Andhra HC (Pre-Telangana)
Dr. M. Ratna vs Kottiboyina Navaneetam (Died) And ... on 23 April, 1993
Equivalent citations: AIR1994AP96, 1993(2)ALT459, AIR 1994 ANDHRA PRADESH 96, (1993) 2 LS 28, (1993) CIVILCOURTC 467, (1993) 2 HINDULR 554, (1993) 2 ANDH LT 459
JUDGMENT
1. This appeal is filed by the plaintiff in O.S. 54 of 1980 in the court of District Judge, Krishna at Machilipatnam.
2. The plaintiff filed the suit for declaration of her title to the plaint schedule property which is a house situated at Machilipatnam and for possession thereof after ejecting the defendants therefrom and for past and future profits and also the cost of a radio. The plaintiff alleges that she is the second wife of late K. Hanumantha Rao who was the owner of the suit property and claims the suit property under a Will dated 15-12-76 said to have been executed by Hanmantha Rao who died on 3-2-77. The first defendant is the first wife of Hanmantha Rao and defendants 2 to 5 are the tenants of the said house.
3. The first defendant denied the Will said to have been executed by late Hanmantha Rao. She contended that the plaintiff is not the second wife of late Hanmantha Rao and so she will not get the property as persona designata even if the Will is proved. She denied the existence of that radio. Defendants 2 to 5 remained ex parte.
4. The lower court held that the Will said to have been executed by Hanmantha Rao is not true. It also held that the plaintiff does not get any right to his property as persona designata since she is not the second wife of that Hanmantha Rao and, therefore, she is not entitled to the suit property. The lower court further held that the plaintiff failed to prove that the radio was with the first defendant. Ultimately the lower Court dismissed the suit against which this appeal is filed.
5. The main controversy in this appeal is regarding the suit house situated at Machilipatnam which the plaintiff claims by virtue of a Will alleged to have been executed by late Hanmantha Rao. Before I consider the question regarding the genuineness of the Will and whether the plaintiff is entitled to the property under the Will, I will deal with one contention which has been urged in the lower court during the rial of the suit i.e. the suit house is a joint family house belonging to late Hanmantha Rao, his step mother and step brothers and, therefore, Hanmantha Rao is not the absolute owner and so, he has no right to execute the Will in respect of this property. The stepmother and step brothers 'of late Hanmantha Rao executed a relinquishment deed which is marked as Ex.B-24 whereby they relinquished their rights in the property in favour of Hanmantha Rao, There is no contention in the written statement of the first defendant that Hanmantha Rao is not the absolute owner of the property and in fact the first defendant who is examined as D.W. 3 had stated that Hanmantha Rao was the absolute owner of the property and, therefore, the argument which was advanced in the lower Court by the defendant that Hanmantha Rao is not the absolute owner of the property and that the relinquishment deed Ex.B-24 is only a nominal document which found favour with the lower court is not correct. So I shall proceed on the basis that Hanmantha Rao was the absolute owner of the suit property.
6. Ex.A-3 is the Will dated 15-12-76 alleged to have been executed by Hanmantha Rao. The plaintiff's case is that late Hanmantha Rao sent the Will in a sealed cover and put it in an outer cover with a covering letter to her brother one Mr. Appaji, who is working as Professor in an Engineering College in Gujarat and Mr. Appaji went to Tirupathi and handed over that cover to the plaintiff and then the plaintiff opened that cover and found the Will and later on he went to Machiiipatnam and met Hanmantha Rao in the last week of January, 1977 and questioned him as to why he had sent the Will through Appaji. Appaji who is examined as P. W. 4 had stated that Hanmantha Rao sent a cover to him in which there was a sealed cover and a letter Ex.A-4 and after going through the letter he went to Timpathi and met his sister i.e. the plaintiff and handed over the sealed cover to her. This letter is typed on the letter head of K. Hanmantha Rao and is purported to have been signed by him. It was dated 13-12-76 but the date appears to have been corrected as 18-12-1976. The letter reads that He is sending the Will in a sealed cover in the name of Ratna because had confidence in Appaji.
Hanmantha Rao has also directed Appaji to keep the sealed cover carefully and in case of his demise, hand it over to her i.e. the plaintiff carefully. But for some reason, may be out of anxiety, Appaji did not keep it secret with him as directed by Hanmantha Rao and went to Tirupathi and handed over the cover to the plaintiff and she opened the cover and found the Will. An argument was advanced in the lower court that when Appaji handed overthe scaled cover to the plaintiff and she opened it and found the Will and on going through the Will, she had found that the bequest made under the Will was not favourable to her and, therefore, she went to Machiiipatnam in the last week of January, 1977 and prevailed upon Hanmantha Rao whose health was in a very bad condition to execute another Will and then got the Will Ex. A-3 executed by him and, therefore, Ex.A-3 is not the Will which might have been executed originally by Hanmantha Rao and sent through Appaji. Comment is made on the fact that the dale in the covering letter Ex. A-4 is corrected from 13-12-76 to 18-12-76. It is therefore argued that by 13-12-1976 the Will dated 15-12-76 would not have been in existence and so there might have been another Will which was suppressed or destroyed by the plaintiff. The lower court takes ii as a suspicious circumstance and agrees with the contention of the first defendant that there might have been another Will of Hanmantha Rao but the plaintiff suppressed it and got the present Will Ex.A-3 executed by Hanmantha Rao taking advantage of his bad state of health.
7. Sri T. Veerabhadrayya, the learned counsel for the appellant has pointed out that if Hanmantha Rao had executed another Will which is not favourable to the plaintiff, he could not have sent the Will in a sealed cover through the plaintiff's brother and if it is favourable to D-1 he would have given the Will to D-1 herself, who was residing in the same house. He has also pointed that Hanmantha Rao might have got the Will prepared and got it typed as also the letter Ex.A-4 on 13-12-76 but since the attestors were not available he might not have executed the Will on that day and after executing the Will he might have sent it in a sealed cover along with the letter Ex.A-4. Somehow somebody appears to have corrected the date in Ex.A-4 from 13-12-76 to 18-12-1976.
8. The question to be decided in this appeal is whether the Will Ex. A-3 bearing the date 15-12-76 was executed by late Hanmantha Rao in a sound and disposing state of mind. It is not necessary to conjecture whether Hanmantha Rao had executed another Will earlier because the plaintiff does not base her claim on any such earlier Will nor does the first-defend ant contend that she is entitled to the property by virtue of any earlier Will said to have been executed by late Hanumantha Rao.
9. So the essential question to be decided is whether the Will bearing date 15-12-76 which is marked as Ex.A-3 was executed by late Hannanlha Rao in a sound and disposing state of mind and whether the plaintiff gets right to the property under the Will as a persona designaia even if her status as a wife is not proved. The Will Ex.A-3 is in four pages consisting of typed matter. Broadly speaking the bequests made under the Will are that the testator had bequeathed the house at Machilipatnam in favour of his second wife Dr. M. Ratna subject to the condition that she had to discharge some obligations as mentioned in schedule-A to the Will. The testator bequeathed his pension, gratuity and all the movable property as mentioned in schedule B to his first-wife Smt. K. Naveneethamma. There is two attestors to the Will B. Christopher, who is examined as P.W. 2 and A. Gopal Rao who is examined as P.W. 3. Late K. Hanmantha Rao was a retired I. A.S. Officer and he also worked as P.A. to the Collector, Krishna District. P.Ws.2 and 3 worked under him when he was P.A. to Collector, Krishna District. Hanmantha Rao retired from service as Collector, Nagarjuna-sagar in 1975 and settled at Machilipatnam. The evidence of P.Ws. 2 and 3 is that on 15-12-76 they were sent for by Hanumantha Rao and then they went to his house at about 9-00 a.m. and they met Mr. Hanumantha Rao who was lying on a cot in his bed room in the upstair portion of the house. Then he got up from his bed and took them to his office room where he sat in his chair and took out Ex. A-3 and two other sets of papers and gave the papers to them and requested them to attest the said papers. Accordingly they attested and then went away. Since they did not say that they have seen the testator i.e. Hanumantha Rao signing the Will in their presence, and stated that they signed the document blindly without asking Hanumantha Rao what the document is, the learned counsel for the plaintiff in the trial court requested for permission of the court to treat the witnesses as hostile and cross-examine them. Accordingly the court granted permission and plaintiff cross-examined those witnesses.
10. As laid down by the Supreme Court in H. Vcnkatachala v. B. N. Thimmajamma, a Will has to be proved like any other document but since S.63 of the Succession Act requires a Will to be attested, it cannot be used as evidence unless one attesting witness at least has been examined as required under S.68 of the Evidence Act. Since a Will takes effect after the death of the testator, the propounder of the Will has to satisfy the conscience of the court that it is the last Will and testament of the testator. There-
fore, in addition to the normal method of proving any document, a Will have to be proved with reference to the provisions contained in S. 63 of the Indian Succession Act and S. 68 of the Evidence Act.
11. Section 63 of the Indian Succession Act reads :
"Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules :
(a) & (b).......................................................
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, hut it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
Section 68 of the Indian Evidence Act says :
"If a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution even if there be an attesting witness alive and subject to the process of the court and capable of giving evidence provided that it shall not be necessary to call attesting witness in proof of the execution of any document not being a Will which has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless its execution by the person by whom it is purported to have been executed is specifically denied."
12. The plaintiff, as I have stated above, examined both the attesting witnesses Christopher and A. Gopal Rao as P.Ws. 2 and 3.
13. The learned counsel for the appellant has referred to the evidence of D. W.3, the first defendant who had stated that both these persons had lot of respect for Hanumantha Rao and were calling on him even after he had retired from service and settled at Machilipatnam and they had also respect for D.W. 3-and, therefore, he contended that in those circumstances, it is quite natural for Hanumantha Rao to call them as attesting witnesses for his Will. In those circumstances it is quite probable that Hanumantha Rao might have called them as attestors, but the more important question is whether their evidence satisfies the requirements of S. 63 of the Succession Act. P.Ws. 2 and 3 stated that the signatures of Hanumantha Rao were already there when Ex.A-3 was given to them for their signatures. Hanumantha Rao put the date 15-12-76 under all his signatures and the date 15-12-76 in the preamble is also in the handwriting of Hanumantha Rao. They signed in the presence of Kanumantha Rao and put the date 15-12-76 under their signatures. Therefore, the alleged Will was not signed by Hanumantha Rao in their presence because they say that by the time the document was given to them, it already contained the signature of Hanumantha Rao. Section 63 of the Indian Succession Act provides that the attestors must have seen the testator signing the Will or they must receive from the testator a personal acknowledgment of his signature or mark. In this case Ex.A-3 was not signed by Hanumantha Rao in the presence of P.Ws. 2 and 3 the attestors nor did the attestors P.Ws. 2 and 3 say that Hanumantha Rao had acknowledged his signature before them. No doubt they say that all the four pages in Ex.A-3 contain the signature of Hanumantha Rao and they also say that Hanumantha Rao put the date 15-12-76 underneath his signatures in their presence but that is not sufficient compliance with the requirement of S. 63 of the Succession Act because they did not say that Hanumantha Rao signed the Will Ex.A-3 in their presence or acknowledged his signature.
14. Sri T. Veerabhadrayya, the learned counsel for the appellant has referred to the following passage in Mantha Rama Murthy's Law of Wills, 4th Edition, page 230 :
"If a testator asks another to put his attestation showing that the signature below the document is his, it has been held that this amounts to implied acknowledgment by him of the execution of the Will by the testator and is sufficient compliance with the provisions of S.63, Succession Act."
15. The learned author of the book refers to the decision in Dhanji Govind v. Lakhman, AIR 1951 Kuch 84.
16. The learned counsel for appellant, therefore, contended that since P.Ws. 2 and 3 have seen the signature of Hanumantha Rao on all the four pages in the Will and then attested the document on all pages at the request of Hanumantha Rao it shows that they are satisfied that Hanumantha Rao signed Ex. A-3 and having worked as his subordinates, they had no courage to question him whether he had signed the document and since they were satisfied with the signature of Hanumantha Rao, they attested it. The learned counsel for the appellant has pointed out if the events whichhad transpired in the office room of Hanumantha Rao are taken into consideration as a whole, it amounts to implied acknowledgment by Hanumantha Rao to the attestors that he had signed Ex.A-3. In Dhanji Govind v. Lakhman (supra) the decision referred to by the learned author of Mantha Rama Murthy's Law of Wills, the learned Judge pointed out that Jethaand Mangi i.e., the attestors have stated that the testator himself reed over the Will to them before they attested it and in his view that is sufficient compliance with law. He had, therefore, held that if a testator asks another to put his attestation saying that the signature below the document is his, it has been held that it amounts to an implied acknowledgment by him of the execution of the Will by the testator and is sufficient compliance under the provisions of S. 63 of the Act. But in the present case there is no evidence to the effect that Hanumantha Rao read over the Will before the attestors. Moreover, S. 63 of the Succession Act requires that the attestor must receive from the testator personal acknowledgment of his signature or mark. In Girja Datt v. Gangotri Datt, the Supreme Court held that :
"In order to prove the due attestation of the will the propounder of the will has to prove that 'A' and 'B' the two witnesses saw the testator sign the will and they themselves signed the same in the presence of the testator."
17. In Beni Chand v. Kamla Kunwar, it is pointed out that 'by attestation' is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by Session 63(c) of the Succession Act an attesting witness is one, who signs the document in the presence of the executant after seeing the execution of the document or after receiving the personal acknowledgment from the executant as regards the execution of the document. Therefore, in view of the requirement of Section 63(c) of the Succession Act and the decision of the Supreme Court referred to above, it is absolutely necessary in order to prove the execution of the Will that the testator must have signed the Will in the presence of the attestors or the testator must have personally acknowledged his signature in the presence of the attestors. I am, therefore, unable to agree with the decision rendered in Dhanji Govind v. Lakhman (supra) or the observations made by the learned author of Mantha Rama Murthy's book "Law of Wills" based on the abovesaid judgment that implied acknowledgment is sufficient compliance of Section 63 (c) of the Succession Act.
18. In this case since Ex. A-3 is not signed by Hanumantha Rao in the presence of the attestors, nor the attestors say that Hanumantha Rao acknowledged the execution of the Will in their presence, I find that the plaintiff failed to prove the execution of the Will as required by Section 63 of the Succession Act.
19. The lower court has referred to certain suspicious circumstances or unnatural bequests made under the Will. It is pointed out that the first defendant who is the wife is deprived of the only residential house.
20. The learned counsel for the appellant has referred to the recitals in Ex. A-3 in which Hanumantha Rao had stated that the first "defendant's father has two houses at Ami in North Arcot District in Tamil Nadu and under the Will executed by her father, the first defendant gets a house and therefore he did make any provision for her in the suit house. He had also stated that the plaintiff spent some money for making some improvements to the house and, therefore, wanted to give 3/4th of the house to the plaintiff but he stated that that it will not be possible for the two ladies i.e., the plaintiff and the first defendant to live in the same house, so he has bequeathed the entire house to the plaintiff. The learned counsel for the appellant-plaintiff also pointed out that though the marriage said to have been taken place between the plaintiff and Hanumantha Rao in the year 1961, is not properly proved nor is it valid still the fact remains that the plaintiff was aged 31 years at that time and lived with Hanumantha Rao for about 16 years as his wife and, therefore, there is nothing unnatural in Hanumantha Rao bequeathing the house to her in order to make some provision for her.
21. Mr. Parabrahma Sastry, the learned counsel for the respondents pointed out that Hanumantha Rao had already provided to the plaintiff about a lakh of rupees by way of bank deposits and so there is no further need for him to make any provision for the plaintiff.
21A. It is not possible to find out what exactly was in the mind of Hanumantha Rao at the time of making the bequest. If Hanumantha Rao thought that since the plaintiff spent the best part of her life with him and wanted to make some provision for her, in that case probably there is nothing unnatural in bequeathing the house in her favour. One more circumstance that was pointed out to show that there is suspicious circumstance in the execution of the Will is that the name of his father-in-law's place 'Ami' was not typed in the same alignment as the rest of the document but this appears to be a very trivial thing because as explained by Mr. T. Veera-bhadrayya, it is quite possible that the typist while typing the matter might have kept blank regarding the name of the place and might have filled up the name of the place after
22. Mr. Parabrahmha Sastry has referred to certain letters written by the plaintiff to Hanumantha Rao wherein she was pressurising Hanumantha Rao to sell the house at Machilipatnam and purchase a house at Hyderabad and he contended that this was being done only in order to deprive the first defendant of the only residential house which was having at Machilipatnam.
23. Of course Hanumantha Rao did not actually sell the house. But he bequeathed it in favour of the plaintiff. It is also pointed out by the learned counsel for the appellant that the value of the house was given as Rs.40,000/- by the first defendant herself and Hanumantha Rao bequeathed the house to the plaintiff subject to her discharging the three liabilities one in favour of Cooperative Society to an extent of Rs. 15,000/- and two other liabilities of Rs. 5,000/- totalling about Rs. 25,000/- and, therefore, if we lake into consideration the bequest made in favour of the plaintiff and the bequest made in favour of the first defendant, it cannot be said that Hanumantha Rao favoured the plaintiff by bequething the suit house and so in that view of the matter, the bequests seems to have been evenly balanced between the plaintiff and the first defendant and, therefore, there is nothing unnatural in the bequest.
24. The other contention of the first defendant is that as the plaintiff is described as the second wife of Hanumantha Rao in the Will and since the plaintiff failed to prove her marriage and in any event the marriage alleged to have taken place in 1961 is invalid because the first wife was alive, plaintiff is not the second wife of Hanumantha Rao and, therefore, the bequest in favour of the plaintiff fails because it is given to her in her position as second wife. But I am unable to agree with that contention. Having gone through the Will, Ex. A-3 it is quite clear that Hanumantha Rao referred to both the ladies i.e. the first defendant Navaneethamma as his first wife and plaintiff, Ratna as his second wife and made respective bequests in two separate schedules. Schedule A is the bequest made in favour of the plaintiff, Smt. Ratna and schedule B is the bequest made in favour of the first-defendant, Smt. Navaneethamma. From a reading of the Will, it is quite clear that the plaintiff was given the property as a persona designata and even if the marriage is not true and valid, she is entitled to get the bequest made in Schedule-A of the Wilt.
25. But in view of my finding that the plaintiff has failed to prove the execution of the Will as required by Section 63 (c) of the Succession Act, it follows that the plaintiff is not entitled to the suit property.
26. As regards the ratio, the lower court held that there is no satisfactory evidence and so rejected the plaintiff's claim regarding the value of the radio.
27. Therefore, the appeal fails and is dismissed. No costs.