Andhra HC (Pre-Telangana)
N. Srihari And Ors. vs N. Prakash And Ors. on 17 February, 2005
Equivalent citations: 2005(4)ALD370
JUDGMENT V.V.S. Rao, J.
1. In this appeal for the sake of convenience the parties are referred to as they are arrayed in the suit out of which the appeal arises. The appeal is filed by Defendants 2 to 6 in O.S.No. 9 of 1993 on the file of the Court of District Judge, Ranga Reddy District, at Saroornagar. During the pendency of the suit before the Trial Court, first defendant Nemuri Pentamma died and her two daughters were brought on record as Defendants 16 and 17 as (other) legal representatives apart from Defendants 2 to 6, who are already on record. Be that as it is, during the pendency of the appeal, second appellant (third defendant) passed away and Appellants 6 to 8 were brought on record as legal representatives. Further, the pendency of the appeal also saw the demise of the sixth respondent and Respondents 18 and 20 are legal representatives of sixth respondent (sixth plaintiff). Defendants 8 to 14 are tenants in various suit schedule properties, who are added as proforma defendants. Yet another aspect to be noticed is that even during the pendency of the appeal Respondents 16 and 17 sold away an extent of 500 sq. yards of land out of suit schedule property to Ramesh Chawla and he filed C.M.P.No. 14246 of 2004 to come on record as proper and necessary party/Respondent No. 23. A separate order is passed today in the said miscellaneous application, as the said application is seriously objected by the respondents Counsel.
Pleadings in Brief
2. One Nemuri Saya Goud had two sons namely, Sathaiah Goud and Balarajaiah Goud. Balarajaiah Goud married twice. Nemuri Pentamma and Nemuri Kousalya are his two wives. First defendant is Pentamma and Defendants 2 to 6 are sons of Belarajaiah. Sathaiah married one Sulochana. Plaintiffs 1 to 6 are his sons (As noticed sixth plaintiff died during pendency of the appeal). The following genealogy chart with the status of each member in the suit would reveal the relationship.
N. Saya Goud (Wife Chandramma Died) on 23-4-1994
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N. Balrajaiah Goud (Son) N. Sathaiah Goud (Son)
(Died) | (=Sulochana)
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| N. Prakash N. Narender N.Kasinath N.Venkatesh A.Arvind N. Suresh
| (Pltf.1) (Pltf.2) (Pltf.3) (Pltf.4) (Pltf.5) (Pltf.6)
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N. Pentamma (Wife) N. Kausalya(Wife)
(Died)(Deft.1)
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N. Srihari N. Srinivas N. Sayanna N. Laxminarayana N. Dayanand
(Deft.2) (Deft.3) (Deft.4) (Deft.5) (Deft.6)
3. Nemuri Saya Goud was a protected tenant in respect of Acs.19.15 and Acs.2.00, a total of Acs.21.00 of plaint schedule properties comprised in S.Nos. 284, 285, 290, 291, 292, 293 and 602 of Lothukunta Village, Alwal, near Hyderabad. Saya Goud executed Will on 2.1.1956 bequeathing all his properties to his wife Chandramma and the eldest daughter-in-law Nemuri Pentamma, first defendant. These two purchased the absolute rights from pattadar under registered sale deed and became absolute owners of agricultural lands. They later purchased jointly the lands comprised in S.Nos. 291 and 602 of Lothukunta. After death of Saya Goud, Balarajaiah Goud became head of the family. He exercised control over his illiterate mother Chandramma, and brother Sathaiah Goud. Pentamma, wife of Balarajaiah Goud also dominated Chandramma and Sathaiah Goud. In 1969, Balajarajaiah Goud made his mother to execute lease deed purporting to relinquish all her rights in the properties held by her jointly in favour of first defendant. The said deed recitals were made as if Chandramma had life interest in the property though she has absolute rights in half share of the properties. The lease deed is executed by fraud, undue influence, coercion exercised by first defendant and her husband and Nemuri Chandramma. While Chandramma was living with elder son at Lothukunta, second defendant Nemuri Sri Hari filed O.S. No. 927 of 1977 on the file of the Court of III Additional Judge, City Civil Court, Secunderabad, against his mother, father and other brothers as well as stepmother, Kousalya and grandmother Chandramma for partition. In the said suit, second defendant claimed that properties mentioned therein, including the suit schedule properties are joint family properties. The thumb impression of Chandramma was obtained in the written statement in the said suit without disclosing contents thereof. The suit was, however, withdrawn after Chandramma left Lothukunta to live with Sathaiah Goud in view of compromise purporting to divide properties among persons belonging to branch of Balarajaiah Goud. As Nemuri Chandramma suffered inconvenience and insult at the hands of Balarajaiah Goud and Defendants 1 to 6, Chandramma left the house of Balarajaiah Goud in 1979 and came to the house of Sathaiah Goud at Muriti Veedhi, Market Street, Secunderabad.
4. Chandramma had love and affection towards plaintiffs. She had desire to make provision for plaintiffs as first defendant already secured half share from Saya Goud. Accordingly, Chandramma in a sound and disposing state of mind executed registered Will on 28.9.1979 bequeathing her half share in all the movable and immovable properties to the plaintiffs. After death of Chandramma by reason of the Will executed by her, plaintiffs became absolute owners. They issued notice to first defendant on 18.6.1984 demanding amicable partition of plaint schedule properties, in vain. Again the plaintiffs issued a notice through Lawyer on 9.7.1984. First defendant did not give any reply, but second defendant sent a reply on 8.8.1984 through his Counsel denying right of the plaintiffs contending that Chandramma had not right in the properties in view of the relinquishment deed. As Defendants 2 to 14 are in occupation of the suit schedule properties, suit is filed for partition and separate possession of plaintiffs half share in the suit schedule properties and for profits, past and future.
5. Nemuri Pentamma is wife of Balarajaiah Goud. As first defendant she filed written statement before she died during the pendency of the suit. Third defendant filed a separate written statement, which was adopted by Defendant No. 2 and Defendant Nos. 4 to 6. Defendants 7 to 11, 13 and 14 remained ex parte and Defendant No. 12 who is tenant of premises bearing Nos. 14 and 25 at Lothukunta filed a formal written statement. Defendants 15 to 17, who are impleaded as legal representatives after death of first defendant also filed written statement. A brief summary of defence as seen from written statements filed by Pentamma (first defendant), and Nemuri Srinivas (third defendant) is as follows.
6. Saya Goud, who died in 1956, bequeathed movable and immovable properties jointly held by him and his wife to first defendant and late Chandramma. After his death his properties devolved on Chandramma and Pentamma, who became absolute owners of agricultural lands mentioned in the Will executed by Saya Goud. Subsequently, both of them purchased agricultural lands bearing S.Nos. 284, 285, 290, 291, 292, 293 and 602 of Lothukunta. Chandramma executed Release Deed in favour of Pentamma by reason of which latter became absolute owner of agricultural lands. The Will executed by Saya Goud shows that Chandramma had only life interest in the property and she relinquished all her rights in favour of first defendant. Second defendant filed O.S.No. 927 of 1997 on the file of the Court of III Additional Judge, City Civil Court, Secunderabad, for partition of the properties including the plaint schedule properties. Chandramma filed written statement in the said suit and she signed written statement after the contents thereof were explained to her. The suit ended in compromise and Chandramma knew about second defendant withdrawing the suit after compromise. She had no right in the properties allegedly bequeathed under the Will to the plaintiffs. The Will set up by the plaintiffs is forged document brought into existence for the purpose of the suit. Chandramma lived for fifteen years after execution of Release Deed, but never questioned the same nor disclosed the execution of the Will to anybody at any time. First defendant denied all other allegations made by the plaintiffs with regard to undue influence exhorted by Balarajaiah Goud at the time of execution of Release Deed by Chandramma, etc. It is further stated that at the pursuation of Sathaiah Goud (father of plaintiffs) Chandramma executed a settlement deed in respect of 2982 Sq. yards of land in favour of wife of Sathaiah Goud. Sathaiah attested the same and therefore plaintiffs are estopped from questioning the Release Deed executed by Chandramma in favour of Pentamma.
7. The written statement filed by third defendant which is on the same lines with more details of the documents executed would be referred to at appropriate place. The execution and genuineness of the Will by Chandramma is denied. Alleging that Chadramma having executed Release Deed dated 6.3.1969 herself had no right to execute the Will and that the plaintiffs are not entitled to any share in the suit properties, Defendants 15 to 17 filed written statement supporting the case of Defendants 1 to 6, and denied other allegations made in the plaint as they also asserted that they are entitled to 1/8th share, in suit schedule properties. The plaintiffs filed a rejoinder disputing the averments/allegations made by Defendants 1 and 3 in their separate written statements.
Issues tried by The Trial Court The Trial Court framed the following issues and additional issues.
1. Whether late Nemuri Chandramma executed a Will on 28-9-1979 during her lifetime?
2. Whether late Nemuri Chandramma is possessed only with life interest in the plaint schedule property?
3. Whether there was a prior partition of the plaint schedule property and if so, is it binding on the plaintiffs?
4. Whether the suit is not maintainable as alleged in the written statement?
5. Whether Defendants 7 to 14 are unnecessarily made parties to the suit?
6. Whether the suit is valued correctly and Court fee paid is proper?
7. To what relief ?
Additional issues
1. Whether the Release Deed executed by Chandramma on 6-3-1969 was got executed by disclaiming as alleged in Para 9 of the rejoinder and what is its effect?
2. Whether Chandramma had any subsisting rights in the plaint schedule properties on 28-9-1979 when the Will was claimed to have been executed by her?
3. Whether the alleged Will dated 28-9-1979 is valid and genuine?
4. Whether Pentamma (Defendant No. 1) and her family acquired title to the plaint schedule property by adverse possession as alleged by the defendants?
Findings recorded by Trial Court
8. The plaintiffs examined third plaintiff as P.W.1, besides examining P.Ws.2 to 4. They marked Exs.A.1 to A.41. The third defendant was examined as D.W.1 and Exs.B.1 to B.63 were marked for them. Defendants also examined D.Ws.2 and 3 to prove that Chandramma was taken care of well by Balarajaiah Goud family and that Chandramma had poor eyesight. During the trial Exs.C.1 and C.2 were also marked. On examination of the oral and documentary evidence, the learned District Judge held that Chandramma had absolute right to half share in plaint schedule property and that Release Deed Ex.A.7, dated 6.3.1969 set up by defendants was got executed by deceit. It was also held that by reason of Ex.A.7 rights of Chandramma did not get extinguish and that Pentamma did not become absolute owner of the plaint schedule property as a result of which Chandramma had half share in the plaint schedule property. On the question of genuineness, legality and validity of the Will, the Trial Court held that Chandramma executed Ex.A.1 Will out of her free will and volition and that it was duly proved. Though number of alleged suspicious circumstances were pointed out by defendants, the Trial Court rejected allegations of suspicious circumstances. The Trial Court decreed the suit and passed a preliminary decree for partition of half share in the properties mentioned in the plaint schedule and further directed that mesne profits be determined on a separate application filed by the plaintiffs.
Submissions of the Counsel for the Appellants
9. Learned Counsel for the appellants/ defendants Sri P. Rajasekhar submits that the Will Ex.A.1 allegedly executed by Chandramma is not true and binding and that it is surrounded by a number of suspicious circumstances which the plaintiffs failed to remove. According to the learned Counsel Ex.A.1 Will is not valid testament of Chandramma. On this point, alternatively, learned Counsel argued that the suit for partition of the suit schedule property is not maintainable. He would urge that Ex.A.7 Release Deed executed by Chandramma and Exs.B.6 and B.7 would show that first defendant Pentamma is absolute owner and Chandramma had no right over the suit property. In the absence of any relief for cancellation of Ex.A.7 Release Deed and in the absence of any proof that Ex.A.7 Release Deed is vitiated by fraud, undue influence and coercion it should be concluded that Chandramma had no right and title to the suit schedule property and therefore she could not have validly bequeathed half of her share under Ex.A.1, Will. Yet another submission made by the learned Counsel for the appellant is that from March 1969 when Ex.A.7 was executed Pentamma became absolute owner and possessor of the suit schedule property and therefore defendants have perfected the title to the property by adverse possession. In support of this submission, learned Counsel placed reliance on Exs.B.8 to B.15 which are khasra pahanies, application for occupancy rights certificate under A.P. (Telangana Area) Abolition of Inams Act, 1955, O.R.C. issued by Revenue Divisional Officer and the proceedings of the Land Reforms Tribunal. He also relied on Income Tax Assessment Orders as well as wealth tax assessment orders in support of the contention that though the property was joint till 1969, after execution of Ex.A.7 by Chandramma the property became absolute property of Pentamma.
10. Learned Counsel for the appellants pointed out the following circumstances to show that the execution of Ex.A.1 by Chandramma is not genuine and it is surrounded by suspicious circumstances. The plea that late Chandramma lost her testamentary capacity in 1969 after execution of Ex.A.7 Release Deed, but still the Will proceeds as if she is absolute owner of half share in the suit schedule properties. She was not in a sound disposing statement of mind as on the date of execution of Ex.A.1, that she was aged 81 years with defective eye-sight and was not able to recognize persons unless they are in a close proximity. Late Chandramma was mentally worried because her eldest son Balarajaiah Goud was in Gandhi Hospital. She was anxious to see her son frequently as she spent all her life at his house as there was no grudge against any of his family members. Being in a mentally worried condition, she was not having independent advise nor she was aware of the legal parlance contained in the Will. This leads to inference that testatrix was not even aware of the purport of Ex.A.1. The Will was not validly proved because there are inconsistencies in the evidence of P.W.2 scribe and attestor of the Will, evidence of P.W.3, another attestor of Ex.A.1 Will. The intrinsic evidence and physical features of the documents would throw suspicion regarding genuineness of the Will. The learned Counsel points out that the thumb impression of testatrix is smudged, that the document was scribed on pencil lines and an effort was made to adjust space in Page 3 of the document. The language used in the document it is urged is not akin to the language of the testatrix. The endorsement Ex.A.1(b) made by Sri P.V. Krishna Murthy, Advocate, contains pencil writings which were overwritten by the Advocate. The active participation of advocates in execution of the Will itself renders the document suspicious, false and fabricated one. The learned Counsel vehemently contends that the scribe's signature was inserted and the same person was made to sign as Attestor No. 3. The place of signature of scribe is unnatural because normally signature of the scribe will be at the bottom of the last page of the attestors whereas P.W.2 was made to sign even before the attestors affixed the signatures. Nextly, it is contended that the contents of the Will are not natural as the language adopted even if read and explained, cannot be understood by an old lady. There are several discrepancies in evidence of P.Ws.2 and 3 and in their affidavits Exs.C.1 and C.2. Both of them did not properly explain the reason for taking great interest in taking Chandramma to the Advocates, to Doctor to bring attestors, get the document registered and to keep Ex.A.1 a secret without disclosing to the relatives of Chandramma including mother of P.W.3, who is none other than daughter of Chandramma. P.Ws.2 and 3 went on changing their version with regard to consulting Advocates for drafting the Will and with regard to sequence of events which would show that the document is fabricated and forged by the plaintiffs. Learned Counsel placed reliance on various authorities in support of his contentions.
Submissions made by Counsel for Respondents 1 to 5, and 18 to 20
11. The submissions made by the learned Counsel for main contesting respondents, Sri C. Balagopal, can be divided under two headings. Firstly, he contends that Ex.A.7 Release Deed is not valid. Pentamma, deceased first defendant who is beneficiary of Ex.A.7 has not even whispered about Release Deed Ex.A.10 in the written statement filed by her in O.S. No. 927 of 1977 on the file of III Additional Judge, City Civil Court, Secunderabad, which is a suit for partition filed by second defendant. On the contrary, Pentamma clearly admitted that the suit schedule property is jointly owned and possessed by Chandramma and Pentamma. This would falsify Ex.A.7 which is not out of free Will of Chandramma. There is even admission by Defendant No. 3 in the written statement filed in the present suit. Even according to Ex.A.7, Chandramma relinquished whatever property she got under Will dated 2.1.1956 executed by Saya Goud and when Saya Goud bequeathed only cash and jewellery and when Pentamma admitted in Ex.A.10 (written statement-in the earlier suit) that she and her mother-in-law purchased the suit schedule properties jointly, it would not be possible for the defendants to contend that under Ex.A.7 Chandramma relinquished her half share in the suit schedule properties. The learned Counsel also relied on Ex.B.6 which is a settlement deed executed by Chandramma and Pentamma in favour of Sulochana, W/o. Sathaiah Goud as well as Ex.B.7, deed of disclaimer executed by Sulochana in favour of Chandramma and Pentamma. He contends that the recitals in Ex.A.7 to the effect that Chandramma got only life interest in the properties she got from her husband which she relinquished is falsified by the admissions made by Pentamma herself as well as D.W.1 in the present suit. Therefore, he would contend that Ex.A.7 was not out of free Will of Chandramma, that the recitals in Ex.A.1 would themselves probabilise the case of the plaintiffs that Balarajaiah Goud obtained signatures of Chandramma on Ex.A.7 by misleading her. Alternatively he would submit that what was released by Chandramma in favour of Pentamma was only the property she got under Will executed by Saya Goud in 1956 and nothing more. Therefore, the suit schedule property continued to be the joint property of both and by reasons of Will Ex.A.1 plaintiffs are entitled to maintain the suit for partition.
12. Secondly, learned Counsel for the plaintiffs submits that the Will was executed by Chandramma in accordance with law, that it was validly proved as required under law and that it is binding on the defendants. Regarding suspicious circumstances, learned Counsel submits that many of the suspicious circumstances now urged by the appellants were not even pleaded nor suggested to the plaintiff's witnesses and that the plaintiffs have already dispelled all alleged suspicious circumstances surrounding execution of the Will. According to the learned Counsel, Chandramma died five years after execution of Will and this would go to show that the Will Ex.A.1 is true and valid and that there are no suspicious circumstances.
Points for consideration
13. Three points would arise for consideration.
I. Whether the Will Ex.A.1, dated 28.6.1979 by Nemuri Chandramma is true and valid?
II. Whether Release Deed, Ex.A.7 dated 6.3.1969 executed by Nemuri Chandramma was validly executed by her out of her own free will without undue influence and what is the purport of Ex.A.7?
III. Whether the order dated 6.10.1998 in I.A. No. 2241 of 1993 passed by the Court of learned District Judge, Ranga Reddy District, is afflicted by any error apparent on the face of the record and amounts to failure of exercise of jurisdiction vested in the Court?
In Re Point No. I Whether the Will Ex.A.1, dated 28.9.1979 by Nemuri Chandramma is true and valid?
14. This point may be considered under various headings, namely, (i) Whether execution of the Will is proved? (ii) Whether the plaintiffs satisfied suspicious circumstances, if any, as pointed out by the defendants? (iii) Whether Ex.A.1 Will can be treated as last Will of Chandramma ignoring suspicious circumstances as alleged by the defendants?
15. The subject of "proof of Will" has to its credit a large body of judicial pronouncements in common law jurisdiction. Section 68 of the Indian Evidence Act, 1872 requires that at least one attesting witness has to be examined to prove the Will, as the Will is a document requiring to be attested. Section 63 of the Indian Succession Act, 1925 requires that every person of sound mind disposing of his property by Will shall sign or affix his mark on the Will, and it shall be signed by same person in his presence or by his direction. As per this provision such execution shall be attested by two or more witnesses as prescribed. It is well-settled that whether Will set up by propounder(s) is to be proved to be the last Will of the testator has to be decided in the light of Sections 67 ad 68 of the Indian Evidence Act, and Sections 59 and 63 of the Indian Succession Act. The test is the satisfaction of prudent person in such matters. Whether the testator who put signature is aware of the contents of the document whether testator understood nature and execution of the Will are the basic questions to be decided when a Will is impeached. A decision on these questions would prima facie prove due execution of the Will and it shall have to be treated as last testament of the executant. Though the "Will" and any other "document" requires same legal proof, the difference is that the Will speaks from the death of attestor introducing an element of solemnity in the decision of a question of the validity on proof of the Will. The burden is always on the propounder to prove the execution of the Will. These principles are well settled (See Venkatachala Iyengar v. Thimmajamma, AIR 1959 SC 443).
16. The mere fact that the Will is registered does not in any manner affect the principles of evidence to be applied though in a given circumstances registration itself leads to an inference of genuineness (See Poornima Devi v. Kogendra Narayan, AIR 1962 SC 567). Apart from the proof of valid execution of the Will by attestor, it can also be challenged on the ground that the Will is not a last testament of the testator if surrounding circumstances of execution and contents thereof create suspicion in prudent mind. In such a case, as held by the Supreme Court in Venkatachala Iyengar v. Thimmajamma (supra) propounder should remove all legitimate doubts in the matter by producing cogent and specific and sufficient evidence. In Jaswanth Kaur v. Amrit Kaur, , the Apex Court culled out the following principles laid down in Venkatachala Iyengar v. Thimmajamma (supra).
i. The Will has to be proved like any other document and one cannot insist on proof with mathematical certainty. The rest of satisfaction of prudent mind in such matters would apply.
ii. Since Section 63 of the Indian Succession Act requires a Will to be attested, the same cannot be used as evidence until one attesting witness at least is examined for proving execution as per Section 68 of the Indian Evidence Act, subject to attesting witness being alive and being capable of giving evidence.
iii. As the Will speaks from the death of the testator, an element of solemnity is attached to the question whether Will is last testament of the testator, the onus of proving the Will lies on the propounder and it is taken to be discharged on proof of the essential facts which go into the making of the Will iv. If the execution of the Will is surrounded by suspicious circumstances, the initial onus is heavier and the propounder must remove all legitimate suspicion before the document can be accepted as a last Will of the testator.
v. When the execution of the Will is alleged to be tainted with suspicious circumstances, the evidence let in by the propounder must satisfy the judicial conscience and mere proof of Will as per law does not make the Will last testament of the testator.
vi. If a caveator alleges fraud, undue influence and coercion in regard to execution of the Will such pleas have to be proved by the caveator. Even in the absence of such pleas the circumstances surrounding the execution of the Will may raise doubt as to whether the testator was acting on his own volition.
17. As observed by the Supreme Court in Jaswanth Kaur v. Amrit Kaur when execution of the Will is shrouded in suspicion, the proof ceases to be simple lis between plaintiff and defendant and the adversary proceedings in such cases gives rise to a question whether the evidence led by the propounder of the Will is such has to satisfy the conscience of the Court that the document was duly executed by the testator. This Court is also of the considered opinion that mere surmises and hairsplitting contentions not specifically pleaded or brought out in evidence cannot be branded as suspicious circumstances warranting rejection of the Will.
18. These principles have to be kept in mind while appreciating the contentions advanced by the rival Counsel.
(i) Whether execution of the Will is proved?
19. Ex.A.1 Will was registered on 28-9-1979 at the office of the Sub-Registrar, Secunderabad. At the relevant time said Sub-Registrar's Office was situated in the premises (within the precincts of Court compound) where the City Civil Court, Secunderabad was situated. To prove the Will, the plaintiffs examined P.W.2, attestor of the Will, and P.W.3 another attestor of the Will. P.W.4, practising Advocate was also examined to prove endorsement in Ex.A.1 made by one P.V. Krishna Murthy, who dictated the draft of the Will to P.W.2. The events from the day Chandramma decided to execute the Will and till the same was registered as projected by the record are as follows. After death of her husband Chandramma lived with Balarajaiah Goud at Lothukunta. Apart from acquiring absolute rights jointly with her daughter-in-law to the suit schedule lands, she jointly purchased the other properties. By reason of the Will executed by her husband, Pentamma got half share, mat is to say, the branch of Balarajaiah Goud. In 1969, she was made to execute (as alleged by plaintiffs) Ex.A.7 Release Deed and she was not aware of the contents or the purport of Ex.A.7. Sometime in 1979 she went to live with her younger son at Maruti Street, Secunderabad. Being fully aware that Balarajaiah Goud family got half of the property, she desired to bequeath other half of the property in the suit schedule exclusively belonging to her to the children of her second son Sathaiah Goud. In September, 1979 she revealed her desire to P.W.2 seeking his help. After the Will was prepared and made ready by P.W.2 with the help of P.V. Krishna Murthy on 26th and 27th September 1979 and after the same was executed at Registrar's Office and attested by P.Ws.2 and 3 as well as by Seshaiah and Sardar Ali, the same was registered at Secunderabad. It is also the case of the plaintiffs that after P.W.2 prepared the Will as dictated by P.V. Krishna Murthy he took Chandramma to Advocate on 27-9-1979 and that at the office of the Sub-Registrar Krishna Murthy also explained the Will to Chandramma. It is also further case that as requested, P.W.2 and P.W.3 did not reveal the execution of the Will to any of the relatives and as desired by her it was not even revealed to the plaintiffs who came to know about Ex.A.1 only after death of Chandramma.
20. That Krishna Murthy made endorsement Ex.A.1(b) and same was proved by P.W.4, who is a practising Advocate as well as son-in-law of Krishna Murthy. He was examined only to prove that it is only Krishna Murthy who made endorsement Ex.A.1(b) to the effect that he explained the contents of the Will to her and Chandramma affixed her left thumb impression after accepting that the contents of the Will are true and are drafted according to her desire. P.W.4 also denied the suggestion that Ex.A.1(d) which is the signature of Krishna Murthy does not belong to his father-in-law, and further asserted that Ex.A.1(d) is signature of Krishna Murthy. P.W.2 and P.W.3 are related to Chandramma. Indeed, P.W.3 Balaram is grandson of Chandramma being her daughter's son. P.W.2 who is also close relative deposed that on 26-9-1979 Chandramma who is staying with Sathaiah in Maruti Street asked his help to execute the Will, that he approached Krishna Murthy to consult in the matter, that the Advocate wanted to take instructions from Chandramma personally, that he took Chandramma to Krishna Murthy and that after taking instructions from Chandramma, Krishna Murthy dictated Will in Telugu to P.W.2. Thereafter, Krishna Murthy asked P.W.2 to prepare Will and bring it to him for signature. After preparing the Will, P.W.2 and Chandramma met Advocate when he suggested to get Doctor's certificate regarding physical and mental condition. Chandramma was taken to Dr. R.B. Pathale, who after examining Chandramma gave certificate (marked as Ex.A.8). Again they came to Advocate when they were requested to get witnesses. On being asked, P.W.3, Balaram came to the office of Krishna Murthy and on being suggested Balaram also brought Seshaiah and Sardar Ali and all of them went to Court compound for registration of the Will, where Krishna Murthy read the contents of the Will to Chandramma and after admitting the correctness of the Will she put her thumb impression on the Will. Krishna Murthy made endorsement Ex.A.1(b) and signed. Thereafter, Seshaiah and Sardar Ali, P.Ws.2 and 3 attested the Will. P.W.2 further deposed that he made endorsement that he is scribe and signed the same (Ex.A.1(a)) and also signed as attesting witness vide Ex.A.1(c). It is also in the evidence of P.W.2 that all the attesting witnesses saw Chandramma fixing her thumb impression in her presence and after she affixed her thumb impression, P.Ws.2 and 3 and another attesting witnesses affixed their signatures and that Chandramma was in a sound physical and mental condition at the time of execution of Ex.A.1. He also deposed that Chandramma died five years after execution of Ex.A.1.
21. In the cross-examination P.W.2 was confronted with Ex.C.1 to impeach the veracity of his statements in the chief examination. Though initially he denied having given any affidavit, he admitted that he gave Ex.C.1 while asserting that he wrote Ex.A.1 to the dictation of Krishna Murthy, took the draft he prepared as dictated by Krishna Murthy and made a neat copy. Before further analyzing the evidence of P.W.2, it is necessary to deal with Ex.C.1. At the time of filing the suit the plaintiffs filed I.A. No. 1302 of 1984 seeking ad interim injunction restraining defendants from alienating suit schedule properties. Along with said affidavit, plaintiffs filed third party affidavits of P.W.2 as well as P.W.3. Ex.C.1 affidavit was sworn by P.W.2 on 23-3-1985, whereas he was cross-examined on 13-6-1990. Be that as it is, in Ex.C.1, P.W.2 stated that Chandramma gave instructions to draft the Will and he prepared the Will in his own writing in Telugu and that when they assembled in the Court compound, Krishna Murthy read over the Will and explained to Chandramma that thereafter she affixed her left thumb impression and Krishna Murthy made endorsement. Thereafter, P.Ws.2 and 3 attested the Will. In Ex.C.1, P.W.2 states that he prepared the Will, whereas in his evidence he stated that on being requested by Chandramma, first he went to Krishna Murthy, took dictation of the Will in draft form and then prepared fair copy of the Will. This has been made contentious issue by the learned Counsel for the appellants. Nonetheless, a careful reading of evidence of P.W.2 and contents of Ex.C.1 would show that there is not much difference. Except as to how he drafted the Will, everything remains the same. This Court is of considered opinion that the very presence of P.V. Krishna Murthy in the Court compound at the time of registration as stated in Ex.C.1 and the admitted fact that P.W.2 is not acquainted with writing of legal documents would strongly probabilise the version of P.W.2 that first he went to Krishna Murthy along with Chandramma when he dictated the Will in the presence of Chandramma and thereafter he prepared Ex.A.1 before taking Chandramma and other witnesses to the Court compound for registration. Except asking all sorts of questions in cross-examination, nothing substantial was put to P.W.2 in cross-examination to impeach his evidence.
22. P.W.3 while corroborating P.W.2 also deposed that she along with P.W.2 and two others attested Ex.A. 1 after Chandramma affixed her thumb impression in the Court compound before registration and that Krishna Murthy also made endorsement. P.W.3 also figured as attesting eye-witness before Sub-Registrar and his signature is on Page 2 on reverse of Ex.A.1 (marked as Ex.A.1(e)). This witness was also confronted with Ex.C.2 affidavit, which he gave as third party when plaintiffs filed I.A. No. 1302 of 1984. In Ex.C.2, P.W.3 deposed that Ex.A.1 was drafted by P.W.2 on instructions of late Chandramma. But, he stated that he along with other attesting witnesses and Krishna Murthy assembled in the Court compound, the Will was read over to testatrix by Krishna Murthy and it was executed by Chandramma and thereafter all the attesting witnesses attested the document. The discrepancy highlighted in the cross-examination of P.W.3, in the considered opinion of this Court, does not in any manner render Ex.A.1 invalid. As stated earlier, the very presence of Krishna Murthy as stated in Exs.C.1, C.2 and evidence of P.Ws.2 and 3 would certainly probabilise that P.W.2 first took dictation of the draft of the Will, and then prepared the Will Ex.A.1. Therefore, on this question, on consideration of Ex.A.1and Ex.A.1(a) to Ex.A.1 (e) along with the evidence of P.Ws.2, 3 and 4, this Court holds that Ex.A.1 Will has been validly proved and there cannot be any doubt (as pointed out by the learned Counsel for the defendants) regarding execution of Will by Chandramma on 28-9-1979 and registration of the same at office of Sub-Registrar, Secunderabad.
(ii) Whether plaintiffs satisfied suspicious circumstances, if any, as pointed out by the defendants?
23. Learned Counsel for the appellants/ defendants Sri P. Rajasekhar pointed out various suspicious circumstances in support of his request to reject Ex.A.1 Will as last Will and testament of late Chandramma. These circumstances may be dealt with one by one.
(a) Active participation of Advocates
24. The endeavour of the defendants before the Trial Court as reflected in the written statement as well as suggestions made to P.W.2, P.W.3 and P.W.4 had been that initially when the Will was executed and registered there was no endorsement of Krishna Murthy Ex.A.1(b) and that the same was inserted later to cloth Ex.A.1 with the character of being drafted by a Lawyer. If it is accepted, it cannot be said that there was any involvement of Advocate. It is, however, urged before this Court that Sathaiah Goud, father of the plaintiffs had close connections with the office of Sri V.V.L. Narasimha Rao and Sri C. Balagopal, and the Lawyers attached to his office, that those Advocates had close connections with P.V. Krishna Murthy and therefore the Advocates took active part in execution of the Will. As already noticed P.W.4, who is an Advocate and also son-in-law of Krishna Murthy was examined to prove the signature of Krishna Murthy and the handwriting with which endorsement made is that of Krishna Murthy. It is no doubt true that the involvement of P.V. Krishna Murthy has been amply proved. The attention of the Court has not been invited to any provision of law or case-law in support of a contention that whenever an Advocate is involved in the preparation of Will, one should look at the Will with suspicion. Merely because an Advocate is involved, it cannot be said that it is suspicious. Further, it is nobody's case that Chandramma herself approached the Advocate to prepare the Will. It is the case of the plaintiffs that when Chandramma requested P.W.2 to help her in preparation of the Will, latter went to Mr. Krishna Murthy and the said Advocate dictated the draft of the Will only after taking instructions from Chandramma. The Will of Chandramma also makes a reference to a document obtained by her elder son Balarajaiah Goud. This shows that before Krishna Murthy dictated the Will he has gone through the Release Deed and other documents. When there was already a document executed by Chandramma which she did show to Krishna Murthy (P.W.2 in cross-examination speaks about this), there is nothing abnormal in P.W.2 or Chandramma going to a Lawyer for legal assistance.
(b) Chandramma lost testamentary capacity in 1969
25. The submission that Chandramma lost testamentary capacity by reason of Ex.A.7 and therefore the probability of Chandramma executing a Will Ex.A.1 is remote, cannot be accepted. Ex.A.1 makes a reference to a document obtained by Balarajaiah Goud. This shows that Chandramma was aware of her rights in relation to suit schedule property. Indeed, the Will contains a statement that the document obtained by her elder son does not in any way defeat her absolute rights in the property and that the said document only refers to relinquishment of life interest in favour of Pentamma on condition that Pentamma taking care of Chandramma in her old age. Insofar as Chandramma and Krishna Murthy were concerned, they were not at all at doubt with regard to testamentary capacity of Chandramma in respect of Ex.A.7. It is altogether a different question as to what is the true purport of Ex.A.1 and what was relinquished by Chandramma in favour of Pentamma under Release Deed. This does not in any manner render Ex.A.1 suspicious.
(c) Chandramma was not in sound disposing state of mind
26. It is vehemently contended by the learned Counsel for the appellants that Chandramma was mentally worried because of ill-health of Balarajaiah Goud, that she was having defective eye-sight, that she was not having proper advise to understand the contents of the Will and that therefore she was not in a sound disposing state of mind as she was aged 81 years. There is some evidence led by defendants through D.Ws.1 to 3 to show that Chandramma was illiterate and that she was having defective eye-sight. There is also no denial that she was aged about eight years at the time of execution of Will, but none of the witnesses stated that Chandramma was mentally worried or she was not in a sound mental condition. Though D.W.2 (neighbour of Balarajaiah Goud and a distant relative) denied the suggestion that Chandramma was in a sound health at the time of her death, she, however, deposed that Chandramma was looking after herself at the time of her death. D.W.3, who is a maidservant also deposed that till her death Chandramma was looking after herself and she was attending to Chandramma. P.W.1, P.W.2 and P.W.3 were cross-examined at length, but nothing was suggested to show that Chandramma was not in a sound disposing state of mind. The submission is, therefore, devoid of any merit. The submission that she was not having proper advise cannot be accepted. There cannot be any two opinions that when a layman goes to a Lawyer for the purpose of getting a document, naturally the Lawyer would draft the document using appropriate legal language and not common man's language.
(d) Intrinsic evidence and physical features
27. The learned Counsel contends that the signature of the scribe before the attesting witnesses would throw suspicion. According to the learned Counsel, the description and signature of the scribe of the document should find place after the attestor's signature. After carefully considering the submission and having regard to admission made by P.W.2, it is clear he is not used to write legal documents. The submission is liable to be rejected. Further, there is no legal requirement that the name of the scribe with signature should find place at the end of the document after the signature of the attestors.
(e) Thumb impression is smudged
28. The learned Counsel contends that thumb impression of the testatrix is smudged. This submission is noticed only for the purpose of rejection. One should not forget that Ex.A.1 is a registered Will and it carries a presumption that it has been duly executed, especially when two attestors including one identifying witness before the Sub-Registrar speak about the testatrix affixing her left thumb impression. If really the defendants suspected the thumb impression, nothing prevented them to move the Trial Court to send Ex.A.1 to Government Examiner for questioned documents. They did not do so and at the appellate stage it would not be permissible for the defendants to contend that left thumb impression of Chandramma is smudged and therefore the execution is suspicious. No such case was pleaded in the written statements filed by Defendants 1 and 3.
(f) Overwriting on endorsement
29. Learned Counsel contends that the endorsement Ex.A.1(b) of Krishna Murthy was over-written on the script earlier written in pencil and that this was not properly explained. As rightly pointed out by the learned Counsel for the respondents, no such suggestion was made to the plaintiffs' witnesses. Further, dealing with this aspect, learned Trial Judge made the following observations:
After examining the endorsement with the help of that magnifying glass, I felt that the endorsement on Ex-A.1 was not originally written with pencil. When viewed through a large magnifying glass at a certain angle there is likely to be a parallax error and might look as though the writing viewed through is tracing on some earlier writing. Only examination of the said endorsement under ultra violate or infra red rays may give correct picture if the endorsement in ink was traced on an earlier pencil endorsement. Even assuming that the endorsement made by Sri P.V. Krishna Murthy in Ex.A.1 was first made in pencil and was later overwritten or traced with a pen or vice-versa the same is of no consequence, because Ex.A.1 is a registered document, which was executed and registered on the same day as seen therefrom. It is not the case of the contesting defendants that the endorsement said to be made by Sri Krishna Murthy in Ex.A.1 was made subsequent to the registration of the document When the endorsement is made by Sri Krishna Murthy before the document was presented for registration his writing the endorsement with a pencil and later overwriting or tracing the earlier endorsement with a pen or vice-versa has no consequence. If it is their contention that the endorsement said to be in the handwriting of Sri Krishna Murthy in Ex.A.1 was made subsequent to the registration of Ex.A.1, it might be of some consequence. In such an event, the endorsement said to be of Sri P.V. Krishna Murthy would not go into the Registered in the Sub-Registrar's Office. If a registration extract of Ex.A.1 is taken it would have revealed if the endorsement was there or not by the time of registration of Ex.A.1. But registration extract of Ex.A.1 is not produced by defendants. So it has to be taken that the endorsement of Sri Krishna Murthy was there even by the time of presentation of Ex.A.1 for registration.
30. This Court has carefully examined the endorsement Ex.A.1(b) of Krishna Murthy with magnifying glass. This Court is not able to find any writing with pencil beneath endorsement Ex.A.1(b) nor can it be said that the endorsement is overwriting above pencil script. Further, having regard to the stand taken by the defendants before the Trial Court as well as this Court, this Court accepts the findings of the Trial Court extracted hereinabove.
(b) Unnatural bequeath made by Chandramma
31. The plaintiffs, who are sons of Sathaiah Goud, second son of Chandramma, cannot be said to be unnatural as contended by the defendants. A careful reading of the Will of Chandramma would show that she has absolute rights to half share in the property, that document obtained by Balarajaiah Goud earlier as if she had only life interest was not correct, that after death of her husband, she and Pentamma purchased all the properties jointly, that the property that falls to share of Pentamma would any way go to her sons and therefore she desires to give her properties to the sons of Sathaiah Goud. The will also contains the statement that her elder son and elder daughter-in-law did not look after her well and therefore she was voluntarily staying with younger son Sathaiah. Sons of Balarajaiah Goud her elder son succeeded to the property of their mother Pentamma. In such an event, it would be natural for grandmother Chandramma to bequeath property to children of her younger son Sathaiah who by any stretch of imagination cannot be equal in financial status of with that of sons of Balarajaiah Goud. Except the admitted fact that P.W.3 is son of Chandramma's daughter there is no evidence to show that Chandramma had any other heirs nor there is any evidence to show that other heirs are not looked after well. Thus bequeath under Ex.A.1 cannot be said to be unnatural.
(h) Secrecy about Will
32. The allegation that secrecy was maintained at the time of execution of Ex.A.1, that the same was not revealed to anybody and therefore Ex.A.1 is tainted, is without any substance. Ex.A.1 itself furnishes answers to this. As already noticed Chandramma was aware of the document obtained by Balarajaiah Goud from her and she wanted to avoid trouble. Indeed, in Paragraph 2 of Page-3 of Ex.A.1 Chandramma states that she is executing Will so as not to allow her daughter-in-law Pentamma to raise any objections with regard to half share of Chandramma. In such an event, nobody expects the owner of the property to execute Will after wide publicity or publish her Will after execution. It is well settled that when a Will is executed, the testatrix ordinarily trusts persons including relations in whom the testator reposes confidence and not outsiders. It is also well settled that registration of a document is a notice to public at large and when a Will is registered the mere fact that it was not revealed by the testator or those persons involved in the execution till the death of testator, cannot render a solemn testamentary deposition suspicious. A Will speaks from the death of the testator and except in extraordinary circumstances, it should receive the respect as the last testament of testatrix.
(i) The absence of cross-examination on suspicious circumstances
33. Learned Counsel for the plaintiffs/ respondents submits that though the defendants have resorted to raising many non-existent suspicious circumstances, the defendants did not even suggested to plaintiffs witnesses in the cross-examination about these suspicious circumstances. He invited the attention of this Court to A.E.G. Carapiet v. A.Y. Derderian, AIR 1961 Calcutta 359. A Division Bench of Calcutta High Court dealing with this aspect of the matter laid down as under:
The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a Counsel is bound to do when cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiffs account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly because such subsequent testimony has no chance of being tested and corroborated.
(emphasis supplied)
34. In Mrs. Murial Hyden v. Mrs. Dulcie M. Robb, , this Court after referring to the above Calcutta case observed as under:
As held in A.E.G. Carapiet v. A.Y. Derderian (supra) a party should put his or her case in the cross-examination of the witnesses of the opposite party and the above rule is one of essential justice and not merely a technical rule of evidence. The Division Bench of Calcutta High Court clearly laid down that wherever the opponent has declined to avail himself or herself of the opportunity to put his/her essential and material case in cross-examination, it must follow that he/she believed that the testimony given could not be disputed at all. It is further held that such a course serves to prevent surprise at trial and miscarriage of justice because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses.
35. The plaintiffs examined P.Ws.1 to 3 in connection with Ex.A.1 Will. All the suspicious circumstances pointed out before this Court are not even suggested to these witnesses. However, having regard to elaborate submissions made by the learned Counsel for defendants, this Court has adverted to all suspicious circumstances and does not find any merit in them.
(iii) Whether Ex.A.1 Will can be treated as last Will of Chandramma?
36. The propounder(s) of the Will have to show by satisfactory evidence that the Will was signed by the testator, that the testator at the time of execution was in a sound and disposing state of mind and that he/she understood the nature and effect of disposition and then put his/her signature to the document on own free will. When the evidence adduced is disinterested, satisfactory and sufficient to prove, the Courts would be justified in recording a finding in favour of propounders. Further, after the Will is proved as required in law, if the propounders remove all suspicious circumstances pointed out validly, without anything more, the Will has to be accepted as the last testament of testator/testatrix. In this case, the plaintiffs have proved the Will by examining P.Ws.2 to 4 and the suspicious circumstances pointed out by them are found to be nebulous. Therefore, this Court holds that Ex.A.1 is true and valid and the same gives a right to the plaintiffs to claim for partition of the property, which was bequeathed under Ex.A.1 Will. Point No. 1 is answered accordingly.
In Re Point No. (II) Whether Release Deed, Ex.A.7 dated 6.3.1969 executed by Nemuri Chandramma was validly executed by her out of her own free will without undue influence and what was the purport of Ex.A.7?
37. The case of the defendants before the Trial Courts as well as this Court is that Chandramma relinquished her rights in the suit schedule property executing Ex.A.7 Release Deed, that on 6.3.1969 that is on the same day she also executed Ex.B.6 settlement deed along with first defendant in favour of Nemuri Sulochana, W/o. Sathaiah Goud, who in turn executed Ex.A.7 deed of disclaimer and that Chandramma lost her testamentary capacity having released all her rights in the suit schedule property. The defendants, however, did not deny that before execution of Ex.A.7 Release Deed, Chandramma had certain rights in the property. Per contra, the plaintiffs contend that Ex.A.7 is not out of free Will and volition of Chandramma, that it was obtained by first defendant and her husband Balarajaiah Goud by exercising undue influence on Chandramma and therefore Ex.A.7 is not a valid legal document. Alternatively, they also contend that even if Ex. A.1 is valid and binding on Chandramma and Pentamma, what was relinquished by former was the assets inherited by her under the Will dated 2.1.1956 executed by Saya Goud and she did not relinquish her half share in the suit schedule properties.
38. The defendant mainly rely on Exs.A.7, B.6, B.7, B.8 to B.15. The plaintiffs, on the other hand, rely on certain admissions made by Defendants No. 3 in the written statement in the present proceedings, the evidence of Defendant No. 3 as D.W.1, Exs.A.10, A.11 and the Will Ex.A.1 in support of their contention that Ex.A.7 does not in any manner divest Chandramma or plaintiffs who are her legatees. Before further proceeding with this point, a reference needs to be made to supplemental proceedings in this appeal initiated by the appellants/defendants in relation to Ex.A.7 and the Will executed by Saya Goud on 2.1.1956.
39. During the trial, the Will admittedly executed by Saya Goud bequeathing his property in favour of Chandramma and Pentamma was not produced by the plaintiffs on whom the burden lies to prove a relevant fact in issue regarding the property bequeathed by Saya Goud. Further, though the Release Deed dated 6.3.1969 is registered document, the original of the same was not produced. Only a certified copy was asked as Ex.A.7. The defendants alleged that these two documents were part of the title deeds handed over to Andhra Bank for obtaining loan for third respondent herein, that Andhra Bank filed a suit being O.S. No. 403 of 1976 on the file of the Court of III Additional Judge, City Civil Court, Secunderabad, that Andhra Bank, Rashtrapati Road Branch filed these two documents along with suit which were also marked and that in spite of their best efforts they could not take return of these documents. The appellants/defendants therefore filed C.M.P. No. 17581 of 2001 praying this Court to call for the original of the Will dated 2.1.1956 executed by Saya Goud and the original of the registered lease deed executed by Chandramma on 6.3.1969 (the certified copy is marked as Ex.A.7) filed O.S. No. 403 of 1976 on the file of the Court of III Additional Judge, City Civil Court, Secunderabad and to mark them as exhibits in the appeal. The said application was not opposed by the plaintiffs. By order dated 13.2.2004 this Court allowed the application directing to summon the original of the Will dated 2.1.1956 and the original registered Release Deed dated 6.3.1969 which are said to have been marked in O.S. No. 403 of 1976. The learned Senior Civil Judge, City Civil Court addressed a letter dated 2.3.2004 to the Registrar of this Court informing that "Will" executed by Saya Goud was not available in the bundle. This Court directed the learned Senior Civil Judge to transmit the entire case bundle in O.S. No. 403 of 1976 to this Court. Accordingly, record has been transmitted. The Will of Saya Goud which is said to have been marked in the said suit is not traceable. Be that as it is, with the consent of the learned Counsel for the appellants and the learned Counsel for the respondents, original Release Deed is marked as Ex.B.64.
Pleadings
40. As repeated reference is made to Ex.A.7 (Ex.B.64), it is necessary to refer to pleadings on record, evidence on record and the inference the rival parties would like this Court draw from these documents.
Plaintiffs' pleadings
41. The plaintiffs while asserting that after death of Saya Goud, Chandramma and Pentamma purchased the properties in suit schedule land and were in joint possession and enjoyment of the same, further alleged as under:
"...in the year 1969 the said Neman Balarajaiah Goud and Defendant No. 1 herein made Nemuri Chandramma to execute Release Deed purporting to release all her rights with the properties held by her jointly with Defendant No. 1 in favour of Defendant No. 1. The Release Deed contains false recitals that Chandramma had life interest in the properties. In fact, she has absolute share in the properties. The said Release Deed in vitiated by forgery, undue influence and coercion exercised by Defendant No. 1 and her husband on Smt. Nemuri Chandramma, who is an illiterate lady...."
"...Second defendant herein filed a suit O.S. No. 927 of 1977 on the file of the III Additional Judge, City Civil Court, Secunderabad, against his brothers, father and mother, Nemuri Pentamma, his stepmother Nemuri Kausalya and his grandmother Nemuri Chandramma, claiming that the properties mentioned therein are joint family properties. The properties mentioned in the suit which are included in the plaint schedule properties in this suit do not belong to joint family. During the pendency of the suit, Nemuri Balarajaiah died and after his death Defendant No. 2 and his brothers and mothers ultimately came to a compromise under which they purported to decide the properties among themselves without the concurrence of Nemuri Chandramma...."
"The plaintiffs submit that the said compromise and purported division of properties does not in any way affect the rights of Nemuri Chandramma in the properties which were owned by her and which she bequeathed to the plaintiffs herein."
(emphasis supplied) Defendants' Pleadings
42. As noticed already, Defendant Nos. 1 and 3 filed separate written statements. The relevant counter pleadings in the written statement of first defendant are as under:
"...It is submitted that late Nemuri Saya Goud bequeathed his properties movable and immovable properties held by him and his wife, Nemuri Chandramma, jointly with Defendant No. 1 herein and his wife late Nemuri Chandramma.... After his death all the properties devolved upon his wife Chandramma, daughter-in-law Pentamma, who is Defendant No. 1 and came into joint possession and enjoyment of Nemuri Chandramma and Defendant No. 1 herein. Thus Nemuri Chandramma and Defendant No. 1 herein became absolute owners of agricultural lands as mentioned in the Will executed by late Saya Goud. Thereafter, said Nemuri Chandramma and Defendant No. 1 herein purchased agricultural lands bearing S.Nos. 284, 285, 290, 291, 292, 293 and 602 situated at Lothukunta, Alwal, R.R. District. It is submitted that thereafter late Nemuri Chandramma executed a Release Deed in favour of Defendant No. 1 herein. As such, the Defendant No. 1 herein alone has been in continuous possession and enjoyment of the agricultural lands as absolute owner...."
"After sale by the pattadar in favour of Nemuri Chandramma and first defendant herein late Nemuri Chandramma executed a Release Deed in favour of Defendant No. 1 herein and no influence was used for the purpose of executing the said Release Deed. It is false to state that the Release Deed contains false recitals and that Smt. Nemuri Chandramma has only life interest in the properties. The Will executed by late Saya Goud clearly shows that late Nemuri Chandramma had only life interest in the properties and thereafter all the rights in her favour have been relinquished in favour of the Defendant No. 1 herein. As such, it cannot be said that the Release Deed executed by Nemuri Chandramma contains false recitals...."
"...It is submitted that late Nemuri Chandramma executed a Release Deed with free will and consent in favour of this defendant. The said Will is valid and binding on the plaintiffs and other members of the family.......Late Chandramma had got only life interest for being maintained from out of the corpus left behind by Saya Goud and from out of the properties acquired from the corpus...."
(emphasis supplied)
43. In the written statement filed by Defendant No. 3 which is adopted by other defendants, the following pleadings find place.
Late Saya Goud, paternal grandfather of this defendant was having two sons - Balraj Goud and Sathaiah Goud. The latter lived separately from him while the eldest Balraj lived with him throughout and till his death. During his lifetime, there were tax recovery proceedings even against Balraj Goud, in respect of the abkari business carried by him. Therefore, Saya Goud executed a Will dated 2.1.1956. Under the said Will, he intended to bequeath the said property to the wife of Balraj Goud, Pentamma so that her children (sons of Balraj Goud) would benefit from his estate. He, however, made specific mention in the effective part of the Will to the effect that during the lifetime of Chandramma, Pentamma should look after the welfare of Chandramma and that Pentamma should spend the income from the properties for the welfare and maintenance of both, thereby he had safeguarded the well being and maintenance of Chandramma for the rest of her lifetime by making Pentamma responsible for the same. (Para 5) While continuing to live with her son, Balraj Goud and his family, she had expressed a spoken wish and persuaded Pentamma to agree for giving a piece of land to her second son, Sattaiah Goud eventhough he was living away from the family and has had no love lost between him and his brother's family on the ground that he too could construct a house for the residence of his family similar to the house proposed by Pentamma and Balraj in the land covered by S.Nos. 293 and 284 of Lothukunta. Pentamma who never displeased or denied her (Chandramma's) spoken wish, had agreed to give to her son, Sathaiah, a piece of land admeasuring 2,982 Sq. yards situated in one corner of the land. It was only in pursuance thereof, Sathaiah also had happened to construct a house similar to the house constructed by Pentamma in S.No. 293 and 284 but had not chosen to reside therein, as expected and wished by his mother. (Para 7) Since it was felt that Chandramma is likely to be influenced and even persuaded by her son, Sathaiah from time to time to give more and more property to him to the detriment of Pentamma and her children, it was suggested to and agreed by Sathaiah and also by Chandramma.
(i) that Chandramma should execute a Release Deed giving up all her rights, claims and interests of whatsoever nature she had in the estate in favour of Pentamma;
(ii) that the piece land on which the building was constructed should be transferred and settled in the name of Sulochana, wife of Sathaiah as by that time Sathaiah was indebted towards abkari dues etc.
(iii) that Sulochana should execute a deed obviously intending to bind her family disclaiming any interest or share in the properties of Chandramma and Pentamma. (Para 8) (emphasis supplied) It was in pursuance of the aforesaid arrangement worked out, by all persons interested, three documents were executed on 6.3.1969 and all the three documents were duly registered as Document Nos. 467 to 469 of 1969 were duly attested by Nemuri Sathaiah Goud, father of the plaintiffs, among others. Under the Settlement Deed executed by Pentamma and Chandramma, piece of land admeasuring 2982 sq. yards on which the building was constructed by Nemuri Sathaiah and his family was transferred and settled in the name of Sulochana, more to save the said property for her family. The second document was executed by Nemuri Sulochana disclaiming all and whatever rights and thereby meaning all the rights of her family, in the properties described therein and belong to the estate of late Saya Goud. This was so done with full knowledge that Nemuri Sathaiah or his family should not seek any more indulgence from Chandramma and Pentamma. The third document was a Release Deed executed by Chandramma in favour of Pentamma. Under the said Release Deed, Chandramma released all her rights, life interest, interests and claims whatsoever there may be under the Will dated 2.1.1956 of late Saya Goud, which she had inherited (and described in the schedule of the properties) in favour of Pentamma. She had also admitted that Pentamma has become the absolute owner of the said properties, including the rights and interest and title of the releasor, Chandramma. The said document discloses all the items, which are reproduced in plaint schedule. The said Release Deed was attested by Pentamma's husband (Balraj Goud) and plaintiffs' father, Sathaiah Goud. These documents were given effect to by all the parties and were in force without being questioned or disputed for fifteen years, till plaintiffs filed this frivolous suit. (Para 9) ... This defendant submits that after releasing and relinquishing whatever rights, Chandramma had until the date of release, Chandramma ceased to have any manner of right, claim or interest in the said properties and particularly when she had not reserved for herself any right or interest in the said properties. As such, there was nothing which Chandramma could cither bequeath or transfer to anyone whosoever. (Para 10) Oral Evidence Defendants' evidence
44. First defendant Pentamma died during the pendency of the suit. She would have been the best person to speak about the contemporaneous events connected with Ex.B.64, B.6 and B.7. In the absence of such best evidence, Sathaiah Goud and father of the plaintiffs, who is alive and who also attested Ex.B.64, being beneficiaries of Ex.B.64 the defendants ought to have taken necessary steps in this direction for if Ex.B.64 is rejected as amounting to release of all properties of Chandramma in favour of Pentamma, it is the defendants who would stand to loose. The defendants examined only D.W.1, who is Defendant No. 3 and third son of Balarajaiah Goud. In 1969 he was aged 20 years. He claims that he was associated with execution of Ex.B.64 by Pentamma. He also admits that he never saw the Will executed by Saya Goud. Being the only witness to speak about the Will executed by Saya Goud Ex.B.64 and B.6 his deposition regarding these documents assumes importance. He gave evidence to the effect that he has never seen the Will executed by Saya Goud as the same was in the custody of Andhra Bank. He also asserted that defendants are not summoning the said Will. Answering the question as to what was the property bequeathed by Saya Goud under the Will he admitted that his grandfather gave certain jewellery and that his mother, first defendant, and late Chandramma jointly purchased the lands (suit schedule lands) from the pattadars. He was confronted with Ex.A.10 which is written statement filed by Pentamma in O.S. No. 927 of 1977. Admitting that all the defendants filed Ex.A.10, he also agreed that Pentamma did not refer to Ex.B.64 executed by Chandramma.
45. In his cross-examination while accepting that he was nineteen years of age in 1969, he further stated that at the time of execution of Exs.B.64, B.6, B.7 he was present and that he has seen Chandramma executing Ex.A.7 and that his grandmother Chandramma did not file any independent written statement in O.S. No. 927 of 1977 nor did she file any compromise Memo in the said suit. The following statements of D.W.1 in his evidence throw some light on the question of property that was bequeathed by Saya Goud and the property that was released by Chandramma.
"...I have seen the Release Deed (Ex.A.7) executed by Chandramma. It is not true to suggest that in Ex.A.7 Chandramma had set out that she got life interest under the Will of her husband and that she was transferring that interest in favour of Pentamma, first defendant herein....
...It is not true to say my father as elder brother was dominating. It is not true to say that in pursuance of the Will deed my mother and grandmother have got equal shares. It is not true to say that in Ex.A.7 we have decided life interest was being released in favour of my mother. It is not true to say that because that Will could reveal Chandramma had full half right in the property we are suppressing original Will deed...."
46. Apart from the question of veracity and truthfulness of D.W.1 whatever he has stated is not corroborated by adducing other relevant oral and documentary evidence. Indeed, the Will executed by Saya Goud in 1956 would have strengthened the case of the defendants. Their failure on this front is fatal because it is they who have been claiming throughout that Saya Goud bequeathed all the properties equally to Chandramma and Pentamma, but the former was given only life interest which was relinquished under Ex.B.64 (Ex.A.7). Though the defendants did not take any steps to summon the original Will dated 2.5.1956 of Saya Goud which was allegedly kept with Andhra Bank, and the original Release Deed executed by Chandramma, the defendants belatedly filed an application being C.M.P.No. 17581 of 2001 on 12.9.2001 (appeal was filed on 24.1.1994) praying this Court to summon these two documents and mark them as exhibits. Despite strenuous efforts made by the Trial Court Release Deed only has come to light and the original Will of Saya Goud said to have been filed in the suit filed by Andhra Bank in O.S. No. 403 of 1976 on the file of the Court of III Additional Judge, City Civil Court, Secunderabad, was not found in the original record. The defendants also did not take any steps to produce secondary evidence as contemplated under Sections 63 and 65 of the Indian Evidence Act, 1872. We have before us the evidence of D.W.1, as well as subsequent legal documents which came into existence making a reference to the Will executed by Saya Goud in 1956. One is therefore constrained to co-relate the pleadings, the evidence and other documents making reference to the Will executed by Saya Goud to draw appropriate inference as to the nature of bequeath and as to property bequeathed under the said Will of Saya Goud.
Plaintiffs oral evidence
47. The plaintiffs examined four witnesses. P.Ws.2 and 3 were examined to prove the Will Ex.A.1 executed by Chandramma in favour of plaintiffs whereas P.W.4 was examined to prove the handwriting and endorsement Ex.A.1(b) of P.V. Krishna Murthy in Ex.A.1. Here again therefore we have only the evidence of Plaintiff No. 3 who was examined as P.W.1. Kasinadh deposed that Sayanna Goud held protected tenancy rights in respect of lands in S.Nos. 284, 285, 290, 293 and 292 admeasuring Acs. 19.15 guntas situated in Alwal Village, that he executed Will on 2-1-1956 bequeathing gold and cash equally to his wife and Pentamma, that Pentamma had custody of the Will of Saya Goud and that there is recital in the Will to the effect that the properties were acquired by him and by his wife Chandramma with their earnings. He also deposed that after death of Saya Goud, Chandramma and Pentamma purchased the tenancy rights from pattadar to become absolute owners besides purchasing other lands in S.Nos. 295 and 602 situated at Alwal. Giving evidence regarding Ex.B.64 he deposed as under:
...After the death of my grandfather the husband of Pentamma (D1) was looking after the family affairs. My father, who is the younger brother of Balarajaiah was under his control. Chandramma was illiterate. In 1969 Chandramma executed a Release Deed in favour of D1 in respect of her share of the properties. The document was executed by Chandramma under undue influence and coercion exercised by Dl and her husband. D1 and her husband were not properly looking after Chandramma during her lifetime. Till 1977 Chandramma was living with D1 and her husband at Lothukunta. In 1979 she came away to Secunderabad and started living with my father unable to bear the ill-treatment given by Dl and her husband. While Chandramma was living in Lothukunta D2 herein filed a suit against his brothers and Dl and Chandramma in O.S.No. 927/77 on the file of III Assistant Judge, in that the properties given to Chandramma and Dl were also included as joint family properties. There was a settlement between the parties without including Chandramma....
48. It appears that the plaintiffs issued a notice to first defendant to produce the original Release Deed and Will of Saya Goud and defendants did not do so. Speaking about this, P.W.1 further produced certified copies of plaint, and written statements and the compromise Memo as well as the Court orders in O.S. No. 927 of 1977 to show that even according to Pentamma she and Chandramma got only movable properties under the Will of Saya Goud and that subsequently they purchased all the other properties with equal share and that Chandramma and Pentamma are absolute owners and possessors of all the suit schedule lands having half share each. When Kashinadh came to witness box to give evidence as P.W.1 he is shown to be aged 29 years in October 1988 which means that he was about 19 years age. His oral evidence therefore is based on various documents which in all probability he has scrutinized before coming to the Court. Except regarding certain minor things, his evidence on this aspect also cannot be said to be valuable for adjudication.
Documentary evidence
49. The documents relevant for consideration of the point may be conveniently discussed under two heads, namely, basic documentary evidence and supporting documentary evidence. That is to say, basic documents are the documents which were executed by persons who had reciprocal rights and they deal with the vesting or divesting of such rights. On the other hand, the supporting documents would help to draw a conclusion as to what purpose to basic documents intended with regard to vesting or divesting of their rights and these also help to understand how the persons acting under those basic documents understood or planned their actions.
50. Exs.B.64 (Ex.A.7), B.6, B.7 and the Will executed by Saya Goud in 1956 from the group of basic documents. The other group of supporting documents are Exs.A.10, A.11 and B.16 to B.30. All these are registered documents. A reference to the written statements filed by Defendants 1, 3 as well as evidence of D.W.1 also has to be made again to know as to how the parties to the suit understood the documents.
(a) First Group of Documents
51. The basic documents as noticed are Exs.B.64, B.6 and B.7 came into existence on 6.3.1969. Chandramma and Pentamma are parties to Ex.B.64 (Ex.A.7) and Ex.B.6, whereas Ex.B.7 was executed by Nemuri Sulochana, W/o. Sathaiah Goud. It is not denied that Saya Goud was a protected tenant and also was having toddy business. Except the protected tenancy rights in the land he has no immovable property when he died. By Will executed on 2.1.1956 he bequeathed some property to his wife and daughter-in-law Pentamma. After his death, both of them purchased the properties in suit schedule jointly and were enjoying possession of the properties. These facts cannot be denied. The controversy, however, is whether Saya Goud bequeathed life interest only to Chandramma giving vested reminder to Pentamma, whether under Release Deed Ex.B.64 Chandramma relinquished her life interest only and what was the property bequeathed under the Will executed by Saya Goud. As already pointed out the best piece of evidence would be the Will dated 2.1.1956 executed by Saya Goud. The defendants took a stand that the suit schedule properties are bequeathed by Saya Goud to Pentamma giving only life interest to Chandramma. Curiously, they did not produce the Will nor did they take any steps to prove the contents of the said Will. D.W.1 (Defendant No. 3) in fact was bold enough to say in the witness box that defendants are summoning the Will executed by Saya Goud. Before considering the effect of non-production of the Will of Saya Goud, it is proper to refer to basic documents.
52. As noticed, with the consent of the parties, Ex.B.64, original of Release Deed is marked by this Court. None of the persons - either the parties to Ex.B.64 or witnesses who are connected with Ex.B.64 are examined. Be that as it is, the relevant recitals and covenants in Ex.B.64 are as under
WHEREAS the "RELEASOR" is the mother-in-law and the "RELEASEE" is the daughter-in-law AND WHEREAS the "RELEASOR" and "RELEASEE" inherited cash and other properties from Late Saya Goud out of which they have purchased agricultural lands bearing Survey Nos. 284, 285, 290, 292, 293 admeasuring 19 acres 15 guntas and Survey Nos. 29l admeasuring 1 acre and 30 guntas and adjacent land as per order of the Tahsildar, Hyderabad West under a Will dated 2.1.1956. AND WHEREAS after the said inheritance the said two parties are in possession and enjoyment of the said agricultural lands and constructions thereon AND WHEREAS under the said Will the "RELEASOR" has got only life interest and the "RELEASEE" total interest in the said property. AND WHEREAS the "RELEASOR" has become old and infirm and wants to release her life interest rights once for all in the said property in favour of the "RELEASEE".
AND WHEREAS the "RELEASEE" has agreed to maintain the "RELEASOR" throughout her lifetime and to meet all her expenses, needs etc.
53. The schedule property in Ex.B.64 shows all the agricultural lands shows in item-5 of the plaint schedule properties except S.No. 602 as well as eleven houses situated at Luthokunta. Be it also noted that it is the case of plaintiffs as well as defendants that Chandramma and Pentamma separately purchased land in S.Nos. 291 and 602 subsequently. A plain reading of the document executed by Chandramma would show that Saya Goud bequeathed cash and other properties, that mother-in-law and daughter-in-law purchased agricultural lands, that they were in possession and enjoyment, that they made constructions thereon and that under the Will of Saya Goud, Chandramma got only life interest which she relinquished in favour of Pentamma. The recitals are contradictory to each other. If Saya Goud bequeathed cash and other movable properties from out of which the agricultural properties where constructions were made latter were purchased, the recitals that Saya Goud gave only life interest to Chandramma would certainly be superfluous and illogical. Further, "the release clause" shows that Chandramma released her rights, interests and life interests which she got under the Will of Saya Goud dated 2.1.1956. If Saya Goud bequeathed only cash and other properties (not alienated) and house property, the reasonable interpretation of Ex.B.64 would be that Chandramma relinquished her only rights and claims whether life interest or absolute interest in the property which she inherited under the Will of Saya Goud. If the document is interpreted otherwise, the same has no meaning. Further, it is admitted case that late Chandramma and Pentamma purchased all the immovable properties subsequent to death of Saya Goud which only means that they did not inherit the immovable properties under the Will whether by way of life interest or absolute right.
54. Ex.B.6 is deed of settlement dated 6.3.1969. Chandramma and Pentamma and Sulochana (mother of plaintiffs) are parties to this document. Under these documents the two settlers settled piece of land admeasuring 2,982 Sq.yards adjacent to S.Nos. 284 and 293 in favour of Sulochana with absolute rights. In this document Chandramma and Pentamma also assert that both of them are owners of land in S.Nos. 284 and 293. Ex.B.7 is a reciprocal document styled as deed of disclaimer executed by Sulochana in favour of Chandramma and Pentamma declaring that Sulochana has no claim, interest, rights and title to the property in S.Nos. 284 and 293. This document refers to them as beneficial owners. However, curiously, Ex.B.7 contains recital to the effect that Saya Goud settled all his properties admeasuring Ac.22.15 guntas on mother-in-law and daughter-in-law who are exclusive owners and enjoyers. Exs.B.6 and B.7 which were executed by respective parties on the same day when Ex.B.64 was executed, do not even contain whisper that what was bequeathed by Saya Goud to Chandramma is life interest only.
55. While considering these basic documents one cannot ignore Ex.A.1 also. Ex.A.1 executed by Chandramma who also executed Ex.B.64 as well as Ex.B.6 cannot be lightly brushed aside on this side as contended by the learned Counsel for the defendants. In Ex.A.1 Chandramma also asserted that she and her daughter-in-law inherited cash and jewellery only from Saya Goud and later purchased suit schedule properties in which they have equal share.
Second Group of Documentary Evidence
56. Supporting documents referred to hereinabove from the other group. Exs.A.1 1 and A. 10 which are plaint and written statement respectively in O.S.No. 927 of 1977 on the file of the Court of III Additional Judge, City Civil Court, Secunderabad. Second defendant in the present suit filed O.S.No. 927 of 1977 for partition of 'A' and 'B' schedule properties into six equal shares and for allotment of one such share to him. The plaint 'A' schedule therein consists of immovable properties both agricultural lands and house properties. Plaint 'B' schedule consists of two motor vehicles and buffaloes and other cattle. Balarajaiah Goud, Defendant No. 1, Defendant Nos. 3 to 6, Kausalya (second wife of Balarajaiah Goud) and Chandramma are defendants to the said suit. Srihari, as plaintiff alleged that when there were tax recovery proceedings against Balarajaiah Goud in connection with Abkari business so as to avoid attachment of properties Saya Goud executed Will in favour of Chandramma and Pentamma as trustees for the benefit of sons of Balarajaiah, that the properties given under the Will were intended to be held by defendants Chandramma and Pentamma for the benefit of the family members and therefore all the sons of Balarajaiah Goud have proportionate right in the properties. Opposing the suit, Pentamma filed a detailed written statement which was adopted by other defendants. A copy of the plaint is marked as Ex.A.11 in the present suit whereas written statement filed by Pentamma is marked as Ex.A.10.
57. Pentamma was Defendant No. 6 in O.S.No. 927 of 1977. She filed a written statement which is marked in this suit as Ex.A.10. While denying all the allegations made by her son in the plaint with regard to the Will executed by Saya Goud with regard to nature of the ownership jointly held by her and Chandramma, she made the following statement:
Late Saya Goud did not get any property from his parents and as such whatever he had bequeathed by his Will dated 2nd January 1956 are self earned property and as such except beneficiaries, this defendant and the Defendant No. 8, Smt. N. Chandramma, none has any right, interest in the said property nor anyone had any right of inheritance or partition. It is denied that due to recovery of tax and abkari arrears proceedings against N. Balraj and N. Sattya late Saya Goud bequeathed the properly to 6th and 8th defendants. As these tow defendants have served the old man, he bequeathed cash and gold to these defendants Nos. 6 and 8, who purchased the suit lands and constructed the building at Lothukunta, with their earnings from agriculture.
(emphasis supplied) She also further asserted in Ex.A.10 as under:
As a matter of fact late Saya Goud has not left any properties except cash and gold. The properties were acquired by this and 8th defendant after the death of Saya Goud .... The agricultural lands mentioned in Item No. 7 in Schedule 'A' were purchased by the 6th and 8th defendants from Kishan Rao on 7.4.1956 ad 22.3.1959 and this defendant is being assessed to Income Tax and Wealth Tax from 1958 and as such at no time neither the first defendant nor Defendant Nos. 2 to 5 have held the Lothukunta properties of this defendant as that of joint family properties of Defendant No. 1.
(emphasis supplied)
58. The above excerpts speak for themselves and no further elaboration or explanation is necessary. Ex.A.10 filed by Pentamma was adopted by all her sons and indeed, Chandramma also signed the Memo which is marked as Ex.A.12 and filed in the Court adopting the written statement Ex.A.10. Subsequently, plaintiff therein, namely, Nemuri Srihari (second defendant herein) filed Memo Ex.A. 13 praying the Court of III Additional Judge, City Civil Court, Secunderabad to dismiss the suit as not pressed stating that the plaintiff and Documents 2 to 7 therein amicably settled and family arrangement was arrived at.
59. Exs.B.16 to B.30 are income tax returns or assessment orders by Income Tax Officers. These, especially Ex.B.23 would show that upto 1969 Chandramma and Pentamma also filed income tax returns showing the income they derived from cultivation of the suit schedule lands. Ex.B.8, B.9 and B.10 are Khasra pahanis for the years 1954-55, 1961-62 and 1976-77 in that order. Ex.B.8 shows that Saya Goud was protected tenant whereas Ex.B.9 shows that Chandramma and Pentamma are occupants of the lands. Even Ex.B.15 which is the order dated 30.9.1975 passed by the Land Reforms Tribunal, Hyderabad (West) determining that the family of Nemuri Pentamma was consisting of family unit of two members. A reading of Ex.B.15 and B.16 to B.30 would show that Nemuri Balalaraju or Balarajaiah was looking after income tax as well as revenue matters on behalf of Chandramma and Pentamma.
Findings of this Court on Point No. II Why Chandramma was made to execute Ex.B.64 Release Deed?
60. The third defendant in his written statement offers an explanation for this. He stated that Pentamma who was living with her elder son Balaraj or Balarajaiah expressed that Sathaiah Goud her younger son be given a piece of land in S.Nos. 284 and 293 of Lothukunta for construction of a house. Pentamma agreed for this and to prevent Sathaiah from repeatedly demanding from more and prevent Chandramma from being influenced by such demands from her son, it was suggested that Chandramma should execute a Release Deed giving up ail her rights, claims and interests in the estate in favour of Pentamma, that the land to be given for construction of house should be settled in the name of Sulochana, W/o. Sathaiah and that Sulochana should execute a deed of disclaimer. When according to defendants Saya Goud only gave life interest to Chandramma in cash and jewellery bequeathed under the Will in 1956, there was no necessity for execution of Release Deed Ex.B.64. As seen from the record, Saya Goud gave only cash and jewellery and subsequent to his death Chandramma and Pentamma purchased other properties which forms the suit schedule. Indeed, Pentamma in her written statement Ex.A.10 in O.S.No. 927 of 1977 has made admissions agreeing to this position. D.W.1 also admitted that his mother Pentamma filed written statement in O.S.No. 927 of 1977 and all the defendants adopted the same, and that Chandramma did not file independent written statement. He also admitted that Chandramma is an illiterate and put her thumb impression. This shows that defendants are very much aware of the contents of Ex.A.10.
What is the effect of Pentamma's written statement Ex.A.10?
61. This is evidence with considerable probate value and it is of binding nature on defendants who are claiming properties through Pentamma. A reference may be made to Biswanath Prasad v. Dwarka Prasad, and Union of India v. Moksh Builders and Financiers, .
62. In Biswanath Prasad v. Dwarka Prasad (supra) the Supreme Court having referred to Sections 21 and 145 of the Evidence Act laid down as under:
There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by use of his prior statement In the former case an admission by a party is substantive evidence if it fulfils the requirements of Section 21 of the Evidence Act: in the later case a prior, statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore: in the later case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by Section 145 of the Evidence Act.
63. In Union of India v. Moksh Builders and Financiers (supra) the Supreme Court laid down as under:
It has been held by this Court in Bharat Singh v. Bhagirathi, that an admission is substantive evidence of the fact admitted and that admissions duly proved are "admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions." In taking this view this Court has noticed the decision in Ajodhya Prasad Bhargava v. Bhawani Shanker, (FB) also.
(emphasis supplied)
64. It may also be pointed out that Ex.B.64 (Ex.A.7) came into existence on 6.3.1969 whereas Ex.A.10 written statement was filed by Pentamma in O.S.No. 927 of 1977 on 18.1.1978 and the same was adopted by her sons (defendants herein) by filing Memo Ex.A.12 on the same day i.e., 18.1.1978. Therefore, the defendants cannot now be allowed to contend that Chandramma released all her rights under the suit schedule property in favour of Pentamma. Pentamma or the defendants having specifically taken a stand that both mother-in-law and daughter-in-law have equal share in the property they purchased or acquired subsequent to death of Saya Goud, cannot turn back and contend otherwise.
65. Whether Ex.B.64 (Ex.A.7) was executed by Chandramma under coercion and undue influence from her son Balarajaiah and whether Ex.B.64 was not executed by Chandramma out of her own free will and volition? As already noticed plaintiffs came to the Court with a specific plea that Balarajaiah and Pentamma dominated the Will of Chandramma and she was made to sign Ex.B.64 by exercising undue influence and coercion and by playing fraud. If the plaintiffs can succeed by proving anyone of these grounds be it fraud, be it undue influence, coercion or misrepresentation, the relinquishment cannot be valid.
66. A contract entered into by a person without full knowledge or purport of such contract, or a contract without proper consideration (except in exceptional cases), is void or voidable at the behest of victim of such coercion or undue influence. But, a contract vitiated by fraud suffers from incurable defect. Sections 13 to 18 of the Indian Contract Act, 1872 define/describe "consent", "free consent", "coercion"', "undue influence", "fraud", and "misrepresentation". As this Court finds that the allegations of fraud and coercion are not specifically pleaded or proved, much time need not be devoted to this aspect of the matter. The plaintiffs also pleaded misrepresentation and undue influence. It would therefore be necessary to notice Sections 13, 14 and 16 which read as under:
13. 'Consent' defined :--Two or more persons are said to consent when they agree upon the same thing in the same sense.
14. free consent' defined :--Consent is said to be free when it is not caused by--
(1) coercion as defined in Section 15, or (2) undue influence, as defined in Section 16, or (3) fraud, as defined in Section 17, or (4) misrepresentation, as defined in Section 18, or (5) mistake, subject to the provisions of Sections 20, 21 and 22.
Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake.
16. 'Uncle influence' defined :--(1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another--
(a) Where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other, or
(b) Where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other.
Nothing in the sub-section shall affect the provisions of Section 111 of the Indian Evidence Act, 1872 (1 of 1872) Illustrations
(a) A, having advanced money to his son, B, during his minority, upon B's coming of age obtains, by misuse of parental influence, a bond from B for a greater amount than the sum due in respect of the advance. A employs undue influence.
(b) A, a man enfeebled by disease of age, is induced, by B's influence over him as his medical attendant, to agree to pay B an unreasonable sum for his professional services, B employs undue influence.
(c) A, being in debt to B, the moneylender of his village, contracts a fresh loan on terms which appear to be unconscionable. It lies on B to prove that the contract was not induced by undue influence.
(d) A applies to a banker for a loan at a time when there is stringency in the money market The banker declines to make the loan except at an unusually high rate of interest A accepts the loan on these terms. This is a transaction in the ordinary course of business, and the contract is not induced by undue influence.
67. As per Section 13 when a particular thing is agreed in the same sense by two or more persons they are said to consent to such thing. If a contract is induced by undue influence by reason of subsisting relationship between parties where one party is in a position to dominate the Will of the other and uses such position for obtaining unfair advantage, the contract is said to be induced by undue influence. Section 16 gives four illustrations. Illustration (a) deals with paternal influence and illustration (b) deals with a person enfeebled by disease of age. It is admitted by all the witnesses that after death of her husband Chandramma all along had been living with the family of Balarajaiah Goud except for a brief period when she lived with her younger son Sathaiah where she died. It is also the case of the defendants that after death of his father, Balarajaiah became the head of the family and it is also the case that Saya Goud and Chandramma had good rapport with Pentamma and that is the reason why Saya Goud bequeathed half his property in movables to Pentamma as well excluding the other daughter-in-law Sulochana. These facts are spoken to both by P.W.1 as well as D.W.1. P.W.1 in his evidence deposed that Exs.B.6, B.7 and B.64 were executed under undue influence and coercion. He also deposed that Chandramma was illiterate (this is admitted by all) and that she was living with Balarajaiah family except for a brief period. In rebuttal except denying allegations of undue influence, the defendants, evidence is scant. Therefore, it is reasonable to draw an inference that Chandramma executed Ex.B.64 as suggested by Balarajaiah Goud. Indeed, in Paragraphs 7 and 8 of the written statement of third defendant himself narrates circumstances under which Ex.B.64, B.6 and B.7 came into existence. According to this, as already noticed when Chandramma asked to give some property to Sathaiah to prevent her from repeatedly making such requests, she was made to execute Release Deed Ex.B.64 in favour of Pentamma. Under Ex.B.6 property an extent of 2982 Sq. yards was given to Sulochana both by Pentamma and Chandramma whereas under Ex.B.64 the properties which Chandramma inherited under the Will of the Saya Goud were relinquished in favour of Pentamma. This is a strong circumstance which would support that Balarajaiah and Pentamma used undue influence to dominate the will of Chandramma as she was an old illiterate lady under care of her son. Indeed, as per the written statements filed by Defendant No. 3 which was adopted by Defendants 4 to 6, Chandramma did not voluntarily execute Ex.B.64 and it was an advice to her by her son Balarajaiah in connection with settlement of some property to Sulochana. Even the contents of Ex.B.64 which are contrary to the contents in other half a dozen exhibited documents about which a reference is already made or would be made hereunder also improbabilises that Ex.B.64 is not a document out of free will and consent of Chandramma. Therefore, the contention of the learned Counsel for the appellants that Ex.B.64 was executed by Chandramma out of her own free will is improbable. The submission is rejected.
68. What is the purport of relinquishment deed Ex.B.64? What the releasor or the releasee intended and sought to achieve by Ex.B.64? Two theories are preferred by the rival Counsel for countenance by this Court. The learned Counsel for the appellants/defendants submits that all the suit schedule properties were bequeathed by Saya Goud under Will dated 2.1.1956 in favour of Pentamma giving only life interest to Chandramma and that under Ex.B.64 Chandramma released her life interest, and other interests and total interest in the property in favour of Pentamma. Per contra, learned Counsel for the respondents/plaintiffs submits that under the Will Saya Goud only gave cash and jewellery equally to wife and daughter-in-law, that both of them subsequently purchased other properties with absolute rights jointly with half share each and that what was released in favour of Pentamma is only what Chandramma got under the Will of Saya Goud. He would also submit that the admissions made by Pentamma in other legal proceedings would render various contents in Ex.B.64 a myth and that the Court should accept the documents as they are understood by the parties to the documents. The various documents on record, viz., Exs.A.1, B.16 to B.25, B.26 to B.30, A.10 and A.11 and the averments in the written statements of Defendant Nos. 1 and 3 compel this Court to countenance the theory put forth by the plaintiffs. The reasons for this conclusion in seriatim are as under.
69. First, the defendants have not produced the Will executed by Saya Goud in 1956. If the defendants failed to prove the contents of the Will by producing the same, it is the defendants ,who would fail in the case. It is they who alleged that Chandramma was given only life interest under the Will of Saya Goud which deals with all the properties. The non-production of the Will of Saya Goud executed in 1956 is fatal to the case set up by the defendants. Further, though they alleged that the copy of the Will along with original of Ex.A.7 were given while availing loan from Andhra Bank that Andhra Bank filed these as suit documents in O.S.No. 403 of 1976 and though they filed an application to summon the documents after noticing various proceedings they have taken, this Court is not able to agree with the submission that the Will of Saya Goud was delivered to Andhra Bank. This Court has gone through the case record in O.S.No. 403 of 1976 by the Andhra Bank. Even in the list of documents submitted by Andhra Bank at the time of filing the suit, Will of Saya Goud was not mentioned and what was mentioned was only the Release Deed executed by Chandramma. Even assuming that the original Will of Saya Goud was produced by Andhra Bank when they filed the suit, nothing prevented the defendants to take return of the documents or take a certified copy of the document of the Court and produce the same in the present suit. They did not do so. Therefore, this Court has to draw adverse inference against the defendants on whom burden of proof lies regarding the contents of the Will of Saya Goud.
70. Secondly, the best persons who know about the Will of Saya Goud are Chandramma, her two sons Balaiah and Sathaiah, daughters-in-law Pentamma and Sulochana. Except Sathaiah, none of them was alive when the trial commenced in the suit. The defendants did not take any steps to summon Sathaiah and lead secondary evidence when the Will of Saya Goud is lost. Under Section 65(c) of the Indian Evidence Act when a document is lost, secondary evidence of the contents of the documents is admissible and contents can be proved by examining person who has knowledge of the document or knowledge of the contents of the document. Non-examination of Sathaiah also adversely affects of the defendants.
71. Thirdly, if the beneficiaries under the Will of Saya Goud, namely, Chandramma and Pentamma and others who knew about the contents of the Will always were aware that Saya Goud gave cash and jewellery to Pentamma and Chandramma, that both of them subsequently purchased the suit schedule properties and that entire world treated both of them as absolute joint owners of the suit schedule properties. Indeed, Balarajaiah, father of the Defendants 2 to 6 was acting as adviser of the family and was taking care of legal proceedings before the land reform authorities, income tax authorities and wealth tax authorities. There is abundant documentary evidence like income tax returns and orders Exs.B.16 to B.25, wealth tax returns and orders Exs.B.26 to B.30 and proceedings before the Land Reforms Tribunal Ex.B.15 to show that Balarajaiah and the entire family were treating Chandramma and Pentamma as co-sharers in the joint family property. They never treated Chandramma as having only life interest in the property as otherwise it would have certainly been found a place in some of the documents before 6.3.1969 when Ex.B.64 (Ex.A.7) was executed by Chandramma.
72. Fourthly, the admissions made by Chandramma and Pentamma themselves in various documents and in the pleadings in earlier suit belie the contention of the defendants. In Ex.A.10 which is a written statement filed by Pentamma in O.S.No. 927 of 1977 by one of her sons for partition she admitted that Saya. Goud bequeathed only cash and jewellery to her mother-in-law and that subsequent to death of Saya Goud both of them purchased suit schedule properties and constructed houses, and that both of them are joint owners and possessors of the property having equal share in the suit schedule properties. The Memo Ex.A.12 filed by other defendants in O.S. No. 927 of 1977 including Chandramma also amounts to Chandramma and Defendants 2 to 6 in this suit admitting to the state of affairs pleaded by Pentamma in Ex.A.10. Further, the suit was compromised by filing Ex.A.13. It was suggested to D.W.1 that the signature of Chandramma was obtained by Ex.A.13 without informing about the family settlement. Here again, the deed of family settlement or family arrangement by reason of which Ex.A.13 compromise Memo was filed in O.S. No. 927 of 1977 has not been filed by the defendants to disprove the allegation of plaintiff that Chandramma is not a party to such family arrangement. Therefore, the admission made by Pentamma in Ex.A.10 written statement in the earlier suit also negatives the contention of the defendants that Chandramma had only life interest in the suit schedule properties. This also negatives the contention that Saya Goud bequeathed all the suit schedule properties. It is important to note that what Pentamma averred in Ex.A.10 is correct and the contents of Ex.B.64 are certainly incorrect. A party who files pleadings in earlier suit is bound by such pleadings unless proper explanation is coming forth. It is also very curious that though Ex.B.64 was very much in existence, Pentamma in Ex.A.10 does not even make a reference to such Release Deed. But, on the contrary, she pleads diabolically opposite version which is now sought to be pleaded by Defendants 2 to 6 with reference to the Release Deed. Be that as it is, even in Ex.A.1 Will dated 28.9.1979 executed by Chandramma in favour of plaintiffs, she asserts that Saya Goud bequeathed only cash and jewellery and other landed house properties were purchased by her and her daughter-in-law subsequently. As to the effect of admission of Pentamma in Ex.A.10 this Court has already made a reference in the light of two decisions of the Supreme Court. Therefore, it is not necessary again to advert to the same.
73. Fifthly, this Court has marked Ex.A.7 as Ex.B.64. Even the Release Deed contains recitals that Saya Goud released cash and other properties out of which releasor and releasee purchased agricultural lands in S.Nos. 284, 285, 290, 292, 293 admeasuring Ac.19.15 guntas and S.No. 291 admeasuring Ac.1.30 guntas and were in possession and enjoyment of the said agricultural lands. After mentioning this, the Release Deed goes on recording that Chandramma having become old and infirm wants to release her life interest reads once for all in favour of releasee. The words "life interest" in Page 2 of Ex.B.64 are handwritten while the entire Release Deed is typed one. Further, the words 'life interest' and other interpolations are in a different ink than the other endorsement made in Page Nos. 2 and 3 of Ex.B.64. However, D.W.1 was not confronted with original of Ex.B.1 and therefore these interpolations may not have much affect, but even ignoring these interpolations, a reading of the document makes it clear that what was inherited by Chandramma and Pentamma under the Will of Saya Goud was "cash and other properties", but not the suit schedule properties and that the releasor released only her property which she got under the Will, dated 2.1.1956 of Saya Goud.
74. Sixthly and lastly, a reading of Exs.A.7, A.10 and Exs.B.16 to B.30 together would show that Pentamma and Chandramma are joint owners with equal shares and that they were having joint possession of all the properties. It may also be added that as rightly observed by learned Trial Judge none of the suit schedule properties were bequeathed to Chandramma under the Will of Saya Goud and in that view of the matter Ex.B.64 contains some false recitals. Further, it must also be held under Ex.B.64 first defendant Pentamma did not become absolute owner of the plaint schedule properties.
Other submissions of the learned Counsel
75. Learned Counsel for the defendants/appellants submits that Pentamma and after her death other defendants perfected their title by adverse possession. The pleadings are not properly made in this regard and no evidence is coming forth in this regard. The suit was filed on 28.12.1984 and the written statement Ex.A.10 in O.S. No. 927 of 1977 was filed by Pentamma on 18.1.1.978 admitting half share of Chandramma in suit schedule properties. Thus, the suit was filed within six years from the date of filing of Ex.A-10 in the earlier suit. Further, Ex.B.23 dated 25-2-1972 which is income tax return for the assessment year 1968-69 also shows that Chandramma and Pentamma are jointly cultivating the lands. Therefore, adverse possession is not established nor the defendants made any attempt to prove that they were having hostile possession adverse to the interest of the opposite parties. Ex.A.10 itself belies the plea of adverse possession.
Conclusion
76. On an analysis of the pleadings, oral and documentary evidence, this Court therefore finds both the points for consideration against the appellants/ defendants. The appeal for the reasons as above, is therefore, dismissed with costs confirming the preliminary decree passed by the Court of District Judge, Ranga Reddy District in O.S.No. 9 of 1993. The C.M.P. No. 17581 of 2001 is disposed of duly marking original of Ex.A.7 as Ex.B.64 as mentioned in the judgment.
NOTE: Ex.A.7 is marked as Ex.B.64 in original record, as per the Court order dated 17-2-2005 made in ASMP No. 17581 of 2001.