HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
Second Appeal Nos654 of 1997 and batch
20-06-2017
T.Ramesh and others ..appellants
Laxmamma and others..Respondents
Counsel for the appellants:Sri V.L.N.G.K.Murthy,
Counsel for respondents: Sri Ramakrishna K.,Sri B.Venkata Rama Rao,
Sri Gade Venkateswar Rao
Sri A.S.C.Bose.
GIST:
HEAD NOTE:
? Cases referred:
AIR 1962 SC 1314
2. 2001 (3) SCC 179
3. 2015(5)ALT 634
4. 1975(1)SCC 212
5. AIR 1935 PC 132 (c )
6. AIR 1968 SC 947
7. 1947 AIR PC 15
8. AIR 1956 SC 305,
9 2012(6)SCJ-432Civil Appeal No.1374/2008, dt.17-07-2012,
10. AIR 1973 AP 149
11. 1906 (28) All. 377
12. AIR 1926 PC 1927
13. AIR 1990 Kerala 146
14. AIR 1959 SC 443
15. 2009 (3)SCC 687
16. [2013] 8 S.C.R. 573
17. 2013(1 ALT(1)(SC)
18. (2009) 3 SCC 287
19. AIR 1990 Kerala 146
20. 2013(3)ALT-1(SC) para-12
21. AIR-2000-SC-1908
22. AIR 1929 PC 283
23.AIR 1939 Calcutta-40
24. AIR 1963 Calcutta-325
25. AIR 1945 PC 113
26. AIR 1962 Patna-149
27. AIR 1960 Madras 217
28. AIR 1994 AP 96
29. AIR 1951 SC 139
30. AIR 1951 SC 103
31. AIR 1953 SC 7
32. AIR 1955 SC 346
33. AIR 1959 SC 443
34. AIR 1962 AP 178
35. AIR 1962 SC 567
36. AIR 1963 SC 1703
37. AIR 1964 SC 529
38. AIR 1964 SC 1323
39. AIR 1974 SC 1999
40. AIR 1977 SC 63
41. AIR 1977 SC 74
42.AIR 1978 SC 1202
43. AIR 1982 SC 133
44. AIR 1990 SC 396
45. AIR 1990 SC 1742
46. AIR 1990 SC 2201
47. 1995 (6) SCC 213
48. AIR 1995 SC 1684
49. AIR 1995 SC 1852
50. AIR 2005 SC 233
51. AIR 2002 SC 317
52. AIR 2003 SC 761(1)Supreme-297
53. 2004(2)SCC 321
54. AIR 2005 SC 233
55. AIR 2005 SC 780
56. AIR 2005 SC 4362
57. AIR 2006 SC 1975
58. AIR 2010(14)SCC 266
59. AIR 1955 SC 346
60. (2006) 13 SCC 449
61. (2010) 12 SCALE 470
62. AIR 1969 SC 1147
63. AIR 1994 AP 96
64. 2007(7)SCC 225
65. 2013(7) SCC 490
66. 1995 (6) SCC 213
67. AIR 1974 AP 13
68. 2008(14) SCC 754
69. 1993 (2)ALT 459AIR 1994 AP 96
70. AIR 1955 SC 346
71. 1994(1)ALT 217(DB) 72. 1995(6)SCC 213
73. (2007) 11 SCC 621
74. AIR 1967 SC 155
75. 1994(3) ALT 4911995(1)APLJ 284
76. 1985(1) APLJ-277
77. 2005(11) SCC 582
78. (2016) 6 ALD 618
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
SAMP No.2324 of 2016 in S.A.No.654 of 1997
AND
Second Appeal Nos. 654, 655 and 666 of 1997
COMMON JUDGMENT:
These three appeals are outcome of the respective three suit
claims of O.S.Nos.136 of 1987, 90 of 1981 and 58 of 1989, from the
conflicting findings of the respective decrees and judgments of the trial
Court and the lower appellate Court.
2. These Second Appeals were earlier decided allowing the
appeals by the common judgment and respective decrees, dated
25.02.1999, and when the same were impugned before the Apex Court
in the Special Leave to appeal Civil Nos.19215 to 19217 of 1999, the
Apex Court, by common judgment dated 11.11.2002, observing that
this Court has not properly formulated the questions of law in the year,
1997 while admitting the Second Appeals, which are the pre-requisite,
remanded the above three Second Appeals for fresh admission by
formulation of the substantial questions of law involved and to decide
afresh.
3. Pursuant to the remand orders of the Apex Court supra, the
Second Appeals restored are since then pending, including for and by
impleadment of parties or legal representatives of deceased parties, as
the case may be.
4. Before framing the substantial questions of law from the
grounds raised in the appeals, the factual background needful to
mention is as follows:
4.(a). One Lingamaiah (predeceased his father prior to 1946), son
of Yenkaiah (died prior to 1951)-the original owner of the suit lands,
was the common ancestor to the plaintiffs of the three suits. Laxmaiah
(died in 1974), Balraj (died in 1960, unmarried and issueless) and
Balamma, w/o. T. Pochaiah are the three issues of said Lingamaiah.
Laxmaiah married one Lachamma and Laxmamma, w/o. T. Jangaiah,
is their daughter. Said Jangaiah (died in 1993) and Venkaiah (died in
1981) are the two sons of said Balamma. Jangaiah, through
Laxmamma though issueless (for two children born and dead), through
Andalamma, got three sons by name- Laxman, Murali and Ramadas
(who are on record). Ramesh, who was the main person agitating in all
the 3 suits, is the son, besides six daughters of Venkaiah, through 3rd
wife-Indramma, leave about through 1st wife-Yallamma(died in 1993)
got one daughter-Anasurya (not added as a party to any of the three
suits as stated supra) and with no children through 2nd wife-
Suselamma. Ramesh (died in 1999), leaving behind him, his wife
Renuka and three children Rakesh Goud, Vishali and Vinotha (who
are on record), besides his mother-Indramma, on record in the three
suits/appeals representing his estate also (since died in 2012). The
fight is between the only daughter of Lingamaiahs son Laxmaiah, by
name Laxmamma, w/o. T. Jangaiah (2nd son of Balamma) and eldest
son – Venkaiah of Lingamaiahs daughter – Balamma, (that continues
on one hand by Lachamma, mother of Laxmamma-died issueless on
22.02.2006 and also by said Lachamma brother`s son Shanker (D.3 in
O.S.No.58 of 1989), as a legatee and alienee for some of the properties
and, on the other hand, by Ramesh, Indramma and Suselamma and,
after their death, by the wife and children of Ramesh, besides six
sisters of Ramesh, by name – Shoba, Vijaya, Mamata, Anuradha,
Bharati and Raja Rani, as LRs of Venkaiah, leave about for any
separate estate of Jangaiah, to represent also by his 2nd wifes three
children).
4.(b). The status of Indramma, as wife of Venkaiah, is though
chosen to dispute only from the so called deposition stray sentence in
O.S.No.136 of 1987 of P.W.1-Ramesh, that his mother Indramma was
kept by said Venkaiah, to his knowledge, since he was at the age of 2
years, apart from the positive presumption of wife from long living
together, even what Ramesh deposed, no way doubts her status, as he
says, since prior to his 2nd year, his mother and father were living
together as man and wife, the three marriages of Venkaiah, if
performed prior to the Hindu Marriage Act, 1955, those are valid and
from the age of Ramesh even, it can be presumed of performed prior to
1955, and there is no dispute of their status as legal heirs of Venkaiah,
in any pleadings or by any other evidence, worth to rely. Further, even
Ramesh died in 1999, his mother, by name Indramma, is on record,
apart from Susheela, with substantial representation of the estate of
Venkaiah in all suits and appeals even, till LRs of Ramesh were
brought on record during Second Appeal stage, after death of
Indramma in 2012, leave about Susheela died before 2002, and
thereby none of the suits or appeals, in continuation of the three suits,
with no finality from its pendency, abated, in any manner, and none
can be held to be bad for non joinder or misjoinder of parties, that too
when almost all the LRs of Venkaiah are on record as on to day in the
matters, that too having been clubbed at First Appeal stage, of all those
covered by common judgment in 1996, and also in the Second
Appeals, for common disposal.
5. From the above, the facts of the three appeals arisen out of the
three suits concerned are:
5(a). The first suit is O.S.No.90 of 1981, (originally filed on
18.07.1980 and numbered as O.S.No.177 of 1980 by Munsif
Magistrate, EN, Hyderabad) on the file of Principal District Munsif,
Medchal, which is a suit for permanent prohibitory injunction with
regard to the possession and enjoyment of the plaintiff-Laxmamma,
over the suit land in Sy.Nos.143 to 147, 154, 155, 249, 282 and 372,
in all admeasuring Ac.13.31 guntas of Nizampet Village, Medchal Taluq
of Ranga Reddy District, described in the plaint, and with a further
relief of correction in Pahani entries of the period from 1974 to 1986 in
column Nos.9 and 11 by entering the name of plaintiff-(T. Laxmamma,
w/o. T. Jangaiah cum d/o. Kate Laxmaiah (sic.Kota) by deleting the
name of the 1st defendant-T. Venkaiah(elder brother of the 1st plaintiffs
husband-T. Jangaiah-2nd defendant, among the original 5 defendants,
including Raghava Reddy, Manik Reddy and Bindla Pochaiah), besides
Ramesh and Indramma added as D.6 D.7, as LRs of D1-Venkaiah-
died in 1981, in I.A.No.158 of 1982, for the suit lands and for costs
and such other reliefs.
5(a)(i). The plaint averments, in nutshell, are that above suit lands
originally belonged to one Yenkaiah (died 30 years prior to the suit
date), whose only sonLingamaiah, pre-deceased Yenkaiah and also left
behind, his son Laxmaiah, father of Plaintiff-Laxmamma. Plaintiff did
not mention about Balraj, much less of he was mentally challenged.
Laxmaiah, in whose name the lands stand in revenue records, while
cultivating died in 1974 and since then the plaintiff is in possession
and enjoyment by personnel cultivation, through her relative (maternal
uncle)-D. Sreeramulu-(father of D. Shanker) and farm servants, and
paying land revenue, even though change in the Revenue records of her
name not sought. Plaintiffs husband T. Jangaiah (her fathers sisters
second son) deserted her 30 years back, and Venkaiah, elder brother
of Jangaiah, with malafide intention and in collusion with Village
Patwari, by taking advantage of original person Yenkaiahs name and
his name are one and same and in cause adding his fathers name in
some pahanies. Defendants 1 to 5 tried to interfere with plaintiffs
possession and enjoyment, which she could resist through Sreeramulu
etc., and plaintiff also came to know the manipulations in the Revenue
records and thereby filed the suit.
5(a)(ii). The sum and substance of said plaint averment is that the
plaint schedule property is her paternal great grand father`s property
(ancestral) and her father and, after him, herself are in possession and
enjoyment, exclusively, by personnel cultivation and the D2 is her
deserted husband, whose brother D1 and they with the aid of D3-5
tried to interfere and D1 cause manipulated his name from same name
(being his maternal great grand father) of her paternal great grand
father by cause entered his fathers name therein to grab the property
and thereby entitled to permanent injunction and rectification of name
in the Revenue pahanies for the property. As Venkaiah died in 1981,
his son Ramesh through 3rd wife Indramma were added as D6 D7.
5(a)(iii). The averments in the original common written statement
of D1 D2-Venkaiah and Jangaiah, respectively, dated 08.08.1980, in
disputing the suit claim and denying the plaint averments, other than
the relationship and genealogy, with contest, in nutshell, are that, K.
Lingamaiah@ Lingaiah, s/o. Yenkaiah, was having two sons, viz.,
Laxmaiah (father of plaintiff) Balraj, who got each undivided half a
share in the suit property, Plaintiffs mother Lachamma is also alive,
Plaintiffs husband T. Jangaiah is the illatom son-in-law of Laxmaiah
and Lachamma, Plaintiff and her husband T. Jangaiah blessed with two
children, who died and later issueless, and thereby Jangaiah with
plaintiffs consent married another woman, defendants 1 2-
Venkaiah and Jangaiah, respectively, are enjoying the suit property
jointly, including after death of plaintiffs father-Laxmaiah in 1974, and
Jangaiah was maintaining the plaintiff in his care till 1980 and later, at
the instance of Sreeramulu, she became hostile towards Jangaiah and
filed the suit with false claim. In the Revenue records, the name of
Laxmaiah and Balraj continues for the lands and as Balraj made a Will
(no Will filed with the written statement, no date, month and
year even given, whether it was registered or unregistered not
even mentioned) in the name of D1-Venkaiah, for his half share in the
suit property.
5(a)(iv). It is also contended that in the suit lands the defendants
raised vegetables and plantation of paddy in June, 1980, the plaintiff,
by obtaining injunction orders with unsocial elements, is trying to
destroy the crops. The name of D1-Venkaiah entered in the Revenue
records as per law after completion of formalities in the year 1961-62,
with mutation and zamabandi. Plaintiffs father was having only half a
share in the suit lands, for the remaining half share belongs to D1-
Venkaiah, as D2-Jangaiah being illatom son-in-law of Laxmaiah,
continues with the joint possession and enjoyment of the suit lands
along with D1. Defendants 3 to 5 have no concern with the suit lands.
There is no cause of action to the suit for the plaintiff. The additional
grounds are the suit without reliefs for declaration and possession
wont lie, bad for non-joinder of Lachamma and misjoinder of (D3 to
D5). The suit claim, at the instance of Sreeramulu, is false and is liable
to be dismissed. Leave about the D6 D7 as LRs of D1, not entitled to
take any additional and new pleas by stepping into the shoes of late
Venkaiah to file additional written statement that was filed in April,
1987 and with that even the alleged Will, if in existence, not
filed and no date, month and year even given, whether
registered or unregistered was not even mentioned, if at all any
Will of said Balraj, died in 1960, in existence from the life time
of Balraj.
5(b). The second suit O.S.No.136 of 1987 was filed on
25.09.1987(seven years after filing of the first suit supra, by the D67
therein viz., T. Ramesh, Indramma and one Suselamma supra) and
without impleadment of other heirs of Venkaiah by name-Anasurya
and six sisters of Ramesh, for the reliefs of partition of said property of
Acs.13.31 guntas of Nizampet village, supra into two equal shares and
to allot one such share to the plaintiffs 1 to 3. The three defendants in
this O.S.No.136 of 1987 are Jangaiah (D.2 in O.S.No.90 of 1981),
Laxmamma and Lachamma (plaintiffs 1 2 in O.S.No.90 of 1981) and
later the 6 sisters of Ramesh supra came on record as per orders in IA
No.244 of 1994, as D.4 to D.9. The plaint averments in O.S.No.136 of
1987 are with no improvement than repetition of the written statement
averments in O.S.No.90 of 1981 supra. Even with O.S.No.136 of
1987 plaint, the alleged Will, if in existence, not filed and no
date, month and year even given, whether registered or
unregistered was not even mentioned, if at all any Will of late
Balraj, died in 1960, in existence from life time of said Balraj,
that too the suit claim is based on alleged Will of Balraj,
without mentioning any particulars and without filing even a
copy of it, being suit document, that too with plaint when filed
three documents viz., Xerox copy of Ryth Pass Book in the name
of Venkaiah, Xerox copies of mutation entries of pahanies of
1961, 1979-80, for no reason in not filing the alleged Will, if at
all in existence, at least a copy of it, that too even nearly seven
years later to the written statement filed in earlier suit by
Venkaiah by setting up Will.
5(b)(i). D.1 and D.3 i.e., Jangaiah and Lachamma (husband and
mother of D2-Laxmamma), respectively, remained exparte.
5(b)(ii). D.2-Laxmamma filed a Written Statement denying that
the suits property was joint property of Plaintiff and Defendants. It is
contended that the suits properties were the absolute properties of
Laxmaiah, who enjoyed it, exclusively, during his life time. (No doubt,
she cannot aprobate and reprobate, nor wriggle out from plaint averments
in O.S.No.90 of 1981 supra of ancestral property). Balraj, brother of
Laxmaiah, was born in unsound state of mind and died issueless,
therefore, the question of his enjoying the suit properties did not arise
and he lived along with Laxmaiah till his death and thus the allegation
of Balraj made a Will in favour of Venkaiah in respect of his share in
the suit properties is false. It is also contended that the alleged Will was
forged and fabricated and brought into existence to usurp the
properties. It is contended that said Venkaiah, in collusion with the
Revenue authorities concerned, had manipulated the record by
incorporating the name of Balraj. The alleged mutation in the name of
Venkaiah in year 1961-62 is denied. The Defendants had no notice of
the alleged mutation proceedings. Name of Venkaiah appearing in the
Revenue records along with Laxmammas name is without any
sanction. This Defendant (D2-Laxmamma) filed an application for
rectification of entries in the Revenue records as per the Rights and
Land Regulation Act, 1958 Fasli, before the District Revenue Officer, in
respect of suits properties and said application was allowed, by order
dated 22.02.1988, directing for deletion of the name of Venkaiah from
Pattadar column of pahanies from 1955-56 and said order was
implemented. It is alleged mischievously on the basis of alleged Will
that as if Venkaiah became half a share holder in the Plaint Schedule
Properties along with Laxmaiah, after the death of Balraj. The allegation
that Jangaiah went as illatom son-in-law of Laxmaiah and that after the
death of Laxmaiah, Jangaiah(D1) became the legal heir, is denied. The
allegation that the Plaintiffs and the Defendants are cultivating separate
portions is denied. It is alleged that the plaintiffs and 1st defendant have
no right whatsoever over the suits properties and hence the question of
partition does not arise and that the properties are not liable for
partition. It is also contended that there was no cause of action, since
there was no occasion for the plaintiff to make any demand for
partition. The question of proper court fee is also raised, following their
contention that the Plaintiff was never in possession of the suit lands
along with the Defendants.
5(c). The third suit in O.S.No.58 of 1989 was also filed by the self-
same plaintiffs of O.S.No.136 of 1987 supra against three defendants
viz; Laxmamma, Lachamma (plaintiffs 1 2 of O.S.No.90 of 1981) and
one D. Shanker-Lachamma`s brother`s son), for the relief of permanent
injunction restraining alienation of the suit property of Acs.13.31
guntas of Nizampet village supra or for converting the same into non-
agricultural house plots.
5(c)(i). Similar contentions were raised by the respective parties in
their pleadings in O.S.No.58 of 1989 and hence, those need not be
repeated.
6. As T. Laxmamma, w/o T. Jangaiah and D/o. K. Laxmaiah
Lachamma, along with K. Lachamma (mother) as Class 1 legal heirs of
K. Laxmaiah, succeeded his interest in the suit property from his death
in 1974, from the death of T. Laxmamma on 22.02.2006, from her
husband T. Jangaiah, besides pre-deceased her in 1993, none of other
heirs of Jangaiah (including those Laxman, Murali and Ramadas, who
came on record as per orders in I.A. No.874 of 1995, dated
13.06.1995, as First Appeal co-respondents 11 to 14, from their claim
as also children through Andalamma- 2nd wife of late T. Jangaiah (1st
defendant in O.S.No.136 of 1987 2nd defendant in O.S.No.90 of
1981), can claim as legal heirs of T. Laxmamma, in view of the bar
under Section 15 of the Hindu Succession Act. Thus, the Lachamma,
w/o. late Laxmaiah (as mother of the issueless and widow-Laxmamma)
came on record in O.S.No.90 of 1981 as her sole legal heir, besides
party defendant to O.S.Nos.136 of 1987 58 of 1989 supra). After
O.S.No.90 of 1981 of Laxmamma was decreed, Ramesh etc., filed
A.S.No.16 of 1990 and against said reversal decree and judgment in
A.S.No.16 of 1990, she filed S.A.No.553 of 1992 and same was
remanded to First Appeal Court and after said remand, A.S.No.16 of
1990(out come of O.S.No.90 of 1981 supra) came for common disposal
along with A.S.Nos.73 of 1994 13 of 1995(out come of O.S.Nos.136
of 1987 58 of 1989 supra). A.S.Nos.73 of 1994 13 of 1995 filed by
Laxmamma Lachamma-defendants in O.S.Nos.136 of 1987 58
1989 supra, where the six sisters of Ramesh, by name Shoba, Vijaya,
Mamata, Anuradha, Bharati and Raja Rani were impleaded as per the
orders in I.A.No.244 of 1994, dated 17.06.1994, as R.4 to R.9;
Laxman, Murali and Ramadas also came on record as per orders in
I.A.No.874 of 1995, dated 13.06.1995, as First Appeal co-respondents
11 to 14, from their claim as children of T. Jangaiah, through his
another wife late Andalamma, along with her). Whereas, D. Shanker
came on record as 3rd appellant in A.S.No.13 of 1995 (against O.S.No
58 of 1989). Against all the three First Appeals common judgment and
decrees dated 06.03.1996 of the learned District Judge, Rangareddy,
allowing the two appeals of Laxmamma and Lachamma in A.S.Nos.73
of 1994 13 of 1995, by reversing the trial Court decrees in
O.S.Nos.136 of 1987 58 of 1989 and by dismissing those two suit
claims of Ramesh, Indramma and Suselamma-(the present Second
Appeal appellants), and in dismissing A.S.No.16 of 1990, by confirming
the permanent injunction decree of the trial Court in O.S.No.90 of
1981, also with a direction for rectification of entries, the present three
Second Appeals are thus filed.
7. While S.A.No.654 of 1997 (against A.S.No.73 of 1994 in
O.S.No.136 of 1987) and S.A.No.666 of 1997 (against A.S.No.13 of
1995 in O.S.No.58 of 1989) are filed by Ramesh, Indramma and
Suselamma (plaintiffs against First Appeal reversal decrees and
common judgment; S.A.No.655 of 1997 (against A.S.No.16 of 1990 in
O.S.No.90 of 1981) is filed by Ramesh and Indramma only (defendants
6 7 as LRs of D1-Venkaiah) against First Appeal (based on the order
in S.A.No.553 of 1992 remanding A.S.No.16 of 1990) for fresh
determination reversal decree and common judgment.
8. In these three Second Appeals, pursuant to the common
judgment dated 11.11.2002 of the Apex Court, setting aside the
common judgment and respective decrees, dated 25.02.1999, of this
Court passed earlier, on restoration to formulate points on substantial
question of law involved, if any, and to decide from hearing, since
pending, there were applications filed by third parties seeking to come
on record and some of co-respondents to the appeals sought for
recognition of them as LRs of some of the deceased parties, the details
of which, save those covered supra) and further relevant to the lis to
mention are:
8(i). Vide orders dated 26.02.2013 in SAMP.No.3061 of 2011 in
S.A.No.655 of 1997, as respondent No.10; and SAMP.No.3062 of 2011
in S.A.No.654 of 1997, as respondent No.17, Sri Durgam Shanker,
s/o. Sri Ramulu, (who is 3rd respondent to S.A.No.666 of 1997), was
impleaded as a pendent-lite alienee, pursuant to the registered Sale
Deed, No.8755, dt.30.06.2005 in his favour for Acs.5.20 gts of
Nizampet), executed by his fathers sisters daughter-Smt. T.
Laxmamma (since died on 22.02.2006); leave about his earlier claim as
a legatee as per bequeaths made by said Laxmamma in the registered
Will dated 27.10.1987, Document No.8/1987, vide order dated
26.02.2013 in SAMP.No.1281 of 2008, dismissed holding the petition
as unnecessary, saying that said Lachamma by then alive and the
bequeaths will come into force only after her death.
8(ii). SAMP.Nos.1602, 1601 and 1603 of 2013 in S.A.Nos.655,
654 and 666 of 1997, respectively, filed by Renuka, T. Rakesh Goud,
Vishali and Vinotha, no other than wife and children of 1st appellant
T. Ramesh, appears to have died in 1999, however, representing his
estate, his mother Indramma as 2nd appellant continued on record till
her death as one of Class-I legal heirs and from her death on
21.10.2012, in their claim, as such, that were allowed on 29.01.2016,
as appellant Nos.3 to 6 in S.A.No.655 of 1997 and appellant Nos.4 to 7
in S.A.Nos.654 and 666 of 1997, respectively.
8(iii). SAMP.No.377 of 2010 in S.A.No.655 of 1997, SAMP.No.85
of 2010 in S.A.No.654 of 1997 and SAMP.No.84 of 2010 in S.A.No.666
of 1997 filed by P. Narayan Goud to come on record as co-respondent,
saying that he entered into a Sale Agreement dated 25.02.1980 with
late Venkaiah (died in 1982) and Anasurya, D/o. of Venkaiah
Yallamma was demanded to execute Sale Deed and he filed O.S.No.75
of 1999 in Medchal Court for specific performance and as it was
dismissed, A.S.No.110 of 2008 filed by him is pending in the Sub-
Court, Medchal, and as Bharati, Raha Reddy and Prakasa Rao are
impleaded, claiming as purchasers from Indramma, also covering for
the property alienated to him, he is to be impleaded. It was dismissed,
as he died later and his daughters filed SAMP.No.1238 of 2011 in
S.A.No.655 of 1997, SAMP.No.1233 of 2011 in S.A.No.654 of 1997 and
SAMP.No.1234 of 2011 in S.A.No. 666 of 1997 with self-same claim
through late T. Narayan Goud to come on record and same were ended
in dismissal on 26.02.2013, to pursue their remedies otherwise, if any,
for the Second Appeals are mainly concerned with the disputes
between the appellants and the respondents and not with the third
parties.
8(iv). SAMP.No.2190 of 2009 in S.A.No.655 of 1997,
SAMP.No.1943 of 2009 in S.A.No.654 of 1997 and SAMP.No.2186 of
2009 in S.A.No.666 of 1997 are filed by the three petitioners viz., one
Bharati in claiming as a Donee under registered Gift Deed dated
29.11.2006 from one Raghuveer Reddy, in claiming that he under the
Sale Deed of even date purchased the same from Indramma, and also
K. Raji Reddy M. Prabhakar Rao, as Agreement-cum-G.P.A. Holders
dated 21.10.2003 from the said Indramma; all as pendent lite alienees
from Indramma, who died on 21.10..2012, to come on record and
those were allowed, by order dated 26.02.2013.
8(v). Laxman, Murali and Ramadas, who are on record as appeal
co-respondents 11 to 14, from their claim as children of the 1st
plaintiffs husband T. Jangaiah, through his another wife late
Andalamma, along with her, in SAMP No.2734 of 2011 in S.A.No.654
of 1997 (against O.S.No.136 of 1987), sought on 16.09.2011, to record
them as legal heirs of K. Lachamma (died on 22.02.2006) was ended in
dismissal, vide order dated 26.02.2013, holding that they are by no
stretch of imagination become her legal heirs, so to record, being her
husbands 2nd wifes children, to succeed her father`s property.
8(vi). One Satyanarayana came on record as respondent No.18,
vide orders in SAMP.No.654 of 2016 – (on withdrawal of SAMP.No.515
of 2016) in S.A.No.654 of 1997, in claiming as alienee from T.
Laxmamma supra, under Sale Agreement dated 09.02.1990, and
based on it obtained registered Sale Deed No.5726/2005, dated
06.05.2005, through Court as per the decree dated 08.04.2004, for
specific performance passed in O.S.No.28 of 2004, for Ac.1.10 gts in
Sy.No.249 of Nizampet. No Doubt, there is an interim order dated
08.11.2004 in SAMP.No.23523 of 2002 in S.A.No.654 of 1997,
including against said Laxmamma, not to alienate the properties
covered by Plaint Schedule of Acs.13.31 gts, which include the land in
Sy.No.249 of Nizampet supra.
8(vii). In the same line, one Avula Yadamma came on record as
respondent No.19, vide orders in SAMP.No.687 of 2016 in S.A.No.654
of 1997, in claiming as purchaser under a registered Sale Deed
No.415, dated 18.01.2005, for Ac.0.09 gts in Sy.No.372 of Nizampet
from T. Laxmamma.
9. Before dealing with the Second Appeals, in deciding the
substantial questions of law supra, from the subsequent events, right
from the stage of filing of the suits for the respective suit reliefs, with
the further developments till date referred supra, it is just to bring on
record the family genealogy.
9(i). The Genealogy/family tree submitted by Respondent No.17
Sri D. Shanker, on behalf of appeals contesting respondents also, is as
follows:
9(ii). The Genealogy/family tree submitted by the appellants to the
three Second Appeals is as follows:
10. From the above, coming to the gist of results of the three suits
and first appeals:
10(i). In O.S.No.90 of 1981, interim injunction pending suit was
granted, subsequently, the suit was decreed by the trial Court on
30.11.1989, appeal filed by defendants 3 to 7 in A.S.No.16 of 1990
against Jangaiah, Laxmamma and Lachamma was allowed and, in the
Second Appeal, the matter was remanded, as stated earlier. In the
partition suit i.e., O.S.No.136 of 1987 (along with O.S.No.58 of 1989,
which is a suit for perpetual injunction), the trial Court, having found
that the plaintiffs were entitled for partition of the suit lands by metes
and bounds, directed division of the suit properties into two equal
shares and to allot and deliver one such share to the Plaintiffs and
Defendants Nos.4 to 9, vide common judgment and decrees dated
15.12.1994, including not to alienate the properties. Aggrieved by said
common judgment and decrees dated 15.12.1994 in O.S.No.136 of
1987 O.S.No.58 of 1989, as Laxmamma filed appeal suits in
A.S.No.73 of 1994 and A.S.No.13 of 1995, respectively, and A.S.No.16
of 1990 arising out of O.S.No.90 of 1981, since remanded, also was
pending in the same District Court, to answer the three appeals, basing
on the rival contentions, the lower appellate Court framed the following
points for determination viz.,
1. Whether the Will Ex.B.2 marked in O.S.No.90/81 and
(Certified copy of which is marked as Ex.A.4 in O.S.No.136/87) is true
and genuine?
2. Whether Venkaiah got half share in the suits properties
through said Will?
3. Whether the partition suit was barred by limitation?
4. Whether the partition suit was bad for non joinder of parties?
10(ii). The lower appellate Court, having dealt with said points
basing on the material and the evidence available on record and by
referring various decisions of the Apex Court, and having found that
the partition suit is well within time and also not bad for non-joinder of
necessary parties, however, Ex.B.2Will is not genuine and Venkaiah
do not have half a share in the suit properties, vide common judgment
and decrees dated 06.03.1996, allowed the appeals in A.S.Nos.73 of
1994 and 13 of 1995, by setting aside the judgments and decrees of
the trial Court decreeing the suits in O.S.Nos.136 of 1987 and 58 of
1989, respectively; while dismissing the appeal in A.S.No.16 of 1990,
by confirming the judgment and decree of the trial Court partly
decreeing the suit in O.S.No.90 of 1981. Aggrieved by the same, the
present Second Appeals in S.A.Nos.654, 655 and 666 of 1997 were
preferred by the appellants – defendants 6 7 of O.S.No.90 of 1981
and plaintiffs in O.S.Nos.136 of 1987 and 58 of 1989. As already
stated, the said Second Appeals were earlier decided by this Court,
allowing the appeals; vide common judgment and respective decrees
dated 25.02.1999, and when the same were impugned before the Apex
Court in the Special Leave to appeal Civil Nos.19215 to 19217 of 1999,
the Apex Court, by common judgment dated 11.11.2002, while
observing that this Court has not properly formulated the questions of
law in the year 1997, while admitting the Second Appeals, which are
the pre-requisite, remanded the above three Second Appeals for fresh
admission by formulation of the substantial questions of law involved
and to decide afresh.
11. The grounds of these Second Appeals, in nutshell, which are
the basis for framing the substantial questions of law raised, are as
follows:
a) The order under appeals is contrary to law and facts of the
case.
b) A common judgment dated 06.03.1996 in A.S.Nos.16 of
1990, 73 of 1994 and 13 of 1995 is a reversing judgment, reversing
the decrees and judgment passed by the trial Court, without any
reasoning or basis.
c) The lower appellate Court has erred in holding that the
presumption that the executor of the Will, though pleaded to have
known the provisions of the instrument that he has signed, but the said
presumption is rebutted by proof of suspicious circumstances.
d) The lower appellate Court erred in holding that the
presumption was rebutted.
e) The lower appellate Court had totally exaggerated the
circumstances referred to in para Nos.26, 27 and 28 as suspicious
circumstances leading to an inference that the Will executed by Balraj
was not genuine, which is erroneous and not based on any positive
evidence and contrary to the pleadings.
f) The lower appellate Court gave undue importance to certain
insignificant things like who scribed the Will etc., creating a doubt
about the genuineness of the Will, which is contrary to the evidence on
record.
g) The lower appellate Court is not justified in suspecting the
veracity of the deposition of P.W.2 merely because he claimed to be a
Gumastha of Patwari of Nizampet.
h) The lower appellate Court failed to appreciate that the only
available attesting witness was examined thereby complying with the
requirement of law and that the execution of the Will was proved.
i) Having admitted that the Original Will – Ex.B.2 was filed in
O.S.No.90 of 1981, the lower appellate Court is not justified in
suspecting its genuineness.
j) Having admitted the reference of Original Will – Ex.B.2
executed by Balraj in favour of Venkaiah filed in O.S.No.90 of 1981,
the lower appellate Court is biased and not justified in finding error
with the plaintiffs in O.S.No.136 of 1987 for not giving the date of the
Will.
k) When Ex.B.2 Will, which is in Urdu, was executed and
signed by Balraj, who is a Hindu, the lower appellate Court is not
justified in stating that there was no evidence about the testator
speaking to the contents of Ex.B.2 or to suspect about the instructions
given by Balraj to the scribe, who has written the recitals of Ex.B.2.
l) The lower appellate Court is not justified in stating that the
suspicious circumstances in execution of Ex.B.2 Will create a doubt
whether the same was executed by Balraj in a fit state of mind.
m) The lower appellate Court without any valid reasons, simply
differed with the reasoning and the conclusion of the trial Court in
accepting Ex.B.2 Will.
n) The lower appellate Court erred in refusing to take into
account the Revenue records.
o) The lower appellate Court erred in presuming the correctness
of the entries in the Revenue records without any reason on the ground
that the same must have been manipulated with the assistance of
P.Ws.2 and 3.
p) The lower appellate Court misconstrued the observation of
the High Court in directing the lower Court in O.S.No.136 of 1987 to
decide the questions raised therein on adducing evidence by both the
parties without taking into consideration the disputed entries in the
Revenue records.
q) The lower appellate Court erred in appreciating the fact that
land acquisition compensation was apportioned amongst the legal
heirs of Laxmaiah and Venkaiah in respect of the suit lands and the
statement of Mr. Venkaiah in Ex.X.7 that he and his maternal uncle
Laxmaiah were joint pattadars of the suit lands and entitled to the
amount equally, which statement was accepted to be true by Mr.
Laxmaiah.
r) The lower appellate Court is not justified in reversing the
findings of the trial Court on issue Nos.1 and 2 and holding that
defendant Nos.2 and 3 are absolute owners of the suit property.
s) The lower appellate Court erred in holding that the suit was
barred by limitation and that the plaintiffs are not entitled for the relief
of rectification of entries in Revenue records.
t) The lower appellate erred in reversing all the three judgments
of the trial Court.
u) The finding of fact recorded by the lower appellate Court
reversing the finding of fact of the trial Court is arbitrary and liable to
be set aside.
v) The lower appellate Court misconstrued the evidence and
erred in considering the facts in proper perspective by reversing the
finding rendered by the trial Court on the basis of surmises and
unreasonable inferences.
w) The lower appellate Court erred in not dealing with the
evidence relied upon by the trial Court.
x) The lower appellate Court erred in considering the
genuineness of Ex.B-2-Will on the ground that it was surrounded by
certain suspicious circumstances and proceeded to appreciate the
evidence in a wrong perspective.
y) The lower appellate Court erred in disbelieving the evidence
relied upon by the trial Court in coming to the conclusion and in
reversing the judgment of the trial Court
z) The reversal judgment of the lower appellate Court amounts
to an error or defect in procedure giving rise to substantial question of
law.
12. The Constitution Bench of the Apex Court in Chunilal Mehta
Vs. Century Spinning and Manufacturing Company held that it is
well settled that construction of a document of title or of a document,
which is the foundation of the rights of parties, necessarily raises a
question of law.
12(a). That apart, as held by a Bench of Three Judges in Santosh
Hazari Vs. Purushottam Tiwari , a particular question is a
substantial question of law or not depends on facts and circumstances
of each case.
12(b). Considering the above legal position and after hearing the
respective Advocates of the parties on record in the three appeals – Sri
V.L.N.G.K. Murthy, Sri B. Venkata Ramarao and Sri K.Ramakrishna,
from the substantial questions of law raised, mainly as to the truth and
genuineness of the Will, dated 13 Khurdad, 1356 Fasli, true copy of the
same marked as Ex.B.2 in the suit O.S.No.90 of 1981 and Certified
copy of it marked in other two suits O.S.Nos.136 of 1987 and 58 of
1989 as Ex.A.4 (a) (b), respectively, during common trial of those
later two suits, which is in relation to the property of the original
person Kate Lingamaiah @ Lingaiah, s/o. Yenkaiah, by order dated
27.10.2016, this Court re-admitted the three Second Appeals, since
involving substantial questions of law, framed as follows:-
1. Whether Section 90 of the Evidence Act, 1872, is applicable to
the proof of a Will and the failure to apply the same by the Courts below
is a perverse and unsustainable conclusion even concurrently and same
is devoid of merits and even if so, for not specifically raised in the Courts
below, whether open to raise and to consider in the second appeal?
2. Whether it is the wording of Section 63 of the Indian Succession
Act, 1925 that is required to be reproduced by a witness in proof of a Will
i.e., one of the attestors required to be examined or it is to be construed of
the twin requirements from a reading of the evidence as a whole in
appreciation with facts and law and, if so, the conclusions arrived by the
Courts below of the Will is not proved by satisfying the twin requirements
of Section 63 of the Act are perverse and unsustainable?
3. Whether the Will is shrouded with suspicious circumstances
even same either under Section 90 of the Evidence Act, if at all to apply,
and even otherwise from an overall reading of the evidence, as a whole,
if taken as proved, to disbelieve the bequeaths therein?
4. Whether the trial Court and the lower appellate Court went wrong
in rejecting the evidence of PW.3, who is son of Raji Reddy, as a whole,
based on a stray suggestion rather than appreciation of evidence, as a
whole, and if so, what is the impact on the conclusions arrived and is it a
perverse and unsustainable finding therefrom and is liable to be set
aside?
5. Whether the findings are outcome of ill-appreciation of facts and
law and require interference by this Court while sitting in second appeal
against the concurrent findings?
6. To what result, respectively?
13. Heard both sides at length at several sittings finally and
perused the material on record and also the decisions placed reliance
and written submissions of Counsel for R.17 – D. Shanker.
14. From the above, now to answer the substantial questions of
law 1 to 5 framed, as to the applicability of Section 90 of the Evidence
Act, 1872, to the proof of a Will and for not specifically raised in the
Courts below to apply, whether open to raise now and to consider in the
second appeal and failure to apply the same by the Courts below is
unsustainable, the wording of Section 63 of the Indian Succession Act,
1925 is required to be reproduced by a witness in proof of a Will or
evidence contains the proof of the twin requirements is enough, the Will
is shrouded with suspicious circumstances, rejecting the evidence of
PW.3, who is son of Raji Reddy, is unsustainable and the conclusions
arrived by the Courts below of the Will is not proved, are outcome of ill-
appreciation of facts and law and require interference by this Court,
while sitting in second appeal against the concurrent findings concerned:
14(a). For more clarity, it is necessary to mention that the Indian
Evidence Act (for short Evidence Act) is divided into 3-Parts,
11-Chapters with 167 Sections viz.,
i). Part-1Chapters-12-(Sec.1-55)-short title, extent, definitions or
meanings Relevancy of facts;
ii). Part-2Chapters-3-6-(Sec.56-100)-facts which need not be proved(s.56-
58-chapter iv); of oral evidence (sec.59-60- chapter iv); of documentary
evidence(which include presumptions as to documents-s.79-90 (sec.61-90-chapter
v) of the exclusion of oral by documentary evidence (sec.91-100-chapter
vi)
iii). Part-3Chapters-7-11-(101-167-of the burden of proof(which include
presumptions-other than presumptions as to docts-s.79-90) (sec.101-114-chapter-
vii); estoppel(sec.115-117-chapter-viii); of witnesses (sec.118-135-chapter ix); of the
examination of witnesses(sec.135-166-chapter x) of improper admission and
rejection of evidence (sec.167-chapter xi).
14(b). Out of which, Sections 90, 100, 68-71 (besides Section 47 67
with Section 69) relevant herein to refer are:
(i). Section 90 of the Evidence Act, 1872 (in Chapter v) with
title Presumption as to documents of thirty years old reads that Where
any document, purporting or proved to be thirty years old, is produced from any
custody which the Court in the particular case considers proper, the Court
may presume that the signature and every other part of such document,
which purports to be in the handwriting of any particular person, is in that
person’s handwriting, and, in the case of a document executed or attested, that
it was duly executed and attested by the persons by whom it purports to be
executed and attested.
ExplanationDocuments are said to be in proper custody if they
are in the place in which, and under the care of the person with whom, they
would naturally b; but no custody is improper if it is proved to have had a
legitimate origin, or if the circumstances of the particular case are such as to
render such an origin probable.
Illustrations:
(a) A has been in possession of landed property for a long time. He
produces from his custody deeds relating to the land showing his titles to it.
The custody is proper.
(b) A produces deeds relating to landed property of which he is the
mortgagee. The mortgagor is in possession. The custody is proper.
(c) A, a connection of B, produces deeds relating to lands in B’s
possession, which were deposited with him by B for safe custody. The custody
is proper.
(ii). However Section 100 of the Evidence Act, 1872 (in Chapter VI) with
title
Saving of provisions of Indian Succession Act relating to Wills reads
thatNothing in this Chapter contained shall be taken to affect any of the
provisions of the Indian Succession Act (10 of 1825)], as to the construction of
Wills.
(iii). Whereas Sections 68-71 of the Evidence Act, 1872 (in Chapter V) read:
(a).Section 68. Proof of execution of document required by law to be
attested If a document is required by law to be attested, it shall not be used
as evidence until one attesting witness at least has been called for the purpose
of proving its executing, if there be an attesting witness alive, and subject to
the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in
proof of the execution of any document, not being a will, which has been
registered in accordance with the provisions of the Indian Registration Act,
1908 (16 of 1908), unless its execution by the person by whom it purports to
have been executed is specifically denied.
(b).Section 69. Proof where no attesting witness found If no such
attesting witness can be found, or if the document purports to have been
executed in the United Kingdom, it must be proved that the attestation of one
attesting witness at least is in his handwriting, and that the signature of the
person executing the document is in the handwriting of that person.
In this context, along with Sec.69, it is appropriate to read Sec.47 67.
Section 47. Opinion as to handwriting, when relevant When the Court
has to form an opinion as to the person by whom any document was written or
signed, the opinion of any person acquainted with the handwriting of the
person by whom it is supposed to be written or signed that it was or was not
written or signed by that person, is a relevant fact.
ExplanationA person is said to be acquainted with the handwriting of
another person when he has seen that person write, or when he has received
documents purporting to be written by that person in answer to documents
written by himself or under his authority and addressed to that person, or
when, in the ordinary course of business, documents purporting to be written
by that person have been habitually submitted to him.
Illustration:
The question is, whether a given letter is in the handwriting of A, a
merchant in London. B is a merchant in Calcutta, who has written letters
addressed to A and received letters purporting to be written by him. C is B’s
clerk, whose duty it was to examine and file B’s correspondence. D is B’s
broker, to whom B habitually submitted the letters purporting to be written by
A for the purpose of advising with him thereon. The opinions of B, C and D on
the question whether the letter is in the handwriting of A are relevant, though
neither B, C nor D ever saw A write.
Section 67. Proof of signature and handwriting of person alleged to have
signed or written document produced If a document is alleged to be signed or
to have been written wholly or in part by any person, the signature or the
handwriting of so much of the document as is alleged to be in that person’s
handwriting must be proved to be in his handwriting.
(c).Section 70. Admission of execution by party to attested document
The admission of a party to an attested document of its execution by himself
shall be sufficient proof of its execution as against him, though it be document
required by law to be attested.
(d).Section 71. Proof when attesting witness denies the execution If
the attesting witness denies or does not recollect the execution of the
document, its execution may be proved by other evidence.
14(c). Now coming to Section 63 of the Indian Succession
Act, 1925, which speaks on execution and proof of Wills with
title Execution of unprivileged Wills- Every testator, not being a
soldier employed in an expedition or engaged in actual warfare, [or an
airman so employed or engaged,] or a mariner at sea, shall execute his
Will according to the following rules:
(a) The testator shall sign or shall affix his mark to the Will, or it shall
be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person
signing for him, shall be so placed that it shall appear that it was intended
thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom
has seen the testator sign or affix his mark to the Will or has seen some
other person sign the Will, in the presence and by the direction of the
testator, or has received from the testator a personal acknowledgement of
his signature or mark, or the signature of such other person; and each of
the witnesses shall sign the Will in the presence of the testator, but it shall
not be necessary that more than one witness be present at the same time,
and no particular form of attestation shall be necessary.
14(d). From the above provisions, there is a bar to apply Sections
91 to 99 of the Evidence Act as to when to adduce and when not to
adduce oral evidence of the contents of Will, from what is laid down in
Section 100 of the Evidence Act, leave about looking into any of the
contents of Will, to rely for any collateral purpose, does not arise in the
absence of proof of due execution of Will, as laid down by this Court in
para 15(c) of the expression in Cheedella Padmavati Vs. Cheedella
Radha Krishna Murthy etc. that from a reading of Section 68 of the
Evidence Act and its proviso, it is not possible to hold that rigor of the
section can be watered down in case of a Will, which is required by law
to be attested, to prove it to use the same in evidence even for collateral
purposes.
14(e). However, there is no bar laid down on application of other
Sections of the Evidence Act to execution and proof of Wills, but for to
say, in view of the specific provision covered by Section 63 of the Indian
Succession Act, what is laid down by Section 68 of the Indian Evidence
Act of where no denial of execution, no need to examine any attestor to
the compulsorily registrable documents, is not applicable to Wills, for
what is also saved by the proviso to Section 68 of the Evidence Act.
14(f). From the above provisions, now coming to the propositions
on the scope of Section 90 of the Indian Evidence Act and its
application or non application to Wills, leave about the facts and
circumstances permit to exercise the discretion to apply, even if
applicable, from the use of the word may and proof of existence of a
document for past 30 years, to say 30 years old to the date of
exhibiting the same, and produced, if from proper custody concerned:
(i). In Harihar Prasad Singh Vs Balmiki Prasad Singh , it was
held by placing reliance upon the expression in Basanth Singh Vs
Brijraj Sadan Singh – regarding presumption of thirty years old
document under Section 90 of the Indian Evidence Act, that a
presumption can be raised only with reference to original document
and not to copies thereof. If the document happens to be signed by the
agent of the person against whom the presumption is sought to be
raised and there is no proof that he was an agent, Section 90 does not
authorize the raising of a presumption as to the existence of authority
on the part of the agent to represent that person. Even earlier to it, in
the 3 Judge Bench expression of the Apex Court in Kalidindi Venkata
Subbaraju Vs. Chintalapati Subbaraju it was held a presumption is
only in respect of original document and not for copies. No doubt while
holding as per Section 59 of the Indian Succession Act, onus is on the
person who relies on Will to establish that said testator was competent
to execute, there was reference in making said observation of
presumption in a Will case. It did not specifically observed with
reference to Section 63 of the Indian Succession Act of same available
to Will to draw presumption including in referring to the earlier
expression of Munnalal Vs. Kashibai , Basant Singh supra and
Harihar Prasad Vs. Deonarayan Prasad to which Deonarayan and
Munnalal supra, is also in cases of copy of will marked in not drawing
the presumption for not original. It is leave apart said issue not raised
to consider before the trial Court or earlier round of litigation in the first
appellate Court or even on second appeal remand of O.S.No.90 of 1981 and
even from common disposal of the three appeal suits by the 1st
appellate Court later even. Thereby even it is a pure question of law
difficult to accept that can now be raised and in Munnalal supra that
was relied in Kalidindi supra it was categorically observed that no
presumption to draw for no pleading that will was in existence and
acted upon after death of attestor as a last will and in sound and
disposition state of mind he made the bequeath.
(ii). In Union of India Vs Ibrahim Uddin , it was held regarding
the general presumption of thirty years old document that the
presumption is in respect of genuineness of a document as
regards signature, execution and attestation, but not as
regards the correctness of the contents of the document, which
are to be proved by other independent evidence.
(iii). In Chakicherla Audilakshmamma Vs Atmakaru
Ramarao it was held by a Division Bench of this Court that, it would
be dangerous no doubt, for the courts to draw presumption of due
execution mechanically on the face of the documents purporting
to be 30 years old; and coming from proper custody in as much
as the presumption dispense with proof of due execution, thereby
the Court must act with extreme caution and utmost
circumspection from the language used May presume in
Section 90 of the Evidence Act conferring judicial discretion to
be exercised by the Court in drawing the presumption. It is
within the judicial discretion of the Court having regard to facts
and circumstances of each case. On an analysis of the provisions of
Section 90 of the Evidence Act and its interpretation judicially, we may
deduce the following propositions:
1. The presumption applies to documents proved to be 30 years or more
old;
2. The document must come from proper custody;
3. The presumption is discretionary and in cases where a document is
exfacie suspicious, the Court may very well refuse to take the presumption and
call upon the party to offer other proof, forthwith;
4. The presumption can only be applied to the documents, which bear the
signature of the writer or of witnesses, and the presumption cannot be drawn
in the case of unsigned or anonymous papers; and
5. The extent of presumption relates only to the signature, execution or
attestation of a document that is to say, its genuineness. The drawing of the
presumption does not connote the idea that the contents of the documents are
true or that they have been acted upon;
6. The presumption applies only to original documents and not on any
copies thereof, certified or otherwise.
On facts, it was held that the document appears to be not genuine and
no presumption under Section 90 of the Evidence Act can be drawn to it as the
unsuspicious character of the document is absent, before the presumption
contemplated by Section 90 of the Evidence Act could be drawn in its favour.
On the question of proper custody, we have to bear in mind the Explanation
appended to Section 90 of the Evidence Act. As per the Explanation, documents
are said to be in proper custody, if they are in the place in which, and under
the care of the person with whom they would naturally be, but no custody is
improper, if it is proved to have had a legitimate origin, or if the circumstances
of a particular case are such as to render such origin probable.
(iv). From the 69th report of the Law Commission of India, the
amendments suggested include, amendments to Section 68 of the
Evidence Act, and under Sections 57, 58 and 63 of the Indian
Succession Act and Sections 59 and 123 of the Transfer of Property
Act. The Law Commission 69th report recommendations also referred
the opinion of Sarkar, the Author on the Evidence Act, that Section
68 of the Evidence Act should not apply, if the Will is more than 30
years old under Section 90 of the Evidence Act or was not produced, in
spite of notice to produce under the Evidence Act; which proposals are
broadly in conformity with the English Law, as it stands after the
UK Evidence Act, 1938.which accept even in case of Wills for
other situations, where witness is kept out of way. Sarkar on
Evidence (15th edition-1999) at page 1124, Wigmour on Evidence
at Para 1288, speak that the theory that parties must be deemed to
have agreed that the attestor will be a person, who should speak about
the circumstances of the execution, is not correct and there is no such
agreement can be implied, particularly, when attestation is required by
law. As per Sarkar, Page 1124 the attestor is in practice, not usually a
person who knows anything about the circumstances preceding the
document execution and also on the aspect, the words shall not be
used in evidence mean that the document can be used for collateral
purposes. Several Jurists in America relaxed the said rule for the
purpose of collateral or incidental use (Wigmour Section 129
quoted by Sarkar Page 1129) as relaxed the rule in admission of a
mortgage bond in AIR 1939 Allahabad 366, AIR 1915 Allahabad 254.
The Law Commission thus proposed that the inadmissibility
must be confined to the testamentary disposition and not for
collateral purpose and recommended that Section 68 of the
Evidence Act must be confined only to Wills and required to be
re-drafted and the exceptions added and referred to in the 69th
report required. Said recommendation is not incorporated by any
amended legislation.
(v). Regarding the written authority by husband to wife in a Will to
adopt a child by her after his life time under uncodified Hindu law, it
was observed in Para 453 of Mullah at page 780, that the written
authority must be a registered one, unless it is given under a Will vide
decision Mottasiddilal V. Kundanlal and Ravath V. Beni
Bahadur and if the authority is given under a Will, it must be
executed in accordance with the formalities required by Section
63 of the Indian Succession Act. It is to say collateral purpose is
not recognized or considered in the above.
(vi). In Paranru Radhakrishnan Vs. Bharathan , by referring
Sections 68 and 69 of the Evidence Act and also referring to the earlier
expressions of the Calcutta, Oudh and Allahabad High Courts, the
Kerala High Court held that from a reading of Section 68 of the
Evidence Act, it is evident that a document, which is required by law to
be attested, shall not be used at all as evidence, until one of the
attesting witnesses, at least, has been examined to prove its execution.
The imperative wording of Section 68 of the Evidence Act makes it clear
that it does not permit utilisation of a document, which is required by
law to be attested, as evidence until it is proved, strictly in accordance
with the provisions of the Section. Said expression in Paranru
Radhakrishnan and observations of the Author-Mullah were
quoted with approval by this Court in Cheedella Padmavathi
supra.
(vii). In fact for Wills, even the provisions of the Evidence Act
apply other than Sections 91 to 99, once Section 68 of the
Evidence Act is not dispensing with the proof of a Will,
irrespective of non-denial of execution, by drawing the difference
between Wills and other attestable documents, the question of
drawing presumption of 30 years old document under Section 90
of the Evidence Act apart from, does not arise for Wills, even
taken as arises, that no way dispense with the special
requirements of Section 63 of the Indian Succession Act, 1925,
which is besides the Special Law on Wills when compared to the
Evidence Act, as a general law on all attestable documents, apart
from otherwise being the Indian Succession Act, 1925, a
subsequent legislation to the Indian Evidence Act,1872, in that
way also prevails. Suffice to say, the presumption of 30 years old
document that can be drawn under Section 90 of the Evidence
Act, 1872 has no application to Wills from its implied
repeal/exclusion in view of the special requirements of Section
63 of the Indian Succession Act, 1925.
(viii). It was also held by the Apex Court three Judges Bench in R.
Venkatachala Iyengar Vs. B N. Thimmajamma , that a Will has to
be proved like any other document, except that evidence tendered
in proof of a Will should additionally satisfy the requirements of
Section 63 of the Indian Succession Act, apart from the one
under Section 68 of the Indian Evidence Act.
(ix). It was also categorically held by the Apex Court in Bharpur
Singh Vs. Shamsher Singh that, a presumption regarding
documents of 30 years old does not apply to Wills and thus a
Will has to be proved in terms of Section 63(c) of the Indian
Succession Act, read with Section 68 of the Indian Evidence Act.
(x). In M.B. Ramesh (D) by LRs. Vs. K.M. Veeraje Urs (D) by
LRs. , by quoting with approval the expression in Bharpur Singh
supra, it was held that the requirement of Section 63(c) of the
Indian Succession Act, 1925 was once not fulfilled, viz., that two
or more witnesses have to see the testator sign or affix his mark
to the Will, and each of the witnesses have also to sign the Will
in the presence of the testator, the document even of 35 years
old, no presumption of genuineness of signatures, due execution
and attestation can be drawn.
(xi).Thus, Section 90 of the Indian Evidence Act, 1872, can
be said from the above law as not applicable to the proof of a
Will and the failure to apply, the same by the Courts below is no
way a perverse and unsustainable conclusion and same is no
way devoid of merits, leave about the same not specifically
raised in the Courts below, much less with factual foundation
even to draw from what is discussed supra including from
Munnalal supra; even same is taken as open to raise and to
consider in the second appeal as a pure question of law.
15. Before discussing the requirements of evidence in proof of
Section 63 of Indian Succession Act, Sections 68 to 71 of Evidence Act
and whether there are suspicious circumstances and same were
dispelled or not and due execution and attestation of the Will and the
alleged bequeaths made by testator in a sound and disposing state of
mind are proved or not concerned, it is needful to have a brief idea of
Wills.
15.(i). “Will”, as defined in Section 2(h) of the Indian Succession
Act- means, the legal declaration of the intention of a testator with
respect to his property, which he desires to be carried into effect after
his death”. Will is derived from the Latin word Voluntas to mean
expression of intention of a testator generally in a document.
Testament is derived from the Latin word Testatio-mentis to mean
testifies the determination of the mind. Thus, it is a legal declaration of
a persons intention to take effect after the death of that person.
According to Shoulders- Law of Wills, a Will is the aggregate of mans
testamentary intention so far as the same is manifested in writing and
duly executed according to the Statutes.
15(ii). Lord Wilmot, C.J. in Doe Long Vs. Laming (2 Burr. at
pp.11-12) described the intention of the testator as the “pole star”
and is also described as the nectar-of the instrument.
15(iii). Underhill Strahan on interpretation of Wills and
Settlements – (1900 Edn.), while construing a Will, stated that “the
intention to be sought is the intention which is expressed in the
instrument, not the intention, which the maker of the instrument may
have had in his mind. It is unquestionable that the object of all
expositions of written Instruments must be to ascertain the expressed
meaning or intention of the writer; the expressed meaning being
equivalent to the intention
15(iv). In Halsbury`s Laws of England, 4thEdn., Vol.50, P.239, it
is stated:
“408. The only principle of construction which is applicable
without qualification to all Wills and overrides every other rule
construction, is that the testator’s intention is collected from a
connection with any evidence properly admissible and tile meaning of
the Will and of every text of it is determined according to that
intention.”
15(v). ‘Will’, therefore, has the four essentialities- (i) It must be
a legal declaration of testator’s intention, (ii) That declaration must be
with respect to his property, (iii) The desire of the testator that the
declaration should be effected after death of testator, and (iv) The other
Essential quality of testamentary disposition is ambulatoriness of
revocability during executants’ lifetime. Such a document is
dependent upon executants’ death for its vigor and effect.
15(vi). A Will need not be stamped under the Indian stamp Act
and need not be necessarily registered, being optional under Section
18 of the Indian Registration Act. It is different from Gift or Settlement
or other disposition by transfer of rights in immovable property worth
above Rs.100/-, which necessarily be registered under Section 17 of
the Indian Registration Act, besides duly stamped, though when
stamped or impounded and even unregistered can be admitted for
collateral purpose under Section 49 of the Indian Registration Act.
Though registration is optional and not compulsory and non-
registration is by itself not a ground to doubt its due execution,
registration is one of the positive circumstances to infer in favour of
due execution, unless evidence on record shows otherwise.
Registration of Will being optional, mere registration does not dispense
with the proof of execution and attestation, but for to serve only a piece
of evidence of the execution. Further, collateral purpose is unknown to
Wills. That it is also of the reason that Will operates after the death of
the testator and in his life time, he can alter or cancel the bequeaths by
Codicil or fresh Will, any number of times, as facts and circumstances
shown permitted, and thereby also the last disposition prevails over the
earlier, even in same document for same property, in case of
inconsistent bequeaths.
15(vii). In the interpretation of Wills in India, regard must be
had mainly to the rules of law and construction contained in Part VI of
the Indian Succession Act and, particularly, Section 88 of the Indian
Succession Act and not the Rules of the Interpretation of Statutes-vide-
Mathai Samuel Vs. Eapen Eapen(d)by Lrs .
15(viii). In Narendra Gopal Vs Rajat Vidhyardhi at para-
32(cl.3), it was held that, in appreciating the documents of unilateral
dispositions and testamentary dispositions like Wills, the true
intention of the testator (executant) has to be gathered, not by attaching
importance to the isolated expressions, but by reading the document,
as a whole.
15(ix). The nomenclature given by the parties to the transaction,
in question, is not decisive, but the contents and the intention of the
executant, which must be found in the words used in the document.
The question is not what may be supposed to have been intended, but
what has been said. One need to carry on the exercise of construction
or interpretation of the document only, if the document is ambiguous
or its meaning is uncertain. The real and the only reliable test, for the
purpose of finding out whether the document constitutes a Will or a
Gift/Settlement, is to find out as to what exactly is the disposition,
which the document has made, whether it has transferred any interest
in praesenti in favour of the beneficiaries or it intended to transfer
interest in favour of the beneficiaries only on the death of the
executant.
15(x). In Paranru Radhakrishnan Vs Bharathan , it was held
that the imperative and clear straight wording of Section 68 Evidence
Act makes it clear that it does not permit the use of a document, which
is required by law to be attested, as evidence until it is proved strictly
in accordance with the provisions of the Section.
15(xi). In Shivdev Kour Vs. R.S.Grewal and in Balwant Kour
Vs. Chanan Singh , it was held that all the clauses of the Will must
be read together to find out the intention of the testator. This is
obviously on the principle that the last clause represents the latest
intention of the testator (See also Section 88 of the Indian Succession
Act).
15(xii). In fact, a Will speaks only from the grave of the
testator, as the executant of the Will cannot be called upon to
admit or deny its execution, much less to explain any
circumstances raising a suspicion surrounding the execution and
testamentary capacity and condition with reference to sound and
disposing state of mind and thus for appreciating the evidence of
due execution and genuineness of bequeaths, the Court will also,
and with reference to the above, put itself into the armchair of
the executant/testator. The intention of the testator, in this
regard, must be ascertained not only from the words used, but
also from surrounding circumstances with reference to the
unimpeachable evidence regarding genuineness and authenticity as
well as probabilities and improbabilities and unnatural or unfair
bequeaths with reference to the direct or indirect beneficiaries of the
bequeaths in the Will/testament known as propounder/s influence
and role as to not a free will and volition of the testator in making the
bequeaths and reasons or circumstances in relation to natural heirs
and their relation with the testator for ignoring and making bequeaths
to other than natural heirs or preferring among the natural heirs or
preferring other than natural heirs also as the legatees. Further, with
reference to from death of the testator, leave in his lifetime, seen the
light of the day. If, in relation to the above or otherwise, there are any
suspicious circumstances or cloud shrouded around the execution
and in the bequeaths, the propounder has to discharge of the burden
lies on him also as held in Kalidindi supra, to prove and dispel the
suspicious circumstances to clear the cloud and probablises the
genuineness of execution and the bequeaths as per free will and
volition of testator. No doubt mere ignoring the natural heirs or
preferring among them or preferring other than natural heirs by itself
not a ground to doubt the genuineness, for the reason that the
testamentary dispositions by Will itself is to interfere or alter or divert
the natural line and flow from the intestate succession and
survivorship by reducing or depriving the share of natural heirs, if any,
at the discretion and will of the testator.
15(xiii). Apart from that, it is absolutely necessary of execution of
the Will under Section 63 of the Indian Succession Act to prove that
the Will was attested by two attesting witnesses, at least, who saw the
testator signing the Will or the testator must personally acknowledge
the signature on the Will that of him in the presence of the two attesting
witnesses and they themselves signed the same in the presence of the
testator. Without attestation, execution of the Deed of Will is
not valid. When no witness deposed of the alleged Will was signed by
the deceased in his presence or that he had attested the document,
execution of the very Will can be held as not proved. A reading of even
Section 68 of the Evidence Act shows that attestation and execution are
the two different acts, one following the other. Where the Will is
registered and there are signatures of registering officer and of
identifying witnesses affixed to registration endorsement, endorsement
by the Sub-Registrar that the executant has acknowledged execution
before him amounts to attestation and when all they deposed the same
of due execution and attestation, it is a compliance of Section 63 of
Indian Succession Act. It is for the Court to appreciate from the above,
including intention of the testator with reference to contents, other
attending facts and surrounding circumstances, like considerations in
making bequeaths, instead of allowing the estate by intestacy to claim
legal heirs equally, motive of the testator in the recitals even by making
dispositions to the natural heirs, who, otherwise even succeed,
propounder influence, if any, needless to say, propounder of the Will
has to dispel with the suspicious circumstances shrouded around the
Will and its execution and manner of dispositions, the position of the
testator, his family relationship and preference of some among the
family members or preference of some other than the family members
and among the legal heirs remote to the nearest and other
considerations in making bequeaths, propounder influence-
(irrespective of not direct beneficiary). There are no set parameters to
judge all these aspects, but for within these broad guidelines, to
appreciate the evidence on record of the case on hand within the
ordinary and reasonable prudence, to arrive at a just conclusion, for
each case depends on its own facts – vide decisions in Raghunath
Prasad Singh Vs Deputy Commissioner , Mokshada Ranjan Vs
Surendra Bijos , Dasarath Gayan Vs Satyanarayana Ghosh ,
Lalta Baksh Vs Phool Chand , Kapuari Kuer Vs Shamnarain
Prasad , Savitri Ammal Vs State , Dr. M. Ratna Vs K.
Navaneetam , Ram Gopal Vs Nandlal , Gnanambal Ammal Vs
T.Raju Iyyer , Raj Bhajrang Bahadur Singh Vs Thakurian
Bhaktaraj Kuer , Girja Dutt Vs Gangotri Dutt , H. Venkatachala
Iyangar Vs B.N.Timma Rajamma , Kameswara Rao Vs B.Surya
Prakasa Rao , Rani Purnima Devi Vs Kumar Khagrendra Narayan
Deb , Peareylal Vs Rameswar Das , the Constitutional Bench
expression in Shashi Kumar Benarji Vs Shubodh Kumar Benarji ,
T.V. Kaur , Surendra Pal Vs Dr.(Smt) Saraswathi Arora , Beni
Chand Vs Kamala Kunwar , Jaswant Kaur Vs Amrit Kaur ,
Brijmohanlal Arora Vs Giridharlal Manocha , Smt. Indu Balabore
Vs Manindra Chandra Bose , Kalyan Singh Vs Choti , Ram Pyari
Vs Bhagwanh , Veerattalingam , Kasibhai Vs Parwatibai ,
Rabindranath Mukherjee Vs Panchanan Benarji , PPK Gopalan
Nambiar , Daulat Ram Vs Sodha , S.Sundaresara Pai Vs
Sumangala T.Pai , Janki Narayan Bhoir Vs Narayan Namdeo
Kadam , Umadevi Nambiar Vs T C Sridhan , Daulat Ram Vs
Sodha , Sridevi Vs Jayaraja Shetty , Pentakota Satyanarayana
Vs Pentakota Seetharatnam , Gurdev Kaur Vs Kaki , Gopal
Swaroop Vs Krishna Murthy , Mathai Samuel (supra).
15(xiv). The propositions laid down in Venkatachala Iyengar
(supra) have been followed and explained in other judgments,
including of a Bench of three Judges in Smt. Jaswant Kaur (supra),
wherein it is observed that:
1. Stated generally, a will has to be proved like any other document, the
test to be applied being the usual test of the satisfaction of the prudent mind in
such matters. As in the case of proof of other documents, so in the case of proof
of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it
cannot be used as evidence until, as required by Section 63 of the Succession
Act, one attesting witness at least has been called for the purpose of proving its
execution, if there be an attesting witness alive and subject to the process of
the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator
and therefore the maker of the will is never available for deposing as to the
circumstances in which the will came to be executed. This aspect introduces
an element of solemnity in the decision of the question whether the document
propounded is proved to be the last will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be discharged
on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious
circumstances stand on a different footing. A shaky signature, a feeble mind,
an unfair and unjust disposition of property, the propounder himself taking a
leading part in the making of the will under which he receives a substantial
benefit and such other circumstances raise suspicion about the execution of
the will. That suspicion cannot be removed by the mere assertion of the
propounder that the will bears the signature of the testator or that the testator
was in a sound and disposing state of mind and memory at the time when the
will was made, or that those like the wife and children of the testator who
would normally receive their due share in his estate were disinherited because
the testator might have had his own reasons for excluding them. The presence
of suspicious circumstances makes the initial onus heavier and therefore, in
cases where the circumstances attendant upon the execution of the will excite
the suspicion of the court, the propounder must remove all legitimate
suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by
suspicious circumstance that the test of satisfaction of the judicial conscience
has been evolved. That test emphasises that in determining the question as to
whether an instrument produced before the court is the last will of the
testator, the court is called upon to decide a solemn question and by reason of
suspicious circumstances the court has to be satisfied fully that the will has
been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to
the execution of the will, such pleas have to be proved by him, but even in the
absence of such pleas, the very circumstances surrounding the execution of
the will may raise a doubt as to whether the testator was acting of his own free
will. And then it is a part of the initial onus of the propounder to remove all
reasonable doubts in the matter.
15(xv). The Apex Court three Judges Bench in Girja Datt Singh
Vs Gangotri Datt Singh , answered the requirements of evidence in
proof of Section 63 of Indian Succession Act to the effect that:
14. It still remains to consider whether the attestation of the signature of
the deceased on the will, Ex. A-36 was in accordance with the requirements of
Section 63 of the Indian Succession Act. Section 63 prescribes that:
“(c) The will shall be attested by two or more witnesses, each of whom
has seen the testator sign or affix his mark to the will or has seen some other
person sign the will, in the presence and by the direction of the testator, or has
received from the testator a personal acknowledgment of his signature or mark,
or of the signature of such other person; and each of the witnesses shall sign
the will in the presence of the testator …………..”
In order to prove the due attestation of the will Ex.A-36 Gangotri
would have to prove that Uma Dutt Singh and Badri Singh saw the deceased
sign the will and they themselves signed the same in the presence of the
deceased. The evidence of Uma Dutt Singh and Badri Singh is not such as to
carry conviction in the mind of the Court that they saw the deceased sign the
will and each of them appended his signature to the will in the presence of the
deceased. They have been demonstrated to be witnesses who had no regard for
truth and were ready and willing to oblige Gur Charan Lal in transferring the
venue of the execution and attestation of the documents Ex.A-23 and Ex.A-36
from Gonda to Tarabganj for reasons best known to themselves.
If no reliance could thus be placed upon their oral testimony, where
would be the assurance that they actually saw the deceased executed the will
in their presence and each of them signed the will in the presence of the
deceased. It may as well be that the signature of the deceased on the will was
appended at one time, the deceased being there all alone by himself and the
attestations were made by Uma Dutt Singh and Badri Singh at another time
without having seen the deceased sign the will or when the deceased was not
present when they appended their signatures thereto in token of attestation.
We have no satisfactory evidence before us to enable us to come to the
conclusion that the will was duly attested by Uma Dutt Singh and Badri Singh
and we are therefore unable to hold that the will Ex.A-36 is proved to have
been duly executed and attested.
15.When this position was realised the learned counsel for Gangotri fell
back on an alternative argument and it was that the deceased admitted
execution and completion of the will Ex.A.36 and acknowledged his signature
thereto before the Sub-Registrar at Tarabganj and this acknowledgment of his
signature was in the presence of the two persons who identified him before the
Sub-Registrar, viz., Mahadeo Pershad and Nageshur who had in their turn
appended their signatures at the foot of the endorsement by the Sub-Registrar.
These signatures it was contended were enough to prove the due attestation of
the will Ex. A. 36. This argument would have availed Gangotri if Mahadeo
Pershad and Nageshur had appended their signatures at the foot of the
endorsement of registration ‘animus attestandi’.
But even apart from this circumstance it is significant that neither
Mahadeo Pershad nor Nageshur was called as a witness to depose to the fact of
such attestation if any. One could not presume from the mere signatures of
Mahadeo Pershad and Nageshur appearing at the foot of the endorsement
of registration that they had appended their signatures to the document as
attesting witnesses or can be construed to have done so in their capacity
as attesting witnesses. Section 68, Indian Evidence Act requires an attesting
witness to be called as a witness to prove the due execution and attestation of
the will. This provision should have been complied with in order that Mahadeo
Pershad and Nageshur be treated as attesting witnesses. This line of argument
therefore cannot help Gangotri.
16.The result therefore is that the will dated 17-3-1928 is not proved to
have been duly executed and attested and cannot furnish a basis of title to
Gangotri in regard to the ten annas share in the properties left by the
deceased, the subject-matter of the two proceedings E. E. Act Case No. 11 of
1936 and Regular Suit No. 71 of 1938 in the Court of the Civil Judge,
Gonda..
15(xvi). In M.B. Ramesh (D) by LRs. supra, by quoting with
approval the expression in Bharpur Singh supra, it was held that the
requirement of Section 63(c) of the Indian Succession Act, 1925 was
once not fulfilled, viz., that two or more witnesses have to see the
testator sign or affix his mark to the Will, and each of the witnesses
have also to sign the Will in the presence of the testator, there is no
proof of Will, even it is a 30 years old document.
15(xvii). In B. Venkatamuni vs C.J. Ayodhya Ram Singh , it
was held that proof of execution of the Will in terms of Section 63 of the
Indian Succession Act and Sections 67 and 68 of the Indian Evidence
Act would be a pre-requisite, but, to take the same in evidence, it is
also trite that while arriving at a finding as to whether the Will has duly
been executed or not, the Court must satisfy its conscience having
regard to the totality of the circumstances.
15(xviii). In Gopal Swaroop Vs Krishna Murari Mangal , it was
held that:
13. . What is to be seen is whether the examination of the said
witness satisfies the requirements of Section 63 of the Evidence Act (supra). A
careful analysis of the provisions of Section 63 would show that proof of
execution of a Will would require the following aspects to be proved:
(1) That the Testator has signed or affixed his mark to the Will or the
Will has been signed by some other person in the presence and under the
direction of the Testator. (2) The signature or mark of the Testator or the
signature of the persons signing for him is so placed has to appear that the
same was intended thereby to give effect to the writing as a Will.
(3) That the Will has been attested by two or more witnesses each one of
whom has signed or affixed his mark to the Will or has been seen by some
other person signing the Will in the presence and by the direction of the
Testator or has received from Testator a personal acknowledgement of the
signature or mark or the signature of each other person.
(4) That each of the witnesses has singed the Will in the presence of the
Testator.
14. The decisions of this Court in Bhagwan Kaur W/o Bachan Singh v.
Kartar Kaur W/o Bachan Singh Ors. 1994 (5) SCC 135, Seth Beni Chand
(since dead) now by L.Rs. v. Smt. Kamla Kunwar and Ors. 1976 (4) SCC 554,
Janki Narayan Bhoir v. Narayan Namdeo Kadam 2003 (2) SCC 91, Gurdev Kaur
and Ors. v. Kaki and Ors. 2007 (1) SCC 546, Yumnam Ongbi Tampha Ibema
Devi v. Yumnam Joykumar Singh and Ors., 2009 (4) SCC 780, Rur Singh (dead)
Through LRs. and Ors. v. Bachan Kaur, 2009 (11) SCC 1 and Anil Kak v.
Kumari Sharada Raje and Ors. 2008 (7) SCC 695 recognize and reiterate the
requirements enumerated above to be essential for the proof of execution of an
unprivileged Will, like the one at hand.
15(xix). Now in deciding the above, coming to what is meant
by attestation and what is the mode of proof, Section 3 of the
Transfer of Property Act, defines attestation in relation to an
instrument (to mean non-testamentary, though same analogy applies
to testamentary with reference to Section 63 of the Indian Succession
Act), means and shall be deemed always to have meant, attested by two
or more witnesses, each of whom has seen the executant sign or affix
his mark to the instrument, or has seen some other person sign the
instrument in the presence and by the direction of the executant, or
has received from the executants a person acknowledgment of his
signature or mark, or of the signature of such other person, and each
of whom has signed the instrument in the presence of the executant;
but it shall not be necessary that more than one of such witnesses shall
have been present at the same time, and no particular form of
attestation shall be necessary. As per the Apex Courts expression in
Abdul Jabbar Vs Venkata Shastry – to attest is to bear witness to
a fact. The essential conditions of a valid attestation are that two or
more witnesses have seen the executant sign or affix his mark to the
instrument, or have seen some other person sign the instrument in the
presence and by the direction of the executant, or has received from
the executants a person acknowledgment of his signature or mark, or
of the signature of such other person, and each of whom has signed the
instrument in the presence of the executants to bear the witness to this
fact, it is essential that the attesting witness has put his
signature animus attestandi that is for the purpose of attesting
the signature of the executant.
15(xx). Execution of Will includes attestation and its proof. Apart
from the other expressions supra, the Constitutional Bench expression
in Shashi Kumar Benarji (supra) held at page-531, para-3, that the
mode of proving a Will does not ordinarily differ from that of proving
any other document, except as to the special requirement of attestation
prescribed in the case of a Will by Section 63 of the Indian Succession
Act,1925, which says the testator shall sign or affix his or her mark to
the Will or it shall be signed by some other person in the presence and
by his direction and the Will shall be attested by two or more
witnesses, each of whom has seen the testator signing or affixing his or
her mark to the Will, or has seen some other person signed the Will in
the presence and by the direction of the testator and each of the
witnesses shall sign the Will in the presence of the testator, and Section
68 of the Indian Evidence Act mandates in the case of denial or not of
execution, examination of one attesting witness atleast in proof of the
Will, whether registered or not. In the absence of suspicious
circumstances, it is suffice to prove testamentary capacity and due
execution with attestation, and where there are suspicious
circumstances, the onus is heavy on the propounder to dispel the
same for the Court acceptance as genuine and last Will and testament.
Attestation of a Will means, testifying the signature of the executant. It
is equally important that for a Will to be valid and enforceable shall be
attested by two or more witnesses, each of whom has seen the testator
sign or affix his mark to the Will or the testator should personally
acknowledge his signature or affixture of his mark to the Will in the
presence of the attestors and without that acknowledgement, it cannot
be inferred and further each of the witnesses has signed said Will in
presence of testator and said provision is not a mere formality, but
mandatory. Proof of attestation of the Will is also thus mandatory
Dr. M.Ratna Vs Kottaboina Navaneetham , Yumnam O.T.I.Devi
(supra) A.Poline D`Souza Vs John D`Souza . However, Court
cannot disregard evidence of attending circumstances on record, if
those must satisfy itself as to compliance on the totality, like giving
evidence by one attesting witness and there is no dispute about the
presence of other attesting witness at the time of execution of the Will
from the other contesting party from the other attesters name finds
place in the Will even the witness examined did not speak by mere
non-recollection of said fact from lapse of time to the date of evidence
from the date of document and its execution, vide decision
M.B.Ramesh Vs K.M. Veerajeurs . It is also no doubt held that such
circumstances are, in fact, rare and as such, the attesting witness
examined otherwise must also speak the presence and attestation of
other witness also as part of proof. Thus, in view of Section 63(1)(c) of
the Indian Succession Act r/w Sections 68 and 71 of the Indian
Evidence Act, it is sufficient even one attestor is examined, but that
attestor should speak, not only about the testators signature or
affixing his mark to the Will or somebody else signing it in his presence
and by his direction or that he had attested the Will after taking
acknowledgement from the testator of the signature or mark, but he
must also should speak that each of the witnesses had signed the Will
in the presence of the testator. It is irrespective of non-denial of its
execution, one attesting witness, at least as a concession out of
minimum two persons to attest, as required, must be called upon to
prove the deed, if there be even one alive and subject to the process of
the Court. But what is significant is that said attesting witness
examined must be able to speak to the attestation by the other
attestor also. The Apex Court in Kashibai and another Vs
Parwatibai held at paras 10 and 11 that, Section 68 of the Indian
Evidence Act shows that the attestation and execution are two different
acts, one following the other. There can be no valid execution of a
document, which is required by law to be attested, without the proof of
its due attestation and if due attestation is also not proved; the fact of
execution of the Will is of no avail See also several expressions
referred and discussed in the previous paras supra and, in particular,
of the expression in Janki Narayan Bhoir supra – with reference to
Section 3 of the Transfer of Property Act, Sections 68 to 71 of the
Indian Evidence Act and Section 63 of the Succession Act, and with
regard to the execution of unprivileged Wills, the word attested has
been defined as in Section 3 of the Transfer of Property Act.
15(xxi). Thus, the sum and substance of the expressions is clear
that reproduction of wording of Section 63 is not necessary, but
the evidence must speak the requirements of compliance of the
section, as mandatory in proof of a Will and what is significant
is that said attesting witness examined must be able to speak
as to the due attestation by the other attestor also.
15(xxii). In this regard, coming to said proof, where and
when application of Sections 69 to 71 of the Evidence Act, arise,
it is clear from a reading of Sections 68 to 71 of the Evidence Act and
Section 63 of the Indian Succession Act, that Section 71 of the
Evidence Act has no application, if one of the two or more attesting
witnesses examined failed to prove execution of the Will and the other
attesting witness/s, even available, was not summoned and examined.
It is also very clear from the language of Section 71 of the Evidence Act,
that if an attesting witness examined denies or does not recollect
execution of the document, its execution may be proved by other
evidence (under Sections 47 and 67 and/or Sections 45, r/w. Section
51 and/or Section 73 of the Evidence Act). It arises to invoke Section
71 of the Evidence Act, where there is no other attesting witness alive
and, even alive and summoned, failed to attend or untraced at the
address and unknown to secure. Thus, invocation of Section 71 cannot
be resorted to when one of the attesting witnesses fails to prove the Will
and the other attesting witness, if alive and available, without his
examination to prove the Will. Section 71 of the Evidence Act is only a
permissive provision and enabling section to permit a party to lead
other evidence only in certain circumstances, which are the above, as it
is meant to lend assistance and come to the rescue of a party who had
done his best, but driven to a state of helplessness and such
impossibility cannot be let down without any other means of proving
due execution by other evidence as well. Section 68 of the Evidence
Act is not merely an enabling section as it lays down the necessary
requirements, which the Court has to observe before holding that a
document is proved. Thus, Section 71 of the Evidence Act cannot be
read so as to absolve a party of his obligation under Section 68 of the
Evidence Act, read with Section 63 of the Indian Succession Act to
liberally allow him, at his choice, to make available or not a necessary
witness otherwise available and amenable to the jurisdiction of the
Court concerned and confer a premium upon his omission or lapse, to
enable him to give a go-bye to the mandate of law relating to the proof
of execution of a Will. Where the attesting witness called upon to prove
execution is not in a position to prove the attestation of the Will by
second witness, the evidence of the witness falls short of the mandatory
requirements of Section 68 of the Evidence Act, read with Section 63 of
the Indian Succession Act. See – Janaki Narayan Bhogir(supra), Karri
Nukaraju Vs Putra Venkatrao Dr. M. Ratna and Babu Singh Vs
Ram Shahi@ram singh . In Janki Narayan Bhoir(supra), the Apex
Court held at the end of the para 6 of the judgment that it is true that
although a Will is required to be attested by two witnesses, it could be
proved by examining one of the attesting witnesses as per Section 68 of
the Indian Evidence Act. It is also noted in paragraph 9 of the
judgment that one of the requirements of due execution of a Will is its
attestation by two or more witnesses, which is mandatory. In
paragraphs 11 and 12 of the judgment, the Court noted the relevance
of Section 71 of the Evidence Act by stating that aid of Section 71
can be taken only when the attesting witnesses, who have been called,
deny or fail to recollect the execution of the document to prove it by
other evidence. Section 71 has no application when one attesting
witness, who alone has been summoned, has failed to prove the
execution of the Will and the other attesting witness, though available,
has not been examined. In the facts of the case, therefrom, the Court
held that attestation of the Will, as required by Section 63 of the
Succession Act, was not established, which was equally necessary.
Even way back this Court in Doctor M.Ratna Vs. Kottiboyina
Navaneetam held by referring to the Apex Courts expression in
Girija Datt Vs.Gangotri Datt and Venkatachalaiah supra and
commentary of Manta Ramamurthy on law of wills and the other
expression of the Apex Court in Beni Chand supra held that
attestation satisfies requirements for no implied acknowledgment as
sufficient in proof of execution of a will.
15(xxiii). Further, Section 69 of the Evidence Act, applies in
the absence of attesting witness and only when party moves the
Court for summons under Order 16 Rule 10 CPC and the witness
fails to obey the summons to prove the Will in the manner
prescribed by Section 68 of the Evidence Act – vide Babu Singh
(supra). If the attesting witnesses are dead, their signature can be
proved by other evidence of person acquainted with or opinion
from comparison with signature/handwriting/thumb impression,
as the case may be (under Sections 47 and 67 and/or Section 45
r/w. Section 51 and/or Section 73 of the Indian Evidence Act).
15(xxiv). No doubt, it was held by a Division Bench of this Court
in Alluri JS Lakshmi Vs Kopparthi R Rao that execution of Will
need not be proved, when it is admitted by other side and when contest
is only on legal aspects as to the validity of bequeathing certain
properties covered by the Will. For that conclusion, it mainly relied
upon Section 58 of the Evidence Act.
15(xxv). In fact, the Apex Court in Kahibai Vs Parwatibai
held that without attestation, execution of the Will is not valid.
Thus, without attestation when execution is not complete and without
proof of execution by attestation, the disputed contents of it cannot be
looked into, as also laid down by the Apex Court in catena of
expressions referred supra, there could be no question of taking a Will
proved even from its admission, leave about in the case on hand, there
is no any admission of execution and attestation and also its contents,
since all are denied and disputed including signatures are not that of
deceased Balraj and the alleged will is brought into existence for
purposes of the cases. When genuineness of a Will is questioned, it is
the duty to prove that the Will is the product of free mind of the
testator and it is also the duty of the propounder to dispel the
surrounding suspicious circumstances, if any- vide decisions in
Savithri vs Karthyayani Amma ; Gopala Krishna Pillai Vs
Meenakshi Ayel , Venkatachala Iyangar and other decisions
referred in the previous paras (supra).
15(xxvi). Coming to the suspicious circumstances and burden of
proof, in addition to the expressions supra on the scope of law, it is
also relevant to consider the expression of the Apex Court in Surendra
Pal Ors. vs. Dr. (Mrs.) Saraswati Arora Anr. [(1974) 2 SCC 600],
wherein the law on proof of Will by dispelling suspicious circumstances
and the propounder to clear any cloud was stated in the following
terms:
“The propounder has to show that the Will was signed by the testator;
that he was at the relevant time in a sound and disposing state of mind, that
he understood the nature and effect of the dispositions, that he put his
signature to the testament of his own free will and that he has signed it in the
presence of the two witnesses who attested it in his presence and in the
presence of each other. Once these elements are established, the onus which
rests on the propounder is discharged. But there may be cases in which the
execution of the Will itself is surrounded by suspicious circumstances, such
as, where the signature is doubtful, the testator is of feeble mind or is
overawed by powerful minds interested in getting his property, or where in the
light of the relevant circumstances the dispositions appear to be unnatural,
improbable and unfair, or where there are other reasons for doubting that the
dispositions of the Will are not the result of the testator’s free will and mind. In
all such cases where there may be legitimate suspicious circumstances those
must be reviewed and satisfactorily explained before the Will is accepted. Again
in cases where the propounder has himself taken a prominent part in the
execution of the Will which confers on him substantial benefit that is itself one
of the suspicious circumstances which he must remove by clear and
satisfactory evidence. After all, ultimately it is the conscience of the court that
has to be satisfied, as such the nature and quality of proof must be
commensurate with the need to satisfy that conscience and remove any
suspicion which a reasonable man may, in relevant circumstances of the case,
entertain.”
16. From the above, coming back to some more relevant facts
with regard to evidence, among the 3 suits, the suit in O.S.No.90 of
1981 (O.S.No.177 of 1980) was filed on 18.07.1980 and written
statement filed by D1 D2-Venkaiah and Jangaiah, respectively, was
dated 08.08.1980 and the trial in O.S.No.90 of 1981 was commenced
on 15.12.1987. The suit O.S.No.136 of 1987 was filed on 25.09.1987
and the suit O.S.No.58 of 1989 was filed on 25.05.1989. As referred
supra, there is no date or month or year of the Will allegedly executed
by Sri Balraj, in said written statement dated 08.08.1980 and it is not
even mentioned, whether registered or unregistered and as to what are
the bequeaths in substance made, if any. Nothing even stated,
including in O.S.No.136 of 1987 filed on 25.09.1987. The Will not seen
the light of the day in any of the 3 suits but for the first time only from
its filing in the Court on 16.12.1988 in O.S.No.90 of 1981 during trial
after the evidence of P.Ws.1 to 3 completed by 22.11.1988 and without
even confronting any of them with said Will, and without even at least
putting any substance of the contents to any of the witnesses as to of
what are the bequeaths and preference, if in existence, but for filed on
16.12.1988, which was before commencement of evidence of DW.1 on
23.12.1988, which speaks volumes against the very existence of the
Will till then, despite contest including in O.S.No.136 of 1987. Even the
alleged Will is in Urdu and the so called Balraj allegedly signed it in
Telugu and not even in Urdu, leave about he is admittedly an illiterate.
The translated copy filed through Advocate Commissioner appointed
as per order passed in November, 1995 in IA.No.2740 of 1995 in
A.S.No.73 of 1995 shows dated 15 Khurdad 1356 Fasli (1946 AD). In
original Urdu language, it is not clear who were the attestors and who
was the scribe.
17. Before discussing further, coming to the common trial of the
partition suit and injunction suit filed by Ramesh etc., against
Laxmamma etc., P.Ws.1 to 5 were examined during March, 1991 to
September, 1992 and Exs.A.1 to A.32 were marked on their behalf.
D.Ws.1 to 3 were examined during February, 1993 to January, 1995
and Exs.B.1 to B.53 were marked on behalf of defendants. Ex.X.1 to
X.7 were also marked through witnesses.
18. In the first suit in O.S.No.90 of 1981, the Plaintiff- Laxmamma
and 2 more witnesses, namely N.Veeraiah and N.Narasimhulu were
examined as P.Ws.1 to 3 during December, 1987 to November, 1988
and marked Exs.A.1 to A.17 viz., Pahanies of the years 1966-68, 1971-
72, 1979-80, 1984-87, Tax receipts, copy of the proceedings of District
Revenue Officer, dt.22.02.1988, respectively. On behalf of defendants,
Ramesh etc., D.6 Ramesh was examined as DW.1, one Bal Reddy as
DW.2, one M. Balraj, s/o. M.Pochaiah as DW.3 (during December,
1988 to August, 1989) and Exs.B.1 to B.20 were marked viz., Vasool
Baki, original Will dated 15.07.1956 Fasli, Pahanies of 1962-63, 1971-
72, 1975-78, 1980-83, 1986-87, Adangal of 1986-87, Chow Fasla of
1978-79, Faisal Patti, 2 LR receipts, Ryth Pass Book and Sethwar,
respectively. Exs.A.18 to A.20 viz., order of the Revenue Divisional
Officer, dated 14.9.1990, and a Xerox copy of the General Power of
Attorney executed by the 1st respondent in favour of K. Sri Ramulu,
Pahani for the year 1961-62, respectively, and Exs.B.21 and B.22 viz.,
Certified copy of the proceedings of the District Social Welfare Officer,
Land Acquisition, Hyderabad, dated 13.12.1976, and a Carbon copy of
the order in W.P.No.2212 of 1991, respectively, that were marked at
the stage of appeal in A.S.No.16 of 1990, prior to the remand.
19. Among said evidence, Ex.A.20 in O.S.No.80 of 1981 is the
Pahani for the year 1961-62, an oldest Revenue record filed before the
Court, shows only the name of Laxmaiah and not the name of Balraj,
along with him. There is a correction incorporating the name of Sri T.
Venkaiah (D.1) and the same was deleted by rectified proceedings
No.B3/9444/86, dated 22.02.1988, of the Revenue Divisional Officer
under Exs.A.17 and A.18 and it also refers to the Faisal Patti for the
lands in the year 1960-61 and Khasra Pahani for the year 1954-55
standing in the name of only Laxmaiah and also some of the Pahanies,
out of the years 1965-66 to 1983-84 that were, in fact, marked by the
R.D.O. in his proceedings as Exs.A.2 to A.9 along with M.R.O.
proceedings with reference to Revenue records, by Memo dated
23.07.1987, as Ex.A.1 and no record was filed by Sri Ramesh and
Indramma, respondents to the said proceedings before the R.D.O.
supra, in relation to the suit lands, much less by showing mutation of
name of Balraj or Venkaiah as a legatee of Balraj by referring to any
Will. Ex.B.1, so called Certified copy of Vasool Baki of 1956 A.D. which
refers Laxmaiah and Balraj, thereby cannot be given credence, that too
after said proceedings of R.D.O., leave about the same even taken true
for nothing to entitle by Venkaiah and his heirs and the R.D.O.
proceedings also made final and same not even attacked by
amendment of pleadings in the partition suit or injunction suits
Ramesh etc.,supra. The Survey Numbers and extents not even given
in the so called Will, in detail, for survey number-wise, but for
Sy.Nos.130, 136, 181, 123 and 173, total admeasuring Acs.14.08
guntas mentioned in the translated copy, without mentioning the extent
of each survey number, and the same is not even tallying with the
referred survey numbers under Exs.P.17 and P.18 proceedings of
R.D.O., that correlates to suit properties.
20. Leave it as it is, even from a perusal of Exs.B.21 and B.22 viz.,
Certified copy of the proceedings of the District Social Welfare Officer,
Land Acquisition, Hyderabad, dated 13.12.1976, and Carbon copy of
the order in W.P.No.2212 of 1991, respectively, that were also marked
at the stage of appeal in A.S.No.16 of 1990, what it disclose is that part
of the land belonging to the family i.e., Acs.3.38 guntas in Sy.No.257 of
Nizampet, was acquired by the Government in the year 1976,
whereunder Venkaiah (D.1) and Laxmamma (1st plaintiff) were awarded
half of the compensation each for the acquired land, it cannot be said
that the compensation paid was pursuant to the existence of and based
on said Ex.B.2 Will, more particularly from the facts referred supra
and borne by record, including in the findings of the Courts below that
the so called Will, if really in existence, since 1356 Fasli, in favour of
Venkaiah, from Balraj died in 1960, said Will was not filed by Venkaiah
and Jangaiah along with their common written statement dated
08.08.1980 in O.S.No.90 of 1981 (originally numbered as O.S.No.177
of 1980) nor even after the death of Venkaiah in 1981, Ramesh with his
mother Indramma came on record in 1982 with additional written
statement, nor even in O.S.No.136 of 1987 filed by Ramesh and
Indramma with Suseelamma for partition, though the Will was made
basis for the claim of partition. In fact, the said Will was filed in
O.S.No.90 of 1981 supra only in December, 1988, which is after the
cross-examination of PWs.1 to 3 and while letting in evidence of the
defendants by Ramesh-D.6 as DW.1, as stated supra. In fact, in any of
the pleadings by Venkaiah, Jangaiah, Indramma and Ramesh supra,
they did mention even, at least the date or month or year of the Will
and, whether registered or not, or atleast, the contents of the Will, in
brief, of what are the exact dispositions, same not even suggested in the
cross-examination of P.W.1 -Laxmamma by Ramesh on 09.08.1988.
What he suggested to her was, Balraj executed a Will in favour of D.1 in
1956 and not even confronted with or even suggested any date or
month, but for, if at all, of the year 1956. However, a perusal of Ex.B.2
– Will, no way shows that it was executed in the year 1956. It is the case
of Laxmamma and her mother Lachamma that, Balraj was a mentally
challenged and had no sound and disposing state of mind and was
staying with his elder brother Laxmaiahs family only and never stayed
with his sister Balamma or her sons Venkaiah and Jangaiah.
21. Even to say, Jangaiah was illatom son of Laxmaiah, being
husband of 1st plaintiff – Laxmamma, with any composite family (vide
decision Garimella Annapurnaiah Vs. Kota Appalanarasimha
Murthy there is no scrap of paper and no any revenue mutation,
including of any of his cultivation of any of the suit properties, even to
give any credence to such a propounded contention of therefrom, only
to equally benefit Venkaiah, Balraj bequeathed to him his so called
undivided share; No doubt, a mutation in Revenue record does not
confer any title and even it is the case of the plaintiff Laxmamma of
Balraj was mentally challenged and, if so, when Laxmaiah was
managing, the mutation in his name does not take away any
entitlement by Balraj of undivided interest therein to succeed after him
by his legal representatives under Section 8 of the Hindu Succession
Act, 1956 as Balraj admittedly died in 1960 left behind his brother,
sister and family members. That is not the case, but for, if at all, to
consider on merits, in the event of the so called Will propounded by Sri
Venkaiah not proved. In this regard further, the evidence of DW.1
Ramesh shows that Balraj was an illiterate. But Ex.B.2 Will with Urdu
contents contains the signatures in Telugu said to be that of Balraj,
which also doubts the genuineness of the signature, which is even in
dispute, not proved by any other evidence. Exs.B.13 and B.14 do not
disclose that mutation was affected in the name of the 1st defendant on
the basis of Ex.B.2 Will. As per the Apex Court in Kalyan Singh
supra referring to Section 61 of the Indian Succession Act, failure to
remove suspicious circumstances by a person relying upon Will, Will
could be said to be not genuine for the reason the executant of the Will
cannot be called to deny or admit or explain circumstances of
execution and as such the trustworthy and unimpeachable evidence
must be produced in the Court to establish genuineness of the Will. In
view of all these circumstances, apart from all those discussed by the
trial Court in the suit, it cannot be said that Ex.B.2 Will is a genuine
document. Once the document not seen the light of the day, even prior
to December, 1988, as referred supra and particulars of date, month
and year not even given in any pleadings from 1980 and even from
1987, the very existence not proved from the above, much less of
proper custody, there is nothing even to draw the discretionary
presumption under Section 90 of the Indian Evidence Act, leave about
said Section has no application to Wills, in view of specific proof
required of Section 63 of Indian Succession Act, from the settled
expressions of the Apex Court referred supra of Bharpur Singh and
M.B.Ramesh relying upon H.Venkatachala Iyyangar supra. The
suspicious circumstances shrouded around the alleged Will are thus
not dispelled and the Will is not even proved, as required by law, as
concluded by the Courts below. What all deposed by Ramesh as DW.1
on 16.06.1989, for the first time, in his evidence in O.S.No.90 of 1981
is, the scribe Jagir Asim Hussain of Ex.B.2 is no more, though he
cannot say when he died and the particulars of his heirs. He does not
know the residences of other persons, other than Linga Goud of
Bachupally, among the witnesses not alive and denied the suggestion of
Balraj was in unsound state of mind with no capacity to execute the
Will and it is a created one for the purpose of defence in the suit and
other suit claims. DW.2 Bal Reddy in his cross-examination deposed
that till the death of Balraj, he was resided only with Laxmaiah at his
house. DW.3 M. Balraj, s/o. Pochaiah (D.5) speaks nothing of the
Will. Suffice to say, there is nothing to totally non-suit O.S.No.90 of
1981 claim, but for to say a suit for bare injunction was maintainable
without relief of declaration vide Saraswathi Vs. Jaganmohanrao ,
the plaintiffs are not the absolute owners for entire plaint schedule
property, since Balrajs share is therein and plaintiffs are in possession
for that also, to confine the relief of not to interfere or dispossess the
plaintiffs except through due process of law, which is subject to result
of partition suit in O.S.No.136 of 1987 supra.
22. Coming back on the proof of alleged Will, in the suits for
partition and injunction not to alienate maintained by Ramesh etc.,
where Certified copy of said Ex.B.2 Will in O.S.No.90 of 1981
obtained is marked as Ex.A.4 and not even exhibiting the original by
consent for or by seeking substitution of original certified copy of
returned original of case marked in the other suit supra. It is his
saying the Will refers to old survey numbers and said Will was
executed in the presence of Jagirdar Asim Hussain. One Vittalaiah of
Bachupally (P.W.2) and Raja Reddy(father of P.W.3) and Lingamaiah
were present at the time of execution of the Will and Lingamaiah did
not sign and the other two died subsequently. The age of Ramesh, as
per his deposition in 1991, was stated to be about 33 years and
practically he was not even born by then, but deposing, as if present,
as to who were present and who signed among them. Suffice not to give
credence to his version on the Will, but for, if at all, scribe and
attestors, to say not alive. He admitted that Balraj died in Nizampet at
the house of Laxmaiah and Laxmaiah performed his obsequies. What
PW.2 Vittalaiah, Patwari during 1950-69 of Nizampet, according to
him, deposed is, Balraj did not go for marriage due to his ill-health.
However, he did not describe said ill-health, which disables him to
undergo marriage. That, in fact, substantiates the contention of
Laxmamma of Balraj was mentally challenged and only staying under
the care of them in their house till his death. It very clearly proves of
Balraj was not having sound and disposing state of mind, though PW.2
Vittalaiah pretends that Balraj executed Will bequeathing his share to
Venkaiah, father of PW.1 Ramesh. The so called Will said to have
been executed at the house of Jagir. There were no circumstances to go
to the Jagirs house, much less without even knowledge or taking also
of Laxmaiah, as Balraj was staying in the house of Laxmaiah under his
care and due to his ill-health and had Laxmaiah been present, he
could be a signatory to the Will, but it is not so. Even P.W.2 deposed
that said Jagir Asim Hussain used to reside in Mangalhat and he has
no even lands in Nizampet and the villagers do not go to the Jagir for
drafting any transactions of the lands. He deposed that the Jagirs
Munshi is Shabuddin. When the transaction is drafted, the signature
of person drafted be there and Shabuddins signature is there as
scribe. This evidence also varies to evidence of Ramesh supra as if
Jagirs scribe since P.W.2 says Shabuddin scribed at house of the Jagir
and Jagir is not even attestor much less Laxmaiah if at all present and
if at all true, being natural witnesses if executed there, rather chance
witnesses P.W.2 Vittalaiah, Raji Reddy and any other persons. P.W.2
supra says the document was first signed by Balraj and then by others
and later Jagirdar and to be sealed on the same. There is no any seal
reflecting even on Ex.A.4. Even from this evidence of P.W.2 in
O.S.No.136 of 1987, it no way establishes the requirements of due
attestation of the executant signing seen by at least two attestors and
their attesting/ signing seen by the executant which is suffice to say
there is no proof of the Will and there are several suspicious
circumstances around it. PW.2s native place is in fact, Mangampet of
Medak District and not even of Nizampet or nearby place to it, for
believing his presence and for nothing deposed even of who called him
and with what information to attest the Will, on that day and at that
time and at that place of Jagir. Coming to the other attestor Raji
Reddy, stated to be Mali Patel, P.W.2 supra deposed to the effect that
said Raji Reddy was involved in many Court cases. He also deposed
that he was suspended for dereliction of duties and for manipulation of
records and said Raji Reddy was not murdered, as suggested much
less for manipulating the records. P.W.3 Seetharam Reddy, s/o. Raji
Reddy, claimed to be a Patwari of Nizampet during 1969-83, deposed
that Ex.A.4 bears the signature of his father. In fact, Ex.A.4 is not the
original Will, but only a certified copy. He was not even examined in
O.S.No.90 of 1981, where original Will was filed, much less by referring
to it. He denied the suggestion of his father was murdered due to land
disputes and manipulations and instigating land disputes. He denied
the suggestion of the signature on Ex.A.4 (B) is not that of his father
and he is deposing falsehood and Ex.A.4 is a created one. It is also
suggested that he never worked as Patwari of Nizampet. Even PW.2 did
not depose of due execution and attestation of the Will, as per the legal
requirements as referred supra and once such is the case, even PW.3s
evidence of his identifying his fathers so called signature, is of no
significance, leave about the difficulty to compare and identify in a
Photostat copy matter on seeing original; also to disbelieve apart from
no proof of Section 63 of the Indian Succession Act compliance from
the legal position discussed supra.
23. From the above, with reference to the legal position, as also
found by the Courts below, none of the witnesses, including the so
called attestor to the Will, had deposed that to their seeing the
deceased-testator had signed the Will before them and they also saw
the deceased when signing, for due attestation and in the absence of
such evidence, it is difficult to accept that the execution of the Will is
proved in accordance with law, but for to hold that the Will has not
been proved, apart from the very execution of Will is riddled with
suspicious circumstances supra and also its existence not shown till
the same was filed in December, 1988 in the Court and there is nothing
even to show it was acted upon from death of Balraj, in 1960. Thus,
there is no proof of the Will to rely and the conclusions arrived by the
Courts below against the Will are no way perverse and the evidence of
P.Ws.2 and 3 in O.S.No.136 of 1987 was rightly not relied by the
Courts below for incredibility as discussed supra and for the so called
deposition of PW.2 Vittalaiah in O.S.No.136 of 1987 no way complies
with the legal requirements of proof of attestation and execution of the
Will as per Section 63 of Indian Succession Act.
24. Coming to other aspects, even what PW.1 Ramesh deposed
in O.S.Nos.136 of 1987 and 58 of 1989 is of the self-same suit lands
jointly belong to plaintiffs and defendants in equal halves. Thus, there
is no question of anybody claiming adverse possession with animus
possessandi in any of the 3 suits. It clearly reveals that the property
originally belonged to Lingamaiahs father Yenkaiah and Lingamaiah
pre-deceased him prior to 1946 and as per the pleadings in O.S.No.90
of 1981, Yenkaiah also died 30 years ago, to say in or around 1950.
By then, even the Hindu Womens Right to Property Act, 1937 by
extending to agricultural lands, as per the Madras Amendment under
the composite State of Madras in 1945, was not applicable to the
Telangana area, until the separate State of Andhra from Madras
formed, later combined with the Telangana area, which was under
erstwhile Nizams Rule and later separately and it is after those united
and only from adaptation of the Laws, at best, that Act application can
be presumed for Balamma, daughter of Lingamaiah, to claim any
rights, otherwise but for only by Laxmaiah and Balraj. However, from
death of Balraj as unmarried and issueless in 1960, for alleged Will not
proved even, from the Hindu Succession Act, 1956 came into force, his
brother Laxmaiah and sister Balamma succeed his undivided half
share as when Balamma died is not stated anywhere and nothing to
say she died prior to Balraj and as such to draw any presumption of
she died prior to Balraj. Once such is the case as per the Hindu
Succession Act, 1956, Section 8 r/w Schedule Class-II, items 3 and 4
viz; brother and sister to succeed. In that way, even any mutation in
the Revenue records in the name of Venkaiah (D.1) of O.S.No.90 of
1981 or his brother Jangaiah, as sons of Balamma, no way confer any
right on them other than for 1/4th out of plaint schedule properties.
25. Thus, so far as partition suit O.S.No.136 of 1987 and equally
the other suit O.S.No.58 of 1989 for injunction not to alienate and not
to convert into non-agricultural of the suit lands are concerned, as
discussed supra, out of the ancestral property jointly belonged to
Laxmaiah and Balraj, sons of Lingamaiah, s/o. Yenkaiah, in each equal
half share, from the death of Balraj in 1960, pre-deceased his brother
and sister, Laxmaiah and Balamma, respectively, they succeed equally
his undivided half share, to mean Balamma got 1/4th and thus only
1/4th of the suit property shall go to the sons of Balamma, namely
Venkaiah and Jangaiah, equally, to say the Branch of Venkaiah, put
together got 1/8th and the Branch of Jangaiah put together got 1/8th
and remaining 3/4th by Laxmaiah, and after his death in 1974, by his
daughter Laxmamma and wife Lachamma, plaintiffs 1 and 2 in
O.S.No.90 of 1981 and defendants 2 and 3 in O.S.Nos.136 of 1987 and
58 of 1989, respectively.
26. Having regard to the above, in the partition suit, since all the
legal representatives of the respective branches are on record, for no
way bad for non-joinder or mis-joinder and from the death of one or
other, no way abated as there is a representation of the Estate by the
other parties on record, including for Ramesh, by mother Indramma
and from her death, the wife and children of Ramesh, came on record,
and for Jangaiah, besides his first wife Laxmamma, second wife
Andalamma and her children came on record, that too, all the suits at
the First Appellate stage were decided commonly in 1996 and the
Second Appeals arisen therefrom by clubbed together for common
disposal and said conclusion can be fortified by the expression of the
Apex Court in Mahmud Mian (died) through L.Rs. Vs.Samsuddin
Mian(died) . The suits for injunction, respectively, supra, cannot be
decreed in favour of any of the plaintiffs, exclusively, but for to say the
undivided interest, respectively, cannot be alienated and any such
alienation is subject to working out of equities by giving priority of the
first sales over subsequent sales rather alienations or Court decrees,
to that extent, respectively, to work out equities in the partition suit by
filing final decree applications, as the Court is bound to consider in a
suit for partition, as on the date of even passing of final decree, any
changes to mould the relief by impleadment or the like and in working
out the equities without the need of separate suit/s vide expression of
the Division Bench of this Court, to which I am one of them in
W.P.No.16068 of 2016, dt. 12.07.2016 in late Karumanchi Venkaiah
Vs. State of A.P.rep. by the Secretary, Law , referring to several
expressions in this regard.
Accordingly and in the result:-
a). The S.A.No.655 of 1997 is allowed in part by modifying the
decree and judgment for permanent injunction in O.S.No.90 of 1981
granted on 30.11.1989 by the trial Court and confirmed by the 1st
appellate Court by Judgment and decree in A.S.No.16 of 1990
dt.06.03.1996 to the extent of holding that though the plaintiffs are in
possession of the entire suit properties, however, not entitled to the
relief of injunction for entire property not absolutely belong to them but
for a major share therein and even for the other, what the plaintiffs
possessed is on behalf and to the benefit of other share holders also
and as such the plaintiffs are not liable to be dispossessed even by
other shareholders or their alienees except through due process of law
which is subject matter of the partition suit in O.S.No.136 of 1987 to
the extent of its result.
b) The S.A.No.654 of 1997 is allowed in part by setting aside the
1st appellate Courts judgment and decree,dt.06.03.1996 in A.S.No.73
of 1994 and however by setting aside the findings of the trial Court to
the extent of proof of Will as if proved in its decree and judgment in
O.S.No.136 of 1987 dt.15.12.1994 and by partly decreeing the suit for
partition holding the Ex.A.4 Will (original of Ex.B.2 in O.S.No.90 of
1981) is not proved true, valid and duly executed in a sound and
disposing state of mind by Balraj as a last testament with free will and
volition with bequeaths in favour of Venkaiah and as such not entitled
to the relief based on said Will as legal representatives of said legatee,
however, the plaintiffs representing the branch of said Venkaiah (1st
plaintiffs father and husband of the plaintiffs 2 and 3), besides the
plaintiffs six sisters, Venkaiahs another wifes daughter Anasuya also
to work out their respective shares out of the 1st plaintiffs father late
Venkaiahs 1/8th undivided share in the plaint schedule property and
for another 1/8th share fell to Venkaiahs brother Jangaiah to claim by
Jangaiahs two wives including the 1st defendant of the partition suit
late Laxmamma, now by eligible legal representatives or alienees or
assignees, as the case may be, besides another late wifes three
children alive to work out their respective shares; however, for
remaining 3/4th share, since said Laxmamma(1st defendant in
O.S.No.136 of 1987 and 1st plaintiff in O.S.No.90 of 1981) succeeded,
also to work out her said share by anybody entitled to claim from her
death including said Shanker either as successor in interest by any
testamentary or intestate succession or by alienation or assignment as
the case may be, and further any of the alienees can work out equities
however, in preference of first alienation to prevail over subsequent
including any bequeaths and claims pursuant thereto so to work out
by filing final decree petitions.
c) The S.A.No.666 of 1997 is dismissed by confirming the 1st
appellate Courts reversal judgment (common) and decree
dt.06.03.1996 in A.S.No.13 of 1995 against trial Courts judgment in
O.S.No. 58 of 1989 dt.15.12.1994 by common judgment and decree
granting injunction not to alienate and subject to the observations that
the plaintiffs since are not entitled to claim for injunction against
alienation for entire property or undivided half share much less
pursuant to the will to claim but for to say any alienation is to the
extent binding on the respective shares as lis pendente alienee in
preference of first alienation over the other and the like on others
supra to work out for any equities in the partition suit supra.
d) There is no order as to past profits in the suit for partition and
claim of future profits if any are left open including against those
persons in actual possession on behalf of and in claiming through
plaintiffs in O.S.No.90 of 1981.
e) S.A.M.P.No.2324 of 2016 in S.A.No.654 of 1997 filed to receive
additional evidence at the stage of the second appeal is dismissed.
f) There is no order as to costs in any of the three appeals.
Dr. B. SIVA SANKARA RAO, J
Dt.20.06.2017
