Andhra HC (Pre-Telangana)
K. Munirathnam Naidu vs K. Aadi Lakshmamma And Ors. on 9 September, 2005
Equivalent citations: 2005(6)ALD534, AIR 2006 (NOC) 658 (A. P.) = 2005 (6) ANDH LD 534(AP)
JUDGMENT V. Eswaraiah, J.
1. Aggrieved by the judgment and decree dated 28.8.1996 passed by the learned Principal Subordinate Judge, Tirupati in suit O.S. No. 205 of 1987 in directing the partition, the third defendant preferred this appeal.
2. Heard Sri E. Manohar, learned Senior Counsel appearing on behalf of Sri M.P. Chandramouli, learned Counsel for the appellant; Sri K. Subrahmanya Reddy, learned Senior Counsel appearing for Sri P. Govind Reddy, learned Counsel for the first respondent and Sri V. Parabrahma Sastry, learned Counsel appearing for the respondents 2 to 7.
3. The respondents 5 to 7 are the legal representatives of the deceased second respondent. The suit filed by the first respondent herein in O.S. No. 205 of 1987 on the file of the Principal Subordinate Judge, Tirupati, for partition of plaint A and B schedule properties into 5 equal shares and to allot one such share to the plaintiff putting her in separate possession and enjoyment, was decreed preliminarily directing the partition of plaint schedule properties into 12 equal shares by meats and bounds and for allotment of one such share to the plaintiff, and for separate possession directing each party to bear their own costs. The defendants 5 to 14, who purchased certain B schedule properties, are entitled to claim equities at the time of actual allotment of shares.
4. The parties herein are referred to as they are arrayed in the original suit.
5. The plaintiff and the first defendant are the daughters of the first wife, Kanthamma, of their father late Gangi Naidu. Kantamma died somewhere in 1937 when the plaintiff was six months old. After the demise of Kanthamma, Gangi Naidu married one Boosamma. The defendants 2 to 4 are the children of Gangi Naidu born through Boosamma.
6. The plaintiff filed the suit against all her three sisters, who are defendant Nos. 1, 2 and 4, and brother defendant No. 3 and the purchasers i.e., defendants 5 to 14, of certain items of the properties. It is the case of the plaintiff that four items of plaint A schedule properties, eight items of B schedule properties and two movable properties of C schedule properties are the ancestral properties of her late father Gangi Naidu and he had been in possession and enjoyment of the said properties as the owner thereof, raising crops and paying cists. While so, Gangi Naidu died leaving behind him the plaintiff, first defendant -daughter of the first wife late Kanthamma and defendants 2 to 4, children of the second wife, Boosamma. After his demise, the plaintiff and all the defendants 1 to 4 succeeded to the estate as his legal heirs and the third defendant being the only son, has been managing the properties and sharing the produce to the plaintiff and the defendants 1, 2 and 4. The family was affluent and there was no necessity or occasion to alienate the schedule properties. Even if there were any kind of alienations they were not for legal necessity and family benefits of the other sharers and at any rate they would not confer any exclusive title on the alleged purchasers and the said alienations cannot be true, valid and binding on the plaintiff. The third defendant was providing share in the produce to the plaintiff up to a year prior to the filing of the suit and thereon he stopped paying the share of the produce from out of the schedule properties. Third defendant has no right to do so and he is not justified in doing so. The efforts of the mediators also became futile. The plaintiff reliably learnt that the third defendant brought into existence some sham, nominal, collusive and fraudulent documents for a portion of the plaint schedule properties in favour of defendants 5 to 10, detrimental to the rights and interest of the plaintiff. The alleged documents, if any, in favour of the defendants 5 to 10 are not true, correct, valid and binding on the plaintiff, as the third defendant or any of the family members have no exclusive right to deal with the family properties as they like. The plaintiff thought it fit not to continue in the joint status and has been demanding the defendants 1 to 4 for amicable division of the plaint schedule properties into five equal shares and allot one such share to her by putting here in separate possession and enjoyment of the same. In the circumstances, the plaintiff got issued a notice on 9.8.1986 to all the defendants calling for amicable division into 5 equal shares and also warned defendants 5 to 10 that the alleged documents in their favour cannot be true, valid and binding on the plaintiff. Defendants 1 to 3 issued reply notices. Defendant No. l admitted the case of the plaintiff. Third defendant replied with false allegations and the alleged Will in the said reply notice should have been fabricated with an intention to knock away the rights of the plaintiff. The defendants 5 to 9 managed to return the said notice. The tenth defendant also failed to send any reply. Accordingly, the plaintiff filed the suit for partition of the plaint schedule properties into 5 equal shares. The plaintiff filed the suit as an indigent person stating that she has no capacity to pay the Court fee of Rs. 200/- for the said suit for partition under Section 34(2) of the Andhra Pradesh Court Fee Act. After filing the suit the third defendant brought into existence sham, nominal, collusive and fraudulent document for a portion of the plaint schedule properties under the registered sale deeds and the said sale deeds are not true, correct and binding on the plaintiff.
7. The first defendant filed a written statement stating that the suit is not at all a bona fide suit. The relationship of the plaintiff and the defendants 1 to 4 is true. The plaint schedule properties are the ancestral properties of Gangi Naidu. The first defendant also has been demanding for partition as she is also legally entitled to the share but the third defendant has been avoiding the same. The plaintiff is also entitled to l/5th share as alleged in the plaint. In the circumstances she has no objection for passing preliminary decree by dividing the plaint schedule properties into 5 equal share and allot one such share to the plaintiff and put her in separate possession and enjoyment in the same.
8. The third defendant filed written statement stating that the plaint schedule properties are the ancestral properties. His paternal grandfather acquired those properties and after, his demise, they devolved upon his son Gangi Naidu. His father Gangi Naidu died intestate on 26.1.1978 leaving behind him, the plaintiff and first defendant, who are the daughters through his first wife; and, defendants 2 to 4 who are his children through his second wife. Late Gangi Naidu executed a Will dated 10.6.1977 in respect of his properties in favour of the third defendant and consequent to his death, he succeeded to the properties not only as his natural heir but also as legatee under the aforesaid Will, to the knowledge of plaintiff and defendants 1, 2 and 4. Therefore, it is false to allege that after the demise of Gangi Naidu, the plaintiff and the defendants 1, 2 and 4 succeeded to the estate and that they are liable for partition. In order to lend some weight to the false claim, the plaintiff has deliberately alleged that he has been giving to the plaintiff and the defendants 1,2 and 4 their alleged share in the produce got from the agricultural land. The said allegation has been emphatically denied. There was no occasion for him to give any share in the agricultural produce to anybody much less to the plaintiff and the defendants 1, 2 and 4. He claims that he being the exclusive owner and in possession of the said properties, he is not liable to give any share and he was not giving any share. The plaintiff in collusion with the defendants 1, 2 and 4 has deliberately given a twist to the said allegation in order to give a colour of genuineness to her false claim. The averments in Para 3 of the plaint are designedly vague and dubious, as the plaintiff has failed to disclose any particulars of the sham and nominal sale deeds executed by him in favour of defendants 5 to 10. To the legal notice of the plaintiff a reply has been sent stating that the Will was executed and therefore, the averment that the Will should have been fabricated is absolutely false. The Will executed by his father in his favour is true and valid and it is for the plaintiff to prove that it is a fabricated one. The plaintiff made such a false allegation in order to claim some share in the plaint schedule properties. The third defendant stated that the marriages of the plaintiff and defendants 1, 2 and 4 took place about 30, 32, 28 and 16 years respectively prior to the filing of the suit and the said marriages were performed by his father spending a huge amount of money befitting his status in his caste and society and he presented a lot of jewelry and other valuables to them worth about 3 lakh rupees and the plaintiff has conveniently suppressed all the above facts. It is further stated that the plaintiff requested him to give one of his daughters in marriage to her son and he did not agree for the said request. Therefore, the plaintiff bore grudge against him and there is no love lost between him and the plaintiff, aggrieved by the same the plaintiff in order to take vengeance filed the above suit with false and frivolous allegations. He submits that neither the plaintiff nor anyone has any right or interest in the plaint schedule properties except him. He had been actively helping his father in the family affairs including the cultivation of the lands. In fact, for the said purpose, he had to discontinue his legal studies. He studied law for one year in the Madras Law College and taking into consideration the old age of his father he decided to give up his studies. After his father's death on 26.1.1978, he has been in exclusive possession and enjoyment of the properties left by his father. Neither the plaintiff nor the defendants 1, 2 and 4 ever protested his exclusive ownership and enjoyment of the said properties and never claimed any share of the produce or demanded for partition until the filing of the suit. Item No. 3 in the plaint 'B' schedule properties was sold to the defendants 5 and 6 under registered sale deed dated 12.3.1986 for a valid and lawful consideration by him and his cousin, Suresh Naidu, son of his paternal uncle Buchi Naidu, in respect of Ac.2-14 cents in S.No. 114 situated in Pudipatla Revenue Village. Item 8 of the plaint 'B' schedule was also the exclusive property of his father and the same was sold by him to defendant No. 10 for valid consideration to the very knowledge of the plaintiff. He also stated that the sale deeds executed by him are not brought into existence and they are not sham, nominal or fraudulent. They are true and genuine documents. The plaintiff has no right, in any manner, in those properties in order to question his right to alienate those properties. Therefore, there was no cause of action that arose for filing the suit and the plaintiff is not entitled for any relief in the said suit for partition.
9. Defendants No. 7 to 9, 10, 11 and 12 and 33 filed separate written statements stating that they are the bona fide purchasers. They submitted that the third defendant was the rightful owner having exclusive possession and entitled to alienate the said properties purchased by them. The third defendant did not bring into existence the said documents and they are not sham, nominal and fraudulent but they are true and genuine documents. The plaintiff has no right to question the same.
10. On the above pleadings the trial Court framed the following issues:
1. Whether the plaintiff is entitled to the partition as prayed for?
2. Whether the Will dated 10.6.1977 alleged to be executed in favour of D.3 is true, valid and binding on plaintiff?
3. Whether the alienations made by D.3 in favour of D.5 to D.14 are true, valid and binding on the plaintiff and confer any title to them?
4. To what relief?
11. The plaintiff examined herself as P.W.I and marked Exs.A.1 to A. 12. On "behalf of third defendant alone, the third defendant was examined as D.W.I, Scribe of the Will was examined as D.W.2, Attestor of the Will was examined as D.W.3; brother of D.10, who purchased Ex.B.5 property from the society, was examined as D.W.4 and marked Exs.B.1 to B.5.
12. The trial Court on Issue No. 2 held that the essentials in proof of Ex.B.1 -Will are lacking in the evidence of D.Ws. 1 and 2 and the burden lies on the propounder defendant No. 3 to prove the Will. The attestor-D.W.3 has not stated the necessary facts in proof of execution of Ex.B.1 and accordingly held that the essential aspects in proof of Ex.B.1 as required under Section 63(c) of the Indian Succession Act and Section 68 of Evidence Act are not elicited. No duty is cast on the plaintiff to elicit the necessary requirements from the witnesses with regard to Ex.B.1 and none of the witnesses' states about witnessing the signature of the late Gangi Naidn on Ex.B.1. In a compromise decree dated 19.11.1979 in A.S.No. 160 of 1979 the existence of Ex.B.1-Will was not brought to the notice of the Court while directing the payment of certain sums to the daughter of Gangi Naidu and therefore, a doubt is created as to the existence of the said Will. Accordingly, the trial Court held that Ex.B.1-Will is not true, valid and binding on the plaintiff.
13. On Issue No. l the trial Court held that as the marriages of the daughters of Gangi Naidu were performed prior to the Hindu Succession Act A.P. Amendment they are entitled to half share of the property along with third defendant. As the second wife of the late Gangi Naidu also died, her children are entitled to equal shares. As at the time of filing of the suit the second wife of Gangi Naidu was alive, she is also entitled to a share. Therefore, the plaintiff and first defendant are entitled for 1/12th share in the suit schedule property, third defendant is entitled to 7/12th share and defendants 2 to 4 are entitled to 1/12th share each. The defendants 2 to 4, who are children of the second wife of late Gangi Naidu, are entitled to equal share in the 1/12th share of their deceased mother.
14. On Issue No. 3 the trial Court held that the alienations made by the third defendant in favour of the defendants 5 to 14 are true but they are not binding on the plaintiff. The defendants 5 to 14 are not entitled to any right over them, until equities are worked out at the time of actual allotment of shares.
15. On Issue No. 4 the trial Court passed a preliminary decree for partition of the plaint schedule properties by metes and bounds and for allotment of one such share to the plaintiff and for separate possession and in view of the relationship between the parties, each party was directed to bear their own costs.
16. Sri E. Manohar, learned Senior Counsel appearing for the appellant/third defendant submits that the third defendant discontinued studies to take care of his father who was a cancer patient, as all his sisters were married long back befitting to his family background giving jewelry and other valuables worth about 3 lakh rupees each. The third defendant did not give his daughter in marriage to the son of the plaintiff and therefore, the plaintiff bore grudge and in order to take vengeance gave notice-Ex.A.1 dated 9.8.1986 for which reply notice-Ex.A.5 dated 17.8.1986 was sent stating that late Gangi Naidu executed a Will-Ex.B.1 dated 10.6.1977 and died on 26.1.1978. Though the Will was proved by examining D.W,2-Scribe of the Will, D.W-3-Attestor of the Will and D.W.1-propounder of the Will, the trial Court erroneously rejected the Will on the ground that it was not proved. The averment made by the plaintiff that the third defendant was giving the share of the agricultural produce was not at all proved and the said contention was rightly rejected by the trial Court. It is stated that the ingredients of the Will as required under Section 63 of Indian Succession Act were fulfilled and document was also proved by examining the scribe and one of the attestor of Will under Section 68 of the Evidence Act. Therefore, it cannot be said that the essential aspects in proving Ex.B.1-Will are not elicited.
17. It is stated that under Section 63(c) of the Indian Succession Act two witnesses are required to attest and in the instant case there is evidence on record to show that D.W.2, D.W.3 and another attestor were present in the house of Gangi Naidu while he executed the Will. Therefore, the said evidence fulfils the requirement of Section 63(C) of the Indian Succession Act and under Section 68 of Evidence Act one attesting witness has to be examined to prove the document, which requirement has been satisfied. Therefore, it cannot be said that Ex.B.1-Will is fabricated.
18. Insofar as Item No. 3 of the 'B' schedule properties is concerned the same was sold by the third defendant and one, Suresh Naidu, under Ex.A. 11 dated 6.8.1981 to defendant No. 10; and the plaintiff who is residing in the same village at a furlong away from third defendant's house did not object to it at anytime. The said item belonged to society and the third defendant only paid nominal amount of betterment charges. He has not paid the cost price of the plot amounting to Rs. 6,875/-and therefore, he surrendered the same to the society and the society in turn sold the said plot in favour of defendant No. 10, who paid the cost price to the society alone. The plaintiff was silent for a period of eight years after the death of her father and never demanded the share in the agricultural produce and never objected for the sale of the said property, until the filing of the suit.
19. It is further stated that insofar as the suit in O.S. No. 345 of 1971 is concerned against which A.S. No. 160 of 1979 was filed on the file of the District Court, Chittoor, the said property was not in possession of Gangi Naidu and therefore, the said property was not covered by the Will. If that be so, it cannot be said that the said property was bequeathed in favour of the third defendant under the Will and therefore, the nominal amount paid by the plaintiff therein could have been objected under the guise of the Will claiming entire amount by the third defendant. But the Court below giving undue importance to Exs.A.7 and A.8 and ignoring the relevant documents and material, disbelieved the genuineness of Ex.B.1-Will. The properties covered by Ex.A.8 were not in possession of Gangi Naidu and therefore, the said properties are not covered under Ex.B.1-Will properties, which were bequeathed in favour of the third defendant. In support of his contention that Ex.B.1-Will is genuine and valid he relied on several judgments of the Apex Court; which will be dealt with later. It is stated that the sales are not sham or nominal and defendant No. l is aware of her rights as per Sections 6 and 19 of Hindu Succession Act but she did not make any independent claim and defendants 2 and 4 did not file any written statements, did not participate in the suit proceedings and remained ex parte. Therefore, it is not open for them to claim any properties. The plaintiff and defendant No. 1 are claiming their rights as heirs of Gangi Naidu but not as his surviving members of the coparcenery. Therefore, they are not entitled to any interest in the coparcenery property under Section 6 of the Hindu Succession Act in the event of Will found to be genuine and in the event of Will found not genuine the mode of succession is only under Sections 8 and 19 of Hindu Succession Act as they are only heirs but not survivors.
20. Under Section 19 of the Hindu Succession Act, if two or more heirs succeed together to the property of an intestate they shall take the property as per capita and not in stripes and as tenants in common and not as joint tenants. Therefore, all the daughters are entitled to share individually as Class I heirs and unless they make independent claim defendants 1, 2 and 4 cannot be treated as plaintiffs in the said suit for partition filed by one of the daughters. Therefore, the Court below rightly granted preliminary decree of 1/12th share to the plaintiff alone and no decree has been granted to the defendants 1, 2 and 4, Therefore, they are not entitled for any relief in the appeal.
21. It is submitted that there is no dispute with regard to the genuineness of the signature of Gangi Naidu, the executant of the Will-Ex.B.1. Therefore, whatever the properties he had in his possession and enjoyment of Gangi Naidu, he has bequeathed the same under Ex.B.1, in respect of his half share, in favour of his son the third defendant on 10.6.1977 and as all his daughters were married decades ago he did not make any provision for them in the Will and as his second wife got streedhanam properties, he did not make any provision for her. It is stated that, in fact, the mother of third defendant executed a separate Will bequeathing her properties in favour of the third defendant. Under those circumstances it is stated that defendant No. 3 alone is the exclusive owner of the plaint schedule properties and rightly none of his sisters have objected to the alienation of certain properties.
22. On the other hand, Sri K. Subrahmanya Reddy, learned Senior Counsel appearing for the plaintiff/first respondent herein submitted that the Will is fabricated even as per the evidence of D.W.I. Under Section 6(1) of the Hindu Succession Act when a Hindu male dies his interest in the property shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance with the Act. He further submits that Gangi Naidu is not divided from his son and therefore, it was not open for him to execute the Will, as the surviving family Class I heirs i.e., his daughters are also entitled to the share in his property. Therefore, even if the Will is genuine it will not bind on his daughters and the daughters of Gangi Naidu incidentally are entitled to claim share under Section 8 of the Hindu Succession Act.
23. Under Section 8 of the Hindu Succession Act the property of a male dying intestate shall devolve on the Class I heirs. All the daughters being the Class I heirs they are entitled for share in their father's property. As there is no evidence that the father divided from his son, survivorship shall precede over the Will. In support of his contention as to when the Will becomes invalid, he has cited several judgments, which were prior to the Hindu Succession Act, 1956.
24. The said contention was not supported by Sri V. Parabrahma Sastry, learned Counsel for respondents 2 to 7, contending that there are no other judgments under Hindu Succession Act, 1956, which came into force in support of the contention of the plaintiff. Insofar as the Will is concerned it is stated that there is no schedule of the property to the Will and no particulars have been mentioned in the Will. Third defendant has also not stated in his written statement about the particulars of the property bequeathed in his favour and he has not seen the attestors while executing the Will. If the evidence of third defendant is excluded there is no other witness to prove the Will. Therefore, the trial Court rightly held that the Will is not proved under Section 68 of the Evidence Act. D.W.4 is the cousin of D.10. The property sold by third defendant in favour of D.10 was not his self-acquired property, as he has no independent source of income. Therefore, the third defendant is not entitled to sell the joint family properties. It is further stated that the subject-matter of the property under Ex.A.8 is not mentioned in the Will. Therefore, it cannot be said that the Will is genuine. Had the Will been there the third defendant would have objected his sisters to get money under the compromise decree in A.S. No. 160 of 1979. Originally, the third defendant put up a case in the reply notice-Ex.A.6 that it is not a joint family property but his plea has been changed in the written statement. In view of the surrounding circumstances and as the Will does not show what kind of properties Gangi Naidu bequeathed in favour of his son, the Will cannot be believed to be a genuine one.
25. He further submits that the contention of Sri K. Subrahmanya Reddy, that Gangi Naidu has no power to execute a Will without there being any division of the properties, cannot be accepted. As Section 6 of the Hindu Succession Act makes it clear that Gangi Naidu and his son were only coparceners, who constitute Hindu undivided family, and therefore, Gangi Naidu has got right to devolve his property by testamentary succession. He submits that under Section 30 of the Hindu Succession Act, a Hindu male is entitled to dispose his property by Will or other testamentary dispossession, any property, which is acceptable of being so disposed of by him in accordance with the provisions of the Indian Succession Act. Under explanation to Section 30 the interest of the male Hindu in Mitakshara Coparcenery property, shall not withstand anything contained in the Hindu Succession Act or any other law for the time being in force, be deemed to be a property capable of being disposed of by him. Therefore, the only question that has to be considered as to whether the Will is genuine or fabricated.
26. He contended that the Will is fabricated and not genuine one. In support of his contention he stated that non-mentioning the particulars of the properties in the Will is one of the suspicious circumstances to disbelieve the Will. The particulars and details of the properties bequeathed are not mentioned. The pendency of the litigation under Exs.A.7 and A.8 was also not mentioned in the Will. Item 4 of the 'B' schedule properties was sold. Therefore, all the circumstances create suspicion with regard to the genuineness of the Will. He supported the contention of Sri K. Subrahmanya Reddy insofar as the Will is concerned and submitted that the trial Court rightly held that the Will is not a genuine one. Therefore, the Will has to be disbelieved.
27. Insofar as the sale of properties is concerned he stated that the daughters being Class I heirs are entitled to succeed In respect of the share of their father along with other Class I heirs per capita. It is further stated that under Section 19(a) of the Act if any of the individual who is entitled for a share in the property dies and if that individual got more than one child, all of them will get equal right in the share of that individual but not as per stripes. The Class 1 heirs will get their shares in branch wise alone. Insofar as Section 19(b) is concerned it is stated that tenants in common and not as joint tenants means heirs who are entitled to succeed shall be treated as co-lessees or co-tenants for they have single tenancy relationship with landlord and they are not different tenants vis-a-vis the landlord. A joint tenancy has to satisfy four requirements described as four unities of joint tenancy - unity of title, unity of interest, unity of possession and unity of time. Thus, it is stated that the daughters who are Class I heirs are entitled to succeed to property in the share of their father along with other Class I heirs and though no decree has been passed in favour of the defendants 1, 2 and 4 it is open for them either to take steps for modification of the preliminary decree, as any number of preliminary decrees can be passed or they can take steps for review of the judgment and this Court is also entitled to mould the decree.
28. It is further stated that to determine their rights the trial Court in Para 22 of the judgment held that the plaintiff will get 1/12th share in the suit properties if the Will is not valid and proved. The first defendant is entitled for l/12th share and defendants 2 and 4 are entitled for 1/12th share each. Therefore, without there being any decree in their favour to avoid multiplicity of proceedings they are entitled to seek the review of the judgment for passing another preliminary decree.
29. The question that arise for consideration as to whether the Will executed by Gangi Naidu is genuine and whether the requirements of Section 63(c) of the Indian Succession Act and Section 68 of the Evidence Act have been complied with,
30. The plaintiff examined as P.W.1 mainly stressed on the proceedings of Exs.A.7 and A.8 wherein the daughters of Gangi Naidu received some amounts but by taking shelter of the Will, the third defendant did not object the same. Therefore, it was one of the circumstances to suspect the genuineness of the Will. Accordingly, the suggestion that her father executed a genuine Will dated 10.6.1977 in favour of the third defendant was denied. She accepted that nobody witnessed his brother-third defendant paying Rs. 10,000/-per annum towards her share. It is her contention that the sale deeds executed by the third defendant and his cousin, Suresh Naidu, in respect of properties transferred by the third defendant are all sham, nominal and fraudulent. Insofar as the alienations are concerned the trial Court held that the plaintiff did not dispute the execution of sale deeds executed in favour of the defendants 5 to 14 for a valid consideration and their possession is also not disputed. In fact, the defendants 5 to 14 are bona fide purchasers and therefore, they are entitled to claim equities at the time of actual allotment, but the sale deeds are not sham and nominal as contended by the plaintiff and the alienations made by the third defendant are not binding on the plaintiff as the Will was held as not genuine. Therefore, the only question that arises for consideration is about the genuineness of the Will.
31. To prove the Will, third defendant examined himself as D.W.1 and he stated that his father executed the Will-Ex.B.1 on 10.6.1977 when he was in a sound state of disposing mind. Plaintiff and defendants 1, 2 and 4 are aware of Ex.B.1. He emphatically denied about the share of the plaintiff said to have been given by him in the agricultural produce. The trial Court also disbelieved the contention of the plaintiff that the third defendant gave a share of the agricultural produce to the plaintiff every year.
32. It is the case of the third defendant that Ex.B.1-Will is genuine and not fabricated by him for the purpose of the suit. He and Suresh Naidu sold an extent of Ac.2-14 cents in S.No. 114 situated in Pudipatla to five persons, in the year 1986. Prior to the filing of the suit there was no mediation with regard to the so-called interest of the plaintiff in respect of the demands of her share in the suit properties. The plaint schedule properties are not joint family properties. It is stated that he was one of the members of the society and defendant No. 10 was also a member of the said society; and in respect of Plot No. 3 he paid betterment charges of the said plot but the said plot was sold by the society on receiving a sale consideration of Rs. 6,875/- from defendant No. 10. As he agreed for the transfer of the same in favour of the defendant No. 10 neither the plaintiff nor himself has interest or right in the said plot and the said plot belongs to the society alone and the society alone sold the same in favour of defendant No. 10. He further stated that his father executed Ex.B.1-Will and it is genuine, but he did not state anything about the scribe and the attesting witnesses in the chief-examination.
33. In the cross-examination he stated that the Will was not referred in Ex.A.8 with regard to the litigation in O.S. No. 245 of 1971 at Sub-Court, Tirupati and the Will is subsequent to the filing of the said suit and the said suit schedule properties were not in possession and enjoyment of his father, the executant of the Will. After the death of his father the legal representatives were impleaded. Though the suit was dismissed, the plaintiff in A.S.No. 160 of 1979 compromised the matter in appeal. According to the said compromise an amount of Rs. 15,000/- was paid to the LRs. of late Gangi Naidu and Kandula Yerrama Naidu. As per Ex.A.8 the plaintiff/appellant therein paid Rs. 15,000/- to all the respondents/defendants. The LRs of Late Gangi Naidu were of one branch and Kandula Yerrama Naidu was another branch. Ex.B.1-Will was written on 10.6.1977 in the third defendant's house at Pudipatla. One B. Changaiah was the scribe of Ex.B.1 and he was the native of Tirupati. His father called the said scribe through somebody and his father was in a walkable condition as on the date of execution of Ex.B.1. His father occasionally used to go to Tirupati also. His father did not inform him about the need for registration of Ex.B.1. He did not raise any topic of registration of Ex.B.1 in his favour. It is stated that he cannot say who attested Ex.B.1 at the outset. Learned Counsel for the defendant No. 3 explained that at the outset means at the time of attesting Ex.B.1, the third defendant did not know who has attested the Will. One of the attestor Adusumilli Venkateswara Rao is the father-in-law of his brother-in-law and K. Venkatappa Naidu, D.W.3, who is his cousin. The suggestion that the Ex.B.1-Will was fabricated for the purpose of the suit was denied. The suggestion that after receiving Ex.A.1 legal notice from the plaintiff the third defendant took ten days time and got fabricated Ex.B.1 and then issued Ex.A.6 reply was denied stating that they are false allegations.
34. D.W.2, Scribe of Ex.B.1, stated that he is a document writer and he knows the father of the third defendant and he scribed Ex.B.1. Ex.B.1 was drafted as per the instruction given by Gangi Naidu, who was in sound state of disposing mind. Gangi Naidu was suffering from cancer. The attestors were one Venkateswara Rao and Venkatappa Naidu. Ex.B.1 was scribed in the house of Gangi Naidu. The plaintiff is the daughter of Gangi Naidu. The suggestion that Ex.B.1 is not a genuine one and that it was fabricated was denied. He stated that he was a licensed document writer. The body of Ex.B.1 and the signatures of the witnesses are with different inks. The witnesses signed with the pen used for scribing Ex.B.1. The suggestion that Ex.B.1 was created by them for the purpose of the suit and it is not a genuine one was denied.
35. In the cross-examination by the plaintiff he gave the particulars of the house of the Gangi Naidu and the number of houses in the said village and other particulars so as to prove the genuineness of his contention about the scribing of the said Will was in the house of Gangi Naidu. It is stated that he cannot say whether he put the date underneath his signature after signing the Will. Attestors also did not put the date underneath their signatures. The body of Ex.B.1 and the signatures are made with his pen only. The first page of the body of Ex.B.1 consists of two inks that were used for the pen. The said difference took place, as the flow of ink in first part of the document was different compared with the second part. The suggestion that the ink is different in the upper part and the lower part of the first page was denied. The ink that was used for the signatures of attestors is different from the ink that was used for the body of Ex.B.1. He obtained the licence in 1980 and it is not necessary that the scribe of Will should be a licensed document writer. The suggestion that Ex.B.1 Will does not contain the signature of Gangi Naidu and that it was created by putting antedate in collusion with the third defendant and the attestors was denied.
36. D.W.3, attestor of the Will, stated that the plaintiff is the daughter of Gangi Naidu and sister of the third defendant. Gangi Naidu executed the Will in favour of the third defendant and he is one of the attestor to Ex.B.1. Gangi Naidu was in a sound state of mind at the time of execution of Ex.B.1. D.W.2 scribed Ex.B.1 and one Venkateswara Rao is another attestor to Ex.B.1. It is not true to suggest that Ex.B.1 is forged document and fabricated.
37. In the cross-examination he stated that no draft was prepared prior to the execution of Ex.B.1, which was executed in the house of Gangi Naidu. Plaintiff is also the native of Pudipatla and her house is at a distance of half a furlong to her father's house. The Will was executed at 11.00 a.m. and at that time, D.W.2, Venkateswara Rao and Subramanyam were present; and the Will was scribed by D.W.2. The particulars of the properties were also mentioned in Ex.B.1. No provision was made to the daughters in Ex.B.1. He stated that he is the cousin of the third defendant. He did not put any date underneath his signature so also the other witness. Gangi Naidu put the date underneath his signature. He did not remember in how many pages he signed. He did not see in how many pages Gangi Naidu signed. The witness again said that Gangi Naidu might have signed in two pages. The pen that was used for writing the body as well as the signatures is one and the same. The signatures are brightly seen when compared to the body of Ex.B.1. Venkateswara Rao is native of Gudiwada and he is related to the wife the third defendant. The suggestion that he is related to D.W.I and Venkateswara Rao is related to D.W.1's wife and they colluded with D.W.1 and the Scribe and fabricated Ex.B.1 by putting an antedate was denied. It is stated that Ex.B.1 was a genuine and true document and it was not brought into existence to defeat the litigation.
38. D.W.4, brother of defendant No. 10, was examined only to prove that the society plot was allotted and registered in favour of defendant No. 10 by the society for a valid consideration and that property does not belong to the joint family or the third defendant. This is all the evidence available on record to consider the genuineness of the Will or otherwise. No doubt, the burden lies on the propounder to prove the genuineness of the Will.
39. To prove the Will the third defendant stated in his deposition that his father executed Ex.B.1 and it was a genuine Will. He examined the scribe, D.W.2 and attesting witness, D.W.3. Both D.W.2 and D.W.3 stated that they were present in the house of Gangi Naidu at the time of execution of the Will, which was scribed by D.W.2 and attested by D.W.3 and another person. Admittedly, the Will is dated 10.6.1977 but the oral deposition by them was in October/November, 1995 and they were stating about the genuineness of the Will after 18 long years. Though there are certain discrepancies but the fact remains that they have stated that D.W.3 is the Scribe and the Will was signed with the same pen by the attesting witness and the executant Gangi Naidu and it is a genuine Will. It is stated that because of the different flow of ink pen there is a slight difference in the first page and insofar as the attesting witness is concerned different ink was put in the same pen and therefore, the signatures appeared in a different ink. The pen used admittedly was an ink pen. The perusal of Ex.B.1-Will goes to show that the attesting witness have attested with certain force, as they are not well educated, while putting their signatures in Telugu. Admittedly, neither the plaintiff nor the defendants 1, 2 and 4 questioned the signature of Gangi Naidu on the said Will, They have not taken any steps to dispute the signature of the executant Gangi Naidu but they have only made an attempt, by way of cross-examination, to show that the said Will was not a genuine one. When the signature of the executant was not disputed and when the scribe and the attesting witnesses said that they were present in the house of Gangi Naidu while the Will was scribed by D.W.2 and singed by the executant, the cumulative circumstances of the aforesaid facts goes to show that all of them were present in the house of Gangi Naidu while the Will was executed.
40. The legal requirement to prove the Will under Section 63(c) of the Indian Succession Act is that every testator shall execute his Will according to Rule 63(c) of the Act. According to the Section 63(c) of the Act, 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 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 proforma of attestation shall be necessary. Therefore, as per the requirement a testator shall execute the Will in the presence of the two witnesses and they shall see the testator signing the Will.
41. I am of the opinion that the aforesaid evidence available on record satisfies the requirement of Section 63(c) of the Act as the attestor and the scribe of the Will stated that they were present in the house of Gangi Naidu at the time of execution of the Will, which was scribed by D.W.2, attested by D.W.3 and another person, and they saw the executant signing the Will.
42. The legal requirement to prove the execution of a Will under Section 68 of the Evidence Act is different from the legal requirement to prove the execution of the said document under Section 63(c) of the Indian Succession Act. If a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and as per proviso to Section 68 of the Evidence Act to prove the execution of the Will, one of the witnesses was examined and therefore, the said document was rightly received in evidence. Therefore, it cannot be said that the proof of execution of Ex.B.1, which requires to be attested under Section 68 of the Evidence Act, is not proved as one attesting witness was examined.
43. Therefore, I am of the opinion that the trial Court is not correct in holding that the essential aspects, of Ex.B.1 as required under Section 68 of the Evidence Act have not been elicited. The trial Court did not consider the essential aspects in proving Ex.B.1 under Section 63(c) of the Indian Succession Act, except citing certain judgments, but only held that the essential aspects are not elicited. The trial Court further erred in holding that the third defendant was present at the time of execution of the Ex.B.1, but he failed to name the persons present at the time of the execution of the Will. The third defendant only stated that at the outset i.e., at the time of execution of Ex.B.1. That he was not aware who are the witnesses and he never stated that he was present at the time of execution of Ex.B.1-Will. While appreciating the evidence of D.W.2-Scribe and D.W.3-Attestor, the trial Court failed to take the overall circumstances that prevailed on the day of the execution of the Will in the house of Gangi Naidu and erroneously came to the conclusion that D.W.2 and D.W.3 did not depose the necessary facts to prove the execution of Ex.B.1.
44. The other circumstances to suspect the genuineness of the Will are, Exs.A.8 and A.7, the memorandum of grounds of appeal in A.S. No. 160 of 1979 filed by one Krishnaswamy fyyengar, plaintiff in O.S. No. 245 of 1971. In fact, Gangi Naidu died during the pendency of the suit and the plaintiff brought his legal heirs on record therein. A.S. No. 160 of 1979 was compromised on 19.11.1979 under Ex.A.8. As per the compromise the plaintiff was declared as absolute owner of the suit schedule property and the defendants were restrained from interfering with the plaintiffs peaceful possession and enjoyment and the sale deed and the reconveyance deed dated 24.6.1948 entered upon by the plaintiff and the defendants 1 and 2 viz., Kandala Gangi Naidu and Kandala Yerrama Naidu was cancelled and as per the resolution of the elders the plaintiff agreed to give Rs. 15,000/- to the said respondents. It is the contention of the third defendant that as the said property was not in possession and enjoyment of Gangi Naidu the same was not the subject-matter of the Will. As per the contents of Ex.B.1 the executant was not keeping good health and anything may happen at any time and therefore, the properties in his possession and enjoyment, after his death shall devolve on his son. It is also stated that he got two wives. He got two daughters through his first wife and after the death of his first wife he married Boosamma and through her he got a son and two daughters. He performed the marriages of all the daughters as per his status with all ceremonies, gifts and rituals of pasupukumkuma. Therefore, there is nothing to be given to them. All the properties in his possession and enjoyment after his death have to be devolved on his son with full rights. Therefore, it is contended that there was no need of mentioning any particulars of the properties as all the properties, which were in possession and enjoyment of Gangi Naidu shall devolve on his son as per the Will.
45. Insofar as the contention of Sri K. Subrahmanya Reddy, learned Senior Counsel that under Section 6 of the Hindu Succession Act, Gangi Naidu has no right to execute the Will without there being any formal division of the properties between two coparceners i.e., the father and the son, it is to be stated that insofar as the self-acquired property, it is always open for such person to execute a Will. Insofar as the joint family properties are concerned under the Mitakshara school the devolution to the joint family property is governed by survivorship and not by succession. The undivided share of a coparcener after his death passes to other coparceners by survivorship.
46. Under Section 6 of the Hindu Succession Act read with Section 30 of the Act, the interest of a male Hindu in a Mitakshara coparcenery property shall, notwithstanding anything contained in the Hindu Succession Act, be deemed to be a property capable of being disposed of by him and therefore, there is no legal bar for the said Gangi Naidu for execution of the said Will. Only if Gangi Naidu had died without executing the Will his share of property would have devolved as per Section 8 of the Act to the Class I heirs i.e., on the plaintiff and defendants 1, 2, 3 and 4. As Gangi Naidu was empowered to execute the Will, he being the coparcener, share of Gangi Naidu in the property will devolve on the third defendant alone as per the Will.
47. It is contended by the learned Counsel for the appellant that under Section 19 of the Hindu Succession Act the defendants 1, 2 and 4 not being the coparceners but they being the Class I heirs, and in the event of Will found not genuine, the mode of succession shall be in accordance with Section 19 of the Act. That is the reason why the trial Judge granted the decree to the plaintiff alone to the extent of 1/12th share and no decree has been granted in favour of defendants 1, 2 and 4. Therefore, there is a difference between the suit filed for partition among the coparceners of a joint family and the suit filed by Class I heirs. Unless Class I heirs file a specific suit questioning the alienations claiming definite right the defendants 1, 2 and 4 are not entitled for any relief and therefore, the trial Court rightly did not grant any relief for them. As the trial Court did not grant any relief to them, I am not inclined to deal with the said contention as it is always open for the appellant to take all such objections as and when the said defendants make an attempt to claim the relief. As they did not file any appeal, I am not inclined to express any opinion on the said contention.
48. Learned Counsel appearing for the appellant placed reliance on the following judgments in support of his contentions contending that Will is genuine and it is accordingly proved fulfilling the requirements of Section 63(c) of the Indian Succession Act and Section 68 of the Evidence Act.
49. In the case of Naresh Charan v. Paresh Charan, AIR 1955 SC 363, the Apex Court accepted the opinion of the High Court that the execution and attestation took place at one sitting at the residence of P.W.1, therein where the testator and the witnesses have assembled by appointment, they must all of them have been present until the matter was finished, and as the witnesses were not cross-examined on the question of attestation, it could properly be inferred that there was due attestation. It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in presence of the testator.
50. In this case, I am of the opinion that the evidence was recorded by one presiding officer and it was appreciated by another presiding officer who has not properly appreciated the evidence of D.Ws.2 and 3, who were present in the house of the executor at the time of execution of Ex.B.1-Will. Therefore, it cannot be said that the legal requirements of Section 63(c) of the Indian Succession Act were not fulfilled. I am of the opinion that the aforesaid evidence available on record goes to prove the Will as a genuine one.
51. In the case of Smt. Indu Bala Bose v. V. Manindra Chandra Base, AIR 1982 SC 133, the Supreme Court held 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 in the case of a will by Section 63 of the Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus.
52. In the present case the suspicious circumstances as to the genuineness of the will, has not been pleaded, by the plaintiff or other defendants to shift the onus on the third defendant to clear the suspicious circumstances. It is not the case of the plaintiff that the third defendant was present at the time of the execution of the Will and that it was executed in the suspicious circumstances.
53. In the case of Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529, the Supreme Court held as follows:
"The principles which govern the proving of a will are well settled; (see H. Venkatachala lyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426 : (AIR 1959 SC 443) and Rani Purnima Devi v. Khagendra Narayan Dev, (1962) 3 SCR 195 : (AIR 1962 SC 567). 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 in the case of a will by Section 63 of the Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and . coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts. It is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural Improbable or unfair in the light of relevant circumstances or there might be other indications in the will as to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested."
54. In the instant case no suspicious circumstances have been alleged in execution of the Will and therefore the onus that was on the propounder to prove the execution of the Will has been discharged by examining the Scribe and Attestor, who stated that the executor signed on two pages only i.e., first page and second page. They further stated that they were all present at the house of the executor of the Will. Therefore, I am of the opinion that as the third defendant discharged the onus in proving the Will and in the absence of any allegation of suspicious circumstances, no burden is cast on the third defendant to remove the alleged suspicious circumstances, as no suspicious circumstances existed in the instant case.
55. In the case of Jaswant Kaur v. Amrit Kaur, AIR 1977 SC 74, the Supreme Court held that generally a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof of mathematical certainty. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. It is in this connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasizes that in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious the Court has to be satisfied fully that the will has been validly executed by the testator. If a caveator alleges fraud, undue influence, coercion etc., in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting on his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
56. Based on the aforesaid decisions the learned Counsel appearing for the respondents argued that no property was given to the daughters and the wife, and therefore, the said suspicious circumstances were not cleared by the third defendant.
57. On the other hand, the learned Counsel for the appellant submits that the daughters were married long back and there was nothing to be given by their father and the mother of the third defendant got independent streedhanam property, therefore, no suspicious circumstances existed in the instance case as the executor was in a sound and disposing state of mind while executing the will. Neither the plaintiff nor the defendants 1, 2 and 4 adduced oral or documentary evidence disputing the sound and disposing state of mind of their father or alleged any suspicious circumstances while executing the Will. There is no evidence to show that the third defendant was present at the time of execution of the Will.
58. For the aforesaid reasons, I am of the opinion that necessary legal requirements to prove the Will under Section 63(c) of the Hindu Succession Act read with Section 68 of the Evidence Act have been properly elicited. Therefore, the trial Court erroneously held that the Ex.B.1-Will is not genuine. The alleged fabrication of the Will has not been substantiated by the plaintiff and the propounder of the Will has discharged his burden to prove the will and the essential aspects under Section 63 and Section 68 have been properly elicited. Therefore, I hold Ex.B.1 as a genuine Will. The other circumstances are that the plaintiff and defendants 1, 2 and 4 kept quiet for a period of eight years, after demise of their father; and their claim that the third defendant used to give their due share was also not proved.
59. The third defendant discontinued his studies in law in Madras Law College when his father was not keeping good health to continue the agricultural operation. As per the evidence of the third defendant he was not present at the time of execution of the Will. Therefore, it cannot be said that the third defendant has taken a part in influencing the executor to execute the Will bequeathing all his properties in his favour. The third defendant is only the coparcener and the half share of his father was bequeathed in his favour. Therefore, I am of the opinion that it is not unusual in bequeathing the properties of the father in favour of the son, the only coparcener more so when all his daughters were married long back. Only after filing of the suit the transfer of other properties were objected but as the Court below rejected the said injunction application some of the properties were alienated in favour of other defendants for a valid consideration. Therefore, I am of the view that the trial Court rightly held that the said documents are not sham and nominal. As the Will is held to be genuine the third defendant has got the right to dispose of the said properties and therefore, the said sales cannot be interfered with.
60. For all the aforesaid reasons, the said questions are accordingly answered in favour of the appellant and the appeal is allowed setting aside the judgment and decree of the trial Court. In view of the close relationship between the parties, each party shall bear their own costs.