Andhra Pradesh High Court - Amravati
Are Chinnabbai, vs Are Lakshmi Kumari, on 4 March, 2024
APHC010692442016
IN THE HIGH COURT OF ANDHRA PRADESH ::
AMARAVATI
(Special Original Jurisdiction)
[3365]
MONDAY ,THE FOURTH DAY OF MARCH
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
FIRST APPEAL NO: 526 OF 2016
Between:
Are Chinnabbai ...APPELLANT(S)
AND
ARE LAKSHMI KUMARI AND OTHERS ...RESPONDENT(S)
Counsel for the Appellant(s): O.Manoher Reddy
Counsel for the Respondents: T V Jaggi Reddy
The Court made the following Judgment:
2
Dr. VRKS, J
A.S.No.526 of 2016
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
APPEAL SUIT No.526 of 2016
JUDGMENT:
Whether Sri Are Sriramulu died leaving the law of succession to take care of his estate or did he take care of the estate for himself and made a bequest by way of a registered Will has been the principal controversy that emerged between his wife on one side and his brother on other side.
2. The sole defendant in the suit preferred this Appeal under Section 96 of Code of Civil Procedure (C.P.C.) impugning the judgment dated 16.02.2016 of learned Senior Civil Judge, Parchur in O.S.No.3 of 2010. The respondents herein were the plaintiffs in the said suit.
3. Sri O.Manoher Reddy, the learned Senior Counsel representing the appellant and Sri T.V.Jaggi Reddy, the learned counsel representing the respondents argued their respective contentions.
4. The following facts are to be noticed:
There was Sri Are Venkata Subbaiah. He adopted Sri Are Sriramulu. Sri Are Sriramulu married Smt. Are Lakshmi 3 Dr. VRKS, J A.S.No.526 of 2016 Kumari and to them two sons were born, namely, Sri Are Sesank and Sri Are Chaitanya. There are siblings to Sri Are Sriramulu and one of his brothers is by name Sri Are Chinnabbai. Both the children of Sri Are Sriramulu are educated and employed and settled in the United States of America. Sri Are Sriramulu was a Scientist in DefenceElectrical Research Laboratory at Hyderabad. His wife Smt. Are Lakshmi Kumari studied B.Sc. B.Ed and worked as a Teacher in a private school. Sri Are Sriramulu suffered from cancer and died on 06.07.2008. It is in the backdrop of these facts, the litigation between his wife and children on one side and his brother on the other side emerged. The wife and children together filed O.S.No.3 of 2010 before learned Senior Civil Judge, Parchur seeking for declaration of their title over nine items of immovable properties vividly described in the plaint schedule and sought delivery of vacant possession of these properties from the defendant and also sought a direction to the defendant to pay Rs.1,00,000/- to the plaintiffs towards lease amounts or damages for use and occupation for the period of two years (2006-2007 and 2007-2008) and for costs and such other reliefs. In the plaint it is alleged that the plaint schedule properties were succeeded by Sri Are Venkata Subbaiah from 4 Dr. VRKS, J A.S.No.526 of 2016 his adoptive father. Thus, Sri Are Venkata Subbaiah and his two sons constituted a joint family and being coparceners they held the estate. As he lived at Hyderabad, he leased out the plaint schedule lands to the defendant on an annual lump sum amount of Rs.50,000/- per annum. The defendant used to pay these amounts to the first plaintiff (wife of Sri Are Sriramulu).
He failed to pay lease amounts for two years even after making demands. In those circumstances A.T.C.No.1 of 2009 was filed seeking his eviction. It was then the defendant came up with false allegations of his brother executing a registered Will dated 16.10.2006 in his favour. That created cloud over the title of the plaintiffs. The said Will is a forged document got prepared by the defendant by utilizing the services of his kith and kin.
Sri Are Sriramulu never executed any such Will. He never expressed any intention to bequeath any property to defendant. The Will propounded is not valid and is not binding on the plaintiffs. The Will is a suspicious document. With those allegations, plaintiff pleaded that the trial Court may pass a decree in their favour.
5. Defendant filed a written statement denying the assertions made in the plaint. That the suit is filed at the 5 Dr. VRKS, J A.S.No.526 of 2016 behest of first plaintiff only for the satisfaction of her ego. That the defendant was never a lessee of the plaint schedule lands. Plaintiffs know all these facts. Sri Are Sriramulu executed a registered Will dated 16.10.2006 bequeathing the plaint schedule properties in favour of this defendant. It is further pleaded that making of this Will is to the knowledge of the first plaintiff and all the other relatives and it came to be executed after due consultations with all of them. Since Sri Are Sriramulu was engaged in his employment at Hyderabad and since the plaint schedule lands are located in Inkollu Village of Prakasam District, Sri Are Sriramulu used to get these lands cultivated by taking the assistance of this defendant. Since the defendant is not a lessee, the question of payment of lease amounts or committing default in payment of such lease amounts did not arise. Unable to find success in A.T.C.No.1 of 2009, this second round of litigation is initiated unnecessarily. It is further pleaded in the written statement that because of cancer Sri Are Sriramulu had to incur lot of expenses and he mortgaged the suit schedule properties with State Bank of Hyderabad at Inkollu and on his death this defendant had discharged outstanding of Rs.1,00,000/- andthe remaining loan amount, principal and interest were waived by the Central 6 Dr. VRKS, J A.S.No.526 of 2016 Government. Sri Are Sriramulu to meet his expenses for health obtained financial assistance from this defendant. Since his wife and children are well settled and since he was satisfied with the financial and physical services rendered by this defendant, the Will was executed. Pursuant to the Will, entries in the revenue records were mutated in the name of this defendant. That the properties are never joint family properties and they were exclusive properties of late Sriramulu and therefore, the bequest made by him under the Will conferred title on this defendant and this defendant as rightful owner has been in possession of the property. With such averments, he sought dismissal of the suit.
6. On these rival contentions, learned trial Court framed the following issues and additional issues for its consideration:
1. Whether the plaint schedule properties are joint family properties or self-acquired properties of late Sriramulu?
2. Whether the Will dt.16.10.2006 is true, valid and binding on the plaintiff?
3. Whether the plaintiffs are entitled for the declaration of the tile as claimed?
4. If so, whether they are entitled for consequential possession and foramount of Rs.1,00,000/- as claimed?7
Dr. VRKS, J A.S.No.526 of 2016
5. To what relief?
Additional Issues:
1. Whether the plaintiff is entitled for mesne profits as prayed?
2. To what relief?
7. At the trial, first plaintiff alone testified as PW.1 and got marked Exs.A.1 to A.11. The sole defendant testified as DW.1 and he got examined DWs.2 to 5 (attestors to the Will, identifying witness to the Will and other independent witness) and got marked Exs.B.1 to B.4.
8. Learned trial Court considered the evidence on both sides and considered the arguments advanced on both sides and held that the plaint schedule properties were ancestral properties and late Sri Are Sriramulu and his two sons/plaintiff Nos.2 and 3 were coparceners andSri Are Sriramulu had only 1/3rdshare in it and therefore he could not, under law, bequeath anything more than his share (paragraph No.10 of the impugned judgment). Coming to the Will/Ex.B.1 propounded by the defendant, the learned trial Court had narrated several facts and stated that they were all suspicious circumstances and since they were not dispelled, it disbelieved the version of the 8 Dr. VRKS, J A.S.No.526 of 2016 defendant. It accordingly answered all the issues in favour of the plaintiffs and decreed the suit in favour of the plaintiffs declaring them as absolute title holders of the plaint schedule properties and granted consequential possession of the same. It dismissed the relief concerning lease or damages for use and occupation. It permitted the plaintiffs to move an application for mesne profits.
9. Aggrieved by the said judgment, the sole defendant appeals to this Court contending that the learned trial Court committed grave errors in appreciating the facts and applying the law as well.
While there was no plea in the plaint that the plaint schedule properties are joint family properties and without there being any evidence as to when the adoptive father of the testator died as to whether it was prior to Hindu Succession Act or subsequent to Hindu Succession Act and without reference to the facts as to whether there was ancestral property, the learned trial Court erroneously held that plaint schedule properties were ancestral properties and therefore, the testator could not have executed the Will beyond his 1/3rd share. 9
Dr. VRKS, J A.S.No.526 of 2016 Learned counsel for appellant/defendant contended that from the evidence one could duly notice that in terms of law the plaint schedule properties were the self-acquired properties of Sri Are Sriramulu/testator and he was duly entitled to execute the Will.
Ex.B.1 is the registered Will dated 16.10.2006. For a registered document greater sanctity is attached. The appellant being the propounder of the Will, through appropriate evidence, established that the Will was intended and was executed by the testator in a sound and disposing state of mind and through proper evidence the execution of the Will was proved and it was further proved that respondent No.1/wife of the testator was very much present when her husband executed the Will but based on irrelevant facts the trial Court erroneously recorded that there were suspicious circumstances shrouded around execution of Will.
Learned counsel argued referring to Sections 32, 34 and 35 of the Registration Act, 1908 and Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian 10 Dr. VRKS, J A.S.No.526 of 2016 Evidence Act, 1872. In support of the contentions, learned counsel also cited Murthy v. C.Saradambal1.
10. As against that,Sri T.V.Jaggi Reddy,learned counsel for respondents/plaintiffs, submitted that the pleadings and evidence were properly considered by the learned trial Court and it reached to appropriate conclusions and such a well reasoned judgment deserve no interference. From the evidence it was clear that there were many suspicious circumstances surrounding the alleged execution of the Will - The presence of beneficiary of the Will/appellant at the time of execution of the Will was proved and such suspicious circumstance was never dispelled. While DW.2 stated that the Will was made on a conquest paper, DW.3 stated that it was made on a white paper and DW.5 stated that it was made on a stamp paper; DW.2 was silent about presence of other witnesses, DW.3 said that testator was selling the properties on that day under that document, DW.5 said that first plaintiff also signed on the Will. Learned counsel further contended that by virtue of Ex.A.6 it was proved that the testator was in hospital and could not have executed the Will and the appellant obtained mutation of entries 1 (2022) 3 SCC 209 11 Dr. VRKS, J A.S.No.526 of 2016 in the revenue records without production of the Will and the testator was not able to walk or move and in the light of such suspicious circumstances, learned trial Court rightly disbelieved Ex.B.1-Will. Learned counsel for respondents cited the following precedent:
1. Dhani Ram v. Shiv Singh2for the proposition that merely because a Will is registered a Court of law cannot presume the validity of the Will.
2. Shivakumar v. Sharanabasappa3 - where their Lordships have narrated the pandect of Will, proof of its execution and what circumstances amount to suspicious circumstances, burden of proof.
3. Kalyan Singh v. Smt. Chhoti4 - where their Lordships held that in the absence of propounder failing to remove the suspicious circumstances by placing satisfactory material on record the Will should be held to be not genuine.2
2023 LiveLaw (SC) 862 3 (2021) 11 SCC 277 4 AIR 1990 SC 396 12 Dr. VRKS, J A.S.No.526 of 2016
4. Ram Piari v. Bhagwant5 for the proposition that simply because the other family members of the testator were well settled that cannot be said to be a factor in proof of genuineness of the Will. Learned counsel sought dismissal of the appeal.
11. In the light of the rival contentions, the following points fall for consideration:
1. What was the character of the plaint schedule properties in the hands of Sri Are Sriramulu and whether the findings of the learned trial Court are incorrect on facts and law?
2. Whether Ex.B.1- registered Will satisfied the judicial consensus that the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will and whether there are suspicious circumstances and if so, whether they were satisfactorily explained by the propounder of the Will/appellant/defendant and whether the trial Court committed error in appreciating the relevant aspects in this regard?
POINT No.1:
12. The undisputed evidence on both sides disclosed that Sri Are Venkata Subbaiah adopted Sri Are Sriramulu. The 5 (1990) 3 SCC 364 13 Dr. VRKS, J A.S.No.526 of 2016 adoptive father died and his estate was succeeded by his adopted son Sri Are Sriramulu. Sri Are Sriramulu married respondent No.1 and they were blessed with two sons/respondent Nos.2 and 3. The wife of Sri Are Sriramulu who was plaintiff No.1 testified as PW.1. During her cross- examination she stated that earlier to her marriage her family had no relationship with Sri Are Sriramulu. She also said that she never saw Sri Are Venkata Subbaiah who was the adoptive father of her husband Sri Are Sriramulu. She said that by the time of her marriage the wife of Sri Are Venkata Subbaiah was alive.All this go to show that by the time of her marriage the adoptive father of her husband was no more and was survived by a female heir/widow and the adopted son.First plaintiff did not say in her evidence and she did not plead in her plaint as to whether the properties that were there for Sri Are Venkata Subbaiah/the adoptive father were his own self-acquired properties or were his ancestral properties. In the absence of any pleading and evidence in that regard, one had to necessarily conclude that the assets in the hands of Sri Are Venkata Subbaiah were his self-acquisitions. When he died is not disclosed by evidence on both sides. The fact that Sri Are Venkata Subbaiah died is not in dispute. It is also the evidence 14 Dr. VRKS, J A.S.No.526 of 2016 on both sides that on death of Sri Are Venkata Subbaiah his wife and his adoptive son Sri Are Sriramulu succeeded his estate. Thereafter, the adoptive mother of Sri Are Sriramulu also died. The appellant/DW.1 is the very younger brother of Sri Are Sriramulu. In his evidence he stated that the adoptive father died leaving behind him Ac.60.00 cents of land and that was succeeded by Sri Are Sriramulu. He also said that the plaint schedule propertiesare the properties he succeeded from the adoptive father. Since the adoptive father died survived by a female class-I legal heir and the adopted son by virtue of Section 8 of the Hindu Succession Act,the estate became the self- acquired property in the hands of Sri Are Sriramulu. Therefore, they are not joint family properties. Sri Are Sriramulu died with that self-acquired properties survived by his wife and two children/respondents herein. Since they were his self-acquired properties, he was legally competent to distribute the properties in the manner he liked.
13. The learned trial Court recorded an observation that the plaint schedule propertiesare ancestral properties in the hands of Sri Are Sriramulu and on that premise it held that the two sons of Sri Are Sriramulu and Sri Are Sriramulu constitute 15 Dr. VRKS, J A.S.No.526 of 2016 coparceners for these ancestral properties and therefore, Sri Are Sriramulu had no power to distribute the properties beyond his 1/3rd share. It is this finding of the trial Court that is the subject matter of debate here in this appeal. This Court is unable to agree with the findings of the learned trial Court as the learned trial Court overlooked the basic concept of coparcenary. Any property which is inherited up to three generations is known as coparcenary property/ancestral property. The self-acquired properties of Sri Are Venkata Subbaiah being succeeded by his adoptive son Sri Are Sriramulu the properties remain self-acquired properties of Sri Are Sriramulu over which his own sons/respondent Nos.2 and 3 cannot lay a claim of right by birth or right of survivorship. Thus, the observations of the learned trial Court in this regard are against law and are required to be set aside.
14. From the discussion rendered above, it is clear that the plaint schedule properties were the self-acquired properties in the hands of Sri Are Sriramulu/testator. Hence, this point is answered in favour of the appellant and against the respondents.
16
Dr. VRKS, J A.S.No.526 of 2016 POINT No.2:
15. The controversy between the parties has arisen because of Ex.B.1. It is a registered Will dated 16.10.2006. On death of Sri Are Sriramulu, his wife and sons/respondents herein claiming to be the natural heirs sought declaration of their title over the plaint schedule properties. In the absence of any testament on part of Sri Are Sriramulu their claim for declaration should succeed. However, the younger brother of Sri Are Sriramulu/appellant herein propounded Ex.B.1-Will stating that his elder brother bequeathed the plaint schedule properties in his favour. The propounder has to prove the Will.
16. Ex.B.1-registered Will is an unprivileged Will. Therefore, what is provided under Section 63 of the Indian Succession Act, 1925 is relevant and therefore, the same is extracted here:-
"63. Execution of unprivileged wills:--Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.17
Dr. VRKS, J A.S.No.526 of 2016
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
17. The above provision makes it clear that the Will is a compulsorily attestable document. Execution of a Will includes attestation of Will. In other words, in the absence of attestation of a Will the execution of Will is not completed and the document cannot be called as a Will. Ex.B.1-Will on its face shows that it bears signatures of attesting witnesses. It also bears the alleged signature of the testator. Thus, the subject matter Will by its physical attributes satisfies the Will in terms of law.
18
Dr. VRKS, J A.S.No.526 of 2016
18. A document that requires attestation is required to be proved in a Court of law as provided in Section 68 of the Indian Evidence Act, 1872. Therefore, the said provision is extracted here:-
"68. Proof of execution of document required by law to be attested:--If a document is required by law to be attested, it shall not be used as evidence until 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:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
19. This provision requires the propounder to examine at least one attesting witness to prove the alleged execution of the Will. The appellant produced the evidence of Sri Bandaru Anjaneyulu/DW.2 who stated to have attested this Will. He also produced the evidence of Sri Panguluri Venkata Narayana/DW.3 who is stated to be another attesting witness of the Will. Thus, there is on record the evidence of attesting 19 Dr. VRKS, J A.S.No.526 of 2016 witnesses and that satisfies the legal norm contained in Section 68 of the Indian Evidence Act.
20. Ex.B.1 is the registered Will. Section 32 of the Registration Act, 1908 holds that for the purpose of registering a document the executant of the document or his representative or the person holding power of attorney could present the document for registration. Section 34(3) of the Registration Act says that the registering officer shall enquire whether or not such document was executed by the person by whom it purports to have been executed. If the registering officer is satisfied as to the identity of the person who alleged to have executed the document he could proceed further with the registration as provided in Section 35 of the Registration Act. It is in the light of the above statutory principles, the rival claims pleaded and the evidence emerged in proof of those pleadings are required to be considered.
21. Ex.B.1-registered Will dated 16.10.2006 is said to be the Will executed by Sri Are Sriramulu. Respondents as plaintiffs averred in their plaintthat the Will propounded by the defendant/appellant was a forged document and that was never executed by Sri Are Sriramulu. They further pleaded that it is 20 Dr. VRKS, J A.S.No.526 of 2016 not a valid Will under law and it does not bind them. They also contended that it is a suspicious document. The appellant being the propounder of the Will had to meet those challenges.
22. Appellant as DW.1 and the two attestors as DWs.2 and 3 and an identifying witness who is the very brother-in-law of the testator Sri Are Sriramulu as DW.5 stated that Sri Are Sriramulu and his wife/1st plaintiff came to Inkollu where the document was prepared and was registered. They also stated that the Will was prepared and executed to the knowledge of the wife of testator and it was executed after due deliberations with the family of the testator. While cross-examining these witnesses, plaintiffs never challenged the presence of testator and PW.1 in Inkollu Village on 16.10.2006 when the Will was registered. There is no other evidence brought on record to show that on 16.10.2006 they were not there and their presence was elsewhere. Thus, the evidence fully established the presence of the testator and his wife/PW.1 at Inkollu at relevant time when Ex.B.1 was executed and registered.
23. DW.5 married the second sister of the testator Sri Are Sriramulu and he said that he attended the execution and registration of this Will and he stated that Ex.B.1-Will was 21 Dr. VRKS, J A.S.No.526 of 2016 prepared at the instructions of testator and it was executed by the testator and at the registration office he identified the testator and signed on it. A perusal of Ex.B.1-Will shows the thumb impression and signature of the testator and the signature of two identifying witnesses including that of DW.5. This evidence would show the physical presence of the testator at the registration office and his execution of the document at the registration office. Be it noted, the photograph of the testator and his thumb impressions are also on the Will. At the trial the correctness of them are not disputed. The plaintiffs during evidence got marked Ex.A.5 letters addressed by the testator to the Director of his department and they contain the signature of the testator. It is not the case of respondents/plaintiffs that the signature available therein looks different from the signature available on Ex.B.1 attributed to late Are Sriramulu. Plaintiffs did not bring any other evidence on record to suspect that Sri Are Sriramulu was not present at the time of execution and registration of Ex.B.1-Will. The thumb impression was never taken for expert's opinion by the plaintiffs/respondents. In the above referred circumstances, it is correct to think that Ex.B.1-Will was registered at Inkollu and the testator was present and signed the will there. This rules 22 Dr. VRKS, J A.S.No.526 of 2016 out any impersonation. The contention about forgery also does not stand to scrutiny since the evidence of DWs.2 and 3 is that they witnessed the testator signing the Will and thereafter they as attesting witnesses signed the Will. The evidence of DW.3 is crystal clear that he and the other attestor witnessed the executant signing the Will. DW.3 categorically deposed that he and the other attestor signed the Will as attestors in the presence of the testator. All this evidence goes to prove that Ex.B.1-Will was executed by the testator.
24. Before proceeding further, it is necessary to notice the principles laid down by the Hon'ble Apex Court with reference to testamentary dispositions and about the suspicious circumstances. In Shivakumar's case (supra 3), after a great detailed study, their Lordships were pleased to lay down the principles governing the adjudicatory process concerning proof of Will as mentioned below:-
"1. Ordinarily, 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. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon.23
Dr. VRKS, J A.S.No.526 of 2016
2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.
3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will.
4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera 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 24 Dr. VRKS, J A.S.No.526 of 2016 give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
6. A circumstance is "suspicious" when it is not normal or is 'not normally expected in a normal situation or is not expected of anormal person'. As put by this Court, the suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind.'
7. As to whether any particular feature or a set of features qualify as "suspicious" would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation.25
Dr. VRKS, J A.S.No.526 of 2016
8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whetherthe testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?
9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will."
25. In Murthy's case (supra 1), one would notice the following few more suspicious circumstances which are illustrative in nature:-
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testator's free will and mind.26
Dr. VRKS, J A.S.No.526 of 2016
(v) The propounder takes a prominent part in the execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long. (viii ) Incorrect recitals of essential facts."
26. In the context of the above principles of law, the evidence on record has to be examined.
27. It seems that for about six years prior to this death Sri Are Sriramulu had been suffering from cancer. He was taking treatment. Ex.A.4 medical reports and certificates would also go to show the same. By those documents he was found to be in hospital till 14.10.2006. The Will was executed on 16.10.2006. He survived for a long time thereafter and died on 06.07.2008 as per Ex.A.3-death certificate. Thus, about two years earlier to his death Ex.B.1-Will came into existence. No medical evidence is brought on record by respondents/plaintiffs to show that the testator was so debilitated and he was unable to understand what he was doing or he was confined to bed. His natural faculties of seeing, listening, speaking and responding remained intact. It is also not the contention of respondents/plaintiffs that the testator had no sound and 27 Dr. VRKS, J A.S.No.526 of 2016 disposing state of mind. It is not their case that he was out of service because of any medical invalidation. The evidence of DWs.2, 3 and 5 shows in clear terms that the testator was not inhibited in any of his physical and mental abilities. In fact all these witnesses stated that the testator and his wife/PW.1 came in a car to that village and one witness said that the testator himself was driving the car. That would make it clear that the testator was fit physically and mentally at the relevant time.
28. A physical perusal of Ex.B.1-Will shows that it is prepared on green colour plain paper and the signatures of executant are seen at places in each of the pages making it very clear that he signed at places that were assigned for executant to sign. The contents of the Will indicates the description of his family members and it also mentions about the sickness he has been suffering from and mentions about his adoption and about his younger brother/appellant and he described as to which properties he inherited from his adoptive father. He mentioned that he held more affection towards his younger brother/appellant and therefore, he was making this Will bequeathing the properties situate in Inkollu and Hanumojipalem Villages. The correctness of description of the 28 Dr. VRKS, J A.S.No.526 of 2016 properties or any other recitals and contents of this document are not disputed by the respondents/plaintiffs. The contents of the document and the evidence of DWs.1 to 3 and DW.5 show that this disposition was not made out of any pressure from anyone thereby indicating that the testator had free Will and mind in executing this document.
29. In his evidence DW.1 stated that the testator was indebted to bank as he mortgaged these properties and on his death he (appellant) discharged the debt. He also said that on such discharge the pattadar passbook with title deed standing in the name of the testator (Exs.B.3 and B.4) were delivered to him by the bank and thereafter he for himself applied to the Government and obtained Ex.B.2-pattadar passbook in his own name. Item Nos.1 to 5 of the plaint schedule are agricultural lands and their entries could be seen in Ex.B.2-passbook.
30. It is available from the pleadings on both sides and the evidence on both sides that the respondents/plaintiffs earlier to the institution of the suit for declaration had filed A.T.C.No.1 of 2009 as against the appellant. Exs.A.7 to A.9 pertain to those proceedings. It is in those proceedings itself the appellant stated about Will in his favour. The Will came into operation 29 Dr. VRKS, J A.S.No.526 of 2016 only in the year 2008 which was on the death of testator. A.T.C. was filed in the year 2009. The suit was filed in the year 2010. The Will is a registered document in this case which serves as a public notice. Besides that, obtaining passbooks concerning the plaint schedule properties by the appellant could not have been possible except on the showing of the Will by the appellant to the Revenue Authorities. That was the evidence of DW.1. Though Ex.B.2 does not contain a mention about the Will as the source of possession or title over these properties, since entries are made and their validity is not questioned, one has to accept the evidence of DW.1 in this regard as true and correct.
31. It is not the case of respondents that the appellant was in the habit of signing any blank papers.
32. While cross-examining DW.1, the appellant elicited that the testator succeeded to Ac.60.00 cents of land from his adoptive parents. It was also elicited from DW.1 that the testator had given Ac.4.00 cents of land to his own elder sisterSesharatnam and had given Ac.3.50 cents of land to his another sister Lakshmi Devamma. Plaintiffs suggested to this witness that the testator had given Ac.9.00 cents of land to his natural father also. The above pieces of evidence would indicate 30 Dr. VRKS, J A.S.No.526 of 2016 that the testator was giving various portions of his properties to his siblings and others. This fact makes it clear that so far as the plaint schedule properties are concerned, there was nothing unusual on part of the testator in bequeathing them to one of his siblings. It is seen from the evidence of PW.1 and DW.1 that the testator had a house at Hyderabad. What happened to other properties out of Ac.60.00 cents was not explained by plaintiffs. The plaint schedule properties are only a fraction of that Ac.60.00 cents. As per the recitals in the Will and evidence of PW.1, respondent Nos.2 and 3 who are the very children of the testator and PW.1 are well educated and highly placed as one studied in IIT and settled in the United States of America and the other studied medicine and is practicing the same in the United States of America. It is in such circumstances, one has to necessarily state that bequest contained in Ex.B.1 is not unusual.
33. The contentions raised for respondents/plaintiffs about the contradictions in the evidence of attesting witnesses as one said about conquest paper, another said about white paper and another said about stamp paper for making the Will and about one witness telling the first plaintiff also signed the Will and the 31 Dr. VRKS, J A.S.No.526 of 2016 other witness telling that he thought that a sale was made are some of the factors that must make the Court to make a deeper scrutiny of the evidence. Those contradictions by themselves, in the opinion of this Court, have not dented the conscious execution of Ex.B.1-Will and its registration by the testator. The presence of PW.1 althroughout making of the Will remained unchallenged. DW.4 is the relative for both the parties and he stated that it was in the year 2007 the testator himself told him that he had executed a Will in favour of this appellant in the year 2006. His cross-examination indicates that this aspect was never challenged.
34. Dhani Ram's case (supra 2) relied on by the respondents does not bring any change. Paragraph No.17 of that judgment reads as below:-
"17. Bare perusal of the statements made by these two attesting witnesses demonstrates that they are not on same page. Lok Nath Attri (DW-2) claimed that Leela Devi signed the Will in his presence and in the presence of Chaman Lal. However, and most significantly, he did not state that Chaman Lal and he affixed their signatures in the document in the presence of Leela Devi. On the other hand, Chaman Lal claimed that he put his signatures at the bottom of the pages at the request of Dhani Ram and 32 Dr. VRKS, J A.S.No.526 of 2016 that he never saw Leela Devi affix her signatures in the document."
35. As one would notice that in the said case their Lordships disbelieved the Will since one of the attesting witnesses never saw the executant affixing her signature on the Will. In the case at hand, DWs.2 and 3 being attesting witnesses categorically stated that they saw executant signing the Will. Therefore, this ruling does not help the appellant.
36. In Kalyan Singh's case (supra 4) relied on for respondents at paragraph No.20 their Lordships stated as below:-
"20. It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The' executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order or judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought 33 Dr. VRKS, J A.S.No.526 of 2016 out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities; of the case to reach a proper conclusion on the nature of the evidence adduced by the party."
37. Abiding to this principle this Court had analyzed the material on record and had considered all the surrounding circumstances and finds that the evidence on record satisfies the conscience of this Court that Ex.B.1 is a genuine Will consciously executed by the testator. A few aspects need be stated here. Plaintiffs claimed that defendant/appellant has been their tenant paying Rs.50,000/- per year. There is no written lease deed. There are no accounts and there is no receipt showing any such transactions. Even pattadar and title deed passbooks of testator which are filed by the appellant do not maintain anything about any such lease. The lease asserted by respondents/plaintiffs is found to be incorrect. The case of appellant/defendant has always been that he was rendering assistance to the testator in getting the lands at Inkollu cultivated. The evidence of DW.1 shows that testator was making frequent visits to the village. That aspect remained unchallenged. In the above referred context one has to read 34 Dr. VRKS, J A.S.No.526 of 2016 and understand the evidence of other witnesses who said that the testator was cultivating the plaint schedule lands. Their evidence cannot be criticized stating that testator never personally cultivated these lands. Be it noted, it is no one's case that testator cultivated these lands personally especially when he is a Scientist employed in an esteemed organization and was afflicted with cancer and suffered and endured it for six years. The approach of the trial Court in evaluating this Will on the touch stone of the evidence on record and the principles of law laid down by the Apex Court is completely flawed.
38. Learned counsel for respondents argued that the evidence disclosed presence of appellant when Ex.B.1-Will was made and that vitiates the Will. It is true that the evidence amply established the presence of appellant (beneficiary under the Will) when testator executed the Will. Statute has not prescribed any prohibition that beneficiary of a Will should not be present when the Will was made. However, presence of beneficiary gives rise to a suspicion as he may have influenced the free Will of the testator and got procured a document in favour of the beneficiary. Now, one has to see whether such possibility has to be considered in abstract or has to be 35 Dr. VRKS, J A.S.No.526 of 2016 considered based on pleadings and evidence. When it comes to pleadings and evidence, no questions were raised about beneficiary under the Will playing any active role in making, execution and registration of the Will. Plaintiff never suggested to DWs.1 to 5 and first plaintiff herself did not depose appellant making any efforts by his words or acts in influencing the mind of the testator when this Will was made. Thus, as per the evidence on record, the beneficiary under the Will was a mute spectator and a visitor at the execution of Will. As long as he was a silent spectatorand as long as there is no material on record to think him playing any role, his presencecan never be termed as unlawful,and his presence cannot be considered as a fact affecting the validity of the Will.
39. Learned counsel for respondents argued that DW.1 and other witnesses said about PW.1 attending the execution of the Will of her husband and if that is true what made the appellant not obtaining her signature in some capacity on Ex.B.1-Will. This question is misplaced. When all the witnesses said about presence of PW.1 and when DW.1/appellant did not ask her to sign that shows that appellant was not taking any active interest in making of the Will. When all the witnesses said PW.1 36 Dr. VRKS, J A.S.No.526 of 2016 was present, it is for PW.1 to tell the Court as to why she did not participate as an attestor or identifying witness for her husband. Her silence cannot benefit her. Silence of defendant/appellant does not harm his case. Therefore, this contention is to be negatived.
40. From the discussion made above, it is clear that in a sound and disposing state of mind, after due deliberations and in the presence of his own wife, the testator Sri Are Sriramulu bequeathed a fraction of his property to his younger brother/appellant and the appellant did not keep the facts secret and he showed it to public authorities and showed it to Court in the earlier litigation. The evidence of attesting witnesses and identifying witness completely ruled out any fraud played in making of Ex.B.1-Will. Trial Court failed in appreciating the facts and circumstances and went on to harpon frivolous contradictions among independent witnesses. Therefore, its findings cannot be supported. Ex.B.1 is a valid and genuine Will and this point is answered in favourof the appellant. Therefore, the claim for title and other reliefs prayed in by the plaintiffs in the plaint cannot be granted. 37
Dr. VRKS, J A.S.No.526 of 2016
41. In the result, this Appeal is allowed. The impugned judgment dated 16.02.2016 of learned Senior Civil Judge, Parchur in O.S.No.3 of 2010 is set aside. Consequently, O.S.No.3 of 2010 is dismissed. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 04.03.2024 Ivd 38 Dr. VRKS, J A.S.No.526 of 2016 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR APPEAL SUIT No.526 of 2016 Date: 04.03.2024 Ivd