Andhra HC (Pre-Telangana)
Bodla Ravindranath vs Chintala Venkata Laxmi And Ors. on 10 January, 2003
Equivalent citations: 2003(2)ALD426, 2003(4)ALT105
JUDGMENT V.V.S. Rao, J.
1. The second defendant is the appellant. The plaintiff, first respondent herein filed a suit for declaration that she is the only heir, successor and owner of the suit schedule property - double storied building bearing Municipal Nos.15-2-314 and 315 situated at Kishangunj, Hyderabad. According to her she is the only legal heir entitled to succession of the said suit schedule property. The property originally belong to one Bodla Raghavulu. He died some time in 1932. His wife, Bodla Jejamma became the sole heir and was enjoying property. Raghavulu and Jejamma had one daughter by name Venkatamma, who predeceased Jejamma. Venkatamma's daughter Sulochana was married to first defendant/ second respondent-Kashinath and they had only daughter Chintala Venkatalaxmi who is the plaintiff. Sulochana also died leaving behind her the plaintiff. Kashinath married Danamma again and through her he got two sons and one daughter. Bodla Ravindranath is eldest son and he is arrayed as second defendant, who is appellant in the appeal.
2. In a nutshell it is plaintiff 's case that after death of Jejamma on 23.12.1977 first defendant Kashinath occupied the house forcibly and appropriated all the movables, gold, jewellery and valuables. When the plaintiff tried to take possession of the house and movables, the first defendant dodged the issue on one pretext or the other. The plaintiff issued Lawyer's notice dated 23.3.1981. The first defendant set up a false plea of adoption of the second defendant by late Jejamma and Will deed of Jejamma bequeathing suit schedule property in favour of her adopted son. Asserting that late Jejamma never adopted the second defendant and she never executed any Will, she filed the suit that she is sole heir and owner of the suit schedule property. Defendants 1 and 2 contested the suit and defendants 3 to 6 who are the tenants in the suit schedule property remained ex parte.
3. It is the case of the first defendant that Jejamma was deeply religious minded lady and she wanted male issue in her family to avoid Punnamanarakam. It is she who had persuaded the first defendant to marry second time. Since birth of the second defendant Jejamma was very fond of him and treated second defendant as her own son with an intention to adopt. At the time of marriage of plaintiff in April 1968, late Jejamma executed a sale deed in favour of the plaintiff for a consideration of Rs. 4,000/- in respect of the building bearing Nos. 15-2-316 to 319 situated at Kishangunj, Hyderabad which is adjacent to the suit building. No consideration was in fact paid. But the first defendant got the document executed in favour of Venkatalaxmi out of affection for the issues of both wives. The plaintiff has already got one building of late Jejamma which is of similar value to the suit property. Late Jejamma lived with the family members of the first defendant in the suit house. She adopted second defendant on 11.5.1977 and also performed thread ceremony as per Hindu rites. The plaintiff and her husband and other relatives were present. Late Jejamma executed Will on 12.5.1977 with sound and disposing state of mind bequeathing all her properties to second defendant. She died in the suit house while, living with the defendants on 23.12.1977. The second defendant as adopted son performed funeral rites of late Jejamma. Late Jejamma did not leave any gold or silver articles as the same were stolen in 1974. In spite of complaint to police, they could not be recovered. The second defendant as adopted son of late Jejamma and also by virtue of the Will dated 12.5.1977 inherited all the properties. The plaintiff is not entitled to any relief of declaration and for recovery of possession and that the suit is barred by limitation. The written statement filed by the second defendant/appellant herein is to the same effect and it is not necessary again to summarise the same. The Trial Court has settled the following issues stemming from the pleadings.
1. Whether the plaintiff is the heir of late Bodla Jejamma as her great-granddaughter and is entitled to the suit property ?
2. Whether late Bodla Jejamma has adopted the second defendant as her son on 11.5.1977?
3. Whether late Bodla Jejamma has executed the Will in sound disposing state of mind and bequeathed her properties in favour of the second defendant ?
4. Whether the suit of the plaintiff is time barred ?
5. Whether the Court fee paid is sufficient ?
6. To what relief?
Additional issue:
Whether the defendants 3 to 6 are necessary parties ?
4. The plaintiff examined P.Ws. 1 to 3 and marked Exs.A.1 to A.13. The defendants in rebuttal examined D.Ws.1 to 7 and marked Exs.B.1 to B.5. Exs.B.1 to B.4 are group photographs purportedly marked by defendant Nos.1 and 2 to prove adoption and Ex.B.5, dated 12.5.1977 is Will deed executed by late Jejamma.
5. After appreciation of oral and documentary evidence the Trial Court recorded a finding on issue No. 1 to the effect that the plaintiff is heir of late Bodla Jejamma as her great-grand-daughter and is entitled to suit schedule property. On issue Nos.2 and 3 it was held that adoption is not proved and execution of the Will is surrounded by suspicious circumstances.
6. Sri T. Veerabhadraiah, learned Counsel for the appellant/second defendant made submissions to the following effect.
After enactment of Hindu Adoptions and Maintenance Act, 1956 (for short, the Adoptions Act) the factum of giving and taking boy in adoption is relevant and needs to be proved. Exs.B.1 to B.4 are not mere group photographs and they evidenced the first defendant and his wife giving the appellant in adoption and Jejamma taking the boy in adoption. Therefore, the adoption is validly proved. The observations made by the Trial Court that datta homam as pleaded is not proved is erroneous. Under law datta homam is not mandatory and it need not be proved. In the absence of any evidence of datta homam, it does not in any manner dilute the evidence of adoption as seen from Exs.B.1 to B.4. The plaintiff is aware and she was present during adoption ceremony, but the suit was filed on 20.1.1982 and therefore the same is barred by limitation as per Articles 57 and 58 of the Schedule to Limitation Act, 1963. The plaintiff without asking for declaration under Section 34 of the Specific Relief Act, cannot seek declaration that she is legal heir of Jejamma. Execution of the Will Ex.B.5 by late Jejamma was validly proved in accordance with law and there are no suspicious circumstances surrounding the execution of the Will. The second defendant as adopted son is entitled to succeed to the property of Jejamma., but by way of abundant caution Jejamma executed the Will and the Trial Court was wrong in coming to the conclusion that the same is vitiated by suspicious circumstances. He placed reliance on the judgments of Sashi Kumar Banerjee v. Subodh Kumar, , Ramchandra Rambux v. Champabai, , Sushila Devi v. Krishna Kumar, , Surendra Pal v. Saraswati, , Beni Chand v. Kamla Kunwar, , Jaswant Kaur v. Amrit Kaur, , Madhusudan Das v. Narayani Bai, , Suryadevara Pullayya v. Suryadevara Satyanarayana, , The learned Counsel however does not dispute that as per Section 8 read with Section 2(f) and Schedule 2 and Section 15(1)(B) of the Hindu Succession Act, 1956 the plaintiff is the legal heir of husband of Jejamma.
7. Sri G. Dhananjaya, learned Counsel for first respondent/plaintiff submits that the plaintiff alone is entitled to succeed to the property as only legal heir of Jejamma. He placed reliance on various provisions of the Hindu Succession Act. Nextly, he would contend that adoption alleged by the appellant and the second defendant is non-existent and therefore there was no necessity for the plaintiff to seek declaration that adoption never took place. The suit is therefore not barred by Article 57 of the Limitation Act. The right of the plaintiff was not denied and cause of action arose on 7.4.1982 when reply notice was issued by the appellant/second defendant. Article 58 of the Limitation Act is also therefore not applicable. In the absence of any pleading or evidence that the cause of action arose on 23.12.1977, to act as a bar to the suit, the Will, Ex.B.5, is not validly proved and evidence of D.Ws.2 and 3 creates a doubt whether the Will was executed on 12.5.1977 as alleged. He also submits that there are many suspicious circumstances surrounding execution of the Will and as the father of the appellant took active role in execution of the Will by Jejamma the burden lies on defendants 1 and 2 to remove all the suspicious circumstances. But, they failed to remove all the suspicious circumstances. The learned Counsel submits that the second defendant was not adopted by Jejamma. When they could allegedly take photographs Exs.B.1 to B.4 showing performance of Upanayanam of the second defendant, nothing prevented the defendants to take photographs of datta homam. The absence of any photograph of datta homam improbabilises the factum of adoption. Exs.B.1 to B.3 are not taken at same place and they were taken elsewhere. There is no evidence that the first defendant gave his son in adoption to Jejamma and that she accepted second defendant as her son. He also submits that the conduct of the parties especially by defendants 1 and 2, namely that property was not mutated in the name of second defendant after adoption or Ex.B.5 Will and also the fact that second defendant was not described as son of Bodla Raghavulu even after adoption would show that the adoption is an improbability.
8. In reply to the submissions made by the learned Counsel for first respondent, Sri Veerabhadraiah, learned Counsel for the appellant submits that Exs.B.1 to B.4 conclusively establish giving and taking of the boy. P.W.1 in her evidence never made any whisper that photographs are fabricated and therefore Exs.B.1 to B.4 cannot be disputed. D.W.6 Purohit has deposed that datta homam was performed and merely because photograph of datta homam was not taken, it cannot feeble the case of respondents 1 and 2. Execution of adoption deed is not requirement of law and non-execution of the same is not fatal having regard to clinching evidence in Exs.B.1 to B.4. Insofar as Will is concerned, he also submits that even if the evidence of D.W.4, testator of the Will is described as being infested with inconsistencies, in view of the evidence of D.Ws.2 and 3, the Will is proved and it is the requirement of law that examination of one attesting witness is sufficient to prove the Will.
9. In the light of the rival submissions the following points arise for consideration.
(i) Whether adoption of second defendant by Jejamma is proved ?
(ii) Whether the suit is barred by limitation ?
(iii) Whether the Will is true and valid ?
In Re Points 1 and 2:
10. As the question of limitation is inter-twined with the question of adoption both these points are considered together. Defendant Nos. 1 and 2 seek to displace succession of the property by reason of adoption alleged. Therefore, burden lies on them to prove the factum of adoption and its validity. As per Adoptions Act to prove valid adoption physical act of giving and taking is essential requisite. Indeed, it is the ceremony mandated in all adoptions. The performance of datta homam and registration of adoption deed are not mandatory. (See Sections 11 and 16 of Hindu Adoptions and Maintenance Act). Indeed, as per proviso to Section 11 of the Act, the performance of datta homam shall not be essential to the validity of the adoption. In Madhusudan Das v. Narayani Bai (supra), the Supreme Court considered essential requisites of valid adoption and laid down as under:
For a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever the caste. And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exits an expression of consent or an executed deed of adoption, Shoshinath v. Krishnasunder, (1880) 7 Ind App 250. In Lakshman Singh v. Smt. Rupkanwar, , this Court briefly stated the law thus:
"Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall handover the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it."
In some cases, to complete the adoption a "datta homam" has been considered necessary, but in the case of the twice-born classes no such ceremony is needed if the adopted boy belongs to the same gotra as the adoptive father. Bal Gangadhar Tilak v. Shrinivas Pandit, (1915) 42 Ind App 135 = (AIR 1915 PC 7). In the present case, the appellant has pleaded the custom of his community that the act of giving and taking suffices to effect a valid adoption, and nothing has been shown to us to indicate that the further ceremony of "datta homam" was necessary.
11. In his written statement the first defendant pleaded that late Jejamma adopted second defendant on 11.5.1977 and also performed his thread ceremony according to Hindu rites at which function the plaintiff and her husband and other relatives present. He also pleaded that Jejamma executed last Will on 12.5.1977 in sound and disposing state of mind bequeathing all her properties to second defendant who was adopted son. Nowhere it was pleaded that on 11.5.1977 datta homam has preceded the ceremony of giving and taking. Be that as it is, in his evidence as D.W.1 he stated that in May, 1977 Jejamma adopted second defendant as her son, that she performed thread marriage and that he and his wife gave second defendant in adoption to Jejamma and she accepted as her son when Exs.B.1 to B.4 were taken. The deposition of D.W.1 is corroborated by D.Ws 2 and 3 who are the attestors of Ex.B.5 and also D.W.5 purohit and D.W.6 junior purohit. It is in the evidence of D.W.6 that datta homam was performed as a necessary requisite for adoption. As deposed by D.W.1 photographs were taken at the time of adoption and thread marriage. Exs.B.1 to B.3 would show that D.W.1 handedover the second defendant to Jejamma, Identity of the persons in the photographs is not disputed. Even D.W.2 says that he is seen in Ex.B.4 photograph which evidences thread ceremony. Exs.B.1 to B.4 photographs would show Kashinath, first defendant giving second defendant and Jejamma taking second defendant and they cannot be lightly ignored merely because there was no photograph showing datta homam. The photograps would clinchingly show that D.W.I holding both hands of second defendant and putting them in the hands of Jejamma. If it was a mere thread ceremony there was no necessity for such posture. Therefore, it must be held that adoption of the second defendant by Jejamma is validly proved. The rebuttal evidence on behalf of plaintiff is strong enough to impeach the evidence of adoption let in by defendant Nos.1 and 2. The plaintiff examined herself as P.W.1. She stated that Jejamma did not adopt the second defendant and that after death ceremony of Jejamma, D.W.1 had told her that Jejamma adopted the second defendant. She however, admits that upanayanam of second defendant was performed by Jejamma two years prior to Jejamma became paralytic and photos were also taken. She also stated that she does not know if adoption ceremony of second defendant took place on the date of upanayanam as nobody was informed that adoption ceremony is also taking place on the date of upanayanam. She also appears in Exs.B.1 to B.3 photographs. Therefore, she deposed that Ex.B.4 was taken at the time of upanayanam of second defendant, but she does not say that why Exs.B.1 to B.4 were taken and why Kashinath was handing over second defendant to Jejamma. A reading of her evidence would gives an impression that she is striving hard to feign ignorance of adoption though she admits that in Exs.B.1- to B.4 photographs she is also there. Except her evidence, there is no evidence in this regard. She stated in her evidence that she and her husband were invited for upanayanam ceremony. Nothing prevented her to examine her husband or other persons who attended the ceremony in support of her case that invitation was only for upanayanam and not for adoption. Be that as it may, defendant Nos.1 and 2 on their part have examined D.Ws.1 to 6 to prove adoption, especially, essential requisite ceremony of giving and taking of second defendant by first defendant to Jejamma.
12. It is the contention of the learned Counsel for the appellant that the suit is barred by limitation under Articles 57 and 58 of the Schedule to the Limitation Act. This is refuted by the learned Counsel for the plaintiff/first respondent contending that when adoption is non-existent there was no necessity for the plaintiff to seek declaration that adoption never took place and therefore Article 57 of the Limitation Act has no application. He also contends that plaintiffs right was denied by defendant Nos. 1 and 2 on 7.4.1982 when they issued Ex.A.2. Therefore, suit filed on 20.1.1982 is within time as per Article 58 of the Limitation Act. As per Article 57 of Schedule to the Limitation Act a suit to obtain declaration that alleged adoption is invalid and never took place has to be filed within three years from the date when the alleged adoption becomes known to the plaintiff. As per Article 58 of the Limitation Act a suit for any other declaration has to be filed within a period of three years from the date when the right to sue first accrues. If we notice the language in Articles 57 and 58 of the Limitation Act, it would be clear that both contain different parameters. Article 57 of the Limitation Act contemplates two types of suits one to obtain a declaration that adoption is invalid and second one is to obtain a declaration that adoption never took place. The limitation starts from the date when adoption becomes known to the plaintiff. It is in the evidence of P.W.1 that after death of Jejamma and after performing funeral rights, her father, first defendant, told her that Jejamma took the second defendant in adoption and that from 1979 to 1981 she could not give any notice to her father that the said adoption is not true. Her evidence is to the following effect:
There are no male issues to my mother or to grandmother, or great-grandmother, i.e., for three generations. I never offered to Jejamma to take a boy in adoption. My father performed the obsequies of Jejamma, and Jejamma did not adopt second defendant. Therefore the question of my first knowing about the adoption does not arise. After death ceremonies of Jejamma my father told me that Jejamma took second defendant in adoption and from 1979 to 1981 I could not give any notice to my father that the said adoption is not true. I gave instructions to my Advocate for issuing suit notice that my father falsely includes that second defendant was adopted by Jejamma.
13. From the evidence of P.W.1 it is clear that she got knowledge of the adoption of Second defendant by Jejamma at least on 23.12,1977. There is no denial about this. Even if she deposes about her ignorance of adoption on 11.5.1977 an inference can be drawn that she got knowledge of adoption on 23.12.1977 or ten days thereafter, after death ceremony of Jejamma. Therefore, as per Article 57 of the Limitation Act the suit ought to have been filed on or before 24.12.1980. The suit filed on 20.1.1982 is therefore clearly barred by limitation insofar as seeking a declaration that she alone is legal heir of Jejamma and succeeds to the suit schedule property. Sri Dhananjaya, however, submits that as the adoption is non-existent, there was no necessity for the plaintiff to seek declaration that adoption is invalid and never took place. He also submits that plaintiff filed suit for declaration that she is legal heir of Jejamma. According to Article 58 of the Limitation Act within three years from the date of denial of her rights by defendant Nos. 1 and 2 on 7.4.1982, when the reply notice was sent, she filed the suit. In my considered opinion, this submission is devoid of any merits. Even according to her the plaintiff is the only legal heir and therefore the succession opens on the day of death of Jejamma i.e. 23.12.1977. Having alleged that after death of Jejamma first defendant forcibly occupied the suit schedule property and removed all the movables, she ought to have asserted her right and filed suit within three years from the date when right accrued to her which is certainly on the date of death of Jejamma. Therefore, there is force in the submission of the learned Counsel for the appellant that the suit is barred by limitation prescribed under Articles 57 or 58 of the schedule to the Limitation Act. Further, in paragraphs 5 and 6 of the plaint the plaintiff-first respondent alleges that first defendant set up a false plea of adoption and execution of Will deed in the reply notice Ex.A.2 and that the alleged adoption is false and the execution of Will deed is forged and fabricated. Without seeking a declaration that the adoption is invalid or never in fact took place (See Article 57 of the Limitation Act) she could not in law maintain a suit for declaration that she is only legal heir, successor and owner of the suit schedule property. As already noticed, mere proclamation by the plaintiff that adoption never took place is not sufficient to enable her to seek a declaration under Article 58 of the Limitation Act that she is the only legal heir. Unless and until adoption is declared by Court as invalid or that it never took, place the plaintiff cannot assume or presume that adoption is false and therefore she is entitled to be declared as only legal heir and successor of Jejamma.
14. Further, the suit in substance is not only for a declaration that she alone is the legal heir, but in fact the suit is for declaration that adoption of second defendant by Jejamma is invalid. She did not specifically ask that adoption is invalid or in fact did not take place. As the only defence on behalf of defendant Nos. 1 and 2 is that the second defendant is adopted and Jejamma executed Will in his favour and, in a sense the suit by the plaintiff is seeking invalidation of the adoption and, therefore, Article 57 of the Limitation Act would apply and the suit is barred by limitation. Point Nos. 1 and 2 are answered accordingly.
In Re Point No. 315. It is the case of defendant Nos. 1 and 2 that late Jejamma adopted second defendant on 11.5.1977 and performed thread ceremony (upanayanam) according to Hindu rites. It is also their case that Jejamma executed her last Will and testament on 12.5.1977 and to prove Ex.B.5 Will defendant Nos.1 and 2 examined D.Ws.2 to 4. D.W.3 is scribe of the Will who stated in his evidence that he knows the parties, he attended adoption ceremony and that he scribed Ex.B.5 to the dictation of Jejamma. He also stated that at the time of execution of the Will, D.W.2 and D.W.4 were present. He also stated that he read over Ex.B.5 to Jejamma, who admitted the correctness and affixed her thumb impression. In the cross-examination insofar as essentials are concerned he stood by his version in the chief examination. D.Ws.2 and 4 are the attestors. They stated that Will was read over to Jejamma by D.W.3, she put her thumb impression in their presence and after that they attested the Will. The evidence of D.Ws.2, 3 and 4 and evidence of D.W.1 would show that the execution of the Will is validly proved. However, the learned Counsel for the first respondent pointed out certain perceived inconsistencies in the evidence of these witnesses in support of his submission that there are suspicious circumstances surrounding the Will. Before discussing this point, it is necessary to briefly refer to the law in this regard.
16. The Will has to be proved in a Court of Law like any other document. The test of satisfaction of prudent mind is sufficient and proof with mathematical certainty cannot be insisted upon. As Section 63 of the Indian Succession Act requires Will to be attested the same cannot be used as evidence unless and until at least one attesting witness is examined for proving execution of the Will. As per Section 68 of the Indian Evidence Act, 1872, if attesting witnesses are not alive or attesting witnesses are not available it has to be proved in accordance with Section 69 of the Indian Evidence Act. Onus of proving the Will lies on the propounder and it has to be discharged on proof of the essential facts wbich go into making of the Will. The legal proof of the Will is a simple matter for law of evidence. However, when a suspicion as to the execution of the Will is raised, it is no more a question of proof, but it is a question of satisfying the judicial conscience and mere proof of the Will as per law does not make the Will last testament of the testator. If suspicious circumstances are alleged or pleaded or brought to the notice of the Court the burden lies on the propounder of the Will to remove and clear off all the suspicious circumstances especially when the propounder is actively associated with the execution of the Will. These principles are well settled (See H. Venkatachala v. B.N. Thimmajamma, , Shashikumar v. Subodh Kumar (supra), Ramchandra Rambux v. Champabai (supra), Sushila Devi v. Krishna Kumar (supra), Surendra Pal v. Saraswati (supra), Jaswant Kaur v. Amrit Kaur (supra).
17. What are the suspicious circumstances? In Venkatachala v. Thimmajamma (supra) the Supreme Court pointed out that when signature of testator is shaky and doubtful and the propounder fails to prove that signature is that of testator it creates a doubt. Secondly, the condition of the testator's mind may appear very feeble and debilitated and evidence adduced may not succeed in removing the legitimate doubt as to mental capacity of the testator. The disposition made in the Will may appear to be unnatural, improbable or unfair in the light of the relevant circumstances and such dispositions may not be the result of testator's free will and mind. If the propounder has taken prominent part in execution of the Will and received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending execution of the Will and the propounder is required to remove the suspicion by clear and satisfactory evidence. It may also be mentioned that in Venkatachala v. Thimmajamma (supra) and in Suryadevara Pullayya v. Suryadevara Satyanarayana (supra) it was held that examination of one attesting witness is sufficient to prove the Will. The learned Counsel for the first respondent - plaintiff submits that inconsistencies in the evidence of D.W.1, D.W.2, D.W.3 and D.W.4 as well as suspicious circumstances surrounding the execution of the Will are as follows.
18. The evidence of D.Ws.3 and 4 creates a doubt whether Will was executed on 12.5.1977. Both of them say that the Will was executed on the date of adoption which is false because stamp paper on which the Will was written was purchased on 12.5.1977. D.W.4 does not know what are the contents of Ex.B.5 and he assumes that Ex.B.5 is adoption deed. D.W.5, senior purohit who fixed muhurtham for adoption did not attend for adoption and the evidence of junior purohit regarding datta homam is not corroborated. He points out that the first defendant admittedly has taken active part in execution of the Will Ex.B.5. D.Ws.3 and 4 stated that the Will was executed on the date of upanayanam on 11.5.1977 and therefore execution of the Will on 12.5.1977 is falsified. Adoption and Will were not revealed and no action was taken pursuant to adoption and Will Ex.B.5. They sent reply notice Ex.A.2 revealing these two things. The name of the second defendant was not changed showing him as son of Raghavulu and the property was not mutated in the name of second defendant based on adoption or Ex.B.5-Will. The learned Counsel also placed reliance on Exs.A.12 and A.13 for that purpose. As the stamp paper on which the Will was drafted appears dated 12.5.1977 and execution of the Will is on 11.5.1977 which is improbable and prior to her death, Jejamma suffered paralysis, an inference can be drawn that she was not having sound disposing state of mind. Lastly, the thumb impression on Ex.B.5 is merged as per evidence of P.W.2 who is finger-print expert. First defendant as D.W.1 deposed that Jejamma executed Will on 12.5.1977. D.W.3 who is scribe of Ex.B.5 deposed that Ex.B.5 was executed on the date of adoption of second defendant and that the adoption took place in the morning and Ex.B.5 was executed in the evening. In the cross-examination he also states that draft was already prepared and he was asked to copy the same. It took him two hours to scribe Ex.B.5 from the draft. He also states that D.W.1 obtained thumb impression of Jejamma on Ex.B.5 and thereafter he signed as scribe. Very peculiarly he deposes that elders told him that Jejamma fixed her thumb impression on Ex.B.5. The evidence of D.W.3 who scribed Ex.B.5 throws the version of D.W. 1 into disarray. Insofar as evidence of attestors, D.Ws. 2 and 4 is concerned, it shows that that the Will was executed one day after adoption. It does not mention the date on which it was executed. Be that as it is, he identified the signatures of scribe and other witnesses and attestors. D.W.4, another attestor seems to suggest that Ex.B.5 was executed on the day of adoption. By the date of giving evidence the scribe D.W.3 and one of the attestors D.W. 4 are more than 80 years of age. Therefore, while considering their evidence, the Court should keep in mind that the memory loss naturally sets in old age. The same does not mean that inconsistencies especially in regard to proof of execution of Will should be ignored. A reading of evidence of D.Ws. 1, 2, 3 and 4 together along with original copy of Ex.B.5, it must be held that suspicious circumstances pointed out by the learned Counsel for first respondent are justified. D.W.1, first defendant and D.W.7, second defendant have not completely removed the suspicious circumstances surrounding the execution of the Will. The learned Counsel even suggests that if the evidence of scribe D.W.3, who is father-in-law of first defendant, is considered in its totality, it is hearsay evidence. He states that elders told him that Jejamma attested her thumb impresson on Ex.B.5. Be that as it may, the evidence of P.W.2 in the circumstances assumes importance. Ex.B.5 was sent for finger-print expert. The expert who examined Ex.B.5 was examined as P.W.2. He stated that he examined fingerprints in Ex.B.5 and is admitted signatures and compared thumb impression on Ex.B,5 with that found on the sale deed (Be it noted that Ex.A.6 sale deed was executed by Jejamma in favour of plaintiff.) He found thumb impression on Ex.A.5 for comparison as the ridges and other characteristics were not clear in the thumb impression. This conclusion was arrived at having regard to the fact that thumb impression allegedly made by Jejamma was merged. Even for the naked eye it appears that thumb impression is merged and it is not possible as rightly deposed by PW2 for comparison with the admitted thumb impression of Jejamma. This is also another suspicious circumstance.
19. Therefore, though I have held that the Will has been validly proved in accordance with Section 63 of the Indian Succession Act and Section 69 of the Indian Evidence Act, as defendant Nos. 1 and 2 failed to remove ail the suspicious circumstances, Ex.B1.Will cannot be accepted as a last Will of the testator Jejamma. Point No. 3 is answered accordingly.
20. In the result, in view of my findings on point Nos. 1, 2 and 3, the appeal succeeds and is accordingly allowed. The judgment and the decree passed by the Court of I Additional Special Judge for SPE and ACB Cases-cum-Additional Chief Judge, City Civil Court, Hyderabad in OS No. 128 of 1982, dated 3-8-1988 are set aside and the suit is dismissed, with costs throughout.