Andhra HC (Pre-Telangana)
B. Ramachandra Reddy And Ors. vs Nelli Subbamma And Anr. on 30 July, 2002
Equivalent citations: 2003(1)ALD763
JUDGMENT C.Y. Somayajulu, J.
1. Defendants 1 to 3 in O.S. No. 46 of 1974 on the file of the Court of the Additional Subordinate Judge, Anantapur, are the appellants.
2. 1st respondent filed the said suit against the appellants and 2nd respondent, seeking partition and separate possession of her 1/4th share in the plaint A and B schedule properties and consequential reliefs, alleging that Bolla Rangappa had two sons i.e., 1st appellant and Laxmi Reddy, and that appellants 2 and 3 are the sons of the 1st appellant and that she and the 2nd respondent are the daughters of Laxmi Reddy, and that after the death of Rangappa, 1st appellant and Laxmi Reddy became entitled to half share in the plaint A and B schedule properties and consequent on the death of her father Laxmi Reddy, she and 2nd respondent are entitled to 1/4th share each. Appellants filed a common written statement admitting the relationship between them and the respondents and contending that as per the Will dated 27-9-1973 executed by Laxmi Reddy, 1st respondent is not entitled to any share in the plaint A and B schedule properties. On the basis of the pleadings, the trial Court framed four issues and one additional issue for trial. The additional issue relating to Court fee was decided as preliminary issue in favour of the 1st respondent. 1st respondent examined herself as P.W.I and marked Ex.A1. On behalf of the appellants including the 1st appellant, five witnesses were examined as D.Ws.1 to 5 and Exs.B1 to B11 were marked. One of the attestors to Ex.B1 Will said to have been executed by Laxmi Reddy, was examined as a Court witness i.e., CW.1 and Ex.C1 was marked through him. The learned trial Judge held that Ex.B1 Will dated 27-9-1973 is not true and valid and that 1st respondent is entitled to Rs. 2,000/- towards her share of the movable properties mentioned in the plaint B schedule, and has 1/4th share in the plaint A schedule properties and passed a decree for partition of her 1/4th share in plaint A schedule properties with a direction to the appellants to pay Rs. 2,000/- to 1st respondent towards her share in the movable properties shown in plaint B schedule, and relegated the enquiry relating to profits by a Commissioner to be appointed for that purpose. Aggrieved thereby defendants 1 to 3 preferred the appeal. Dissatisfied with the valuation of the movable properties mentioned in plaint B schedule and claiming a higher amount, 1st respondent preferred cross-objections. During the pendency of the appeal, 2nd appellant, who is the minor son of the 1st appellant, passed away. C.M.P.No. 24117 of 2000 is filed by the mother of the 2nd appellant, who is also happens to be the wife of the 1st appellant to come on record as 4th appellant in the appeal.
3. From the contentions raised by the learned counsel for the parties, the following points arise for consideration:
1. Whether Ex.B1 Will dated 27-9-1973 said to have been executed by Laxmi Reddy is true, valid and binding on the 1 st respondent?
2. Whether the appeal stood abated due to the non-filing of a petition to bring on record the legal representatives of the 2nd appellant within time and whether the application filed by his mother under Order I Rule 10 C.P.C. to be brought on record is maintainable?
Point No. 1:
4. The contention of the learned counsel for the appellants is that in view of Sections 68 and 69 of the Evidence Act when the appellants are able to establish that Ex.B1 contains the thumb impression of Laxmi Reddy and when the signature of Hanimi Reddy, one of the attestors to Ex.B1, who passed away is proved by examining his son as D.W.2, and when the other attesting witness who is examined as C.W.I clearly stated that there is enemity between him and the 1st appellant, merely because C.W.I stated that he subscribed his signature to Ex.B1 without his seeing the testator affixing his signature thereto, Ex.B1 cannot be said to have been not proved that too when the finding of the trial Court and the evidence of D.W.3, the expert, is mat Ex.B1 contains the thumb impression of Laxmi Reddy, the testator. It is his contention that since CW.1 admitted that he went to Madanapalle to call on the testator and affixed his signature to Ex.B1 on the next day, there is no possibility of bringing Ex.B1 into existence subsequent to the death of the testator. Placing strong reliance on the observations in Venkataraju v. Narasa Raju, 1966 (2) An.WR 134, reading-
"There is consistent view that where there is proof of the testator's signatures and the attestors' signatures and none of the.attestors is available, there is a presumption that the Will had been duly executed in terms required by Section 63 of the Succession Ac;. We may refer to Raja Venkataramayya v. Kamisetti Gattayya and Ors., (1926) 53 MLJ 216 = AIR 1927 Mad. 662."
he contended that in spite of the hostile attitude of C.W.I, Ex.B1 should be held to be validly proved. The contention of the learned counsel for 1st respondent is that Section 69 of Evidence Act applies only to cases where no attesting witness is available, but not to a case where one or more attesting witness is or are available, and since the evidence of C.W.I, one of the attestors to Ex.B1, does not establish the due execution and attestation of Ex.B1 as required by Section 63 of the Succession Act, the finding of the trial Court on Ex.B1 needs no interference. It is his contention that the testator completely disinheriting 1st respondent, without assigning reasons, and giving away the major portion of his property to appellants 2 and 3, who are the sons of 4th appellant, is a suspicious circumstance. He relied on K. Nookaraju v. P. Venkatarao, , where it is held that in order to prove the due execution and attestation of a Will, an attestor should speak not only about the testator's signature or affixing his mark to the Will or somebody else signing it in his presence by his direction, or should state that he had attested the Will after taking acknowledgement from the testator of his signature or mark, and also should speak that each of the witnesses had signed the Will in the presence of the testator. He also relied on Doraiswami v. Rathnamma, , where a Division Bench of the Madras High Court held that when only one attesting witness, who is alive, deposed that he did not attest the Will as alleged, the Will cannot be said to have been duly executed. The learned counsel also relied on Rameshwari Devi v. Shyam Lal, , in which the Allahabad High Court also took the same view.
5. In Raja Venkataramayya (supra) the suit was filed for recovery of money due under a mortgage bond. Attestation of the mortgage bond was not disputed by the defendants, but on the basis of the evidence of the scribe that the attesting witnesses did not sign on the document in his presence, and that he had seen the mortgagor signing the document, the trial Court dismissed the suit on the ground that there is no valid attestation of the mortgage bond. On appeal, the learned appellate Judge taking notice of the fact that Section 69 of Evidence Act provides the manner of proof when both the attestors of the mortgage bond were dead and also the fact that there was no clear issue on the point of attestation, holding that the plaintiff should be given an opportunity to examine witnesses, to prove the signature of the attesting witnesses and permitting the defendants to adduce evidence in rebuttal, called the finding from the trial Court on the question of attestation. The learned trial Judge returned the finding that there was valid attestation of the document. When the matter came up for final hearing before the learned Judge, the learned Judge observed as follows:
"I accept the findings. All the parties to the document are dead but for one and it has been found that he gave false evidence".
The person alive, (referred to in that case) was the scribe, whose evidence that the attesting witnesses did not sign in his presence was disbelieved. That is not a case where one of the attesting witnesses was alive and his statement that he did not see the attestation being disbelieved. Moreover in view of the proviso to Section 68 of Evidence Act, in case of documents other than Wills, unless the execution is denied it is not necessary to call an attestor to prove the same. Since it was a case of a mortgage and since its attestation was not denied Venkatarama Raju case (supra) has no application to the facts of this case.
6. Section 69 of the Evidence Act shows reads:
"If no such attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in the hand writing and that the signature of the person executing the document is in the hand writing of that person".
In this case, as rightly observed by the trial Court, one of the attesting witness was examined as CW.1, at the instance of the appellants. It is significant that appellants summoned CW.1 as their witness and he was present in Court. But they failed to examine him as a witness on their behalf on that day, and thought it fit to file a petition to examine him as a Court witness. The fact that C.W.I stated that on a complaint given by the 1st appellant he received a punishment of stoppage of one increment, by itself, cannot be a ground to disbelieve his evidence. If CW.1 has an axe to grind against the 1st appellant, he need not speak falsehood with regard to his dealings with the testator.
7. As per Section 63 of Succession Act a Will has to be attested by two or more witnesses, each of whom has seen the executor signing or affixing his mark to the Will, or has seen some other person signing the Will in the presence by the direction of the testator or received from the testator a personal acknowledgement of his signature or mark or of the signature of such other person, and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation is necessary. It is clear from Section 63 of Succession Act that the signature of the testator must be made in the presence of the attesting witness or the attesting witness must have received an acknowledgement from the executant that he had signed the document. It is also essential that the executant of the Will must see the attestors affixing their signatures to the Will. So unless both the above requirements are satisfied, a Will cannot be said to have been duly executed and attested. The Supreme Court in H. Venkatachala Iyengar v. B.N. Thimajamma, AIR 1969 SC 443, held as follows:
"Section 63 of Succession Act requires that the testator shall sign or affix the mark to the Will or has seen some other person signing the Will in his presence and by his directions and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. The Section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the Will set up by the propounder is proved to be the last Will of the attestor has to be decided in the light of these provisions. (1) As the testator signed the Will; (2) The testator at the relevant time was in a sound and disposing state of mind; (3) That he understood the nature and effect of the dispositions and put his signature to the document of his own free will.
8. In Kalyan Singh v. Chhoti, , the Supreme Court held:
"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 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 also be 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".
9. The evidence of CW.1, who is a teacher and one of the attestors to Ex.B1, does not establish the mandatory requirement of Section 63 of the Succession Act. Therefore, merely because one of the attestors to Ex.B1 is dead, simply because the appellants say that CW.1 is hostile towards them in view of the complaint given by the 1st appellant against him, the evidence of CW.1 cannot be brushed aside or ignored. As rightly observed by the learned trial Court since 1st appellant is a powerful man, being an ex-Sarpanch of the village and CW.1 being a poor teacher working for 18 years in the village of the appellants, CW.1 subscribing his signature to Ex.B1 at the instance of the 1st appellant even without seeing the testator affixing his signature thereto, cannot be ruled out. So I find no reason to disbelieve the evidence of CW.1.
10. One of the contentions of the learned counsel for appellants is that since there is no requirement to show that the Will is written by a particular person, non-examination of the scribe, or the appellants not establishing that Ex.B1 is in the hand writing of a particular individual is not much of consequence. I am not able to agree with the said contention. It is very essential to know who the scribe of a Will is, especially when its execution is being disputed by the other side. If the name of the scribe is known, it would be easy to know the place from which he hails. If he hails from a different village the reasons for his going to the testator, and the reasons for the testator choosing him only to scribe his Will would be relevant factors for deciding the genuineness of a disputed Will. As has been held by the Supreme Court in several decisions, Will is but a solemn document. So a testator would not choose an unknown person to scribe his Will. So merely because two attestors and the scribe are examined by the propounder to speak to the execution of a document said to be a Will executed by a person, Court is not supposed to blindly accept the validity of such document as the Will of the deceased person. In Kalyan Singh case (supra) the Supreme Court clearly held that it is the duty of the Court to see that the document propounded as a Will is the real Will and testament of the person who is said to have executed the said document, because the alleged executant would not be available either to admit or deny its execution before the Court, and so depending on the facts and circumstances of the case and the nature of dispositions in the Will, Court has to test and believe or disbelieve the evidence adduced by the parties. In this case no reasons are mentioned in Ex.B1 as to why no bequest is being made in favour of the 1st respondent, who is but the daughter of the testator. It is contended that since 1st respondent was given in marriage to a person hailing from an affluent family, the testator did not provide anything to 1st respondent. If it is so, nothing prevented the testator from stating so in Ex.B1. That suspicious circumstance is not dispelled by the appellants.
11. One of the attestors to Ex.B1 is Hanimi Reddy, who is the brother-in-law, i.e., sister's husband of the 1st appellant. Why Hanimi Reddy went to Madanapalle where the testator is said to have executed Ex.B1 is not explained by the appellants. Why should the testator execute Ex.B1 Will at Madanapalle and why its custody was given to Hanimi Reddy is not explained by the appellants. When ExB1 is said to have been executed in the hospital, as an ordinary prudent man the testator would have requested the Doctor treating him to attest his Will. No doctor or no hospital staff member attested Ex.B1. Therefore I find no grounds to interfere with the finding of the trial Court that Ex.B1 is not duly proved by the appellants. Therefore I hold that the appellants failed to establish the truth and genuineness of Ex.B1. The point is answered accordingly.
Point No. 2:
12. In view of my finding on point No. 1, it is really not necessary to give a decision on this point, but since the arguments were addressed on this point also, I would decide this point also.
13. The contention of the learned counsel for appellants is that since 2nd appellant is a minor and is being represented by the 1st appellant, the fact that his heir-at-law, i.e., his mother, who is a petitioner in C.M.P. No. 24117 of 2000 was not brought on record per se, is not a ground to hold that the appeal stood abated, because the estate of the 2nd appellant is sufficiently represented by the 1st appellant. He relied on Daya Ram v. Shyam Sundari, , where it is held that if after diligent and bona fide enquiry legal representatives of a deceased defendant or respondents are brought on record within time, there would be no abatement of the suit or appeal, even though some legal representatives, who remained unknown, were not impleaded, if the legal representatives who were impleaded sufficiently represent the estate of the deceased, and that a decision obtained against those legal representatives would bind the estate of the deceased. If however it is brought to the notice of the appellant, during the pendency of the appeal, that some of the legal representatives had not been impleaded, it would be the duty of the appellant, who was made aware of his default, to bring those others on record. In my opinion this decision has no application to the facts of this case, because that case relates to the death of a respondent in an appeal, and this is a case where the 2nd appellant died. Appellants 1 and 3 who are father and brother of the deceased-2nd appellant, know who the heirs-at-law of the 2nd appellant are.
14. Both the learned counsel i.e., counsel for appellants, and the counsel for 1st respondent relied on M. Anjaiah v. K. Venkateswarlu (died) and others, (DB), where the Division Bench laid down the following principles:
"(1) Where any of the parties to a suit/ appeal the during the pendency of the suit/appeal, steps to bring its legal representatives on record have to be taken in terms of the provisions of Order 22 of the Code of Civil Procedure.
(2) Where no steps are taken to bring the legal representatives on record under Rule 3 or 4 of Order 22 and the suit/appeal has abated and/or where the attempt to have the order of abatement set aside and bring the legal representatives of the deceased party on record failed, the defaulting party has to take the consequences mentioned in Rule 9 of Order 22 and he cannot be allowed to have recourse to the general provisions of Order I, Rule 10 C.P.C. for impleading legal representatives of the deceased party by circumventing the provisions of Order 22.
(3) An application under Order I Rule 10 C.P.C. to implead a necessary party (including a legal representative of a deceased party to the suit/appeal which has abated due to not bringing on record the legal representatives of the deceased party) can be filed in a suit/appeal to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, provided the proposed party has an independent right or obligation de hors his position as legal representative of the deceased defendant.
(4) An administration/partition suit does not abate as a whole due to not bringing on record the legal representative of a deceased party (co-sharer/co-owner) as each party is in the position of the plaintiff and the heir of the deceased co-sharer/co-owner is a necessary party to the suit, he can come on record on his application under Order I, Rule 10 C.P.C.".
The contention of the learned counsel for the appellants is that since this is a suit for partition, question of abatement does not arise, and in order to effectively adjudicate the rights of the parties, the mother of the 2nd appellant can be brought on record as his legal representative. The contention of the learned counsel for the 1st respondent is! that since the 2nd appellant is also having a share in the property and since his heir-at-law i.e., mother, is not brought on record within time, the claim of the 2nd appellant stood abated and since the appellants are litigating under the same title, the consequence of not bringing on record heirs of the 2nd appellant within time stipulated, resulted in the abatement of not only the claim of the 2nd appellant but all the appellants also and relied on Awaz Bin Abdulla and Anr. v. Ohibin Aazaam and others, 1968 (2) An.WR 41, where it is held that when a decree proceeds on the grounds common to all the plaintiffs or defendants, and if one of the plaintiffs or defendants dies during the pendency of the appeal and if his legal representatives are not brought on record, the Court will not be able to proceed with the appeal as it is no longer continues to be a competent or duly constituted appeal, because of the absence of a necessary party. He relied on Madhavji v. Trikamdas, , for the same proposition.
15. One of the principles laid down by the Division Bench in M. Anjaiah's case (supra) is that if no steps are taken to bring on record the legal representatives of a deceased party, the defaulting party has to take the consequences mentioned in Rule 9 of Order XXII C.P.C. and cannot be allowed to have recourse to the general provision of Order I Rule 10 C.P.C. for impleading the legal representatives of a deceased party by circumventing the provisions of Order XXII C.P.C., and that an administration/partition suit does not abate as a whole due to non-bringing on record of the legal representatives of a deceased party (co-sharer/co-owner) as each party is in position of a plaintiff, and so the heirs of a deceased (co-sharer/co-owner) party to the suit, can come on record on an application under Order I Rule 10 C.P.C. In my opinion it is not necessary to go into the question whether the appeal stood abated, because of the mother of 2nd appellant not being brought on record consequent on the death of 2nd appellant, inasmuch as the deceased 2nd appellant, who was a minor, was being represented by the 1st appellant, his father. It means that the 1st appellant is in possession and management of the assets and the estate of the deceased-2nd appellant. As per the definition of 'legal representative' in Section 2(11) C.P.C. a person, who intermeddles with the estate of the deceased also would be a legal representative of a deceased. In this case since 1st appellant, as father of 2nd appellant was managing the estate of the 2nd appellant, he, for the purpose of Section 2(11) C.P.C., would be deemed to be a legal representative to the estate of the deceased-2nd appellant. It is now well settled that when one of the legal representatives is already on record, the proceedings against a deceased party do not abate, and his other legal representatives, who also represent his estate, can be brought on record or allowed to come on record at any time even beyond the period of limitation prescribed. Therefore the mother of the deceased-2nd appellant can be permitted to come on record, be it as an appellant or respondent, since 1st appellant is adequately representing the estate of the deceased-2nd appellant. So the question of entire appeal getting abated due to the death of the 2nd appellant does not arise. Hence I hold that the appeal did not abate and the mother of the 2nd appellant i.e., petitioner in C.M.P. No. 24117 of 2000 can be permitted to come on record. Hence the petition is allowed.
Cross Objections:
16. Surprisingly 1st respondent in the appeal i.e., cross-objector did not take steps to bring on record the legal representatives of the deceased-2nd appellant in the cross-objections. So normally it has to be held that the cross-objections stood abated for the cross-objector not bringing on record the legal representatives of the deceased-2nd appellant. Since I held that question of abatement due to the death of 2nd appellant does not arise in this case, the question of abatement of cross-objections also does not arise, because 1st appellant is representing the estate of the deceased-2nd appellant.
17. Though there is no clear evidence as to what are the actual movable properties, the learned trial Judge assuming that the value of the movables would be Rs. 8,000/- granted an amount of Rs. 2,000/- to the 1st respondent. Since the valuation can be more or less, keeping in view the status of the deceased, the amount can be enhanced by one more thousand and the value of the share of movables due and payable to 1st respondent can be fixed at Rs. 3,000/-. The point is answered accordingly.
18. In the result, the appeal is dismissed and the cross-objections are allowed in part. The decree of the trial Court with regard to the plaint B schedule property is modified and the appellants-defendants are directed to pay Rs. 3,000/- (Rupees three thousand only) to the 1st respondent/plaintiff towards her share in movable properties. No costs in the appeal and cross-objections.