9-1-1970) Basanna Couda handed over the Will to him. Therefore, he wrote a letter to the respondent on 11-4-1970 the next day itself. He wants the Court to believe that Ex.A-4 is the copy of the said letter. No mention about this letter was made in the plaint, but after the written statement was filed by the respondent denying the knowledge of execution of the Will, P.W.I came forward by way of a re- joinder with an allegation that he sent a copy of the Will to the respondent and even in that re-joinder, the date and month were kept blank which were subsequently filled up. Therefore, the lower Court has rightly commented that if he had really sent the letter immediately on the next day on which he returned to Raichur after performing the funeral ceremonies of his father, there is no need to keep the date and month of the letter blank in the said application, and as such, sending of the said letter to the respondent with a copy of the will is only a make-believe affair.
14. P.W.I identifies the signature of his father in the Will. But when the Church Register Ex.A-2 containing the hand writing of his father marked as Ex.X-2(a) to X-2(i) were confronted with him, he denied the genuineness of those signatures. He could not say whether the writings are in the hand writing of his father or not, and whether the signatures contained on Exs.B-7(a); B-8(a); B-9(a); B-10(a) and B.-11(a) belonged to his father or not The lower Court, therefore, observing the demeanour of this witness commented that he had come to the witness box with a determination to deny the signatures of his father contained in Ex.X-2 Register. Therefore, I entirely agree with the finding of the lower Court that P.W.I has miserably failed to prove the signatures of Dr. Rangoji Rao or the testator in the disputed will (Ex. A-l). I also agree with the observation of the learned Judge that P.W.2 who is a close friend of P.W.I was pressed into service to bring out Ex.A-1 after the death of My father. The names of a dead Doctor-Dr. Rangoji Rao who is a family friend and the name of a dead Advocate-Basanna Gouda were used with a view to have the badge of probability to the Will. The deceased was all through a resident of Hyderabad, except for about a year at the fag-end of his life. Therefore, it is highly improbable that he would have called P.W.2 to attest the will, particularly a person belonging to a different community with whom he has not much acquaintence or friendship and also when he is not anywhere near the age group of the deceased. The version of P.W.2 that he used to visit the deceased during his stay at Raichur for playing Chess or for discussing politics cannot be accepted as it is only made to create acquaintance with the deceased.
15. P.W.I however con tends that the respondent visited Raichur during his visit to India in 1971 which wasdenied by the respondent. P.W.1 admits that he has no proof to show that the respondent visited Raichur in the year 1971 or about meeting Dr. Rangoji Rao and P.W.2 at that time, except his oral evidence. Therefore, the ipse dixit of P.W.l that the respondent came to Raichur and at that time he met Dr. Rangoji Rao and P.W.2 and he was also shown Ex.A-1 Will cannot be accepted, as this version was only coined to get over the comment that the Will has not seen the light of the day for about a decade. Of course P.W.I contends that he has sent a copy of the Will along with an application for mutation of his name in the Municipal records in respect of the house through P.W.3 an Advocate. I have already considered the evidence of P.W.3 and held that it does not advance the case of P.W.I in any way. P.W.3 admits that Ex.B-32 bears his initials, but he admitted that he was not engaged by P.W.I previously. It is also seen that with regard to the disputes with neighbours his services were taken. In view of the evidence of P.W.3, the learned Judge has rightly commented that he would have been declared hostile and P.W.I should have taken steps to send for the original notice and copy of the Will sent to the ' Municipal Corporation for mutation of his name. As this is not done, his contention that he sent a copy of the will to the Municipal Corporation even in January, 1971 cannot be accepted.
16. The respondent contends that his father was regularly collecting his share for payment of house tax. Under Ex.B-3, the deceased had requested the respondent to send Rs. 150/- towards house tax. Exs.B-17 and B-18 are in the hand writing of the deceased which shows that the respondent has sent the money. Ex.B-4 is a note found in the hand writing of the deceased during 1964-65. The tax for 3 years was equally divided into three shares and each one had to pay it accordingly. Under (sic) dated 22-4-1965 division of cost of sanitary fittings found in Ex.B-4 was made (sic).B-19 toB-21 are the counter-foils of the cheques sent by the respondent to his father towards house tax. Even after his father's death, he paid taxes under Ex.B-25froml-4-1977to31-3-1979.Infact P.W.I also admits that during the life time of his father, he was asking him and his brother to contribute equally towards house tax. So, these circumstances clearly establish that the deceased was meticulously collecting the share of tax from the respondent in respect of the suit house, from which it is clear that the deceased has no intention of excluding the respondent from inheriting a share in his property.
17. As already seen the respondent visited Hyderabad in the year 1971 and as he raised the dispute about his share in the property, the matter was referred to Chandulal Dangoria. Dangoria was a family friend as can be seen from Ex.A-8 letter written by their mother in the year 1941. Exs.B-27 and B-28 show that Dangoria had knowledge of the affairs of Din's family and that the existence of the will was not disclosed by then. Ex.B-15 is a letter dated 21-2-1975 wherein a mention about the house was made and it is stated by R.W.I that he was determined to see the things finalised for which P.W.l's wife replied under Ex.B-16 stating that the inconvenience caused to him and his family is greatly regretted. When P.W.I came to know that the first appellant was in financial crunch and he was contemplating to encumber the property, he wrote a letter to his Advocate under Ex.B-26 wherein he made a mention about his attempt in the year 1971 for settlement of his dispute. Ex.A-27 is the letter written by his Advocate to the respondent about sending of the notice to the Manager, State Bank of India of which Ex.B-32 is the copy. Therefore, the learned judge is justified in commenting having regard to these circumstances that the respondent was anxiously insisting to preserve his share in the property even during the years 1974 & 1975.
18. Another important circumstance which throws any amount of suspicion on the execution of the Will by late Din is about not providing anything for Premalatha. Admittedly, Premalatha was three years old when she was brought into the family and was brought up. In Ex.B-1, which is an admission form filled up by the deceased, it was mentioned that Premalatha is his daughter. She remained unmarried and stayed with him till his death. There is not even a whisper in the evidence that the deceased had any misunderstanding or differences with her. In the year 1940-44 & 1945 both P.W.I and the respondent in their letters have shown all out affection to her and treated her as their own sister. Therefore, under these circumstances it is rather impossible to think that late J.D.M. Din could have completely forgotten her to make any provision for her out of his property, particularly when she is unmarried, living with him and serving him as his own daughter.
19. The respondent filed C.M.P. No. 9221 of 1991 for receiving certain documents as additional evidence.
20. In O.S.No.418 of 1984 filed by M/s. Oltas Limited against both the brothers, the plaintiffs have filed an agreement to mortgage and also a memorandum of deposit of title deeds as Exs.A-21 & A-16 respectively. In the said documents P.W.I has categorically admitted that the respondent has got a half share in the property. Those Exs.A-21 and A-16 are dated 26-10-1977 and 28-8-1978 respectively which are much later than the date of the alleged execution of the Will. Since those documents were already filed in the earlier suit In which both the brothers are parties and as no prejudice would be caused to the first appellant, I am of the view that these documents should be received as additional evidence and mark them as exhibits, B-53 & B-54.
21. The admission of P.W.I that the respondent has got half share in the suit house totally destroys the claim of P.W.I that late Din has executed the Will (Ex.A-1).
22. I will now examine the disputed signature of the deceased on Ex.A-1 marked as Ex.A-l (c). Of course P.W.2 testifies that the deceased has signed the Will in his presence. For more than one reason the evidence of P.W.2 has been discarded in the fore-going paras, being a henchman and a tool in the hands of P.W.I. The respondent has examined D.W.4 who compared the disputed signature with the standard signatures marked by him as Exs.S-1 to S-19. In fact the respondent examined D. Ws,2 & 3, who produced the Church Register and the subsequent signatures of the deceased from the Bank, whose veracity cannot be doubted. The production of Exs.S-1 to S-9 coming from the proper custody were sent to D.W.4 and after thorough comparison of the signatures under Exs.S-1 to S-9, D.W.4 opined that the deceased did not put the signature marked as Ex. A-l(c). D.W.4 who is a retired Joint Director of A.P. State Forensic Laboratory states in his evidence that Exs.S-1 to S-9 are freely written and they are carefree signatures without any sign of distortion while the disputed signature is laboriously drawn, and is unnatural writing made slowly with intense concentration of attention on the writing process. There are concealed pen pressures in the strokes of the questioned signature and there is tremor in all the letters except a part of the letter 'N'. His evidence in my view deserves weight and has to be accepted. In order to counteract with this evidence, the first appellant examined P.W.4 who worked as Assistant State Examiner of documents at Pune from 1962 to 1971. Though he boasts that he had examined 50000 documents; however, he admits that from 1975 every year he examined about 10 cases. This witness was examined after the closure of the evidence of D.Ws. He came to the Court at the request of the first appellant, made a note and by the next day he prepared the notes and submitted the same. He admits that even to the naked eye tremor can be seen in the signature of Ex. A-l(c). He admits that he has not mentioned that Exs.S-1 to S-19 are not comparable signatures. He also admits that the questioned signature is slowly and laboriously drawn from the beginning to the end with intense concentration on the writing process; while Exs.S-1 to S-3 are written more freely. He also admitted that there are differences in the questioned and standard signatures in respect of the speed movement, degree of care etc., Although he admits that there is any amount of difference between the disputed signature and the admitted signatures, he finally tries to support that both the signatures are made by the same hand. He was pressed into service only to buttress the case of the first appellant that the will was signed by the deceased. I am of the opinion that his evidence corroborates the evidence of D.W.4 in several respects. Therefore, the evidence of P.W.4 gets strength to that extent, and his final opinion that the disputed signature is that of the testator cannot be believed. Therefore, I have no hesitation in agreeing with the finding of the lower Court that the evidence of P.W.4 cannot be relied on and that the evidence of D.W.4 has to be accepted in holding that the signature of the testator as found in the Will is a crude form of forgery.
23. The learned Judge has also observed that Ex.A-1 appears to be of recent origin and not of 10 years old, and Ex.A-1 was prepared by a legal mind and the date under the signatures were also purposefully avoided with a view to see that the letters or figures may not be available for purpose of testing by an expert. I entirely agree with the observations made by the learned Judge.
24. It is already noticed that there is no credible evidence to show that on 15-2-1970 late Din gave instructions to Basanna Gouda for preparing the will and the same was typed and duly executed and attested by P.W.2 and Dr. Rangoji Rao. The Will does not contain any reference to Basanna Gouda, None of the family members of the said Advocate is examined to show that on 15-2-1970 the deceased had visited the house of Basanna Gouda. Had it been really prepared by the Advocate, he would have certainly advised late Din to register the said Will. There is absolutely no explanation whatsoever for non- registration of the said will. It is not even contended by the first appellant that the condition of the deceased was such that he could not move out or go to the Sub-Registrar's office to register the will. In Raichur, the office of the District Registrar and Sub-Registrar are available, and therefore, non-registration of the will although the deceased had lived for more than a month raises a doubt about the execution of the will. The absence of registration of the will in my view is another suspicious circumstance which detracts the genuineness from the will. If there is any truth in the version of P.W.1 that Basanna Goudahanded over the will to him after the death of the testator,he would have certainly advised P.W.I to obtain probate as the will executed by a Christian will have no effect in law unless it is probated, as Basanna Gouda was an Advocate who knows the legal position and P.W.I would have certainly filed this application immediately thereafter and he would not have waited for about a decade to file this application or till the suit for partition was filed by the respondent. This circumstance, in my view, throws any amount of suspicion on the genuineness of the will.
25. Sri M.V. Ramana Reddy, the learned senior Advocate appearing for the appellants cited Venkatachala v. Thimmajamma, ; Vrindavanibai v. Ratnadiattdra, 1995 (4) SCALE 271; Indu Bala v. Manindra Chandra, ; Kalyan Singh v. Smt. Chhoti and Ors., ; Jarat Kumari Dassi v. Bbsessur Dutt, ILR 39 Calcutta 245; Sushila Devi v. Krishna Kumar, AIR 1971 SC 2235 and Surendra Pal and Ors. v. Dr. (Mrs.) Saraswati Arora and Anr.
, to show that the propounder of the will has to remove the suspicious circumstances attached to the Will. There is no dispute with regard to the principles laid down in these decisions. The law is well settled that the propounder has to remove all the suspicious circumstances attending on the execution of the Will. As I have already stated there is any amount of suspicion about the execution of the Will by the testator regarding the unnatural dispossession (sic. disposition) of his properties, totally eliminating one son, R.W.I and Premalatha whom he has treated as his own daughter, about the genuineness of the signature in the Will, about the genuineness of the signatures of the attestors and about the participation of Basanna Gouda, Advocate in the preparation of the will and to put in nut-shell on every vital aspect there is resounding suspicion. Therefore, agreeing with the lower Court, I hold that the first appellant has failed to establish that the Will (Ex.A-1) is the last will and testament executed by late J.D.M. Din.
Point No. 2:
26. The respondent filed O.S.No.176 of 1979 which was later re-numbered as O.S.No.5 of 1982 for partition of the premises bearing No. 3-6-423 consisting of ground floor, out-houses and open space situated at Himayatnagar, Hyderabad into two equal shares and for allotment of one such share to him. The first appellant herein disputes the claim of the respondent for partition and separate possession. There is a recital in the Will that the first respondent has constructed the first floor out of his own money and has been paying taxes for the en tire house. The first appellant, therefore, alternately claims atleast the first floor in the event of his failure to secure the probate of the will. In order to buttress his claim, he contends, that he was paying house tax for the entire building during the life time of his father. This cannot be true in view of Ex.B-3 where under, the deceased had directed the respondent to send Rs. 150/- towards house tax. Exs.B-4, B-17, B-18 about which a reference was already made clearly establish that the deceased was collecting his share of tax and other dues from the respondent. In Ex.B-5 dated 22-4-1976 it is found that there is division of cost of Sanitary fittings. Exs.B-19, B-21 and B-22 are the cheques issued by the respondent. Under Ex.B-25 the respondent paid tax from 1-4-1977 to 31-3-1979 after the death of his father. In fact, P.W.I admits that while his father was alive he was asking him and his brother to contribute equally towards house tax. Although the first appellant contends that he spent Rs. 40,000/~ to Rs. 50,000/- for construction of the first floor, part of ground floor as well as compound wall, no accounts are produced to establish the same although he is an income tax assessee. No material worth considering is filed in the shape of a bill or receipt for any material purchased by him or any wages paid to the workers or any expenditure incurred for transporting the material utilised for construction. The deceased had retired as D visional Engineer in the year 1945 drawing a salary of Rs. 600/- per month. He was getting a pension of Rs. 288/- per month. It is quite probable that the deceased must have constructed both the floors in view of his income. The first appellant joined the Military by about 1944. It is seen that he was getting a salary of Rs. 410/-. Under Ex.A-17 his mother expressed happiness for sending Rs. 50 to her. If he was sending Rs. 50/- to his mother while he was away and some amount now and then to Premalatha and Rs. 100/- to the respondent as he was in Medical College, it would be very difficult for him to have saved Rs. 30,000/- or Rs. 40,000/- and invested the same for construction of the house. The learned Judge, therefore, rightly observed that the gross pay of the plaintiff during the years 1943 to 1951 might not be Rs. 50,000/-. Therefore, the version of the first appellant that he saved substantial amount and utilised the same for construction of the first floor and part of ground floor and the compound wall cannot be believed. The deceased mentioned in one of his letters "Sanitary fittings Raj's Bath Room" and the first appellant basing on this observation, contends that the room was constructed by him at his expense. So also the letters written by the respondent including Ex.A-17 requesting the first appellant to keep a room clean for his stay when he visits India, do not mean that the respondent had acknowledged the ownership of the first appellant in those rooms. The entries as found in the income tax retain, Ex. A-29 dated 17-8-1969 clearly establish that the deceased exclusively claimed the income from the house as his own. He was meticulously distributing the tax burden on both the sons vide Exs. A-41 and A-53, and never set apart the tax for the first floor in the account of the first appellant. By his conduct the deceased had never shown the first floor as belonging to the first appellant, nor the respondent acknowledged the ownership of the first floor in the first appellant at any time. The recitals in the Will that the first appellant has constructed the first floor and spent the amount for maintaining the same etc., are only concocted to add colour of truth to his claim. No doubt the first appellant produced Exs.B-57 to B-64 in O.S.No.5 of 1982. As the respondent was staying in U.K. the first appellant alone was using the ground floor for his office from 1970. Therefore, whenever repairs were required for the said premises only the person in occupation had to attend to the same and meet the expenses. By this it cannot be concluded that he was treated as the owner of the premises. Exs.B-57 to B-64 will not in any way advance the case of the first appellant as there is nothing to show that the respondent had the knowledge that the first appellant is being treated as owner by the third parties. Even if third parties felt that the first appellant is the owner, it does not automatically follow that the respondent has acquiesced himself and treated the first appellant as the owner. From Exs.B-66, B-67 and B-68, the agreements entered into from the tenants by the first appellant, it is contended the the first appellant is the owner. None of the tenants have been examined. Exs.B-69, B-70 and B-72 clearly establish the financial position of all the members of the family including the first appellant. Exs.B-76 and B-77 are reminders for payment of balance of Rs. 650/- incurred in connection with the treatment of their mother. Ex.B-80 shows that a cheque was issued by respondent's wife in favour of the deceased for a sum of Rs. 250/ -. In Ex.B-79 the deceased states that the respondent has paid only Rs. 50/- towards tax for the years 1951 to 1960 and he was asked money from 1961. Exs.B-80, B-84, B-87 and B-88 also show the accounts which are in the hand writing of the deceased. The first appellant relying on Ex.B-90 claims that the Municipal Corporation has treated him as owner after 1976. He got his name mutated and the Municipal Corporation has done it as the respondent was away in U.K. By this it cannot be said that the first appellant has acquired any rights. Exs.B-95 to B-102 are the receipts. These exhibits show that the first appellant was spend ing some money for up keeping of the building. Even assuming; that the first appellant has spent some money for the up keep of the building even during the life time of his father or after his death, this circumstance cannot advance the case of the first appellant that he was treated as owner. There is neither any plea of adverse possession nor proof of the same by the first appellant. Therefore, the mere circusmtance that he has paid some times some tax or spent some money for the maintenance of the building, it cannot be held that he has established his title to the house in question. Therefore, on a careful appreciation of the evidence adduced by the first appellant and the respondent, it is clear that the first appellant has failed to establish that he has either constructed the first floor, part of the ground floor and the compound wall with his savings, or treated the same as his exclusive property at any time either during the life time of his father or afterwards till the filing of the suit for partition. Therefore, agreeing with the learned Judge I hold that the respondent-plaintiff is entitled for partition and separate possession of his share in the suit house viz., upstair building together with out-houses and the appurtenant site.
27. For all the above reasons, both the appeals fail and they are accordingly dismissed with costs.