Andhra Pradesh High Court - Amravati
Chandra Yugandhar vs Maalampati Annapurna on 6 September, 2022
HON'BLE SRI JUSTICE SUBBA REDDY SATTI
SECOND APPEAL No.342 of 2022
JUDGMENT:-
The above second appeal was filed under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree, dated 05.07.2022 passed in A.S.No.154 of 2018 on the file of learned VI District and Sessions Judge, Krishna at Machilipatnam, confirming the judgment and decree, dated 09.07.2018 passed in O.S.No.130 of 2012 on the file of learned Senior Civil Judge, Avanigadda.
2. The parties to the appeal are referred to as they are arrayed in O.S.No.130 of 2012.
3. Plaintiff filed O.S.No.130 of 2012 for declaration of title, for recovery of possession and future mesne profits etc.
4. In the plaint, it was contended inter alia that plaintiff and defendant are children of Chandra Seetamma; that Chandra Seetamma owned Ac.4-00 of land in R.S.No.981/1 and Ac.0-69 cents in R.S.No.982/3 of Pedakallepalli Village in 2 Mopidevi; that Chandra Seetamma executed registered Will, dated 19.10.2009 in sound and disposing state of mind, bequeathing Ac.1-00 cents in R.S.No.981/1 and Ac.00-69 cents in R.S.No.982/3 totalling to Ac.1-69 cents to the plaintiff and Ac.3-00 in R.S.No.981/1 to another daughter by name M. Kalpana; that Chandra Seetamma died on 10.08.2012 and hence, the Will executed by Chandra Seetamma came into operation; that plaintiff applied to Tahsildar, Mopidevi, through AP online for pattadar passbook; that defendant sent copy of caveat petition against the plaintiff before learned Senior Civil Judge, Avanigadda and that plaintiff immediately issued reply notice for which defendant issued rejoinder with false averments. Hence, eventually filed the suit for the relief as stated supra.
5. The defendant filed written statement and contended inter alia that Will, dated 19.10.2009 is not valid and is not attested properly; that Chandra Seetamma cancelled the Will, dated 19.10.2009 on 05.11.2011 and executed an acknowledgment to that effect; that Chandra Seetamma 3 executed another Will, dated 12.12.2011 bequeathing Ac.1- 65 cents out of Ac.4-65 cents in R.S.No.981/1 and 982/3 of Pedakallepalli Village in favour of the defendant and the remaining Ac.3-00 of land in R.S.No.981/1 to Kalpana and eventually prayed the Court to dismiss the suit.
6. Plaintiff also filed another suit in O.S.No. 1 of 2016 for recovery of Rs.60,000/- with interest on the ground that the defendant trespassed into the fields, cut and took away paddy crop. The defendant denied the allegations in the plaint and pleaded that pursuant to the death of their mother, by virtue of Will, dated 12.12.2011, he came into possession of the property and cultivated the paddy crop. Thus, prayed for dismissal of the said suit.
7. Basing on the pleadings in O.S.No.130 of 2012, trial Court framed the following issues:
1. Whether the plaintiff is entitled for declaration that she is the absolute owner of plaint schedule property?4
2. Whether the Will dated 19.10.2009 is last Will and testament executed by Chandra Seethamma in favour of the plaintiff?
3. Whether the Will dated 12.12.2011 is last Will and testament executed by Chandra Seethamma in favour of the defendant?
4. Whether the plaintiff is in possession and enjoyment of the plaint schedule property?
5. Whether the plaintiff is entitled for permanent injunction as prayed for?
6. To what relief?
Additional Issues:
1. Whether the plaintiff is entitled for possession of the plaint schedule property as prayed for?
2. Whether the plaintiff is entitled for future mesne profits?
8. Both the suits were clubbed together, and evidence was recorded in O.S.No.130 of 2012.
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9. On behalf of the plaintiff, she examined herself as PW1 and got examined PWs2 to 4. PWs 2 and 3 are attestors of Ex.A1/Will. The evidence of PW4 was eschewed. Exs.A1 to A12 were marked on behalf of the plaintiff. On behalf of the defendant, he himself examined as DW1 and got examined DWs2 to 5 and Exs.B1 to B6 were marked.
10. The trial Court by judgment, dated 09.07.2018 decreed suit O.S.No.130 of 2012 with costs declaring that plaintiff is the absolute owner of the plaint schedule property i.e. Ac.1- 69 cents of land and directed the defendant to handover the possession of plaint schedule property to the plaintiff within six months from the date of the said judgment. O.S.No.1 of 2016 was also decreed against the defendant for a sum of Rs.60,000/- towards price of paddy crop with interest at 12 ½% per annum from the date of institution of suit till delivery of possession of property.
11. Aggrieved by the said common judgment and decree in both the suits, defendant in the suit filed A.S.No.154 and 158 6 of 2018. The lower appellate Court being final factfinding Court framed the following points for consideration:
1. Whether the plaintiff has proved that the registered Will Ex.A1 was validly executed in her favour and whether the said Will came into operation in favour of the plaintiff?
2. Whether the plaintiff is entitled for declaration of title, for recovery of possession of suit property and for future mesne profits from the defendant?
3. Whether the plaintiff has proved that she was in possession and enjoyment of the suit property as on 16.12.2012 and the defendant trespassed into the same, cut and taken away the paddy crop raised by her?
4. Whether the plaintiff is entitled for recovery of Rs.60,00/- with interest at the rate of 12.5% per annum thereon from the date of filing of the suit O.S.No.1 of 2016?
12. The lower appellate Court on scrutiny of both oral and documentary evidence, dismissed both the appeals by common judgment, dated 05.07.2022. Aggrieved by the 7 judgment passed in A.S.No.154 of 2018, the present second appeal is filed.
13. Heard Sri A. Syam Sundar Reddy, learned counsel for the appellant/defendant and Sri Tungala Raghu Prasad, learned counsel for the respondent/plaintiff.
14. Learned counsel for the appellant/defendant would contend that Ex.A1/Will was not duly proved as required under law and there are suspicious circumstances surrounding Ex.A1/Will. He also contended that Ex.A1/Will was cancelled and later Chandra Seetamma executed Ex.B2/Will on 12.12.2011. After the death of Chandra Seetamma, Ex.B2/Will was acted upon and thus, defendant came into possession of the property and he is in enjoyment of the said property. He further contended that the suit filed for declaration and recovery of possession basing on Will without arraying other daughters and sons of Chandra Seetamma is not maintainable. Learned counsel for the respondent supported the judgments of Courts below. 8
15. Basing on the contentions of appellant, the following substantial questions of law are involved in this second appeal:
1. Whether all other sons, daughters and successors of testator under Ex.A1/will, dated 19.10.2009 are necessary and proper parties to a suit for declaration, recovery of possession basing on the Will propounded by one daughter against another son who is also claiming title to the property under another testament?
2. Whether genuineness or otherwise of the Will Ex A-1, dated 19.10.2006 can be decided without hearing/considering objections of other sons and daughters the testator who are not arrayed as party defendants to the suit?
3. Whether plaintiff is need not prove Ex.A1/Will, dated 19.10.2009 when the defendant admitted the execution of Ex A-1 by way of cancellation of Ex A-1 under Ex.B1?
16. Before delving into the matter, since the appeal is filed under Section 100 CPC, this Court must see the scope of Section 100 of CPC.
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17. In Nazir Mohamed vs. Kamala and Others1, the Hon'ble Apex Court held that formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in memorandum of second appeal cannot satisfy the mandate of Section 100 CPC.
18. The Hon'ble Apex Court in Kulwant Kaur and Ors vs. Gurdial Singh Mann (Dead) By Lrs. and Ors.2 held as under:
"Sec 100 CPC introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to say that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an 1 2020 (19) SCC 57 2 2001 (4) SCC 262 10 element of perversity involved therein, the High Court in our view will be within its jurisdiction to dealt with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the Concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication what is required is a categorical finding on the part of the High Court as to perversity."
19. In Leela Soni vs. Rajesh Goyal3, the Hon'ble Supreme Court held as under:
It will be apt to refer to Section 103 of C.P.C. which enables the High Court to determine the issues of fact:
"103. Power of High Court to determine issue of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal, 3 2001 (7) SCC 494 11
(a) which has not been determined by the Lower Appellate Court or both by the Court of first instance and the Lower Appellate Court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100."
The section, noted above, authorizes the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations: (1) when that issue has not been determined both by the trial court as well as the Lower Appellate Court or by the Lower Appellate Court; or (2) when both the trial court as well as the Appellate Court or the Lower Appellate Court has wrongly determined any issue on a substantial question of law which can properly be the subject matter of second appeal under Section 100 of C.P.C."
20. Ishwasdas Jain vs. Sohan lal4 the Hon'ble Supreme Court held that it is essential for the High Court to formulate a substantial question of law under section 100 CPC, after 4 2000 (1) SCC 434 12 the 1976 amendment and it is not permissible to reverse the judgment of the first appellate Court without doing so.
21. Further the Hon'ble Apex Court in Hero Vinoth Vs. Seshammal5, held thus:
"19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.5
AIR 2009 SC 1481 13 It was furthermore held:
23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari MANU/SC/0091/2001).
24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-
(i) ...14
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."
22. In the light of the expressions of Hon'ble Apex Court in various judgements qua the scope of interference of the High Court in second appeal, this Court while exercising jurisdiction under Section 100 of the CPC, must confine to the substantial question of law involved in the appeal. This Court cannot re-appreciate the evidence and interfere with the concurrent findings of the Courts below where the Courts below have exercised the discretion judicially. Further the 15 existence of substantial question of law is the sine qua non for the exercise of jurisdiction. This Court cannot substitute its own opinion unless the findings of the Court are manifestly perverse and contrary to the evidence on record.
23. In the present case, the admitted facts are that Smt. Chandra Seetamma blessed with two sons and four daughters. Smt. Chandra Seetamma is owner of Ac.4-00 in survey No.981/1 and Ac.00-65 cents of Pedakallepalli village of Mopidevi Mandal. Smt. Chandra Seetamma died on 10.08.2012.
24. According to the plaintiff, one of the daughters of Smt. Chandra Seetamma, she executed Ex.A1/registered Will deed, dated 19.10.2009 in a sound and disposing state of mind bequeathing Ac.1-00 in survey No.981/1 and Ac.00-65 cents in survey No.982/3 totalling to Ac.1-65 cents in her favour. Remaining extent of Ac.3-00 was bequeathed in survey No.981/1 in favour of Kalpana, the other daughter of Smt. Chandra Seetamma. Whereas the defendant pleaded 16 that Smt. Chandra Seetamma cancelled Ex.A1. Cancellation was acknowledged under Ex.B1, dated 05.11.2011. Chandra Seetamma executed another Will, dated 12.12.2011 Ex B-2 bequeathing Ac.1-65 cents to the defendant and Ac.3-00 in survey No.981/1 to Kalpana.
25. Thus, both the plaintiff and defendant are claiming title in respect of Ac.1-65 cents (Ac.1-69 cents) of land basing on Ex.A1 and B2. Regarding remaining Ac 3-00 cts of land of in R.S.No.982/3, either under Ex A-1 or under Ex B-2 Smt Chandra Seetamma bequeathed the same to other daughter by name Kalpana.
26. To prove Will, the profounder requires examining Attesors and scribe and also had to remove the suspicious circumstances surrounding the Will.
27. In H. Venkatachala Iyengar vs. B.N. Thimmajamma & Others6 the Hon'ble Apex Court held as under: 6
1959 AIR 443 17
18. "... Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant.
Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction 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. This section also requires that the will shall be attested by two or more witnesses as 18 prescribed. Thus, the question as to whether the will set up by the profounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in 19 dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The profounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the profounder. In other words, the onus on the profounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the profounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator, the dispositions made 20 in the will may appear to be unnatural, improbable or unfair in the light of the relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. .....
... any discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.
....
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What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated and it would a question of fact in each case. ...."
28. In Guru Dutt v. Durga Devi7 it was observed that the mere fact that the signature appearing on the Will is a genuine one, is not by itself sufficient to prove the genuineness of the Will, where the execution of the Will is shrouded by suspicious and unnatural circumstances.
29. In Ajit Kumar v. Mukunda Lal8, it was held that the onus of proving a Will is on the profounder and in the absence of suspicious circumstances surrounding the execution of the Will, the proof of testamentary capacity and the signature of the testator, as required by law, are sufficient to discharge the onus. Where there are suspicious circumstances, the onus would be on the profounder to explain them to the satisfaction of the Court before the Will could be accepted as genuine.
7 AIR 1966 J&K 75 8 AIR 1988 Cal. 196 22
30. In Sridevi v. Jayaraja Shetty9, it was pointed out that proof in either case cannot be mathematically precise and certain and should be one of the satisfactions of a prudent mind in such matters and as to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case. It was held that the propounder of the Will has to show that the Will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free Will and that he had signed it in the presence of two witnesses who attested in his presence and in the presence of each other.
31. In Shashi Kumar v. Subodh Kumar10, the Hon'ble Supreme Court held that if there is hardly any suspicious circumstance attached to the Will, which will require very little evidence to prove due execution and attestation of the 9 2005 (2) ALD 99 (SC) 10 AIR 1964 SC 529 23 Will. It was further held that a slight discrepancy in the evidence of attesting witnesses is not serious as to distrust their evidence and there is nothing impossible in advantage being taken of the accidental presence of chance witnesses to attest the Will.
32. In K. Nookaraju v. P. Venkatarao 11, it was held that it would be sufficient even if one attestor has been examined. But, that attestor should speak to all the elements of clause
(c) of Section 63 of the Succession Act. The attestor witness should speak not only about the testator's signature or affixing his mark to the Will or somebody else signing it in his presence and by his direction or that he had attested the Will after taking acknowledgement from the testator of the signature or mark, but also should speak that each of the witnesses had signed the Will in the presence of the testator. It was also held that registration of a Will though not required under law is only a piece of evidence of the execution and cannot take the place of due attestation of the document. 11
AIR 1974 AP 13 24
33. In Pushpavati v. Chandraja Kadamba12, it was held that where the signature of the testator is challenged as a forged signature and the Will does not come from the custody of a public authority or a family Solicitor the fact that the dispositions made in the Will were unnatural, improbable or unfair, would undoubtedly create some doubt about the Will, especially, when the document is unregistered and comes from the custody of a person who is the major beneficiary under the Will.
34. In Jaswant Kaur v. Amrit Kaur13, in cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court if the Will was duly 12 (1973) 3 SCC 291 13 (1977) 1 SCC 369 25 executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will."
35. In Chinmoyee Saha v. Debendra Lal Saha 14, it was held that the Will is the Will of the testator and he has, under the law, the freedom to give his property to whomsoever he likes. What strikes the Court as an eccentric or an unjust or an unnatural disposition can certainly be taken as a consideration on the main question of finding out whether the testator was acting as a free agent and with a sound disposing and understanding mind. But once it is established that the testator was free and had a sound disposing state of mind, it is no longer the duty of the Court to go further to inject its own ethics of what is or not a moral or a fair disposition according to the Court's own standard. It was further held that the absence of endorsement that the Will was read over to the executant is not a suspicious 14 AIR 1985 Cal. 349 26 circumstance when it is stated in the Will that at the instance of the testator, the scribe wrote the Will and that after reading and knowing all the contents of the Will, the testator would have put the signature.
36. Regarding comparison of signature by Courts, the Hon'ble Apex Court in Ajit Savant Majagavi v. State of Karnataka15 held as follows :
"... as a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has no power to compare the disputed signature with the admitted signature, as this power is clearly available under Section 73 of the Evidence Act."
37. In E. Anantha Ramana v. State Bank of India, Kothakota, Visakhapatnam16, it was held that normally the 15 (1997) 7 SCC 110 27 Court shall not embark upon such exercise having regard to the fact that it does not possess the expertise in this regard. But it may be a case where the Court had no option but to do it having regard to the fact that the disputed signatures were not sent for comparison to the Handwriting Expert; as a result whereof the Court is not in a position to get the assistance of an expert. The decision of the trial Court based on oral evidence and comparison of the disputed signatures with the admitted signatures was held to suffer from no infirmity.
38. In Guru Govindu v. Devarapu Venkataramana17, it was held that it is always competent for the Court to undertake comparison of signatures of disputed document by itself and the opinion rendered by expert is only supporting material and cannot be treated as conclusive. It was pointed out that if the Court is capable of forming an opinion on the strength of oral and documentary evidence before it, in 16 2001 (2) ALD 585 17 2006 (4) ALD 333 28 exercise undertaken under Section 73 of the Evidence Act, the necessity to send the document for expert's opinion may not arise.
39. The conspectus of the above expressions of the Hon'ble Apex Court made it clear that the profounder of the Will has to prove its due execution. The profounder of the Will must remove the suspicious circumstances surrounding/shrouding the Will. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated and it would be question of fact in each case.
40. Though registration of Will by the testator is a strong circumstance to support the genuineness of the will, however, it does not by itself be sufficient to dispel of the suspicion. In this case on hand, Court compared the disputed signature with admitted signature and in fact such power is available to the Court under Section 73 of the Indian Evidence Act. However, the same should not be normally taken upon itself, such responsibility and should leave the matter to the 29 wisdom of experts in the event of slightest doubt. The Court can form opinion on the strength of oral and documentary evidence by undertaking exercise of comparison as available under Section 73 of the Indian Evidence Act and the necessity of sending the document to the expert may not arise. In fact, the opinion rendered by an expert being supporting material, the Court can come to its own independent conclusion.
41. In Ramesh Verma (Dead) Through Legal Representatives v. Lajesh Saxena (Dead) by Legal Representatives and Another18, the Hon'ble Apex Court held that even in a case where the opposite party does not specifically deny the execution of the document in the written statement, still the profounder must prove the execution of the Will in view of the mandate of Section 68 of the Indian Evidence Act and Section 63 of the Succession Act.
42. Ex.A1/Will propounded by the plaintiff is dated, 19.10.2009 and it was registered in Sub-Registrar Office, 18 2017 (1) SCC 257 30 Challapalli. To prove the execution of the Will, plaintiff examined herself as PW1 and, also examined PWs2 and 3, who are paternal aunt and brother of the plaintiff and the defendant. They are attestors of Ex.A1. The evidence of PWs2 and 3, attestors of Ex.A1 is consistent regarding the execution of said document by Chandra Seetamma and their attesting Ex A-1. Thus, plaintiff complied with mandatory requirement of Sec 63 of Indian Succession Act and Sec 68 of Indian Evidence Act regarding proving of Ex A-1.
43. PW3, is none other than brother of plaintiff and the defendant deposed that by the time of execution of Ex.A1/Will he does not have any disputes.
44. Immediately after the death of Smt. Chandra Seetamma, plaintiff applied to the MRO for updation of revenue records and for issuance of pattedar passbooks and title deeds. Plaintiff also filed pattedar passbooks and title deeds in respect of the suit schedule property standing in the name of Smt Chandra Seetamma, which according to her 31 was given by mother, Smt. Chandra Seetamma. Thus, the evidence let in by the plaintiff is indefeasible. The evidence of PWs2 and 3, in fact, is supporting the case of the plaintiff regarding execution of Ex.A1. Both the Courts on careful scrutiny of the evidence, recorded finding that PWs 2 and 3 attested Ex.A1 and thus, Ex.A1 was duly proved.
45. Learned counsel for the appellant would contend that other sons and daughters were not arrayed as party respondents to the suit and hence, the suit itself is not maintainable. In support of said contention, he placed reliance on Shailndra Kumar Jain and Ors. V. Maya Prakash Jain and Ors.19, wherein the Hon'ble Apex Court while considering the application filed under Order I Rule 10 of CPC held that the appellant therein who is one of the daughters of the testator was necessary party and hence, the order of the trial Court, was set aside whereby implead petition filed by the appellant therein was dismissed. The ratio laid therein has no application to the facts of the case. 19
AIR 2019 SC 1900 32
46. The facts of the case in that suit are that suit was filed for partition, whereas in the case on hand, suit is filed for declaration of title over the plaint schedule properties basing on Ex.A1/Will. Both plaintiff and defendant are claiming Ac.1-69 cents (Ac.1-65 cents) under Ex.A1 and Ex.B2. The other land to an extent of Ac.3-00 cents was admittedly bequeathed to another daughter Kalpana, both under Exs.A1 and B2. Apart from that one of the sons was examined as PW3, who deposed about execution of Ex.A1 by Chandra Seetamma and his attestation on Ex A-1. Since, the suit is filed for declaration basing on Ex A-1, the other sons or daughters of Smt Chandara Seethamma need not be arrayed as party defendants to the suit, unless they claim interest over the property by disputing the Will. In view of the same, the contention of learned counsel for the appellant that the suit is bad for non-impleadment of other son and daughters of late Smt. Chandra Seetamma falls to ground.
47. The suit O.S.No.130 of 2012 is filed for declaration of title and recovery of possession and for future mesne profits. 33 Plaintiff based her claim on Ex.A1. In a suit for declaration and recovery of possession, the burden lies on the plaintiff to prove title on the strength of his/her own case and he/she cannot rely upon the laches or weaknesses on the part of the appellant/defendant.
48. In Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others20, the Hon'ble Apex Court held that in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.
49. Thus, in view of expression of Hon'ble Apex Court in the judgement referred to supra, that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of his/her own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have 20 2014 (2) SCC 269 34 proved their case or not. Even if the title set up by the defendants is found against them, in the absence of establishment of the plaintiff's own title, the plaintiff must be non-suited.
50. A perusal of the record shows that, plaintiff not only proved execution of Ex.A1 by Chandra Seetamma, but also let in evidence that it was acted upon after the death of Chandra Seetamma. Plaintiff immediately made application for updation of revenue records and for issuance of pattedar pass books and title deeds. Since the defendant filed caveat and disputed the title, plaintiff filed the above suit for declaration. Plaintiff also proved that she planted paddy in the plaint schedule property and defendant trespassed and cut the crop. Hence, the evidence of plaintiff is consistent. Plaintiff also proved that Ex.A1 is the last Will testament by Chandra Seetamma. Though the defendant propounded Ex.B2/Will there are a number of suspicious circumstances surrounding/shrouding Ex.B2. In fact, the trial Court took 35 pains of comparing the signature by using magnified glass. In para 56 of the judgment, the trial Court observed as under:
"In this case on hand, I have carefully invoked power conferred under Section 73 of the Act and I will later add the reasons justifying that signature on Ex.B2 is dissimilar that of the signature on Ex.A1. I have no hesitation to conclude that Ex.A1/Will is executed by mother of DW1 and it is valid. Ex.A1 is valid is also clear from the fact that DW1 admits the photo affixed on Ex.A1 stating that it is the photography of his mother. DW1 further admits that the signatures of the testator on Exs.A1 and B2d are dissimilar. When the signature of mother of DW1 on Ex.B2 is not tallied with the signature on Ex.A1, it is a clear case to hold that Ex.B2/Will is not genuine and it is bolstered up document.
51. The Courts below also considered regarding non- registration of Ex.B2 apart from the fact that DW1 admitted about execution of Will under Ex.A1. Both the Courts also disbelieved Ex.B2/Will propounded by the defendant and Ex.B1/acknowledgment. One of the suspicious circumstances pointed out by the Courts below qua Ex.B2 is that, there was no reference about Ex.B1 in Ex B2 and its 36 date. Further in the evidence of defendant it was elicited that at the time of executing Ex.B2, he came to know about Ex.B1/endorsement. Failure to refer the same in Ex.B2, itself creates any amount of doubt. In Ex.A6/rejoinder, the defendant has not pointed out about existence of Ex.A1.
51. The findings of facts recorded by the Courts below are based on appreciation of both oral and documentary evidence. Since they are not perverse or misconstruction of documents or misreading evidence, this Court is of the view that the findings recorded by the Courts below do not brook interference of this Court under Section 100 CPC. No question of law much less substantial question of law is involved in the second appeal and the same is liable to be dismissed at the stage of admission.
52. Accordingly, this second appeal is dismissed at the stage of admission. However, no costs.
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As a sequel, pending miscellaneous petitions, if any, shall stand closed.
________________________________ JUSTICE SUBBA REDDY SATTI Date : 06.09.2022 ikn 38 HON'BLE SRI JUSTICE SUBBA REDDY SATTI SECOND APPEAL No.342 of 2022 Date : 06.09.2022 IKN