it is clear that in proof of due execution of Will and its attestation, the attesting witnesses shall clearly spell out that the executant had either signed or put the thumb impression in their presence and they in turn have attested in the presence of executant. If they failed to state these crucial facts, it cannot be held that execution of the Will was duly proved.

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO          

C.C.C.A. No.335 of 2004

21-01-2016

Smt. Sushila Bai Vasudev Rao Bodhanker (died per LRs) and others.. Appellants

Sri Govind Rao Bodhankar and others. . Respondents  

Counsel for Appellants  : Sri P. Sri Raghu Ram

Counsel for Respondent Nos.1, 16 to 19  : Sri Chaitanya G.Barupati

 Counsel for Respondent No.2: Sri Fazal Yousufuddin
 Counsel for Respondent No.15: Sri Ch. Ravindranath

<Gist:

>Head Note:

? Cases referred:
1)2004 (1) ALD 17
2)(1995) 6 SCC 213
3)AIR 1995 Orissa 300
4)AIR 1969 Mad 329

THE HONBLE     SRI JUSTICE U. DURGA PRASAD RAO      

C.C.C.A. No.335 of 2004

JUDGMENT:  
        This appeal is preferred by the plaintiffs aggrieved by the judgment
dated 16.06.2004 passed by learned V Senior Civil Judge, City Civil
Court, Hyderabad dismissing their suitO.S.No.345 of 1995 for partition
of the suit schedule property into two equal shares and allotment of one
such shares to them.
2)      Factual matrix of the case is thus:
a)      The plaintiffs case is that Khande Rao Bodhanker (for short
Khande Rao) and Anandi Bai (for short Anandi Bai) are couple.
Khande Rao died intestate on 02.12.1976 and Anandi Bai also died
intestate on 16.02.1995. They have two sons of whom the D1Govind
Rao Bodhanker (for short Govind Rao) is the elder son and one Vasudev
Rao Bodhanker (for short Vasudev Rao) is the younger son.  D15 is the
son and D14 is the daughter-in-law of D1. D16 to D19 are sons of D14
and D15. Whereas the second sonVasudev Rao is concerned, he died    
intestate on 01.08.1977.  His first wifeAmbu Bai died intestate on
06.06.1972. Their marriage was held in the year 1945 and they begot a
sonDhananjay Bodhanker (for short Dhananjay) who is the second
plaintiff.  First plaintiff Sushila Bai Bodhanker (for short Sushila Bai)
is the younger sister of Ambu Bai and she is the second wife of Vasudev
Rao. Ambu Bai had a paralytic stroke and completely disabled and
therefore, Vasudev Rao married the first plaintiff as his second wife on
09.03.1953 and through her begot the children who are plaintiffs 3 to 6.
b)      The further case of the plaintiffs is that plaintA schedule property
was acquired by Khande Rao during his lifetime with joint family funds,
but the acquisition was nominally made in the name of late Anandi Bai.
Nevertheless it is a joint family property and was treated as such.
Defendants 2 to 13 are the tenants of some portions of plaintA schedule
property whose details are given in plaintB schedule.
c)      Subsequent to the death of Anandi Bai on 16.02.1995, the
relationships between the branch of first defendant and branch of Vasudev
Rao were not cordial and there were no speaking terms. The first
defendant is residing at Aurangabad.  Taking advantage of the death of
Anandi Bai, first defendant and his sons were playing mischief.  Plaint
schedule property being joint family property the two branches of Khande
Rao i.e. first defendant and Vasudev Raos branch have right in equal
moieties. Since the plaintiffs represented Vasudev Rao branch, they are
entitled to half share in the plaint schedule properties.
     Hence, the suit for partition.
d)      Defendant Nos.1, 14 and 15 filed their individual written statements
and other defendants remained ex parte.
e)      The defendants inter alia contended that the suit schedule property
was the self-acquired property of Anandi Bai which she acquired with her
own funds and it is not a joint family property. Anandi Bai did not die
intestate as claimed by the plaintiffs, but during her life time she executed
a Will dated 09.04.1990 whereunder she bequeathed all her properties i.e.
plaintA and B schedule properties to the children and members of first
defendant and also a part of the property in favour of D14. Anandi Bai
bequeathed her jewellery and her valuable property to the defendants as
well as plaintiffs and the plaintiffs were well aware of the Will executed
by Anandi Bai and they refused to receive the jewellery of Anandi Bai in
spite of their knowledge that the cash and jewellery of Anandi Bai were
obtained from the bank. The defendants contended that in view of the
Will executed by Anandi Bai, plaintiffs have no right in the plaint A and
B schedule properties.
f)      The defendants further contended that plaintiff No.1 is not the
legally wedded wife of Vasudev Rao, as she eloped with him against the
wishes of parents of Vasudev Rao. Plaintiffs 3 to 6 being the children
born to first plaintiff, they are not the legal heirs of Vasudev Rao.
Therefore, the first plaintiff and plaintiffs 3 to 6 have no legal right in the
plaint schedule properties and only the second plaintiff is the legal heir of
Vasudev Rao. D1 being the employee of Government of Maharashtra, he
was residing at Aurangabad along with his wife. So, D15 and his sons
who were residing with Anandi Bai in the suit property, obtained loans
and repaired the suit property and hence, Anandi Bai bequeathed the suit
property to them.
g)      Basing on the above pleadings, the trial Court framed the following
issues for trial.
1.      Whether the plaintiffs are entitled for partition and
separate possession as prayed for?
2.      Whether the plaint schedule properties are available for
partition?
3.      Whether the valuation and Court Fee paid is sufficient?
4.      To what relief?
The trial Court framed the following additional issues:
1.      Whether the plaintiff No.1 is legally wedded wife of late
Vasudev Rao Bodhanker?  
2.      Whether the plaintiffs 3 to 6 can claim inheritance in ancestral
properties?
3.      Whether the suit properties are joint family properties after the
death of Smt. Anandi Bai Bodhanker?
4.      Whether the plaintiffs are co-owners and joint family properties
after the death of Smt. Anandi Bai Bodhankar?
5.      Whether the successor of the testator can change the mode of
the devolution of the suit schedule property contrary to the
wishes of the Testator?
6.      Whether the registered Will deed dated 09.04.1990 is a genuine
one?
7.      Whether the plaintiffs are entitled for relief of equal share and
delivery of separate possession and half share from the suit
schedule properties?
8.      To what relief?
h)      During trial, PWs.1 to 3 were examined and Exs.A1 to A8 were
marked on behalf of plaintiffs. DWs.1 to 4 were examined and Exs.B1 to
B21 were marked on behalf of defendants.
i)      Judgment shows, the trial Court gave a finding that marriage
between Vasudev Rao and first plaintiff was an invalid marriage.  Sofaras
plaintiffs 3 to 6 are concerned, the trial Court held in view of Section 16
of Hindu Marriage Act, 1955 (for short HM Act, 1955) they have a right
of inheritance in the suit property. With regard to the nature of plaint
schedule property, the trial Court agreed with the defendants and held that
plaintiffs could not establish that the suit schedule properties were
acquired by late Khande Rao with the joint family funds in the name of
Anandi Bai. Then, on the crucial issue touching the genuinity of
registered Will dated 09.04.1990, the trial Court basing on the evidence of
DWs.2 and 3 coupled with other evidence held that the Will is a genuine
one. Thus, the trial Court agreed with the defendants and held that the suit
schedule properties are self-acquired properties of late Anandi Bai. The
trial Court ultimately held that the plaintiffs are not entitled for partition
and accordingly dismissed the suit.
        Hence, the appeal by the plaintiffs.
3)      The parties in the appeal are referred as they were arrayed before
the trial Court.
4)      Pending appeal, appellant No.1 died and appellants 2 to 6 who are
already on record are recognized as her LRs. as per Court order dated
06.11.2013.
5)      Heard arguments of Sri P.Sri Raghu Ram, learned counsel for
appellants; Sri Chaitanya G.Barupati, learned counsel for R.1, R.16 to
R.19; Sri Fazal Yousufuddin, learned counsel for R2;Sri Ch.Ravindranath,
learned counsel for R15. Case against R12 was dismissed for default.
Notice sent to R3 to R11 and R13 and R14 was served but there is no
representation on their behalf.
5a)     Fulminating the judgment, learned counsel for appellants/plaintiffs
firstly argued that trial Court grossly erred in appreciation of facts and law
relating to the legality of marriage between the first plaintiff and Vasudev
Rao and the legitimacy of their children i.e. plaintiffs 3 to 6. He submitted
that though their marriage took place during the subsistence of legal
marriage between Vasudev Rao and his first wifeAmbu Bai, still their
marriage was solemnized on 09.03.1953 i.e. long prior to the Hindu
Marriage Act, 1955 (for short HM Act, 1955) came into force which Act
declared a bigamous marriage as void besides being a punishable offence.
Hence their marriage is perfectly legal. He further submitted that even
prior provincial legislation prohibiting bigamous marriages such as
Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 (Act 6/1949)
which was in vogue by the date of marriage of the first plaintiff with
Vasudev Rao had no application since the parties belonged to Hyderabad
in Hyderabad State which was a PartB State by then. Hence, the
marriage between Sushila Baifirst plaintiff and Vasudev Rao was a
legally valid marriage and the children born to them i.e. plaintiffs 3 to 6
are their legitimate children. On this aspect he relied upon the decision
reported in Dr.M. Satyanarayana Reddy v. Rukma Bai . He argued that
the trial Court misconstrued the provisions of HM Act, 1955 and held as if
the marriage between first plaintiff and Vasudev Rao as a void marriage
though of course, it held their children were legitimate and entitled to
share by virtue of Section 16 of HM Act, 1955. He submitted that in
deciding the legality of their marriage, the subsequent legislation i.e. HM
Act, 1955 had no application and their children being legitimate had no
need to take shelter under Section 16 of HM Act, 1955.
b)      Secondly, he would argue that trial Court committed a severe
blunder in treating the suit schedule properties as the self-acquisitions of
late Anandi Bai though she being only a house wife had had no
independent source of income. On other hand, her husbandKhande Rao  
who was an Engineer and Kartha of joint family advanced the sale
consideration from the joint family funds accumulated with his earnings
and his sons. Thus, the trial Court ought to have treated the suit schedule
properties as joint family properties and held late Anandi Bai had no right
to bequeath them by way of Ex.B1Will.  Since the suit schedule
properties are the joint family properties the trial Court ought to have
accepted the plea of plaintiffs that D1 and Vasudev Rao being two sons of
late Khande Rao are entitled to equal moieties and decreed the suit.
c)      Thirdly and alternatively, he argued that even assuming that the suit
properties are held to be the self-acquisitions of late Anandi Bai, still
plaintiffs being the LRs. of Vasudev Rao who was the second son of
Anandi Bai are entitled to half share therein, as the alleged WillEx.B1
was got fabricated by D1, D14 and D15.  He vehemently argued the trial
Court faltered in believing the Will. Projecting the suspicious
circumstances surrounding the Will, he submitted that there was no good
reason for Anandi Bai to exclude her second sonVasudev Rao from  
inheriting her property along with her elder sonGonvind Rao. The
mentioning in Ex.B1 to the effect that since Vasudev Rao had a second
marriage with first plaintiff against the will of his parents he was excluded
is only a lame pretext which was engineered by D1, D14 and D15.
Vasudev Rao had to have the second marriage not out of lust towards first
plaintiff but because his first wifeAmbu Bai was crippled due to
paralysis and he had a minor son and both of them to be looked after and
so, with the consent of his first wife and also his parents, Vasudev Rao
married the younger sister of Ambu Bai and his act in those circumstances
cannot be said to invite wrath of his parents. So, the exclusion of Vasudev
Rao from the Will is a strong suspicious circumstance to discard its
genuinity. Except that no other plausible reason was assigned or
established by the defendants being the propounders of the Will for
excluding Vasudev Rao and also his son i.e. second plaintiff.
d)      Pointing out another suspicious circumstance, he would submit that
DWs.2 and 3the alleged attesters of the Will are none other than the
close friends of D15 (DW1) and in the ordinary course, Anandi Bai who
did not know the attesters could not have requested them to act as
witnesses. Further, the defendants have not legally proved the Will,
inasmuch as, the attesters did not specifically state that the testatrix signed
in their presence and they in turn attested the Will in her presence. As
such, the execution of Will was not legally established though it was a
registered document. Regarding the proof of Will, he relied upon the
decision of the Apex Court reported in Kashibai v. Parwatibai  .
e)      He further argued D14 and D15 are the main beneficiaries of the
Will and strangely D15 was appointed as sole executor of the Will which
shows that he took a prominent role in execution of the Will. This is
another suspicious circumstance. He submitted that when the Will is
discarded, the plaintiffs suit has to be decreed.  He thus prayed to allow
the appeal and set aside the judgment and decree of the trial Court.
6)      Per contra, learned counsel for R15Ch.Ravindranath supported
the trial Court judgment and filed brief written arguments. The others did
not adduce any arguments.
7)      In the light of above rival arguments, the points for determination
in this appeal are:
1.      Whether plaintiff No.1 is a legally wedded wife of late Vasudev Rao
and plaintiffs 3 to 6 are their legitimate children?
2.      Whether the plaint schedule properties are joint family properties or
self-acquisitions of late Anandi Bai?
3.      If the suit properties are held to be the self-acquisitions of late
Anandi Bai, whether Ex.B1Will dated 09.04.1990 said to be
executed by her is true, valid and binding on the plaintiffs?
4.      To what relief?
8a)  Point No.1: The relationship between the parties and existence of suit
schedule properties are not in dispute.  One of the grounds on which the
defendants denied first plaintiff and plaintiffs 3 to 6 a share in the suit
schedule properties is that first plaintiff was not legally wedded wife of
Vasudeva Rao and her children are not legitimate children. As stated
supra, the trial Court held first plaintiff is not the legally wedded wife of
Vasudeva Rao but her children are deemed to be legitimate by virtue of
Section 16 of HM Act, 1955 and hence entitled to a share.
b)      As per the plaint averments and evidence of PW1, Vasudeva Rao
married Ambu Bai in the year 1945 and later she suffered a paralytic
stroke and became completely disabled and they got a minor son i.e.
second plaintiff and in those circumstances he married the first plaintiff
on 09.03.1953 i.e. long before the HM Act, 1955 came into force with the
consent of his first wife and also his family members and begotten
plaintiffs 3 to 6 through the first plaintiff and hence, the first plaintiff is
also legally wedded wife of Vasudeva Rao. In their respective written
statements, D1, D14 and D15 contended that first plaintiff was not the
legally wedded wife of Vasudeva Rao, as the second marriage was
solemnized during the subsistence of prior marriage and hence the same
was void as per HM Act, 1955.
c)      Coming to the evidence, PW1 in her cross-examination stated that
her marriage was held on 09.03.1953 with Vasudeva Rao in Jambagh,
Hyderabad in her parents house, but she admitted that she did not file any
documentary proof to that effect. While so, DW1 in his cross-examination
stated that marriage between the first plaintiff and Vasudeva Rao was held
in the year 1950.  Be that it may, PW2 who is the son of Vasudeva Rao
through his first wife admitted in his evidence that the marriage between
his father and first plaintiff took place on 09.03.1953. It may be noted that
PW2 who is the son of Vasudeva Rao through his wife could have
disputed the marriage of first plaintiff with his father, but he admitted the
marriage. So, when the pleadings and evidence of respective parties are
taken into consideration, PW2 and defendants are not disputing the
factum of second marriage of first plaintiff with Vasudeva Rao, but
according to the defendants since the said marriage was during the
subsistence of the first marriage and against the wish of the parents of
Vasudeva Rao, it is a void marriage as per HM Act, 1955.  In this case,
though marriage is an admitted fact, there is no correct proof for the date
of marriage. As per the evidence of PWs.1 and 2 the marriage was held on
09.03.1953, whereas as per the admission of first defendant the marriage
took place in the year 1950.  It is considered that it will be difficult for the
first plaintiff to produce documentary proof of date of her marriage long
after the said marriage. Since the marriage is an admitted fact, though
there is no proof for correct date of marriage, basing on the evidence it
can be safely concluded that marriage of first plaintiff and Vasudeva Rao
was held prior to HM Act, 1955 came into force.
9)      It may be noted that HM Act, 1955 came into force on 18.05.1955.
As per Sections 5(1) and 11 of the said Act, the second marriage during
the lifetime of the spouse of valid first marriage was held void.  However,
the provisions of HM Act, 1955 are prospective in operation and thereby
the second marriage could be held void only when it was solemnized after
the HM Act, 1955 came into force and not before.
a)      In the instant case, the second marriage between the first plaintiff
and Vasudeva Rao was solemnized long prior to HM Act, 1955 and
hence, the said Act had no application to the parties.  Learned counsel for
appellants/plaintiffs submitted that even the provisions of the provincial
enactment i.e. Madras Hindu (Bigamy Prevention and Divorce) Act,1949
(Act 6/1949) which introduced strict monogamy among Hindus even prior
to HM Act, 1955, have no application to the parties because though the
marriage took place during the existence of Madras Act 6/1949 but the
parties belong to Telangana area in Hyderabad State which is a PartB
State and their marriage took place at Hyderabad and hence the provisions
of Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 have no
application to them.
10)     In M.Satyanarayana Reddys case (1 supra) cited by the appellants,
the facts are similar to the present case. In that case one Rajeshwar Reddy
who belonged to Adilabad district in erstwhile Hyderabad State had three
marriages prior to HM Act, 1955.  About the validity of those marriages,
it was argued that the parties belong to Adilabad district and the
provisions of Bombay Prevention and Divorce Act, 1946 (Act 25/1946)
and Madras Hindu (Bigamy Prevention and Divorce Act, 1949
(Act6/1949) had no application to the parties and till the bar or prohibition
of second marriage imposed by HM Act, 1955 came into force, there was
no such prohibition at all. This argument was approved by the learned
single Judge of this High Court. The said judgment applies to the instant
case. Therefore, the marriage of first plaintiff and Vasudev Rao was
legally valid and consequently the children born to them are legitimate.
Unfortunately, the trial Court has not considered the facts and law on this
issue on proper perspective.
        This point is answered accordingly.
11a) POINT No.2: The plaintiffs are claiming share in the properties
firstly on the plea that the suit schedule properties were purchased by
Khande Rao, Kartha of joint family with the joint family funds and also
with the earnings of himself and two sons and obtained Ex.B2sale deed
in the name of his wifeAnandi Bai and hence, the suit schedule
properties are joint family properties and plaintiffs deserve half share
therein and alternatively on the plea that even assuming that the suit
schedule properties are self-acquisitions of Anandi Bair, still the plaintiffs
being the LRs. of her younger sonVasudev Rao are entitled to half
share. They contended that Will said to be executed by her was fabricated
and manipulated by D1, D14 and D15 to deprive the plaintiffs of their
legitimate share. The trial Court held that suit schedule properties are self-
acquisitions of Anandi Bai and Will was a genuine one which findings are
assailed in this appeal. Hence the nature of suit properties in the hands of
Anandi Bai has to be scrutinized once again in this appeal.
b)      As per Exs.B2 and B3, admittedly the suit properties were
purchased by Anandi Bai. In this regard, we have to consider the law
relating to properties standing in the name of female member of a joint
Hindu family. It must be noted that there is no presumption that the
property stands in the name of a female member belongs to joint family.
The cardinal principle of Hindu law is that there is a marked distinction as
to the presumption in the case of acquisitions in the names of male
members and female members of the joint family. Acquisitions in the
name of male member of a joint family is concerned, there is a
presumption that if the joint family had sufficient ancestral nucleus, the
properties standing or acquired in the name of male members are the joint
family properties unless the presumption is rebutted by showing the
properties are the separate properties of a particular member or members
in whose names the properties stand or were acquired. However, there is
no presumption in the case of properties standing in the name of female
members. In such case, it is for the party who claims properties as joint
family properties to specifically plead the particulars and details in the
pleadings and establish the same by adducing necessary evidence. In the
absence of which, there is no need for detailed scrutiny as to how the
female members acquired the property in question. If the plaintiffs
adduced no evidence, no further question arises and the female member in
whose name the property stands must be held to be beneficial owner of
the property in question.
c)      The above principle was well delineated in a number of decisions.
In Santanu Kumar Das vs. Bairagi Charan Das  it was held thus:
Para 8: It would be apposite to point at this stage that both the Courts
were under the misconception of law that when a property is purchased
in the name of a female member of the joint family and there is
sufficient nucleus, the said property should be presumed to be joint
family property. Such a presumption would be available only in the
case of a male member of the family, but not a female member as has
been held in the case of Manahari Devi v. Choudhury Sibanava Das
reported in MANU/OR/0040/1983: AIR 1983 Orissa 135 where this  
Court after referring to various decisions held that the presumptive
doctrine available in respect of the property in the name of a male is
not available as in the case of a female member. The party pleading a
contrary case should establish the same adducing necessary evidence
that the property so purchased was from the joint fund.
        In Nagayasami Naidu vs. Kochadai Naidu   also similar view was
expressed.
12)     In the instant case, the plea of plaintiffs was that Khande Rao being
the Kartha of joint family advanced joint family funds, his earnings and
also the earnings of his to sons and acquired suit properties covered by
Exs.B2 but in the name of his wifeAmbu Bai. However, except taking
such a plea the plaintiffs have not adduced any proof positive showing
that the joint family of Khande Rao and his sons had sufficient nucleus
and the details of the income fetching properties and the method and
manner of advancing the amounts from joint family nucleus by Khande
Rao to acquire the suit properties in the name of Anandi Bai. What all
established was that during the relevant period Khande Rao was an
Engineer and Anandi Bai was only house wife, but it could not be shown
that two sons were employees by the date of purchase of suit properties.
So, there is no strong evidence from the plaintiffs side to establish that
the joint family nucleus comprising sufficient properties to advance funds
to purchase the suit properties. On the other hand, the contention of
defendants is that the father of Anandi Bai was a businessman and with
the gold, silver and cash presented by her parents as Stridhana, Anandi
Bai purchased the suit properties. As laid down in the above principle,
when the plaintiffs failed to prove the factum of flow of funds from the
joint nucleus to acquire the suit properties by cogent evidence, there is no
need to go deep into whether Anandi Bai had obtained Stridhana property
and with the same she purchased suit schedule properties. The trial Court
was right in holding that suit schedule properties were the self-
acquisitions of late Anandi Bai.
        This point is answered accordingly.
13a) POINT NO.3:  Since the properties are held to be self-acquisitions
of late Anandi bai, it has to be seen whether Ex.B1Will is a genuine one
or not. The contention of plaintiffs was that the Will is not a genuine one
and it was set up by defendants 1, 14 and 15 and Anandi Bai was more
than 80 years old by the date of alleged Will and she was not mentally fit
to execute any Will and further, the first defendant being doctor might
have managed to get a false certificate of her mental condition and in that
back drop, the Will was a factitious one brought into existence for laying
false claim in respect of suit properties.
b)      Per contra, defendants claimed the Will is a genuine one.  The trial
Court held that the plaintiffs could not establish the ill-health of Anandi
Bai so as to prove that she was not mentally fit to execute the Will and on
the other hand, through the evidence of DWs.2 and 3the attesters the
defendants could establish that Anandi Bai executed the Will. So, the
genuinity of the Will is again an issue in this appeal.
14)     Exs.B1Will reads that Anandi Bai purportedly executed the same
on 09.04.1990 and it is a registered Will.  She mentioned in the Will that
she was 70 years old and she was executing the Will to avoid any disputes
that may arise after her death in between his elder son i.e. D1 and first
plaintiff and her children in respect of her properties. She then mentioned
immovable and movable properties owned by her. She stated that her
younger sonVasudev Rao who died on 01.08.1977, married his first
wifes sister i.e. PW1 contrary to the wishes of herself and her husband
and since the time of his second marriage the relations between them were
strained due to constant bickerings and so her second son and his family
settled and residing in their house at Aurangabad.
        She further stated that D15 (DW1) the son of D1, who is her grand
son, has been residing with her and her husband since he was 4 years old
and her husband died on 02.12.1976 and thereafter, no one took interest in
the property acquired by her and it became dilapidated and collapsed and
in those circumstances she executed GPA in favour D15 and permitted
him to develop the property by taking hand loans from suitable parties and
accordingly, he demolished the old building, reconstructed and developed
the property. She further stated that D15 and his wifeD14 were looking
after her and rendering all kinds of services with love and affection and
therefore, she was bequeathing the building bearing No.15-8-342 to D14
and building bearing No.15-8-343 to D15. She stated that she was not
conferring any immovable properties on the legal heirs of her second
sonVasudev Rao, but giving a share in movable property. She
appointed D15 as sole executor of the Will to allot the shares as
mentioned in the Will.
          The above are purportedly the contents of Ex.B1Will.  Thus, the
above contents would show that Anandi Bai bequeathed her valuable
immovable properties to D14 and D15, but conferred paltry gold
ornaments of 4 tulas and steel and brass utensils worth Rs.2,000/- to first
plaintiff and her children.
a)      Admittedly, Anandi Bai was 70 years old lady and she was in the
care and custody of D1, D14 and D15 at the time of execution of Will.
All her immovable properties were bequeathed to D14 and D15 and only
a pittance to PW1 and her children. Since the grand old lady was with
D14 and D15 and as they were taking a major share out of bequest, being
propounders of the Will, heavy duty is cast on them to ward off the
suspicious circumstances surround the Will.
b)      Admittedly, Govind Rao and Vasudev Rao are the two sons of
Anandi Bai. In that view, generally there could be no reason for the
mother to exclude the LRs. of second son from obtaining her legacy, but
she gave only few gold, silver and brass articles to them which are far
lesser in value when compared to immovable properties which are
conferred to D14 and D15. The only apparent reason for disparity was
because Vasudev Rao had second marriage with PW1 (plaintiff) against
the wish of his parents. The point is whether this could be a real and
logical cause to exclude the LRs. of Vasudev Rao. It is not in dispute that
Vasudev Raos first wifeAmbu Bai afflicted with paralysis and by then,
second plaintiff was a minor boy and Vasudev Rao was working at
Aurangabad as an Engineer. In those circumstances, he married PW1 who  
is none other than the younger sister of Ambu Bai. It goes without saying
that marriage would not have been solemnized without the consent of
Ambu Bai and her parents. PW3 who is the younger brother of PW1 did
not say about the unwillingness of parents of Vasudev Rao. In fact, the
marriage was performed in Jambagh, Hyderabad in the house of parents
of PW1. So, it can be said the marriage of Vasudev Rao was not out of his
vices or lust but because of necessity. In that back drop, being the parents
of Vasudev Rao, Anandi Bai and Khande Rao would generally support
the marriage but do not get angry upon their son so as to sever
relationship with him. If at all Vasudev Rao and PW1 left his parents and
resided at Aurangabad that was due to his employment. For that matter,
the first sonGovind Rao was also residing in Aurangabad due to his
employment. So, the alleged cause shown in Ex.B1 for exclusion of
plaintiffs appears to be only a pretext engineered by D1, D14 and D15.
On the contrary, as admitted by DW1 in his cross-examination, on the
occasion of marriage of daughter of first plaintiff, all the family members
including Anandi Bai and Khande Rao assembled and got photographed  
under Ex.A8. If really they angered upon Vasudev Rao for his second
marriage and severed relationship with him thereafter, the question of
their attending the marriage of the daughter of Vasudev Rao and first
plaintiff would not have arisen. Further, Ex.A7letter dated 07.04.1978
shows that Shanta Bai the mother of D15 wrote the said letter to first
plaintiff in very cordial terms. This also shows that Vasudev Rao and
PW1 did not sever their relations with other family members on account
of their marriage. From all the above, it is clear that the mentioning in
Ex.B1Will is only a ruse to exclude the LRs. of Vasudev Rao from
bequest. It appears to give a colour that first plaintiff and her children
were also given property, some negligible gold and silver articles were
conferred on them.
c)      Above all, as rightly pointed out by the learned counsel for
appellants, surprisingly, D15 who took major share under Ex.B1Will
was appointed as sole executor of the Will.  Further, DWs.2 and 3
appeared to be the friends of D15 (DW1).
d)      DW2 stated that he is Unani Doctor and family friend of D15 and
treating his family members and in that context, on the request of Anandi
Bai he went to the Registrar office and acted as attesting witness to the
Will. But in the cross-examination he stated that he did not treat the
family members of D15. If he did not treat them, the question of getting
acquaintance with Anandi Bai so as to be called by her to act as attester
does not arise.  DW3 also claims to be the family friend of late Anandi
Bai and on her request he attended Sub-Registrar office and acted as
witness to the Will.  In the cross-examination he clearly admitted that
except D14 and D15 he does not know any of their family members.
Thus, it is clear that he does not know Anandi Bai. So, the question of her
asking him to act as an attester to the Will does not arise. Thus, it appears
DWs.2 and 3 acted as attesters as per the wish of D14 and D15.  All the
aforesaid circumstances would show that D1, D14 and D15 prevailed over
Anandi Bai taking advantage of her old age and her dependency on them
and stood behind and engineered the Will. Therefore, there can be no
doubt to hold that Ex.B1Will was not executed out of free will and
consent of Anandi Bai.
15)     On another ground also learned counsel for appellants challenged
the validity of the Will. He argued that DWs.2 and 3 have not specifically
stated that the executant has signed on the Will in their presence and in
turn they attested the Will in her presence and therefore, the defendants
failed to prove the due execution of the Will and its attestation as required
under law and hence, the validity of the will cannot be accepted.
16)     In Kashibais case (2 supra) the Apex Court happened to discuss
due method of execution of Will and its attestation. In that context it
observed thus:
Para 10: This brings us to the question of the Will alleged to have
been executed by deceased Lachiram in favour of his grandson
Purshottam, the defendant No. 3, Section 68 of Evidence Act relates to
the proof of execution of document required by law to be attested.
Admittedly, a Deed of Will is one of such documents which necessarily
require by law to be attested. Section 68 of the Evidence Act
contemplates that if a document is required by law to be attested, it
shall not be used as evidence until one attesting witness at least has
been called for the purpose of proving its execution, if there be an
attesting witness alive, and subject to the process of the Court and
capable of giving evidence. A reading of Section 68 will show that
"attestation" and "execution" are two different acts one following the
other. There can be no valid execution of a document which under the
law is required to be attested without the proof of its due attestation
and if due attestation is also not proved, the fact of execution is of no
avail. Section 63 of the Indian Succession Act, 1925 also lays down
certain rules with regard to the execution of unprivileged Wills. Clause
(C) of Section 63 provides that the Will shall be attested by two or more
witnesses, each one 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 on the signature of
such other person; and each of the witnesses should 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.
Para 11: Here we may also take note of the definition of the expression
"attested" as contained in Section 3 of the Transfer of Property Act
which reads as under:
        Section 3 "attested", in relation to an instrument, 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 executant a personal acknowledgement 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.
      Having regard to the afore-mentioned definition an attesting
witness is a person who in the presence of an executant of a document
puts his signature or mark after he has either seen the executant
himself or someone on direction of the executant has put his signature
or affixed his mark on the document so required to be attested or after
he has received from the executant a personal acknowledgement of his
signature or mark or the signature or mark of such other person.
xx xx xx
In the absence of such evidence it is difficult to accept that the
execution of the alleged Will was proved in accordance with law as
required by Section 68 of the Evidence Act read with Section 63 of the
Indian Succession Act and Section 3 of the Transfer of Property Act.
     So, having regard to Section 68 of Evidence Act and Section 3 of
Transfer of Property Act and the above observation of Honourable Apex
Court, it is clear that in proof of due execution of Will and its attestation,
the attesting witnesses shall clearly spell out that the executant had either
signed or put the thumb impression in their presence and they in turn have
attested in the presence of executant. If they failed to state these crucial
facts, it cannot be held that execution of the Will was duly proved.
17)     In the instant case, DW2 only deposed that on the request of
Anandi Bai he went along with her to Registrar Office to sign on the Will
executed by her and after reading its contents he signed the Will before
the Registration Officer and that he can recognize and identify her
signature.  He further stated that original of Ex.B1Will was executed by
Anandi Bai and the same contains her signature and she was hale and
healthy at the time of execution of Will and she signed before the Sub-
Registrar of Manghalghat. D3 almost deposed in similar fashion. Thus, as
rightly contended by learned counsel for appellants/plaintiffs, these two
witnesses have not deposed about the crucial facts relating to attestation
i.e. the executant signing in their presence and thereafter their attesting the
Will in her presence. No such connotation can be given to their evidence
and going by the law of execution and the observation of Honourable
Apex Court it can be said in the instant case, the defendants failed to
prove due execution of the Will and its attestation.
18)     So, for all the above reasons, it can be held that the defendants on
one hand failed to prove due execution of Will and on the other, failed to
dispel suspicious circumstances. Therefore, it is held Exs.B1Will is not
a genuine document and it will not bind the plaintiffs.
        This point is answered accordingly.
19)     In the result, in view of the findings in Points 1 to 3, this appeal is
allowed and judgment and decree dt:16.06.2004 in O.S.No.345 of 1995
on the file of V Senior Civil Judge, City Civil Court, Hyderabad is set
aside and a preliminary decree is passed in favour of plaintiffs, directing
partition of Plaint-A schedule property into two equal shares and allot one
such divided share to them with costs throughout.
     As a sequel, miscellaneous petitions pending, if any, shall stand
closed.

________________________  
U. DURGA PRASAD RAO, J    
Date:     .01.2016

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