Andhra Pradesh High Court - Amravati
Jagadeesh Vasamji Tank, Rajahmundry, ... vs Smt.Divya Jitendra Chauhan Chavan, ... on 12 December, 2024
1
APHC010037732009
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
THURSDAY,, THE TWE
TWELFTH DAY OF DECEMBER
EMBER
TWO THOUSAND AND TWENTY
TWENTY-FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO
APPEAL SUIT NOs: 241/2009, 252/2009 AND 366/2009
A.S.No.241 of 2009
Between:
Jagadeesh Vasamji Tank, Rajahmundry, E.g.dist And 4 ...APPELLANT
APPELLANT(S)
Others and Others
AND
Smt Divya Jitendra Chauhan Chavan M P State And 3 ...RESPONDENT(S)
Others and Others A.S.No.252 of 2009 Between:
V.vasamji, Rajahmundry, E.g.dist (died) And 3 Others and ...APPELLANT APPELLANT(S) Others AND D Prathima Rajahmundry And 2 Others and Others ...RESPONDENT(S) A.S.No.366 of 2009 Between:
Jagadeesh Vasamji Taunk, Rajahmundry, E.g.dist & 2 Others ...APPELLANT APPELLANT(S) and Others AND 2 Devulapalli Prathima Rajahmundry E G Dist And 2 Others ...RESPONDENT(S) Counsel for the Appellant(S):
1. M/S BHARADWAJ ASSOCIATES
2. P MEHAR SRINIVASA RAO Counsel for the Respondent(S):
1. .
2. S PRANATHI
3. V V SATISH The Court made the following COMMON JUDGMENT:
1. These three Appeals arise from the common judgment and decrees dated 12.03.2009, in O.S.No.11 of 2001, O.S.No.62 of 2003, and O.S.No.83 of 2003, passed by the learned I Additional District Judge, East Godavari District at Rajahmundry (hereinafter referred to as 'the trial Court'). Accordingly, they are disposed of by the following common judgment.
2. A.S.No.241 of 2009 has been filed by the Appellants/Defendants, challenging the decree and judgment dated 12.03.2009, in O.S.No.11 of 2001; A.S.No.252 of 2009 has been filed by the Appellants/Defendants, challenging the decree and judgment dated 12.03.2009, in O.S.No.62 of 2003. A.S.No.366 of 2009 has been filed by the Appellants/Plaintiffs, challenging the decree and judgment dated 12.03.2009, in O.S.No.83 of 2003, on the file of the I Additional District Judge, East Godavari District at Rajahmundry.
3. Referring to the parties as arrayed in the suits is expedient to mitigate confusion and better comprehend the case.
4. The suit in O.S.No.11 of 2001 was filed by the Plaintiff seeking vacant possession of the properties shown in the plaint 'A' schedule by evicting the Defendants, as well as a partition of the properties in the plaint 'B' schedule into 3 eight equal shares, with one such share to be allotted for the exclusive possession of the Plaintiff.
5. The Plaintiffs in O.S.No.11 of 2001 and O.S.No.62 of 2003 are sisters, they are daughters of Plaintiff in O.S.No.83 of 2003, who is figured as 1st Defendant in O.S.No.62 of 2003. The Defendants 2 to 4 in O.S.No.62 of 2003 are none other than the brothers of the Plaintiff in O.S.No.62 of 2003 and the Plaintiff in O.S.No.11 of 2001 i.e., sons of Plaintiff in O.S.No.83 of 2003. These brothers are referred to as Defendants 1 to 3 in O.S.No.11 of 2001. The Plaintiff in O.S.No.62 of 2003 is figured as 6th Defendant in O.S.No.11 of 2001. The other Defendants in O.S.No.11 of 2001 are their other family members.
6. Brief averments of the plaint, in O.S.No.11 of 2001, are that:
(a) The Plaintiff and Defendants 1 to 6, along with Nandalal V. Tank, are children of S. Vasamji Madhavaji Tank (hereinafter referred to as 'Madhavaji') and Smt. Velubhai Vasamji (hereinafter referred to as 'Velubhai') inherited and acquired valuable properties for the family, which was part of a Hindu undivided joint family. In 1980, the joint family assets were divided among Vasamji and his sons (Defendants 1 to 4). Before this, Nandalal, the eldest son, separated from the family after receiving his share of the assets, particularly fixed assets. Thus, the 1980 partition was between Vasamji and Defendants 1 to 4.
(b) In 1980, Madhavaji and his sons (Defendants 1 to 4) partitioned their joint immovable properties, including the house site buildings (D.No.29-7-1 and 29-7-1/1) at Lakshmivarapupeta. A plan was drawn to allocate shares, with item 'B' given to Madhavaji and item 'C' to 4th Defendant. Subsequently, Madhavaji purchased item No. 2 of the plaint 'A' schedule from 4th Defendant (Sale Deed dated 30.5.1985) and item No.3 (Ac.1-35 cents) under a Sale Deed dated 29.5.1983. On 23.07.1986, Madhavaji executed a Will in a sound and disposing state of mind, stating that his wife, Smt. Velubhai would enjoy the plaint 'A' 4 schedule properties during her lifetime, and the Plaintiff would take possession thereafter. Upon his death on 24.03.1994, however, Defendants 1 to 3, particularly 2nd Defendant, unlawfully took possession of the properties, ill-treated Smt. Velubhai, and misappropriated her assets. Smt. Velubhai passed away intestate on 07.04.2001, leaving behind her heirs, including the Plaintiff and Defendants. The Plaintiff is entitled to an undivided 1/8 th share in the plaint properties. Defendants 1 to 3 had acknowledged Smt. Velubhai's exclusive ownership of the plaint 'B' schedule house property, as per the partition deed dated 19.10.1985. The Plaintiff is entitled to exclusive possession of the plaint 'A' schedule properties and seeks partition of the plaint 'B' schedule house property into eight equal shares. Despite her demand for possession and partition (through a registered notice dated 14.05.2001), the Defendants failed to respond.
Plaintiff, now in constructive possession of the plaint 'B' schedule house property, is entitled to both possession of the plaint 'A' schedule land properties and partition of the plaint 'B' schedule house property.
7. The 2nd Defendant filed a written statement, adopted by Defendants 1, 3 and 4, denying the plaint's allegations. They claimed that Madhavaji executed a valid Will on 15.03.1994, revoking all prior Wills. According to this Will, items 1 and 2 of the plaint schedule property were bequeathed to Smt. Velubhai Tank for her life, with the remainder to be equally shared among Defendants 1 to 3.
(a) According to the Will of Madhavaji, Item No. 3 of the plaint 'B' schedule property was bequeathed to Defendants 1 to 4, and all his cash was bequeathed to his wife, Smt. Velubhai. The Plaintiff, aware of this Will, took the savings certificates kept in her name by her father. She has stolen silver articles from Velubhai. Regarding the plaint 'B' schedule property, Smt. Velubhai and Defendants 1 to 3 formed a partnership, and Smt. Velubhai invested in this property as her capital share. By her death, Smt. Velubhai no longer owned it.5
Displeased with the Plaintiff and 6th Defendant, Smt. Velubhai executed a Will on 02.12.2000, bequeathing all her properties to Defendants 1 to 3, leaving the Plaintiff with no claim to the property.
8. During the pendency of the suit, the 5th Defendant filed a memo reporting no objection to decreeing the suit, and the 6th Defendant also filed a memo submitting that she has no objection to decreeing the suit as prayed for by the Plaintiff.
9. Based on the above pleadings in O.S.No.11 of 2001, the trial Court framed the following issues:
1) Whether the Plaintiff is entitled to vacant possession of plaint 'A' schedule land property?
2) Whether the Will dated 23.07.1986 is true, valid and binding on the Plaintiff?
3) Whether the Plaintiff is entitled to partition of the plaint 'B' schedule house property and is entitled to 1/8th share in the same?
4) Whether the Plaintiff is entitled to future profits?
5) Whether Vellubhai Vasanji Taunk is having plaint 'B' schedule house property by the time she died?
6) To what relief?
10. Brief averments of the plaint, in O.S.No.62 of 2003, are that:
(a) The suit in O.S.No.62 of 2003 was filed by the Plaintiff, who is the 6 th Defendant in O.S.No.11 of 2001, against the 4th Defendant (the Plaintiff's mother and brothers). Following the demise of the mother (1st Defendant), Defendants 5 and 6 were brought on record. The suit seeks a declaration of title to the plaint schedule property, along with a consequential permanent injunction.
(b) The Plaintiff is the youngest daughter of the 1st Defendant and her late husband, Vasanji M. Tank. On 31.12.1996, the Plaintiff was not given valuable assets at her marriage, unlike other family members. However, the 1st 6 Defendant, out of love and affection, gifted the schedule property to the Plaintiff through a registered Gift Deed, executed on the same date. This gift was made voluntarily, with full consent from the 1st Defendant and in the presence of attestors. Defendants 2 to 4 also consented, acknowledging their responsibility to provide for the Plaintiff. The Plaintiff has since taken possession of the property and enjoys it with full rights and title.
(c) Defendants 2 to 4, after gaining control over the fixed deposits, filed a suit (O.S.No.83 of 2003) in the name of the 1st Defendant against the Plaintiff and her husband, challenging the validity of the Gift Deed dated 31.12.1996 executed in favour of the Plaintiff by the 1st Defendant. Plaintiff alleged the malicious intentions of her brothers (Defendants 2 to 4), who sought to harass, threaten, and coerce their mother (1st Defendant).
(d) The Plaintiff is the sole and exclusive owner of the schedule property, which she possesses and enjoys without interference. The Defendants have no right, interest, or possession in the property and cannot disturb the Plaintiff's ownership or possession. Defendants 2 to 4, being able-bodied, have the capacity to use physical force to disrupt the Plaintiff's peaceful enjoyment of the property.
11. The 1st Defendant, during her lifetime, filed a written statement denying the allegations in the plaint. She claimed that as of 31.12.1996, she held no right, title, or interest in the 'A' schedule land properties and that Defendants 2 to 4 had been in possession of these properties since 16.07.1991, to the Plaintiff's knowledge. The 1st Defendant alleged that the settlement deed was fraudulent, made under misrepresentation and coercion, and could not convey any rights to the Plaintiff. She further stated that she did not knowingly or willingly execute the deed and that it was filed as a counterclaim to the Plaintiff's suit. Additionally, she asserted that she had no rights to the property even before 31.12.1996.
7(a) The 1st Defendant asserts that the Plaintiff is not in possession of the plaint schedule properties and that the Defendants 2 to 4 remain in possession.
Upon discovering the alleged fraud, the 1st Defendant revoked the Gift Deed vide a registered revocation deed dated 28.05.1999 and notified the Plaintiff through a registered letter. She also revoked the power of attorney granted to the Plaintiff's husband. The 1st Defendant claims the plaint schedule property was not joint family property and that Defendants 2 to 4 had partitioned their properties, with her signing the partition document, which did not mention her possession of the plaint schedule property. She asserts that the Gift Deed of 31.12.1996 was invalid due to fraud, misrepresentation, and undue influence, was not acted upon, and that possession was never transferred to the Plaintiff. Consequently, Defendants 2 to 4 are the rightful owners and continue to possess the property.
12. Defendants 2 to 4 filed a written statement asserting that 1st Defendant lost all rights, title, or interest in the plaint schedule property as of 16.07.1991. They claimed to have been in possession and enjoyment of the property in their own right, with the Plaintiff and others being aware of this. Additionally, they contended that the alleged Gift Deed was the result of fraud, misrepresentation, and coercion.
13. 3rd Defendant filed an additional written statement asserting that Defendants 5 and 6 are not the legal heirs of the 1st Defendant. In the light of the Will dated 02.12.2000, executed by the late Velubhai Vasanji Tank, 3 rd Defendant contended that Defendants 2 and 4 are the rightful heirs and entitled to the plaint schedule property. Therefore, Defendants 5 and 6 have no claim to the property.
14. The Plaintiff filed a rejoinder asserting that the total 3800 sq. yards of land, part of the plaint schedule property, was jointly purchased by Defendants 1 to 4 under a Sale Deed dated 09.08.1968. They later divided the property among themselves, as shown in the partition list dated 19.10.1985, and have since 8 enjoyed their respective portions exclusively. The Plaintiff also contended that the Will dated 02.12.2000, claimed by Defendants 2 to 4, is forged and fabricated, pointing to the execution of the Will by the 1st Defendant in favour of the 2nd Defendant as evidence of its falsity. Furthermore, Plaintiff noted that the 1st Defendant never took action against 5th Defendant regarding any jewellery or gold and acknowledged receipt of Rs. 13,500/- as interest on her fixed deposit at Vijaya Bank, per the receipt dated 08.12.1999.
15. Based on the above pleadings in O.S.No.62 of 2003, the trial Court framed the following issues:
(1) Whether the Plaintiff is the owner of the plaint schedule property? (2) Whether the 1st Defendant has any title and interest in the plaint schedule property? If so, whether the Gift Deed dated 31.12.1992 in favour of the Plaintiff is true, valid and binding?
(3) Whether the 1st Defendant is entitled to revoke the Registered Gift Deed? If so, whether the Registered Revocation deed dated 28.05.1999 is true, valid and binding on the Plaintiff?
(4) Whether the Plaintiff is entitled to seek consequential relief of permanent injunction?
(5) To what relief?
Additional Issue:
Whether the Defendants 2 to 4 alone are entitled to schedule property by virtue of the Will executed dated 02.12.2000 by late Velubhai Vasanji Taunk and that Defendants 5 and 6 have no right in the schedule property?
16. Brief averments of the plaint, in O.S.No.83 of 2003, are that:
(a)The suit in O.S.No.83 of 2003 was filed by the Plaintiff, who is the mother and appears as the 1st Defendant in O.S.No.62 of 2003. The suit seeks a declaration that the Gift Deed dated 31.12.1996, purportedly executed by Plaintiff in favour of the 1st Defendant, is void, invalid, and unenforceable and that it was never acted upon. The Plaintiff also seeks an order to send a copy of the decree 9 to the office of the Sub-Registrar to update their records regarding the cancellation of the said Gift Deed.
(b) The plaint schedule property was not the absolute property of the deceased sole Plaintiff. It was contributed as her capital investment in the partnership firm "Marthandachal Graphite and Crucibles, Rajahmundry." Upon the settlement of accounts, the property was retained by her sons (the other partners), while the Plaintiff received cash in place of her share. As a result, the Plaintiff no longer had any rights to the plaint schedule property. The Defendants allegedly induced the Plaintiff to execute a registered document on 31.12.1996, which the Plaintiff later discovered was a Gift Deed for the plaint schedule property. The Defendants misled the Plaintiff into signing the document by making her believe it was a power of attorney when it was, in fact, a Gift Deed.
Despite the execution of the Gift Deed, Defendants 1 and 2 were never in possession or enjoyment of the property.
17. The 1st Defendant, adopted by the 2nd Defendant, filed a written statement asserting that the plaint schedule property was the absolute and exclusive property of the Plaintiff, who gifted it through the Registered Gift Deed dated 31.12.1996, which was accepted by the 1st Defendant with the Plaintiff's knowledge. Since then, the 1st Defendant has owned and possessed the property as its absolute owner. The 1st Plaintiff obtained the property through a partition with her sons, as shown by the partition deed dated 19.12.1985. If the Plaintiff had ceased to be the owner by the time of the alleged Gift Deed in 1996, there would have been no need for her to file the suit, as the true owners (her sons) would have taken action. Furthermore, the plaint does not mention the Plaintiff's claim of executing a deed to cancel the Gift Deed.
18. Based on the above pleadings in O.S.No.83 of 2003, the trial Court framed the following issues:
10(1) Whether the plaint 'A' schedule land property was not owned by the Plaintiff as on 31.12.1996 and if Gift deed dated 31.12.1996 is void for want of title?
(2) Whether the Gift deed dated 31.12.1996 was obtained by misrepresentation and fraud and if the said deed is not enforceable?
(3) Whether the Plaintiff is entitled to the relief of declaration as prayed for? (4) To what relief?
19. All three suits are clubbed, and the evidence is recorded in O.S.No.62 of 2003. During the trial, P.Ws.1 to 6 are examined, and Exs.A1 to A40 are marked. On behalf of the Defendants, D.Ws.1 to 4 are examined, and Exs.B1 to B24 are marked. One witness is examined as Court Witness No.1 (C.W.1).
20. After the trial concluded and both sides presented their arguments, the learned trial Court decreed the suit in O.S.No.11 of 2001 by holding that the Plaintiff is entitled to vacant possession of plaint 'A' schedule properties and she is entitled to partition of plaint 'B' schedule properties; the trial Court also decreed the suit in O.S.No.62 of 2003 by declaring that the Plaintiff is the owner of the plaint schedule property and also granting of consequential permanent injunction in favour of the Plaintiff and the trial Court dismissed the suit in O.S.No.83 of 2003 vide common judgment dated 12.03.2009.
21. Aggrieved by the said common judgment and decrees as stated supra, the aggrieved parties preferred the present appeals.
22. During the pendency of the Appeal in A.S.No.241 of 2009, the appeal was dismissed as withdrawn concerning the 3rd Appellant by an order dated 15.09.2011. Similarly, the appeal was dismissed as withdrawn concerning the 4 th Appellant by an order dated 29.04.2013. Furthermore, by the order dated 06.02.2013 in A.S.M.P.No.223 of 2013, the 5th Appellant was brought on record as the legal representative of the 2 nd Appellant.
1123. During the pendency of the Appeal in A.S.No.252 of 2009, the 3 rd Appellant died, and the 5th Appellant was brought on record as the legal representative of the 2nd Appellant by an order dated 08.09.2017 in A.S.M.P.No.84 of 2017. Additionally, an order dated 14.09.2011 dismissed the appeal as withdrawn concerning the 4th Appellant.
24. During the pendency of the Appeal in A.S.No.366 of 2009, the 2 nd Appellant died, and the 4th Appellant was brought on record as the legal representative of the 2nd Appellant by an order dated 03.11.2017 in A.S.M.P.No.125 of 2013. Additionally, an order dated 14.09.2011 dismissed the appeal as withdrawn concerning the 3rd Appellant.
25. Heard Sri Vedula Venkata Ramana, learned Senior Counsel representing Sri M. Balangu Srinivas, learned counsel for the Appellants and Sri O. Manohar Reddy, learned Senior Counsel representing Sri V.V. Satish, learned counsel for the respondents.
26. Sri Vedula Venkata Ramana, learned Senior Counsel for the Appellants, asserts that the trial Court should have seen the Will dated 15.03.1994 as the last testament of the deceased, as it was proven with cogent and unimpeachable evidence by the Appellants. He contends that the respondents failed to establish the genuineness of the Will dated 23.07.1986, which they rely on for the plaint schedule properties. The trial Court should have considered the later Will dated 15.03.1994, which the Appellants assert to be the true and final testament of the deceased, proven beyond doubt. Further, the learned Senior Counsel emphasizes that Will dated 15.03.1994 (Ex.B4) clearly states that all prior Wills are cancelled. Therefore, the Will dated 23.07.1986, relied upon by the respondents, cannot be considered once the genuineness of Ex.B4 is established by the Appellants.
12(i) Learned Senior Counsel further asserts that the trial Court erred in drawing an adverse inference against the Appellants due to the absence of a recital in the Sale Deeds (Exs.A.36 to A.38), stating that they inherited the property through the Will. He contended that the lack of such a recital should not have led to an adverse inference. The trial Court's finding that had the Will (Ex.B4) existed at the time of the three Sale Deeds, there should have been a reference to it, was erroneous. Learned Senior Counsel explained that the documents were typically drafted by a document writer, and more importantly, the Appellants, being North Indians, were not fluent in Telugu. Additionally, the learned Senior Counsel asserts that the trial Court failed to recognize that the testimony of P.W.5 should not have been treated differently in proving the two Wills, both of which were attested by the father of P.W.5, whose signatures were identified. He also emphasized that the trial Court should have taken into account Ex.B11, a Will dated 02.12.2000, executed by the father of both the Appellants and the respondent. This Will bequeathed the respondent's rights over the property to the Appellants, as her limited estate granted under Ex.B4 by her husband was enlarged under Section 14(1) of the Hindu Succession Act.
(ii) Learned Senior Counsel further asserts that the trial Court should have acknowledged that the Will under Ex.B11 was properly proved by examining the attestors of the Will, whose evidence remained unchallenged during cross- examination. He asserts that the trial Court should have placed trust in Ex.B16, a document in which the Appellants' mother, a partner in the firm under Ex.B15 (the partnership deed dated 09.08.1968) relinquished her rights in the firm and received cash in lieu of her share. Learned Senior Counsel contended that this document further supported the Appellants' claims and should have been given due weight by the trial Court.
(iii) Learned Senior Counsel further asserts that the trial Court should have seen that the plaint 'B' schedule property in O.S.No.11/2001 was given by the 13 Appellants' mother as her share in the partnership. This property was later relinquished under the relinquishment deed (Ex.B16), and she received cash in lieu of it. As a result, the respondent has no claim over the plaint 'B' schedule property. The trial Court should also have acknowledged that the alleged Gift Deed (Ex.A17), under which the respondent is claiming her rights, is not genuine. The Gift Deed was revoked under Ex.B14 and it was not voluntarily executed by the Appellants' mother. Therefore, the trial Court should not have considered the Gift Deed (Ex.A17) in light of the revocation deed (Ex. B14). The respondents failed to prove the genuineness of Ex.A17, the Gift Deed dated 31.12.1996, in favour of G. Prathima.
27. Per contra, Sri O. Manohar Reddy learned Senior Counsel representing the Respondents, contends that the trial Court appreciated the case facts and reached a correct conclusion. The reasons given by the trial Court do not require any interference.
28. Concerning the pleadings in the suits, the findings recorded by the trial Court and in light of the rival contentions and submissions made on either side before this Court, the following points would arise for determination:
1. Whether the trial Court justified in holding that the Will, dated 23.07.1986 is true, valid and binding and that the Plaintiff in O.S.No.11 of 2001 is entitled to have vacant possession of plaint 'A' schedule property?
2. Whether the trial Court justified in holding that the Plaintiff in O.S.No.11 of 2001 is entitled to 1/8th share of partition of plaint 'B' schedule house property?
3. Whether the trial Court justified in holding that the Gift deed, dated 31.12.1992 in favour of the Plaintiff in O.S.No.62 of 2003 is true, valid and binding?
4. Whether the 1st Defendant in O.S.No.62 of 2003 is entitled to revoke the plaint schedule property, and if so, whether the Plaintiff in O.S.No.83 of 2003 is entitled to a declaration that the gift deed is not valid and is obtained by misrepresentation?14
5. Whether the trial Court justified in holding that Plaintiff in O.S.No.11 of 2001 is entitled to future profits?
6. To what relief?
29. The schedule property involved in O.S.No.62 of 2003 and O.S.No.83 of 2003 is the same, a site measuring 921 sq. yards. The Plaintiff in O.S.No.62 of 2003 filed for a declaration of title and a permanent injunction regarding this property, claiming that her mother executed a gift deed. In contrast, the mother filed O.S.No.83 of 2003 to cancel that same gift deed. The Plaintiff's sister also initiated O.S.No.11 of 2001 against their mother and siblings, demanding vacant possession of the plaint 'A' schedule property and a partition of the plaint 'B' schedule house property. It is crucial to note that the property in O.S.No.11 of 2001 is entirely distinct from the properties in the other two suits.
30. As per the record, all three suits were consolidated, and the common evidence was recorded in O.S.No.62 of 2003. The Appellants' counsel asserted that the trial Court should not have consolidated the suits and that common evidence should not have been recorded. However, this Court holds that, having actively participated in the trial proceedings, the Appellants cannot now challenge the decision to club the suits and record common evidence. Furthermore, the Appellants failed to show any actual prejudice arising from the consolidation of the suits. While the trial Court highlighted certain procedural lapses in other cases, the Appellants may have been under the mistaken impression that the trial judge should have influenced these procedural issues. Nevertheless, during the appeal, the Appellants raised objections to the consolidation of the suits without proving how it adversely impacted their case.
POINT NO.1:
31. The relationship between the parties in the suit O.S.No.11 of 2002 is undisputed. The Plaintiff, Defendants 1 to 6, and one Nandalal V. Tank (the 15 father of the 7th Defendant) are all children of Madhavaji and Smt. Velubhai. In O.S.No.11 of 2001, the Plaintiff filed the suit demanding the vacant possession of the properties shown in Schedule A, seeking their eviction from the Defendants, along with a request for the partition of the B Schedule properties into eight equal shares.
32. Plaint A's Schedule consists of three distinct items: Item No.1 - House property located at D.Nos.29-7-1 & 29-7-1/1, along with its appurtenant site situated at Lakshmivarapupeta in Rajahmundry town; Item No. 2 - House property at D.Nos.29-7-1 and 29-7-1/1, also located in Lakshmivarapupeta, Rajahmundry town; Item No.3 - Dryland measuring approximately Ac.1.35 cents on the western side of R.S.No.774/2, out of a total of Ac.2.70 cents, situated in Kolamuru village, Rajahmundry rural.
33. Plant B's Schedule consists of 788 square yards of land located in R.S.Nos.233 and 234, within the former Gandhi Prakashnagar Panchayat area, now part of the Rajahmundry Municipal Corporation.
34. Plaintiff asserts that following the partition, Sri Madhavaji purchased Item No. 2 of the plaint 'A' schedule property from his son, the 4th Defendant, under a registered sale deed dated 30.05.1985, and subsequently took possession of the property, enjoying its rights. Additionally, Madhavaji purchased Ac.1.35 cents of land described in Item No.3 of the plaint 'A' schedule under a sale deed dated 29.05.1983. It is also undisputed that, before filing the suit, Plaintiff issued a registered notice on 14.05.2001, vide Ex.A9, demanding possession of the plaint 'A' schedule properties. The Defendants acknowledged receipt of this notice, vide Exs.A.10 and A.11, but failed to respond. There is no serious dispute regarding the Plaintiff's sending of notice. Plaintiff contends that they have not specifically claimed for the plaint 'B' schedule property in the notice, with the 16 expectation that Defendants 1 to 3 would facilitate the partition of the plaint 'B' schedule property.
35. The Plaintiff's specific case in O.S.No.11 of 2001, who testified as PW.2 that her father, Madhavaji, executed a Will on 23.07.1986 (Ex.A.10) in a sound and disposing state of mind, which was duly registered. According to the Will, Madhavaji granted his wife a life interest in the plaint 'A' schedule properties, and upon her demise, the Plaintiff was to take possession of these properties. In contrast, the Defendants assert that their father, Madhavaji, executed a subsequent Will (Ex.B.4) on 15.03.1994, which purportedly cancelled all prior deeds, including the Will of 23.07.1986.
36. Even though the trial Court did not frame issues regarding the second Will purportedly executed by Madhavaji on 15.03.1994, or the Will of Smt. Velubhai, dated 02.12.2000, nevertheless considered the pleadings and made explicit findings on the authenticity and genuineness of both Wills.
37. In Nedunuri Kameswaramma vs Sampati Subba Rao MANU/SC/0319/1962, the Hon'ble Supreme Court held that:
No doubt, no issue was framed, and the one which was framed could have been more elaborate. Still, since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings.
38. Both parties have not raised any objections to considering those issues based on the available pleadings. Given the established legal principles, the trial Court was right to address those contentions, even without framing specific issues.
39. In support of their respective positions, both parties relied on their respective Wills, and the trial Court thoroughly considered the contentions raised 17 by each side. The Plaintiff in O.S.No.11 of 2001 was examined as PW.2. During her testimony, she stated that one of the attestors, Dr Chainulu, the family doctor, is no longer alive, and the other attestor, Thakur Das, along with D. Saraswathi, both friends of their father, left India approximately fifteen years ago, and their current whereabouts are unknown. The Defendants did not dispute this assertion. Therefore, the Plaintiff has explained the non-examination of the attestors. Her testimony also reveals that she does not have a close acquaintance with them.
40. Evidently, Ex.A.8, the typographed Will, was registered on 05.01.1987. As per the Will, immovable properties were given to his wife for a life interest, while the vested remainder was left to the Plaintiff. All the movable properties were bequeathed to his wife. It is undisputed that Madhavaji was involved in the graphite and real estate businesses and owned an industrial business.
41. The Plaintiff examined one Akella Sankara Narayana, a typist, as PW.3, who typed Ex.A.8, the Will in question. His testimony revealed that he worked as a typist at the office of Sri P.S.R. Bhaskar Murthy, Senior Advocate, Rajahmundry. According to his evidence, he typed the Will on 23.07.1986, following a draft Will written by Madhavaji, which was given to him. After completing the typing, he delivered the document to Madhavaji's office. PW.3 testified that, at that time, both attestors were present, and Madhavaji read through the contents of the Will. Madhavaji made corrections by deleting paragraph No.2 and renumbering the remaining paragraphs. After these changes, Madhavaji signed each paragraph of the Will. PW.3 also confirmed the attestation of the Will by the attestors and stated that he signed the document as the typist. He further testified that Madhavaji was of sound and disposing mind when the Will was executed. Upon reviewing Ex.A.8, the trial Court observed that the evidence provided by PW.3 regarding the corrections and deletions made in the Will was consistent with the document itself. The evidence provided by PW.3, 18 along with Ex.A.8, clearly indicates that although he typed the Will, he also subscribed his signature and provided his address. In light of this, the trial Court correctly concluded that the intention was to treat PW.3 as an attestor. Had this not been the case, he would not have needed to include his address or sign the document, especially since the Will had already been typed.
42. PW.5, S. Sreenivasa Murthy, son of Dr. Chainulu, testified that he was familiar with his father's signature and that his family was well-acquainted with Madhavaji's family. He identified his father's signature as the first attestor on Ex.A.8. His evidence establishes that Ex.A.8 bears the signature of Dr.Chainulu. On the other hand, the trial Court considered the recitals of Ex.B.4 (the Will executed later). It affirmed Madhavaji's sound and disposing state of mind at the time of executing Ex.A.8. The trial Court correctly pointed out that neither PW.2 nor PW.3 were cross-examined or suggested that Ex.A.8 was forged or fabricated. The Defendants did not raise such a defence in their written statement. The trial Court further observed that DW.1, the 2 nd Defendant in O.S.No.11 of 2001, did not dispute the authenticity of Ex.A.8 in his testimony. In the aforementioned circumstances, the trial Court arrived at a definite finding that the statutory requirements to prove the Will had been complied with. Normally, appreciation of the evidence by the trial Court is only interfered with by the Appellate Court if such appreciation of evidence appears to be absurd or there has been a serious challenge to such exercise. This proposition of law has been so firmly settled that it does not require any reiteration by citing any authority.
43. Based on this evidence, the trial Court concluded that Plaintiff had successfully proven the authenticity of Ex.A.8, the Will executed by Madhavaji on 23.07.1986, which was registered on 05.01.1987. Therefore, I do not find any lacunae in the evidence of the witnesses mentioned above regarding the execution of the Will by Madhavaji; they have also spoken about the effect that the document was presented for registration. Their evidence has not been 19 shattered in the cross-examination. Nothing was elicited to show that the testator was not in a sound and disposing state of mind during execution or registration. In the circumstances stated above, I could find that Will was executed by the testator in a sound and disposing state of mind, and the testator gave free and genuine consent for the execution of the said Will.
44. The defence asserts that Ex.A.8 Will is superseded by Ex.B.4 Will. Through PW.5, the signature of Dr. Chainulu was marked as Ex.B.3, but the burden was still on the Defendants to prove the execution of Ex.B.4 by Madhavaji. The 2nd Defendant in O.S.No.11 of 2001, testifying as DW.1, claimed that his father executed Ex.B.4 Will while in a sound and disposing state of mind, expressly revoking all prior Wills. According to Ex.B.4, item No.3 of the plaint schedule property was allocated to Defendants 1 to 4, while items No.1 and 2 were given to Smt. Velubhai for her lifetime, with the remainder passing equally to her sons. Furthermore, all cash was bequeathed to Smt. Velubhai. Both Will align in granting Smt. Velubhai has a life interest in items No.1 and 2. However, the disposition of the remaining items diverges.
45. DW.2, the 2nd Defendant in O.S.No.11 of 2001, stated in cross- examination that, during their father's lifetime, he and his brothers divided their joint family properties and executed an unregistered partition deed. In further cross-examination, DW.2 conceded that item No.3 is dry land, which is the self- acquired property of their father.
46. DW.2 admitted in cross-examination that he, along with Defendants 1 and 3 in O.S.No.11 of 2001, sold item No.3 of the plaint 'A' schedule property through registered sale deeds, Exs.A.36 to A.38. One of the purchasers was Akula Surya Prakash Rao, while Ex.A.36 stands in the name of Akula Kasi Annapurna. DW.1, however, claimed ignorance about whether the sale deeds mention that Defendants 1 to 3 inherited the property through the Will executed by their father.
20According to DW.1, he only learned about the execution of Ex.B.4 Will after his father's death. He testified that the sale deeds for item No.3 were drafted only after proceeding through the Ex.B.4 Will. As the trial Court pointed out, the signatures of DW.2 and his brothers, Defendants 1 and 3, are marked on Ex.A.36 (A to E), with additional signatures on sale deeds in favour of Karri Udaya Satyanarayana Reddy and Kandukuri Veera Venkata Lakshmana Chowdary, marked as Ex.A.37 (A to E) and Ex.A.38 (A to D). The trial Court emphasized that these documents make no reference to Ex.B.4 Will but clearly state that the property passed to them after their father's death. DW.1 admitted that the sale deeds do not specify that their father passed away testate. This Court concurs with the trial Court's conclusion that had Ex.B.4 Will existed at the time the sale deeds were executed, it would have been mentioned as the source of the title for Defendants 1 to 3 rather than merely stating that they acquired the property by succession from their father.
47. The trial Court further noted that, according to Ex.B.4 Will, item No.3 of the schedule property was bequeathed to all four sons. However, the sale deeds show that only Defendants 1 to 3 executed them. The trial Court rightly pointed out that if the Will were genuine, the fourth brother, Sarath, should have also been part of executing the sale deed. Regarding this discrepancy, no plausible explanation or substantial reason has been provided. Additionally, the trial Court observed that if Ex.B.4 Will were authentic, there should have been a reference to the earlier registered Will, Ex.A.8, and a clear explanation for its revocation. DW.1 testified that his father left around Rs.25,00,000/- in fixed deposits and Vikas Patras. However, DW.1's evidence fails to show that Ex.B.4 was produced to the banks for withdrawing the amounts. He also admitted there is no proof that the legatees under Ex.B.4 had received their respective shares as per the Will. Furthermore, DW.1 acknowledged that after their mother's death, no action was 21 taken against their sisters for recovering gold, cash, and silver allegedly belonging to the mother.
48. The other Ex.B.4 attestor, K. Babu Reddy (CW.1), was examined as the Court witness. Although he admitted his signature as the first attestor of Ex.B.4, he testified that he did not know Madhavaji personally or whether he was involved in the timber business. He also stated that he did not know Dr. Chainulu, though he had heard the name. Therefore, the only available attestor for Ex.B.4 did not support the Defendants' case regarding the execution of Ex.B.4 by Madhavaji in a sound and disposing state of mind. The trial Court noted that neither CW.1 nor PW.3 were confronted with the suggestion that Ex.B.4 was in Madhavaji's handwriting. While PW.3 testified that he was familiar with Madhavaji's handwriting, the Defendants did not confront PW.3 with the handwriting of Ex.B.4. As a result, the trial Court observed that there was no evidence to suggest that Ex.B.4 was in Madhavaji's handwriting.Ex.B.1, a book relied upon by the Defendants, was compared by the trial Court with both Madhavaji's handwriting and the handwriting on Ex.B.4. The trial Court concluded that it could not be determined that the handwriting on Ex.B.4 was that of Madhavaji. Aside from identifying the signatures of the attestors, the Defendants failed to establish the authenticity of the contents of Ex.B.4 as required under Sections 68 and 69 of the Indian Evidence Act.
49. After a detailed analysis of the evidence on record, the trial Court rightly concluded that the Defendants failed to prove the execution of Ex.B.4 Will by Madhavaji. The circumstances highlighted by the trial Court raised significant doubts about the genuineness of Ex.B.4. The trial Court correctly observed that the Defendants introduced Ex.B.4 under questionable conditions and ultimately concluded that it could not be accepted as valid or binding on the Plaintiff. Therefore, the trial Court's conclusion that Ex.B.4 was not a legitimate Will and cannot affect the Plaintiff's rights is well-founded and justified.
2250. Ex.A.8 Will mentions the fixed deposits held in the names of both Madhavaji and his wife, as well as the amounts lent to Marthandachal Graphite, Crucibles (owned by his son), and the starch industry (also owned by his son). The Defendants have not provided any evidence to suggest that the Plaintiff's mother, during her lifetime, took any action against the Plaintiff or her sister regarding the encashment of these fixed deposits. In this context, the trial Court made a significant observation: Since the Plaintiff's mother did not raise any objections during her lifetime, her sons, after her demise, cannot now question the encashment of these fixed deposits.
51. During the cross-examination of PW.1, the handwriting in the notebooks, marked as Ex.B.1, was confronted. Ex.B.1 was relied upon by the Defendants to suggest that Plaintiff had encashed the Fixed Deposit Receipts (FDRs) in her father's name. However, the trial Court observed that even if it were assumed that PW.2 (the Plaintiff) and her sister, Prathima (Plaintiff in O.S.No.62 of 2003), had taken the FDRs, it would not affect their case. The trial Court also noted that the Defendants had not taken any action to recover the cash encashed by the Plaintiff or the value of those FDRs. It indicated that they had not pursued any legal remedy for the alleged encashment, making their claims less credible.
52. At this Point, it's crucial to highlight that Smt. Velubhai filed the suit in O.S.No.83 of 2003 (formerly O.S.No.234 of 1999). However, in that suit, she did not claim a refund for the amount or the value of the gold and silver items allegedly taken by her daughters. Similarly, in the suit O.S.No.11 of 2001, the 1st Defendant made no counterclaim regarding these assets. The trial Court referenced these facts to emphasize that DW.1's assertion that his sisters, PWs.1 and 6, took the FDRs and gold of their mother was entirely false. As outlined in Ex.A.8 Will, Madhavaji granted a life interest to his wife, with the vested remainder going to PW.2.
2353. The Defendants contended that Smt. Velubhai's life interest, granted by her husband, was converted into a vested remainder through Ex.B.11 Will dated 02.12.2000. However, the trial Court correctly noted that Smt.Velubhai never claimed her life interest was enlarged, and no such plea was made in O.S.Nos.11 of 2001 or 62 of 2003. Ex.B.11 did not mention the enlargement of her life interest. The trial Court discarded the Defendants' assertion, as there was no supporting pleading or evidence, nor was Section 14 of the Hindu Succession Act applicable. Thus, the trial Court correctly disregarded the Defendants' argument, as it lacked both factual and legal basis.
54. It's clear that Smt. Velubhai passed away in 2001. In the suit she filed, her children, Plaintiffs 2 to 4, only came on record after she died in O.S.No.83 of 2003 as legal representatives of the deceased. Not once did they mention that their mother had executed Ex.B.11, Will. They came on record solely as her legal heirs, not as beneficiaries of the Will. The trial Court noted that if Ex.B.11 had existed at the time the plaint in O.S.No.83 of 2003 was amended, it would have been included in the amendment. They would have stated explicitly that their mother executed the Will dated 02.12.2000 and that they came on record by it. Even when they were added to the case, they didn't inform the Court about the execution of Ex.B.11 by their mother, and the amended plaint didn't make any reference to it. After reviewing Ex.B.11, the trial Court pointed out that the paper's adjustment suggested it was a fabricated document. Though PW.2 admitted to signing Ex.B.11 and the signature of Smt. Velubhai was marked as Ex.B.2, the trial Court rightly observed that this admission of signature does not prove the legitimacy of the Will.
55. The trial Court considered the testimonies of PW.2, PW.6, and DW.1 and noted that Smt. Velubhai was always under the control of her sons. The evidence shows that the Defendants and their mother lived in Rajahmundry, while PW.2 and her sister, PW.6, lived far away with their families. The trial Court observed 24 that by this time, Smt. Velubhai was very old and under the influence of her sons, making it easy for them to get her signature on blank papers. The trial Court also noted that the sons of Smt. Velubhai filed the suit by her as an informa pauperis to pose that their mother herself came to the Court and presented the plaint, but later, the Court fee was paid.
56. A propounder of the Will indeed has to remove all suspicious circumstances. In PPK Gopalan Nambiar V. PPK Balakrishnan Nambiar & ors.1, the Hon'ble Supreme Court held that it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not the fantasy of the doubting mind.
57. In Rani Purnima Debi & Anr. v. Kumar Khagendra Narayan Deb & Anr.2, the Hon'ble Supreme Court held that:
"Even if the onus of proving the Will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine.............."
Even where there were no such pleas, but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court."
58. In Kalyan Singh v. Chhoti & Ors., 3 the Hon'ble Supreme Court, in paragraph 20, has summarised what the Court should do in the manner as follows:
"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 1 AIR 1995 SC 1852 2 MANU/SC/0020/1961 3 MANU/SC/0258/1989 25 that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the Court is not confined only to their testimony and demeanour. It would be open to the Court to consider circumstances brought 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."
59. It is also the law that when suspicious circumstances are alleged, it is no longer a lis between propounder and caveator, it is a question of satisfaction of the conscience of the Court.
60. The trial Court pointed out the suspicious circumstances surrounding Ex.B.11 Will, where no properties were left to any of her daughters. There was also no explanation as to why her other son, Sarath, was excluded, or why the properties were only bequeathed to her other sons.
61. The Defendants examined DW.2, K. Sai, and DW.3 (P. Radha Krishna), the alleged attestors of Ex.B.11 Will, and DW.4, M.G.M. Narasannas, wife of the scribe. DW.2 admitted he was a cook for Smt. Velubhai was illiterate and could not understand Gujarati, the language in which the Will was written. He was from the Andhra region and did not know the language or any familiarity with Smt.Velubhai's personal affairs. The trial Court noted that, given Smt. Velubhai was a Gujarati woman, she would have likely sought female assistance for food preparation and security, not a male cook with no connection to her.DW.2 also testified that Smt. Velubhai had a cordial relationship with her daughters, who used to visit her; however, in the suit filed by Smt. Velubhai clearly stated that she had no such relationship with her daughters, and they never visited her. The trial Court pointed out that DW.2 was a planted witness and that his testimony was unreliable. He couldn't confirm whether the Will was executed per Smt. 26 Velubhai's instructions, nor could he provide a date, month, or year for when the Will was signed. He also couldn't say if Ex.B.11 was the actual document executed in Smt. Velubhai's presence. The trial Court further observed that DW.2 couldn't even specify how much time had passed between Ex.B.4 and Smt. Velubhai's death. The trial Court also noted that DW.2 wasn't a relative, elder, or close associate of Smt. Velubhai's family, making his role as an attestor highly suspicious. If Smt. Velubhai had truly wanted to execute a will, and she would have taken steps to ensure it was correctly done using stamp paper or good quality paper. She would likely have involved someone closer to her family, not a cook who didn't understand Gujarati. After thoroughly examining the facts, the trial Court rightly discarded DW.2's testimony.
62. The testimony of DW.3 indicates that he was in the lorry transport business and had no connection with Smt. Velubhai. He didn't live near her or even in the same area and had no acquaintance with her family. He couldn't even name the street or locality where she lived. DW.3 admitted he didn't understand Gujarati, the language in which the Will was supposedly discussed and prepared. According to his statement, Smt. Velubhai and Mahendra discussed the Will in Gujarati, but he had no idea what was said or what Smt. Velubhai expressed that DW.3 also claimed that Smt. Velubhai called him to her house when he visited Mr. Chandu, her youngest son. Based on these facts, the trial Court rightly found his role as an attestor highly questionable.
63. DW.4 identified her husband, P. Narsanna's handwriting and signature on Ex.B.11. However, her testimony revealed that she expressed ignorance about even preparing her chief affidavit. She admitted that this was the first time she had seen Ex.B.11, and she acknowledged that her husband was neither a document writer nor experienced in dealing with legal documents. The trial Court observed that if Smt. Velubhai intended to bequeath significant property, she 27 would have engaged someone with experience in document preparation, not a person like DW.4's husband, who lacked such expertise.
64. The trial Court further noted that after their mother's death, Plaintiffs 2 to 4 failed to present Ex.B.11 Will to any public office for mutating the records, particularly regarding items 2 and 3 of the plaint 'A' schedule properties. The trial Court also observed that Plaintiffs 2 to 4 had sold off dry land covered by Ex.B.11 long before the Will existed, as shown by Ex.A.36 to A.38. The trial Court pointed out that they sold the property in 1999 with incorrect descriptions, as shown in these documents, and later had to execute two rectification deeds (Ex.A.39 and A.40) in 2007. The trial Court highlighted that these rectification deeds came long after the litigation began. It concluded that only the purchasers could claim rights to the property from the dates of Exs.A.39 and A.40. The trial Court rightly observed that, since these deeds were executed after the litigation had started, they were affected by lis pendens, meaning they couldn't alter the Plaintiff's rights to the property. The trial Court also noted that the Defendants, who executed Exs.A.39 and A.40, had no rightful claim to the property and, therefore, the purchasers had no legitimate claim either. The trial Court made it clear that the Defendants' actions were calculated--an attempt to grab the property and mislead the purchasers, pulling them into litigation. It noted how the Plaintiff's brothers were trying to manipulate the situation to strip the rights of their sisters, who had inherited the property under the Will. Based on the record, the trial Court concluded that the purchasers knowingly bought into the litigation, as they obtained the rectification deeds in 2007, by which time all the suits were already pending. After carefully evaluating the testimony of DWs. 2 to 4, the trial Court correctly concluded that their evidence was not credible. All these matters remain unexplained, and no attempt has been made to remove the suspicion. The Will is surrounded by suspicion as enumerated above, and cannot be accepted as a last Will and testament of Smt. Velubhai.
2865. The trial Court specifically pointed out that DW.1's testimony regarding these documents was evasive and clearly showed his attempts to feign ignorance on critical matters. He failed to provide any reasonable explanation for why he executed the rectification deeds in 2007. After reviewing the Plaintiffs' evidence and considering all the material on record, the trial Court rightly concluded that Ex.B.11 Will is neither true, valid, nor binding on the Defendants. On the other hand, Ex.A.8 Will, dated 23.07.1986, is determined to be true, valid, and binding on the Defendants. Accordingly, the Point is answered.
POINT NOs.2 & 5:
66. It is admitted that the plaint 'B' schedule property was allocated to Smt. Velubhai in the partition between her and her sons, as evidenced by Ex.A.35, the partition list dated 19.10.1985. The Defendants assert that Smt. Velubhai, as a partner in 'Marthandachal Graphite and Crucibles,' contributed the plaint 'B' schedule property as capital to the firm and later received cash when she retired from the partnership, thus making the property part of the firm. Given this claim, the Defendants must prove it. The Defendants relied on Ex.B.15, a partnership deed dated 09.08.1968. However, as the trial Court correctly noted, Ex.B.15 does not indicate that Smt. Velubhai used the Plaint 'B' schedule property as her capital contribution. According to PW.1's testimony, the partnership was dissolved on 16.07.1991, as per Ex.B.16. This dissolution document does not mention that Smt. Velubhai received cash for her share, or the plaint 'B' schedule property was given to the firm. The trial Court also observed that the dissolution was not communicated to the relevant authorities.Ex.B.13, a receipt dated 06.08.1991, signed by Smt. Velubhai (Ex.B.10) shows that she received Rs.85,554.58 ps, from her three sons as a settlement for her share in the partnership.
2967. However, the trial Court pointed out that neither Ex.B.16 nor Ex.B.13 mentions that Smt. Velubhai gave up her claim to the plaint 'B' schedule property in exchange for this cash settlement. It can be seen that the Defendants failed to produce any partnership account books, income tax receipts, or balance sheets to substantiate their claim that Smt. Velubhai had contributed the plaint 'B' schedule property to the firm, as rightly observed by the trial Court. DW.1 claimed that they had notified the Rajahmundry Municipality in 2001 about the dissolution to transfer Smt. Velubhai's share in the Plaint 'B' schedule property. However, DW.1 admitted that the Municipality did not transfer the property, and no action was taken to rectify the situation. The Defendants also issued Ex.B.21, a legal notice to the Municipal Corporation, relying on the receipt of postal acknowledgement (Ex.B.22), as well as Exs.B.23 and B.24, letters to the A.C.T.O, Rajahmundry. DW.1 admitted that by the time of sending Ex.B.21, the plaint 'B' schedule property and other immovable properties had already been assessed separately in the names of the three sons and their mother, showing no explicit transfer of the property as claimed.
68. Based on the evidence presented, the trial Court concluded that by 2001, the plaint 'B' schedule property was still registered in the name of Smt. Velubhai. The trial Court pointed out that if Smt. Velubhai had indeed relinquished her claim to the property, as the Defendants claimed, the property would not have been assessed in her name even after she retired from the firm in 1999. The Defendants did not dispute her ownership of the plaint 'B' schedule property, which remained in her name until 2001. The trial Court observed that those documents might have been accepted if the Defendants had promptly submitted Exs.B.13 and B.16 to the relevant authorities in 1991. However, since the Defendants failed to produce income tax returns or the firm's assessment books, this Court is not inclined to accept these receipts. These registers didn't reflect the transactions referenced in Exs.B.13 and B.16, suggesting the Defendants 30 might not have relied on them. The trial Court also highlighted a crucial point during cross-examination. Ex.B.16 refers to a schedule containing divided shares, but the sheet referenced in the document was missing. DW.1 admitted that the sheet was in his possession. He also conceded that no records show he and his brothers paid property tax on the plaint 'B' schedule property after the firm's dissolution. Additionally, DW.1 admitted that the dissolution of 'Marthandachal Graphite and Crucibles' was never reported to the Registrar of Firms, nor did they inform the sales tax or commercial tax authorities. He also claimed ignorance of the contents of Exs.B.21 and B.23, letters supposedly sent to the A.C.T.O. If the firm had been dissolved and the plaint 'B' schedule property had been transferred to it, the Defendants would have notified the relevant authorities and taken steps for the property's mutation.
69. After a thorough analysis of the evidence, the trial Court concluded that DW.1's claim about the existence of a partnership deed and Smt. Velubhai's retirement from the partnership was nothing more than a fabrication; it was created solely for litigation. Although the Defendants presented ledger books from the firm 'Marthandachal Graphite and Crucibles,' these books failed to show the dissolution of the partnership. They lacked the necessary stamps and seals from auditors. Upon considering all the evidence, the trial Court rightly determined that the plaint 'B' schedule property remained the property of Smt. Velubhai. She did not relinquish it, and the Defendants failed to prove that she gave up her rights to the property by receiving the amounts outlined in Ex.B.13 receipt. After appreciation of the evidence on record, this Court concurs with the trial Court's finding that the Will, dated 02.12.2000, which purportedly bequeathed Smt. Velubhai's properties to the Defendants have been proven false. The plaint 'B' schedule property remained with Smt. Velubhai at the time of her death. She died intestate, leaving behind her daughters and sons, in total 31 eight shares, and the Plaintiff is entitled to 1/8th share, along with her brothers and sisters, each of whom is entitled to an equal share.
70. After carefully considering the facts and circumstances of the case, the trial Court rightly concluded that the Plaintiff is entitled to future profits from the date of the suit. This entitlement extends until the property is divided into eight equal shares and the Plaintiff is granted possession of her 1/8th share of the plaint 'B' schedule property. Additionally, Plaintiff is entitled to future profits up to the period until she is provided with vacant possession of the plaint 'A' schedule properties by Defendants 1 to 4. Accordingly, the Points are answered.
POINTS NO.3 AND 4:
71. In the case at hand, the Plaintiff in O.S.No.62 of 2003 (formerly O.S.No.13 of 2000) claims that her mother, Smt. Velubhai gifted the property described in the plaint by executing a registered gift deed dated 31.12.1992 in her favour, however, Smt. Velubhai has contested the validity of the gift deed, filing a suit in O.S.No.83 of 2003, asserting that the gift deed was obtained through misrepresentation and fraud, thus rendering it unenforceable. Consequently, the subject matter in both suits is identical, revolving around the same property and legal claims.
72. In O.S.No.63 of 2003, the Plaintiff was examined as PW.6, where she testified that the property covered under the gift deed fell to her mother's share according to Ex.A.35, a partition list and that her mother executed the gift deed of her own free Will. It is undisputed that Ex.A.35 was executed as part of a partition and that the property belonged to Smt. Velubhai following that partition.
73. The Plaintiff, PW.6, further testified that her mother executed the Ex.A.17 gift deed voluntarily, without any coercion. On the other hand, Smt. Velubhai claims that PW.6 and her husband used a power of attorney to manipulate her 32 into executing the gift deed. Notably, Ex.A.17 was drafted in Rajahmundry, and the necessary stamps were purchased there, with the document being executed at the Rajahmundry Sub-Registrar's office. This location is significant as it is the residence of the Plaintiff's brothers, while the Plaintiff herself resides far away from Rajahmundry.
74. The trial Court took into account the circumstances mentioned in the written statement, noting that Smt. Velubhai's sons never left her unattended for long periods. Based on this and the overall evidence presented, the trial Court concluded that it was highly improbable that PW.6 and her husband had successfully obtained the gift deed under the pretext of holding a power of attorney, given that Smt. Velubhai was under constant vigilance and supervision by her sons. Thus, the version put forth by Smt. Velubhai raised reasonable doubts regarding her version.
75. To establish the execution of the gift deed, the Plaintiff (PW.6) examined one of the attesting witnesses, Ramakrishna Rao, as PW.4, who corroborated the Plaintiff's version of events by testifying that Smt. Velubhai executed Ex.A.17 gift deed while in a sound and disposing state of mind, according to PW.4, Smt. Velubhai was fully aware of the document's contents and nature before she executed it. Further, PW.4 testified that Smt. Velubhai instructed the scribe to prepare the document, and she read it herself. After reading it, she accepted the contents as correct, affixed her signature, and participated in the registration process of the deed. This testimony from PW.4, coupled with the execution of Ex.A.17, demonstrates that he acted as an identifying witness during the registration of the gift deed, further supporting the claim that she properly executed the deed. Velubhai. Thus, PW.4's evidence strengthens the Plaintiff's case by confirming that the gift deed was executed voluntarily and with full awareness by Smt. Velubhai, and that the document was registered following legal procedures.
3376. After a thorough examination of PW.4's testimony, this Court agrees with the findings of the trial Court. The evidence provided by PW.4, along with the execution of Ex.A.17 gift deed, clearly establishes that Smt. Velubhai executed the gift deed voluntarily, with full knowledge and understanding of the nature and contents of the document. PW.4 also explained his relationship with PW.6 and her husband, providing context to his involvement in the matter. While PW.4 was subjected to cross-examination, no evidence was brought forth during the questioning that could substantiate the claim that the gift deed (Ex.A.17) was executed under fraudulent circumstances or through misrepresentation. In light of these factors, the evidence supports the conclusion that the execution of the gift deed was legitimate and done without any undue influence or deceit. Therefore, this Court upholds the trial Court's findings, reinforcing the authenticity of the gift deed.
77. To further support the Plaintiff's case, PW.6 examined PW.1, P. Suryanarayana Murthy, a Senior Advocate from the Rajahmundry bar, to prove that he issued a notice on the instructions of Smt. Velubhai to DW.1 on 05.05.1997. A copy of the notice was also sent to the Manager of Aryapuram Cooperative Bank and the Manager of Bank of Baroda, Rajahmundry. Exs.A.2 and A.3, which are postal acknowledgements, were marked through PW.1. In his testimony, PW.1 confirmed that in response to Ex.A.1 notice, a reply notice (Ex.A.4) was issued. The exchange of notices between the parties indicates that Smt. Velubhai was capable of instructing an advocate to issue the notice. This demonstrates that, at the time of issuing the notice, she was not in cardinal terms with DW.1 and the others, contrary to later claims.
78. The trial Court placed significant weight on the fact that in the suit filed by Smt. Velubhai, no reference was made to a revocation deed she supposedly executed. It is also undisputed that Smt. Velubhai never issued any notice to the Plaintiff regarding the revocation of the gift deed. This absence of a revocation 34 notice further weakens the claim that the gift deed was invalidated and supports the argument that Smt. Velubhai did not intend to revoke the gift deed after the exchange of notices. The trial Court observed that it appears Smt. Velubhai may have been influenced by her sons after the exchange of notices, ultimately filing the suit under their influence. The lack of mention of a revocation deed or notice of revocation suggests that Smt. Velubhai did not take formal steps to undo the gift deed, which aligns with the Plaintiff's case: the gift deed remained valid.
79. In N. Thajudeen vs Tamil Nadu Khadi and Village Industries Board 4, the Hon'ble Supreme Court held that:
Once it is held that the gift deed was validly executed, resulting in the absolute transfer of title in favour of the Plaintiff-Respondent, the same is not liable to be revoked. As such, the revocation deed is meaningless, especially for the purposes of calculating the period of limitation for instituting the suit.
80. As the trial Court rightly observed, Smt. Velubhai did not claim that the gift deed had not been acted upon. The trial Court noted that it appeared Smt. Velubhai had been manipulated by her sons, leading her to file the suit in forma pauperis (without paying Court fees initially). The trail Court further observed that Smt. Velubhai came to the Court to present the plaint, and the Court fee was later paid. This suggests that the action taken was influenced by external factors, likely her sons, rather than stemming from any true grievance or intention to revoke the gift deed. The evidence on record also establishes that Smt. Velubhai had no apparent animosity with her daughters. It was noted that Smt. Velubhai maintained a good relationship with her daughters, who had a cordial relationship with their father, Madhavaji. As previously mentioned, Madhavaji had given property to PW.2, and it seems that he had not bequeathed any property to PW.6, which might explain why Smt. Velubhai decided to gift her property to PW.6 instead. The trial Court considered these circumstances as natural, 4 MANU/SC/1153/2024 35 acknowledging that if Smt. Velubhai had any resentment towards her daughters, PWs.2 and 6, and she would have taken action against them for allegedly taking her FDRs, cash, gold jewellery, etc. However, there is no evidence to suggest that she took such steps during her lifetime, nor did she issue any notices to them. Additionally, the evidence from DW.2, K. Sai, confirmed that DW. 6 had delivered all of Smt. Velubhai's FDRs in the presence of an auditor, V.S. Prakash Rao, as per Ex.A.25 receipt. This further supports the conclusion that there was no ill will or misconduct between Smt. Velubhai and her daughters, and that the gift deed was executed in a context of genuine intent. The trial Court, therefore, considered these factors when reaching its conclusion.
81. As rightly observed by the trial Court, the actions of PW.6 demonstrate her bona fide intent. The trail Court pointed out that if PW.6 were truly greedy for the property, she would not have returned the FDRs. After carefully reviewing the evidence, this Court concurs with the trial Court's conclusion that no suspicious circumstances were raised from PWs.2 and 6 testimonies and that Ex.A.17 gift deed was not procured through fraud or misrepresentation. Further, DW.1 testified that Smt. Velubhai had executed a revocation deed (Ex.B.14) on 28.05.1999. However, the trial Court specifically noted that Smt. Velubhai filed the plaint in O.S.No.83 of 2003 on 08.12.1999, while the revocation deed was supposedly executed on 25.05.1999. Despite this, the plaint in O.S.No.83 of 2003 made no mention of the revocation deed. Moreover, the Plaintiffs in O.S.No.83 of 2003 failed to provide evidence that Ex.B.14 was executed voluntarily, willfully, and with full knowledge of its contents. The trial Court rightly pointed out that Ex.B.14 was not legally proven in Court. Had Smt. Velubhai indeed executed a valid revocation deed, she would have certainly referenced it in her suit (O.S.No.83 of 2003). Based on this, the trial Court concluded that Smt. Velubhai was likely unaware of Ex.B.14 and that the execution of the revocation deed was not proven in a legally acceptable manner. Therefore, the trial Court is 36 justified in rejecting the validity of the revocation deed and affirming the legitimacy of the original gift deed.
82. In its careful analysis, the trial Court considered Ex.A.18, a letter written by Smt. Velubhai in Gujarathi, which further supports the conclusion that she executed Ex.A.17 gift deed voluntarily and willfully. The contents of Ex.A.18, addressed to her daughters, reveal how Smt. Her sons allegedly coerced Velubhai. This letter provides context for the trial Court's determination that the gift deed was executed under her own free Will, despite the influence of her sons. The trial Court also noted that Smt. Velubhai's sons appeared to be deeply interested in the property, which is why they initiated the litigation. The trial Court reasoned that without such a vested interest, there would have been no compelling reason for them to create such legal disputes. This observation strongly suggests that the sons had ulterior motives for challenging the validity of the gift deed. Furthermore, the evidence supports the trial Court's finding that the revocation deed (Ex.B.14) lacked legal validity. There was insufficient proof that Smt. Velubhai executed the revocation deed voluntarily and with full knowledge of its contents. The failure to substantiate the revocation deed legally, combined with the compelling evidence in favour of the original gift deed, reinforced the trial Court's conclusion that the revocation deed should not be upheld. Thus, this Court is of the view that the trial Court's conclusions, both regarding the execution of Ex.A.17 and the invalidity of the revocation deed, are firmly supported by the evidence on record.
83. After careful consideration, the trial Court correctly appreciated the evidence. There is no reason for this Court to arrive at a different conclusion than the one arrived at by the trial Court. The findings arrived at by the trial Court are correct, and the Appellants/Plaintiffs have shown no justifiable reasons for arriving at different conclusions. I agree with the conclusion reached by the trial Court.
3784. In light of the preceding discussion, there is no basis for intervening from the perspective adopted by the trial Court, and thus, these Appeals are unsuccessful and hereby dismissed. The Decree and Judgment challenged in these Appeals, passed by the trial Court, are affirmed. Consequently, the points raised in the Appeals are addressed accordingly.
POINT NO.6:
85. Consequently, the Appeals are dismissed with costs, confirming the Decrees and Judgments dated 12.03.2009, passed by I Additional District Judge, East Godavari District at Rajahmundry, in O.S.No.11 of 2001, O.S.No.62 of 2003, and O.S.No.83 of 2003.
Miscellaneous applications pending, if any, shall stand closed.
_____________________________ JUSTICE T. MALLIKARJUNA RAO Date: 12.12.2024 MS/SAK 38 THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO APPEAL SUIT Nos.241, 252 & 366 of 2009 DATE: 12.12.2024 SAK