THE HONBLE SRI JUSTICE C.V.NAGARJUNA REDDY
APPEAL SUIT Nos.162 of 1997 and batch
29-04-2015
Sri Ravada Appala Reddy and another Appellants
Kadambari Sarojini Devi and others Respondents
Counsel for the appellants: Sri M.Ram Mohan
for Sri M.S.R.Subrahmanyam
Counsel for respondent Nos.1 and 2: Sri V.L.N.G.K.Murthy
Counsel for respondent Nos.4 to 6: Sri G.Sudha
Counsel for respondent Nos.3, 9 and 10: none appeared
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. AIR 1964 SC 529
2. AIR 1959 SC 443
THE HONBLE SRI JUSTICE C.V.NAGARJUNA REDDY
APPEAL SUIT Nos.162 of 1997 and 1040 of 2000
29.04.2015
The Court made the following:
COMMON JUDGMENT:
The subject matter and the parties to both these appeals are
common. Hence, they are heard and are disposed of together.
A.S.No.162 of 1997 is filed by defendant Nos.8 and 9 in
O.S.No.35 of 1992 on the file of learned Subordinate Judge,
Pithapuram. A.S.No.1040 of 2000 is filed by defendant Nos.2 to 4 in
the said suit. Though A.S.No.1040 of 2000 was filed in the year
1996, the same was numbered in the year 2000 after A.S.No.162 of
1997 was numbered. A.S.No.1040 of 2000 is substantive as it was
filed by defendant Nos.2 to 4, who claimed to have succeeded to the
testamentary succession through Smt.K.Vasantha Devi. As the
appellants in A.S.No.162 of 1997 are the purchasers from the
appellants in A.S.No.1040 of 2000, it is appropriate to treat
A.S.No.1040 of 2000 as the lead case.
Respondent No.1 is the mother of respondent No.2. Both of
them filed O.S.No.222 of 1987 on the file of the learned I Additional
Subordinate Judge, Kakinada, which was later re-numbered as
O.S.No.35 of 1992 on the file of the Subordinate Judge, Pithapuram,
for possession of plaint A schedule properties to respondent No.1,
after dividing and allotting their shares in items 1, 2 and 4 thereof and
for possession of whole of item 3 of A schedule properties after
ejecting the defendants therefrom, for determination of future profits
from the date of suit till possession is delivered, for past profits of
Rs.57,750/- with interest @ 12% per annum from the date of suit till
the date of realization and for costs.
It is the pleaded case of respondent Nos.1 and 2/plaintiffs that
the predecessor in title - Smt.Vasantha Devi married one Khambam
Sri Ramulu Reddy on 08.12.1965; that it was an inter-caste marriage
between a Brahmin and a Reddy; that in 1967, the marriage of
respondent No.1/plaintiff No.1 took place with Kadambari
Krishnamurthy; that in the year 1974, Khambam Sri Ramulu Reddy
died and that the appellant No.1/defendant No.1 was born on
16.09.1958 to his natural father Gudla Appala Reddy, and in the
year 1962 he was adopted by Khambam Sri Ramulu Reddy prior to
his marriage with Smt.Vasantha Devi. Respondent Nos.1 and
2/plaintiffs further pleaded that after the death of her husband,
Smt.Vasantha Devi filed O.P.No.14 of 1974 (suit in forma pauperis),
which was later numbered as O.S.No.129 of 1976 on the file of
learned II Additional Subordinate Judge, Visakhapatnam, for partition
against appellant No.1 and Smt.Mahalakshmamma, his sister and Smt.
Vara Lakshmi his daughter. That as Smt.Vasantha Devi could not
raise finances for fighting the litigation, she has compromised the
dispute leading to passing of a compromise decree dated 23.01.1980
in I.A.No.20 of 1980 in O.S.No.129 of 1976. That later, Smt.Vasantha
Devi was admitted to hospital for high blood pressure and after
getting discharged from the hospital, appellant No.1 brought her to his
house, got Will dated 11.03.1980 executed by her and got the same
registered. That respondent No.1 is the only sister of late Smt.
Vasantha Devi and she had no other near relatives. That Smt.
Vasantha Devi was very affectionate towards respondent Nos.1 and 2
and that Smt. Vasantha Devi nominated respondent No.1 as her
nominee and assigned family benefit fund in her account on
01.08.1975. Respondent Nos.1 and 2 further averred that the
relationship between late Smt.Vasantha Devi and defendant Nos.1 to
6 was not cordial and therefore, she could not have executed Will,
dated 11.03.1980 in a sound disposing state of mind and the
appellants and other defendants in collusion with each other have
brought the said Will into existence. That Smt. Vasantha Devi
executed another Will, dated 20.02.1982, by cancelling Will, dated
11.03.1980, and delivered the same to respondent No.1 on the same
day at Dowleswaram and promised to register the same at
Rajahmundry when she proposed to visit about fortnight later. That
thereafter, Smt. Vasantha Devi was attacked with high blood pressure
and became unconscious on 01.03.1982 and her friends in her office
brought her to Rajahmundry Government Headquarters Hospital and
joined her as an in patient and sent a word to respondent No.1 and her
husband, who were at Dowleswaram and that this was the reason for
Smt. Vasantha Devi not registering the Will. That Smt. Vasantha
Devi, who became unconscious after her admission in Government
Hospital, Rajahmundry, died on 05.03.1982 at 10.00 p.m. and her
obsequies were performed by respondent No.1 and her husband and
that Will, dated 20.02.1982, was the last Will of Smt. Vasantha Devi.
Appellant No.1 in AS.No.1040 of 2000 (defendant No.1) filed a
written statement, wherein he has inter alia averred that he was
adopted by late Kambham Sree Ramulu Reddy in the year 1964, that
on 08.12.1965, his adoptive father married Vasantha Devi at
Visakhapatnam, that they all lived together at Visakhapatnam for
some time and that Smt.Vasantha Devi has maliciously filed a suit
challenging his adoption. Appellant No.1 has further averred that
Smt.Vasantha Devi has filed suit in forma pauperis bearing O.P.No.14
of 1974, which was re-numbered as O.S.No.129 of 1976, and a
compromise decree was passed in that suit. That the averment that
Smt.Vasantha Devi executed Will, dated 20.02.1982, is absolutely
false as she was not in a position to execute any such Will and that if
such Will were to be true, there was no reason as to why she has not
registered the same at Kovvuru itself before she died 13 days after the
alleged execution of the Will. That Smt.Vasantha Devi has executed
Will, dated 11.03.1980, and got the same registered in sound a
disposition of mind and the Will, dated 20.02.1982, was fraudulently
brought into existence by respondent No.1 and her husband, who
never visited Smt.Vasantha Devi when she was in K.G.Hospital for
more than 40 days, during which period, appellant No.1 and his
natural mother served her and paid all her medical bills. That the suit
filed based on a false Will is highly speculative.
The appellants in AS.No.162 of 1997 (defendant Nos.8 and 9),
have also filed a written statement, wherein they have denied
execution of Will, dated 20.02.1982. They have pleaded that they are
the purchasers of Item No.2 of A Schedule property from appellant
No.1 in AS.No.1040 of 2000 and that they are the bona fide
purchasers after due enquiries. They have accordingly prayed for
dismissal of the suit.
Based on the respective pleadings, the lower Court has framed
the following issues.
1. Whether the plaintiffs are entitled for partition
schedule property as prayed for?
2. Whether the plaintiffs are entitled for recovery of
possession of whole (of) item No.3 of the plaint A Schedule
property after ejecting the defendants therefrom?
3. Whether the plaintiffs are entitled for future profits
as prayed for?
4. Whether the plaintiffs are entitled for past profits
of Rs.57,750/- together with interest as per prayed for?
5. Whether the Will dt.20.02.1982 is true, valid and
binding on the defendants?
6. To what relief?
An additional issue was framed on 26.01.1996 as under:
Whether the suit is bad for non-joinder of necessary
parties?
On behalf of respondent Nos.1 and 2/plaintiffs, PWs.1 to 5
were examined and Exs.A-1 to A-22 were marked. On behalf of the
appellants and other defendants, DWs.1 and 2 were examined and
Exs.B-1 to B-8 were marked. Ex.X-1 was marked through Court.
Based on the oral and documentary evidence, the lower Court
has held all the issues in favour of respondent Nos.1 and 2/plaintiffs.
Feeling aggrieved by the judgment and decree of the lower Court,
defendant Nos.1 to 4 have filed AS.No.1040 of 2000 and defendant
Nos.8 and 9 have filed AS.No.162 of 1997, as noted earlier.
I have heard Ms.G.Sudha, learned counsel for the appellants in
AS.No.1040 of 2000, Sri M.Ram Mohan, learned counsel for the
appellants in AS.No.162 of 1997, and Sri V.L.N.G.K.Murthy, learned
counsel for the respondents in both the appeals.
At the outset, it needs to be mentioned that the learned Counsel
for respondent Nos.1 and 2 has not seriously questioned the validity of
Will, dated 11.03.1980, marked as Ex.B-7. Indeed, no issue on this
aspect was even framed by the lower Court. On the contrary even in
the Will, dated 20.02.1982 (Ex.A-5) propounded by respondent Nos.1
and 2, there is a reference to Ex.B-7, Will. Therefore, it is appropriate
to proceed on the premise that Ex.B-7, Will, was executed by
Smt.K.Vasantha Devi.
The learned counsel for the appellants in AS.No.1040 of 2000
has mainly concentrated on issue No.5, namely, whether the Will,
dated 20.02.1982, is true, valid and binding on the appellants. She has
taken me through the oral evidence and submitted that respondent
Nos.1 and 2 have failed to establish that there were cordial relations
between them and the testatrix and that on the other hand, having
executed Ex.B-7, Will, on 11.03.1980, there was no reason for the
testatrix to execute Ex.A5, Will, within less than two years. She has
further submitted that the disputes which existed between the testatrix
and appellant No.1 were settled, with her execution of Ex.B-7, Will,
and the compromise decree, dated 25.04.1981 and that in the absence
of any evidence to show that the testatrix had close acquaintance with
respondent Nos.1 and 2, Ex.A-5 propounded by them cannot be
accepted as valid. She has also submitted that while respondent No.1
as PW.1 stated that she was not aware of the Will as her husband was
looking after all the affairs, her husband as PW.2 has stated that he is
not aware of anything as PW.1 has personal knowledge and that this
material contradiction in the evidence between PWs.1 and 2 causes
serious suspicion about the genuineness of the Will. The learned
counsel has also pointed out certain discrepancies in the evidence of
PWs.3 to 5 and submitted that Ex.A-5 being unregistered Will and
pitted against Ex.B-7, registered Will, the latter must prevail over the
former.
The learned counsel for the appellants in AS.No.162 of 1997
submitted that appellant No.1 has purchased Ac.1.00 under Ex.A-19
and appellant No.2 has purchased Acs.2.00 each under Exs.A-20 and
21, sale deeds, from defendant No.1 bona fide and for valuable
consideration and that therefore even if Ex.A-5 Will is upheld, his
clients are entitled to equities to be worked out.
Countering these submissions, the learned counsel appearing
for the respondents in both the appeals submitted that the marriage
between the testatrix and Sri Kambham Sree Ramulu Reddy was an
inter caste marriage, that Smt.Vasantha Devi was never accepted by
the family members of her husband and that after the death of Sree
Ramulu Reddy, Smt.Vasantha Devi was forced to file a civil suit for
partition and that the very fact that she has filed the suit in forma
pauperis shows that she was under serious financial stress which has
led to her entering into a compromise with appellant No.1. He has
further pointed out that even while the suit filed by Smt.Vasantha
Devi was pending, she was made to execute Ex.B-7 Will on
11.03.1980, and having made sure that her share of properties will be
reverted back to him through Ex.B-7 Will, appellant No.1 allowed a
compromise decree passed on 25.04.1981. The learned counsel has
further submitted that the relationship between the testatrix and
appellant No.1 were never cordial. He has invited this Courts
attention to Ex.B-1, letter, dated 30.10.1981, addressed by the testatrix
to appellant No.1, wherein she has informed that she may have to
think of executing a fresh Will. In order to show that the testatrix was
in cordial terms with the family of respondent Nos.1 and 2 and that
she was relying upon them for financial help, the learned counsel has
placed reliance on Exs.A-17 and A-18, letters. The learned counsel
has also submitted that Ex.A-5 Will was duly proved by examining
PWs.3 and 4, attestors, and PW.5, scribe. He has further submitted
that while the testatrix was never happy with appellant No.1, who was
adopted by her husband prior to her marriage, respondent No.1 being
her natural sister and respondent No.2 being her niece, it is natural for
the testatrix to execute Will in their favour after the disputes with
appellant No.1 got settled and she became free from his influence. He
has finally submitted that there are no suspicious circumstances
surrounding Ex.A-5 Will and the lower Court has rightly decreed the
suit.
As regards the submission of the learned counsel for the
appellants in AS.No.162 of 1997, the learned counsel for the
respondents submitted that the plaint in the present suit was presented
on 04.03.1985 and defendant Nos.8 and 9 have purchased Item No.2
of A Schedule properties under Exs.A-19 to 21 from 28.03.1985 to
10.06.1987 and that therefore these sale deeds are hit by the doctrine
of lis pendens and these defendants are not entitled to plead equities.
I shall now consider the respective submissions of the learned
Counsel for the parties.
Section 30 of the Hindu Succession Act, 1956 deals with
testamentary succession. This provision enables any Hindu to dispose
of any property at his will or through other testamentary disposition in
accordance with the provisions of the Indian Succession Act, 1925 or
any other law for the time being in force and applicable to Hindus.
Chapter-II of Part VI of the Indian Succession Act, 1925 (for
short the 1925 Act) deals with Wills and Codicils. Section 61 thereof
renders a Will or any part of a Will, the making of which has been
caused by fraud or coercion, or by such importunity as takes away the
free agency of the testator void. Under Section 62, a Will is liable to
be revoked or altered by the maker of it at any time at his will when
he is competent to dispose of his property by Will.
Under Section 63 of the 1925 Act, for executing unprivileged
Wills, every testator shall follow 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 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, 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.
Section 67 of the Indian Evidence Act, 1872 reads as under :
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.
Section 68 thereof envisages 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. This provision exempts
documents, other than a Will, from the necessity of calling of attesting
witness in proving of execution of any document which has been
registered in accordance with the provisions of the Indian Registration
Act, 1908 unless its execution by the person by whom it purports to
have been executed is specifically denied.
In Shashi Kumar Banerjee and others v. Subodhkumar
Banerjee , the Supreme Court held that mode of proving a Will does
not ordinarily differ from that of proving other document except as to
the special requirement of attestation prescribed in the case of a Will
by Section 63 of the 1925 Act, that the onus of proving the Will is on
the person pleading the execution of the Will and that proving the
testamentary capacity and the signature of the testator as required by
law is sufficient to discharge this onus.
In H.Venkatachala Iyengar v. B.N.Thimmajamma and
others , the Supreme Court held that the question as to whether the
Will set up by the propounder to be the last Will of the testator has to
be decided in the light of the provisions of Sections 67 and 68 of the
Indian Evidence Act, 1872 and Sections 58 and 63 of the 1925 Act
and that the reasonable test to be applied would be the usual test of
satisfaction of the prudent mind to such matters. The Court further
held that the propounder would be called upon to show by satisfactory
evidence that the Will was signed by the testator, that the testator at
the relevant time was in a sound and disposing state of mind, that he
understood the nature and effect of the dispositions and his signature
to the document is of his own free will. It was also held that
ordinarily when the evidence is disinterested and that the testator has
signed the document as required by law, the Courts shall be justified
in making a finding in favour of the propounder. The Court further
held that there may however be suspicious circumstances surrounding
the Will rendering the same invalid.
Keeping in view the above legal parameters, this Court needs to
carefully analyse the evidence adduced by the parties.
Respondent No.1 examined herself as PW-1. She has virtually
reiterated the contents of the plaint. In her chief-examination, she has
stated that on 20-2-1982, the testatrix came to her house at
Dowleswaram and handed over a Will to her bequeathing her
properties; that on that day the testatrix was hale and healthy and she
informed PW-1 that she would register the Will ten days thereafter
and left for Kannapuram where she was working as a Home
Superintendent. PW-1 further deposed that on 1-3-1982, the office
staff of Kannapuram brought the testatrix in unconscious state stating
that she has become unconscious in her office; and that PW-1
admitted the testatrix in Government Hospital, Rajahmundry where
she died on 5-3-1982 after being in coma for five days. She further
deposed that appellant No.1 and his mother and sister did not treat her
sister with love and affection and the testatrix had love and affection
towards her. In her cross-examination by defendant Nos.1 to 4, PW-1
denied the suggestion that the testatrix did not deliver the Will to her
on 20-2-1982. She admitted that the testatrix did not inform her of the
name of the person or the address of the scribe of the Will. She has
stated that there are four attestors to the Will; that one Maddi Venkata
Rao of Dowleswaram was one of the attesting witnesses and she does
not know the names and addresses of the other attestors; that she
never visited Visakhapatnam when Vasantha Devi stayed in the house
of the defendants and she never visited her sister when she was
admitted in K.G. Hospital during January to 1-3-1980. She further
deposed that her sister did not invite her to her marriage with Sriram
Reddy. She deposed that she does not know anything about the suit
affairs and that her husband knows everything. She has further stated
that her sister specifically informed her after coming to her house that
she got the Will drafted at the Court at Kovvur and being delivered to
her and that she would come within ten days and register the same.
She has denied the suggestion that on some blank papers given by the
testatrix containing her signatures in connection with her prior
litigation, the plaintiffs have fabricated Ex.A-5 and that she did not
execute the Will. PW-1 admitted that Ex.B-1 and B-2 letters were
written by Smt. Vasantha Devi.
PW-2, the husband of respondent No.1 deposed that on
17-2-1980, Vasantha Devi was at his house at Dowleswaram and that
in the month of March when he returned home, he found Vasantha
Devi at their house and that Vasantha Devi stayed with them at that
time and took treatment. He has further deposed that Vasantha Devi
was in need of money and he used to finance her, as evident from
Ex.X-1-Money Order receipt; that the mother of appellant No.1
attended the ceremony of Vasantha Devi at Dowleswaram and she
came to their house on the eleventh day; that she enquired as to
whether Vasantha Devi executed a Will; that when he replied in the
affirmative, she has instructed them to come to Visakhapatnam with
the document; that they have accordingly visited Visakhapatnam on
one Sunday with the Will, upon which they were taken by appellant
No.1 to an Advocate where a photocopy of the Will was taken and
that they were also supplied with a photocopy of the Will executed by
Vasantha Devi in the year 1980. PW-2 further deposed that he has no
prior acquaintance with the attestors of Ex.A-5; that at the instance of
his Pleader at Kovvur, he has met the attestors and come to know that
Vasantha Devi executed the Will. That one of the attestors by name
Jonnagadda Muralikrishna has died about five months ago.
In his cross-examination, PW-2 stated that on 21-2-1982 while
he was on the way to bus stand, Vasantha Devi informed him that she
executed a Will and delivered the same to his wife on the previous
day; that he has approached Ramana Rao, Advocate in the year 1983
or 1984 to know about the witnesses to the Will; that the court
complex and the Sub-Registrars office were situated in one and the
same compound very close to each other; that he has taken Ex.A-5
document to the Sub-Registrars office and enquired about the persons
who scribed the document and attested the same; that he was shown
one G. Subramanyeswara Rao (PW-5); and that at that time
Muralkrishna and Hanumantha Rao were also present at the Sub-
Registrars office. He stated that within 12 days after the death of
Vasantha Devi, he made enquiries about the scribe and the attestors of
Ex.A-5 Will.
PW-3 has deposed that he was working as a Pleaders Clerk for
the last 15 years; that he knows Vasantha Devi as she was the client of
his Pleader Ramana Rao; that Vasantha Devi executed a Will in
February 1982 at the Sub-Registrars office at Kovvur at about 1 p.m;
that Vasantha Devi came to the court and met Veerabhadra Rao who
was the senior clerk under Ramana Rao and requested him to arrange
a document writer; that the said Veerabhadra Rao called him and
instructed him to take Vasantha Devi to one Subramanyeswar Rao, a
document writer at the Sub-Registrars office and get the Will scribed;
that Subramanyeswar Rao prepared a rough draft of the Will as per
the instructions of Vasantha Devi at about 2 p.m. and after satisfying
herself, she instructed Subramanyeswar Rao to prepare a fair copy;
that at that time Venkata Rao (PW-4) who is a client of Ramana Rao
and another document writer by name Murali were present; that the
scribe prepared a fair copy of the Will and read over the same to the
testatrix and after satisfying herself, Vasantha Devi signed the Will
which was attested by himself and Murali; and that he is the third
attestor to Ex.A-5 and all the attestors have witnessed Vasantha Devi
signing the Will and she has seen the other attestors attesting the Will.
PW-3 further deposed that at the time of execution of the Will, the
testatrix was hale and healthy. In his cross-examination, PW-3
admitted that he does not know the contents of the Will, but that it
was read out. He has further deposed that he was present right from
the commencement of draft Will till the completion of execution of
the Will. He denied the suggestion that he did not witness the
execution of the Will and that himself and the other witnesses did not
attest the Will in the presence of Vasantha Devi on the alleged date of
execution of the Will and that that was the reason why they did not
place the date underneath their signatures. He has denied the
suggestion that for some purpose Vasantha Devi might have sent
some blank papers and delivered them to Veerabhadra Rao, the senior
clerk, and those signatures were used for fabricating Ex.A-5.
PW-4, another attestor to the Will, deposed that he has attested
the Will and that Vasantha Devi signed in his presence; and that one
Murali Krishna and PW-3 also attested the Will, which was witnessed
by Vasantha Devi. He has further stated that at the time of execution
of the Will, the testatrix was hale and healthy. He has denied the
suggestion that Vasantha Devi did not execute the Will in their
presence and that they did not attest the Will in her presence.
PW-5 in his evidence has deposed that he is a document writer
and that he cannot say whether he has scribed Ex.A-5 in the year
1982. He further deposed that he does not know Vasantha Devi
previously, but PW-3 brought her to him on the date of the Will
between 12 Noon and 1 p.m; that PW-3 informed him that a Will has
to be scribed for Vasantha Devi and that thereupon he has prepared a
rough draft. He has further deposed that Vasantha Devi has furnished
information by verifying a chit which she was having with her; that
after preparing the draft he has read over the contents to her and that
thereafter she has asked him to scribe the fair Will. He has further
deposed that he has asked the testatrix to come after one hour and he
has accordingly prepared a fair copy of the Will at about 2.30 or
3 p.m. which was again read over to her and that she has accepted the
contents thereof and signed the same. He has further deposed that the
document was attested by one Guruvu Mohan Murali Krishna, PW-3
and one Venkata Rao, brought by PW-3 and he has seen Vasantha
Devi executing the Will in the presence of the attestors; that himself
and Vasantha Devi witnessed the attestors signing the Will and that
Vasantha Devi was hale and healthy by the date of execution of
Ex.A-5. He has denied the suggestion that Ex.A-5 was fabricated by
using the white papers containing the signatures of Vasantha Devi
brought by Veerabhadra Rao which were available with him. He has
also denied the suggestion that the attestors attested the Will
subsequently and that they did not see Vasantha Devi executing the
Will.
A perusal of the cross-examination of the plaintiffs witnesses,
and in particular that of PW-3 and PW-4, who are the attestors to
Ex.A-5-Will and PW-5, the scribe of the Will, shows that nothing is
elicited to discredit their testimony regarding the execution of the Will
by Vasantha Devi. Except the suggestion consistently put to both the
attestors and the scribe that the Will was fabricated using the
signatures of Vasantha Devi, nothing of significance which would cast
a shadow on the genuineness of the Will has been extracted from
these witnesses. The evidence of these witnesses, in my opinion,
completely satisfies the requirements of Section 63 of the 1925 Act.
Though respondent Nos.1 and 2 have expressed ignorance of the
manner in which the Will was executed by each of them pleading that
the other person has personal knowledge, that is hardly of any
significance.
Except respondent No.1, Vasantha Devi did not have any blood
relation. Appellant No.1 was adopted by the husband of Vasantha
Devi much prior to her marriage with him. The fact that she went to
the extent of filing a suit informa paupuris itself shows that she did
not have cordial terms with the appellant No.1 and that she was
almost in penury. In this connection, one needs to examine the
sequence in which the two Wills were executed. When O.S.No.129 of
1976 filed by Vasantha Devi was pending, she has executed Will
dated 11-3-1980. Under this Will, except a meager extent of Ac.2-00
given in favour of respondent No.2, nothing of significance was given
by the testatrix to her sister and her family. The compromise decree
was passed on 25-4-1981. The bitter feelings Vasantha Devi had
towards appellant No.1 even after passing of the compromise decree
are reflected in Ex.B-1 letter dated 30-10-1981, which was about six
months after passing of the compromise decree. She has complained
in that letter addressed to appellant No.1 that he has been
appropriating rents of both the houses; that even when she was in
hospital and has written letter, she has not received any reply and that
though he was an adopted son, she has treated him with affection but
he has let her down. She has finally cautioned him in that letter that if
his mother does not come and see her, she may think of executing a
fresh Will. Within less than four months of writing this letter,
Vasantha Devi executed Ex.A-5 Will in favour of respondent Nos.1
and 2, who are none other than her own sister and niece. In these
incontrovertible factual matrix, I am of the opinion that the Will is not
shrouded by any suspicious circumstances and in the natural course of
events that have taken place, the testatrix has obviously developed
thorough dissatisfaction and disillusionment at the treatment meted
out to her by appellant No.1 and his mother, resulting in her change of
mind and making the threat hurled by her through Ex.B-1, a reality by
executing Ex.A-5-Will. Indeed, a perusal of Ex.A-5-Will would show
that the testatrix referred to Will dated 11-3-1990 and rescinded the
same. From the evidence of appellant No.1, who was examined as
DW-1, it is clear that he had admitted the signature of the testatrix
while denying the execution of Ex.A-5 Will. In the face of the
evidence of PW-3 to PW-5, which remained unshaken, it needs to be
held that respondent Nos.1 and 2 are able to prove Ex.A-5-Will as true
and valid. Even if PW-1 and PW-2 did not have personal knowledge
of the manner in which Vasantha Devi executed the Will, the same
would not in any manner affect its genuineness. On the contrary, their
non-involvement in the execution of the Will strengthens its
genuineness as it was the testatrix who obviously wanted to bequeath
the property to her only surviving blood relations, namely, her natural
sister and her daughter.
As regards the submission of the learned Counsel for the
appellants in A.S.No.162 of 1997, they have purchased in all Ac.5-00
of land out of item No.2 of A-Schedule property. From the evidence
on record, it is not in dispute that in the compromise decree in
O.S.No.129 of 1976, the testatrix and appellant No.1 have got Ac.8-00
each. The extent of Ac.8-00 which fell to the share of the testatrix is
shown as item No.2 of A-Schedule. Out of this property, the testatrix
has bequeathed Ac.2-00 to the daughter of the sister of appellant No.1
and Ac.1-00 was bequeathed to defendant No.7, which is a religious
institution. Respondent Nos.1 and 2 were accordingly left with Ac.5-
00 of the said property. In his cross-examination, DW-1 deposed :
..I am having Ac.8-00 as per Ex.A-4. I do not remember
whether I sold more than Ac.8-00 of land or not. I sold 10
years back. I did not mention in my written statement the
particulars of land I sold and whom they were sold. On 28-3-
85 I sold Ac.3-00 of land to one Dasari Anandabayamma. On
11-4-86 I sold another Ac.2-00 to Dasari Ananthabayamma.
On 10-6-87, I sold Ac.8-00 land to one Midathada Raju. I do
not remember whether I sold Ac.4-00 of land to one Karavada
Appalareddy on 28-3-85. I did not mention in the document
that I got the land by way of compromise. I cannot give any
reason why I sold Ac.13-00 as I am having only Ac.8-00 of
land.
The above evidence of DW-1 categorically shows that he has not only
sold the extent of Ac.8-00 of land which fell to his share under Ex.A-4
compromise decree, but he has also sold Ac.5-00 of land which was
bequeathed to respondent Nos.1 and 2 under Ex.A-5-Will to
defendant Nos.8 and 9. It is also not in dispute that these properties
were sold after the suit was instituted. In these facts and
circumstances, defendant Nos.8 and 9 cannot claim any equities
against respondent Nos.1 and 2. At the most, they can proceed
against appellant No.1 for recovery of the money paid to him and also
for damages, if any.
On the analysis as above, I do not find any merit in the appeals
and the same are accordingly dismissed.
As a sequel to the dismissal of the appeals, the pending
interlocutory applications shall stand disposed of.
________________________
Justice C.V. Nagarjuna Reddy
Date : 29-4-2015
APPEAL SUIT Nos.162 of 1997 and batch
29-04-2015
Sri Ravada Appala Reddy and another Appellants
Kadambari Sarojini Devi and others Respondents
Counsel for the appellants: Sri M.Ram Mohan
for Sri M.S.R.Subrahmanyam
Counsel for respondent Nos.1 and 2: Sri V.L.N.G.K.Murthy
Counsel for respondent Nos.4 to 6: Sri G.Sudha
Counsel for respondent Nos.3, 9 and 10: none appeared
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1. AIR 1964 SC 529
2. AIR 1959 SC 443
THE HONBLE SRI JUSTICE C.V.NAGARJUNA REDDY
APPEAL SUIT Nos.162 of 1997 and 1040 of 2000
29.04.2015
The Court made the following:
COMMON JUDGMENT:
The subject matter and the parties to both these appeals are
common. Hence, they are heard and are disposed of together.
A.S.No.162 of 1997 is filed by defendant Nos.8 and 9 in
O.S.No.35 of 1992 on the file of learned Subordinate Judge,
Pithapuram. A.S.No.1040 of 2000 is filed by defendant Nos.2 to 4 in
the said suit. Though A.S.No.1040 of 2000 was filed in the year
1996, the same was numbered in the year 2000 after A.S.No.162 of
1997 was numbered. A.S.No.1040 of 2000 is substantive as it was
filed by defendant Nos.2 to 4, who claimed to have succeeded to the
testamentary succession through Smt.K.Vasantha Devi. As the
appellants in A.S.No.162 of 1997 are the purchasers from the
appellants in A.S.No.1040 of 2000, it is appropriate to treat
A.S.No.1040 of 2000 as the lead case.
Respondent No.1 is the mother of respondent No.2. Both of
them filed O.S.No.222 of 1987 on the file of the learned I Additional
Subordinate Judge, Kakinada, which was later re-numbered as
O.S.No.35 of 1992 on the file of the Subordinate Judge, Pithapuram,
for possession of plaint A schedule properties to respondent No.1,
after dividing and allotting their shares in items 1, 2 and 4 thereof and
for possession of whole of item 3 of A schedule properties after
ejecting the defendants therefrom, for determination of future profits
from the date of suit till possession is delivered, for past profits of
Rs.57,750/- with interest @ 12% per annum from the date of suit till
the date of realization and for costs.
It is the pleaded case of respondent Nos.1 and 2/plaintiffs that
the predecessor in title - Smt.Vasantha Devi married one Khambam
Sri Ramulu Reddy on 08.12.1965; that it was an inter-caste marriage
between a Brahmin and a Reddy; that in 1967, the marriage of
respondent No.1/plaintiff No.1 took place with Kadambari
Krishnamurthy; that in the year 1974, Khambam Sri Ramulu Reddy
died and that the appellant No.1/defendant No.1 was born on
16.09.1958 to his natural father Gudla Appala Reddy, and in the
year 1962 he was adopted by Khambam Sri Ramulu Reddy prior to
his marriage with Smt.Vasantha Devi. Respondent Nos.1 and
2/plaintiffs further pleaded that after the death of her husband,
Smt.Vasantha Devi filed O.P.No.14 of 1974 (suit in forma pauperis),
which was later numbered as O.S.No.129 of 1976 on the file of
learned II Additional Subordinate Judge, Visakhapatnam, for partition
against appellant No.1 and Smt.Mahalakshmamma, his sister and Smt.
Vara Lakshmi his daughter. That as Smt.Vasantha Devi could not
raise finances for fighting the litigation, she has compromised the
dispute leading to passing of a compromise decree dated 23.01.1980
in I.A.No.20 of 1980 in O.S.No.129 of 1976. That later, Smt.Vasantha
Devi was admitted to hospital for high blood pressure and after
getting discharged from the hospital, appellant No.1 brought her to his
house, got Will dated 11.03.1980 executed by her and got the same
registered. That respondent No.1 is the only sister of late Smt.
Vasantha Devi and she had no other near relatives. That Smt.
Vasantha Devi was very affectionate towards respondent Nos.1 and 2
and that Smt. Vasantha Devi nominated respondent No.1 as her
nominee and assigned family benefit fund in her account on
01.08.1975. Respondent Nos.1 and 2 further averred that the
relationship between late Smt.Vasantha Devi and defendant Nos.1 to
6 was not cordial and therefore, she could not have executed Will,
dated 11.03.1980 in a sound disposing state of mind and the
appellants and other defendants in collusion with each other have
brought the said Will into existence. That Smt. Vasantha Devi
executed another Will, dated 20.02.1982, by cancelling Will, dated
11.03.1980, and delivered the same to respondent No.1 on the same
day at Dowleswaram and promised to register the same at
Rajahmundry when she proposed to visit about fortnight later. That
thereafter, Smt. Vasantha Devi was attacked with high blood pressure
and became unconscious on 01.03.1982 and her friends in her office
brought her to Rajahmundry Government Headquarters Hospital and
joined her as an in patient and sent a word to respondent No.1 and her
husband, who were at Dowleswaram and that this was the reason for
Smt. Vasantha Devi not registering the Will. That Smt. Vasantha
Devi, who became unconscious after her admission in Government
Hospital, Rajahmundry, died on 05.03.1982 at 10.00 p.m. and her
obsequies were performed by respondent No.1 and her husband and
that Will, dated 20.02.1982, was the last Will of Smt. Vasantha Devi.
Appellant No.1 in AS.No.1040 of 2000 (defendant No.1) filed a
written statement, wherein he has inter alia averred that he was
adopted by late Kambham Sree Ramulu Reddy in the year 1964, that
on 08.12.1965, his adoptive father married Vasantha Devi at
Visakhapatnam, that they all lived together at Visakhapatnam for
some time and that Smt.Vasantha Devi has maliciously filed a suit
challenging his adoption. Appellant No.1 has further averred that
Smt.Vasantha Devi has filed suit in forma pauperis bearing O.P.No.14
of 1974, which was re-numbered as O.S.No.129 of 1976, and a
compromise decree was passed in that suit. That the averment that
Smt.Vasantha Devi executed Will, dated 20.02.1982, is absolutely
false as she was not in a position to execute any such Will and that if
such Will were to be true, there was no reason as to why she has not
registered the same at Kovvuru itself before she died 13 days after the
alleged execution of the Will. That Smt.Vasantha Devi has executed
Will, dated 11.03.1980, and got the same registered in sound a
disposition of mind and the Will, dated 20.02.1982, was fraudulently
brought into existence by respondent No.1 and her husband, who
never visited Smt.Vasantha Devi when she was in K.G.Hospital for
more than 40 days, during which period, appellant No.1 and his
natural mother served her and paid all her medical bills. That the suit
filed based on a false Will is highly speculative.
The appellants in AS.No.162 of 1997 (defendant Nos.8 and 9),
have also filed a written statement, wherein they have denied
execution of Will, dated 20.02.1982. They have pleaded that they are
the purchasers of Item No.2 of A Schedule property from appellant
No.1 in AS.No.1040 of 2000 and that they are the bona fide
purchasers after due enquiries. They have accordingly prayed for
dismissal of the suit.
Based on the respective pleadings, the lower Court has framed
the following issues.
1. Whether the plaintiffs are entitled for partition
schedule property as prayed for?
2. Whether the plaintiffs are entitled for recovery of
possession of whole (of) item No.3 of the plaint A Schedule
property after ejecting the defendants therefrom?
3. Whether the plaintiffs are entitled for future profits
as prayed for?
4. Whether the plaintiffs are entitled for past profits
of Rs.57,750/- together with interest as per prayed for?
5. Whether the Will dt.20.02.1982 is true, valid and
binding on the defendants?
6. To what relief?
An additional issue was framed on 26.01.1996 as under:
Whether the suit is bad for non-joinder of necessary
parties?
On behalf of respondent Nos.1 and 2/plaintiffs, PWs.1 to 5
were examined and Exs.A-1 to A-22 were marked. On behalf of the
appellants and other defendants, DWs.1 and 2 were examined and
Exs.B-1 to B-8 were marked. Ex.X-1 was marked through Court.
Based on the oral and documentary evidence, the lower Court
has held all the issues in favour of respondent Nos.1 and 2/plaintiffs.
Feeling aggrieved by the judgment and decree of the lower Court,
defendant Nos.1 to 4 have filed AS.No.1040 of 2000 and defendant
Nos.8 and 9 have filed AS.No.162 of 1997, as noted earlier.
I have heard Ms.G.Sudha, learned counsel for the appellants in
AS.No.1040 of 2000, Sri M.Ram Mohan, learned counsel for the
appellants in AS.No.162 of 1997, and Sri V.L.N.G.K.Murthy, learned
counsel for the respondents in both the appeals.
At the outset, it needs to be mentioned that the learned Counsel
for respondent Nos.1 and 2 has not seriously questioned the validity of
Will, dated 11.03.1980, marked as Ex.B-7. Indeed, no issue on this
aspect was even framed by the lower Court. On the contrary even in
the Will, dated 20.02.1982 (Ex.A-5) propounded by respondent Nos.1
and 2, there is a reference to Ex.B-7, Will. Therefore, it is appropriate
to proceed on the premise that Ex.B-7, Will, was executed by
Smt.K.Vasantha Devi.
The learned counsel for the appellants in AS.No.1040 of 2000
has mainly concentrated on issue No.5, namely, whether the Will,
dated 20.02.1982, is true, valid and binding on the appellants. She has
taken me through the oral evidence and submitted that respondent
Nos.1 and 2 have failed to establish that there were cordial relations
between them and the testatrix and that on the other hand, having
executed Ex.B-7, Will, on 11.03.1980, there was no reason for the
testatrix to execute Ex.A5, Will, within less than two years. She has
further submitted that the disputes which existed between the testatrix
and appellant No.1 were settled, with her execution of Ex.B-7, Will,
and the compromise decree, dated 25.04.1981 and that in the absence
of any evidence to show that the testatrix had close acquaintance with
respondent Nos.1 and 2, Ex.A-5 propounded by them cannot be
accepted as valid. She has also submitted that while respondent No.1
as PW.1 stated that she was not aware of the Will as her husband was
looking after all the affairs, her husband as PW.2 has stated that he is
not aware of anything as PW.1 has personal knowledge and that this
material contradiction in the evidence between PWs.1 and 2 causes
serious suspicion about the genuineness of the Will. The learned
counsel has also pointed out certain discrepancies in the evidence of
PWs.3 to 5 and submitted that Ex.A-5 being unregistered Will and
pitted against Ex.B-7, registered Will, the latter must prevail over the
former.
The learned counsel for the appellants in AS.No.162 of 1997
submitted that appellant No.1 has purchased Ac.1.00 under Ex.A-19
and appellant No.2 has purchased Acs.2.00 each under Exs.A-20 and
21, sale deeds, from defendant No.1 bona fide and for valuable
consideration and that therefore even if Ex.A-5 Will is upheld, his
clients are entitled to equities to be worked out.
Countering these submissions, the learned counsel appearing
for the respondents in both the appeals submitted that the marriage
between the testatrix and Sri Kambham Sree Ramulu Reddy was an
inter caste marriage, that Smt.Vasantha Devi was never accepted by
the family members of her husband and that after the death of Sree
Ramulu Reddy, Smt.Vasantha Devi was forced to file a civil suit for
partition and that the very fact that she has filed the suit in forma
pauperis shows that she was under serious financial stress which has
led to her entering into a compromise with appellant No.1. He has
further pointed out that even while the suit filed by Smt.Vasantha
Devi was pending, she was made to execute Ex.B-7 Will on
11.03.1980, and having made sure that her share of properties will be
reverted back to him through Ex.B-7 Will, appellant No.1 allowed a
compromise decree passed on 25.04.1981. The learned counsel has
further submitted that the relationship between the testatrix and
appellant No.1 were never cordial. He has invited this Courts
attention to Ex.B-1, letter, dated 30.10.1981, addressed by the testatrix
to appellant No.1, wherein she has informed that she may have to
think of executing a fresh Will. In order to show that the testatrix was
in cordial terms with the family of respondent Nos.1 and 2 and that
she was relying upon them for financial help, the learned counsel has
placed reliance on Exs.A-17 and A-18, letters. The learned counsel
has also submitted that Ex.A-5 Will was duly proved by examining
PWs.3 and 4, attestors, and PW.5, scribe. He has further submitted
that while the testatrix was never happy with appellant No.1, who was
adopted by her husband prior to her marriage, respondent No.1 being
her natural sister and respondent No.2 being her niece, it is natural for
the testatrix to execute Will in their favour after the disputes with
appellant No.1 got settled and she became free from his influence. He
has finally submitted that there are no suspicious circumstances
surrounding Ex.A-5 Will and the lower Court has rightly decreed the
suit.
As regards the submission of the learned counsel for the
appellants in AS.No.162 of 1997, the learned counsel for the
respondents submitted that the plaint in the present suit was presented
on 04.03.1985 and defendant Nos.8 and 9 have purchased Item No.2
of A Schedule properties under Exs.A-19 to 21 from 28.03.1985 to
10.06.1987 and that therefore these sale deeds are hit by the doctrine
of lis pendens and these defendants are not entitled to plead equities.
I shall now consider the respective submissions of the learned
Counsel for the parties.
Section 30 of the Hindu Succession Act, 1956 deals with
testamentary succession. This provision enables any Hindu to dispose
of any property at his will or through other testamentary disposition in
accordance with the provisions of the Indian Succession Act, 1925 or
any other law for the time being in force and applicable to Hindus.
Chapter-II of Part VI of the Indian Succession Act, 1925 (for
short the 1925 Act) deals with Wills and Codicils. Section 61 thereof
renders a Will or any part of a Will, the making of which has been
caused by fraud or coercion, or by such importunity as takes away the
free agency of the testator void. Under Section 62, a Will is liable to
be revoked or altered by the maker of it at any time at his will when
he is competent to dispose of his property by Will.
Under Section 63 of the 1925 Act, for executing unprivileged
Wills, every testator shall follow 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 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, 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.
Section 67 of the Indian Evidence Act, 1872 reads as under :
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.
Section 68 thereof envisages 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. This provision exempts
documents, other than a Will, from the necessity of calling of attesting
witness in proving of execution of any document which has been
registered in accordance with the provisions of the Indian Registration
Act, 1908 unless its execution by the person by whom it purports to
have been executed is specifically denied.
In Shashi Kumar Banerjee and others v. Subodhkumar
Banerjee , the Supreme Court held that mode of proving a Will does
not ordinarily differ from that of proving other document except as to
the special requirement of attestation prescribed in the case of a Will
by Section 63 of the 1925 Act, that the onus of proving the Will is on
the person pleading the execution of the Will and that proving the
testamentary capacity and the signature of the testator as required by
law is sufficient to discharge this onus.
In H.Venkatachala Iyengar v. B.N.Thimmajamma and
others , the Supreme Court held that the question as to whether the
Will set up by the propounder to be the last Will of the testator has to
be decided in the light of the provisions of Sections 67 and 68 of the
Indian Evidence Act, 1872 and Sections 58 and 63 of the 1925 Act
and that the reasonable test to be applied would be the usual test of
satisfaction of the prudent mind to such matters. The Court further
held that the propounder would be called upon to show by satisfactory
evidence that the Will was signed by the testator, that the testator at
the relevant time was in a sound and disposing state of mind, that he
understood the nature and effect of the dispositions and his signature
to the document is of his own free will. It was also held that
ordinarily when the evidence is disinterested and that the testator has
signed the document as required by law, the Courts shall be justified
in making a finding in favour of the propounder. The Court further
held that there may however be suspicious circumstances surrounding
the Will rendering the same invalid.
Keeping in view the above legal parameters, this Court needs to
carefully analyse the evidence adduced by the parties.
Respondent No.1 examined herself as PW-1. She has virtually
reiterated the contents of the plaint. In her chief-examination, she has
stated that on 20-2-1982, the testatrix came to her house at
Dowleswaram and handed over a Will to her bequeathing her
properties; that on that day the testatrix was hale and healthy and she
informed PW-1 that she would register the Will ten days thereafter
and left for Kannapuram where she was working as a Home
Superintendent. PW-1 further deposed that on 1-3-1982, the office
staff of Kannapuram brought the testatrix in unconscious state stating
that she has become unconscious in her office; and that PW-1
admitted the testatrix in Government Hospital, Rajahmundry where
she died on 5-3-1982 after being in coma for five days. She further
deposed that appellant No.1 and his mother and sister did not treat her
sister with love and affection and the testatrix had love and affection
towards her. In her cross-examination by defendant Nos.1 to 4, PW-1
denied the suggestion that the testatrix did not deliver the Will to her
on 20-2-1982. She admitted that the testatrix did not inform her of the
name of the person or the address of the scribe of the Will. She has
stated that there are four attestors to the Will; that one Maddi Venkata
Rao of Dowleswaram was one of the attesting witnesses and she does
not know the names and addresses of the other attestors; that she
never visited Visakhapatnam when Vasantha Devi stayed in the house
of the defendants and she never visited her sister when she was
admitted in K.G. Hospital during January to 1-3-1980. She further
deposed that her sister did not invite her to her marriage with Sriram
Reddy. She deposed that she does not know anything about the suit
affairs and that her husband knows everything. She has further stated
that her sister specifically informed her after coming to her house that
she got the Will drafted at the Court at Kovvur and being delivered to
her and that she would come within ten days and register the same.
She has denied the suggestion that on some blank papers given by the
testatrix containing her signatures in connection with her prior
litigation, the plaintiffs have fabricated Ex.A-5 and that she did not
execute the Will. PW-1 admitted that Ex.B-1 and B-2 letters were
written by Smt. Vasantha Devi.
PW-2, the husband of respondent No.1 deposed that on
17-2-1980, Vasantha Devi was at his house at Dowleswaram and that
in the month of March when he returned home, he found Vasantha
Devi at their house and that Vasantha Devi stayed with them at that
time and took treatment. He has further deposed that Vasantha Devi
was in need of money and he used to finance her, as evident from
Ex.X-1-Money Order receipt; that the mother of appellant No.1
attended the ceremony of Vasantha Devi at Dowleswaram and she
came to their house on the eleventh day; that she enquired as to
whether Vasantha Devi executed a Will; that when he replied in the
affirmative, she has instructed them to come to Visakhapatnam with
the document; that they have accordingly visited Visakhapatnam on
one Sunday with the Will, upon which they were taken by appellant
No.1 to an Advocate where a photocopy of the Will was taken and
that they were also supplied with a photocopy of the Will executed by
Vasantha Devi in the year 1980. PW-2 further deposed that he has no
prior acquaintance with the attestors of Ex.A-5; that at the instance of
his Pleader at Kovvur, he has met the attestors and come to know that
Vasantha Devi executed the Will. That one of the attestors by name
Jonnagadda Muralikrishna has died about five months ago.
In his cross-examination, PW-2 stated that on 21-2-1982 while
he was on the way to bus stand, Vasantha Devi informed him that she
executed a Will and delivered the same to his wife on the previous
day; that he has approached Ramana Rao, Advocate in the year 1983
or 1984 to know about the witnesses to the Will; that the court
complex and the Sub-Registrars office were situated in one and the
same compound very close to each other; that he has taken Ex.A-5
document to the Sub-Registrars office and enquired about the persons
who scribed the document and attested the same; that he was shown
one G. Subramanyeswara Rao (PW-5); and that at that time
Muralkrishna and Hanumantha Rao were also present at the Sub-
Registrars office. He stated that within 12 days after the death of
Vasantha Devi, he made enquiries about the scribe and the attestors of
Ex.A-5 Will.
PW-3 has deposed that he was working as a Pleaders Clerk for
the last 15 years; that he knows Vasantha Devi as she was the client of
his Pleader Ramana Rao; that Vasantha Devi executed a Will in
February 1982 at the Sub-Registrars office at Kovvur at about 1 p.m;
that Vasantha Devi came to the court and met Veerabhadra Rao who
was the senior clerk under Ramana Rao and requested him to arrange
a document writer; that the said Veerabhadra Rao called him and
instructed him to take Vasantha Devi to one Subramanyeswar Rao, a
document writer at the Sub-Registrars office and get the Will scribed;
that Subramanyeswar Rao prepared a rough draft of the Will as per
the instructions of Vasantha Devi at about 2 p.m. and after satisfying
herself, she instructed Subramanyeswar Rao to prepare a fair copy;
that at that time Venkata Rao (PW-4) who is a client of Ramana Rao
and another document writer by name Murali were present; that the
scribe prepared a fair copy of the Will and read over the same to the
testatrix and after satisfying herself, Vasantha Devi signed the Will
which was attested by himself and Murali; and that he is the third
attestor to Ex.A-5 and all the attestors have witnessed Vasantha Devi
signing the Will and she has seen the other attestors attesting the Will.
PW-3 further deposed that at the time of execution of the Will, the
testatrix was hale and healthy. In his cross-examination, PW-3
admitted that he does not know the contents of the Will, but that it
was read out. He has further deposed that he was present right from
the commencement of draft Will till the completion of execution of
the Will. He denied the suggestion that he did not witness the
execution of the Will and that himself and the other witnesses did not
attest the Will in the presence of Vasantha Devi on the alleged date of
execution of the Will and that that was the reason why they did not
place the date underneath their signatures. He has denied the
suggestion that for some purpose Vasantha Devi might have sent
some blank papers and delivered them to Veerabhadra Rao, the senior
clerk, and those signatures were used for fabricating Ex.A-5.
PW-4, another attestor to the Will, deposed that he has attested
the Will and that Vasantha Devi signed in his presence; and that one
Murali Krishna and PW-3 also attested the Will, which was witnessed
by Vasantha Devi. He has further stated that at the time of execution
of the Will, the testatrix was hale and healthy. He has denied the
suggestion that Vasantha Devi did not execute the Will in their
presence and that they did not attest the Will in her presence.
PW-5 in his evidence has deposed that he is a document writer
and that he cannot say whether he has scribed Ex.A-5 in the year
1982. He further deposed that he does not know Vasantha Devi
previously, but PW-3 brought her to him on the date of the Will
between 12 Noon and 1 p.m; that PW-3 informed him that a Will has
to be scribed for Vasantha Devi and that thereupon he has prepared a
rough draft. He has further deposed that Vasantha Devi has furnished
information by verifying a chit which she was having with her; that
after preparing the draft he has read over the contents to her and that
thereafter she has asked him to scribe the fair Will. He has further
deposed that he has asked the testatrix to come after one hour and he
has accordingly prepared a fair copy of the Will at about 2.30 or
3 p.m. which was again read over to her and that she has accepted the
contents thereof and signed the same. He has further deposed that the
document was attested by one Guruvu Mohan Murali Krishna, PW-3
and one Venkata Rao, brought by PW-3 and he has seen Vasantha
Devi executing the Will in the presence of the attestors; that himself
and Vasantha Devi witnessed the attestors signing the Will and that
Vasantha Devi was hale and healthy by the date of execution of
Ex.A-5. He has denied the suggestion that Ex.A-5 was fabricated by
using the white papers containing the signatures of Vasantha Devi
brought by Veerabhadra Rao which were available with him. He has
also denied the suggestion that the attestors attested the Will
subsequently and that they did not see Vasantha Devi executing the
Will.
A perusal of the cross-examination of the plaintiffs witnesses,
and in particular that of PW-3 and PW-4, who are the attestors to
Ex.A-5-Will and PW-5, the scribe of the Will, shows that nothing is
elicited to discredit their testimony regarding the execution of the Will
by Vasantha Devi. Except the suggestion consistently put to both the
attestors and the scribe that the Will was fabricated using the
signatures of Vasantha Devi, nothing of significance which would cast
a shadow on the genuineness of the Will has been extracted from
these witnesses. The evidence of these witnesses, in my opinion,
completely satisfies the requirements of Section 63 of the 1925 Act.
Though respondent Nos.1 and 2 have expressed ignorance of the
manner in which the Will was executed by each of them pleading that
the other person has personal knowledge, that is hardly of any
significance.
Except respondent No.1, Vasantha Devi did not have any blood
relation. Appellant No.1 was adopted by the husband of Vasantha
Devi much prior to her marriage with him. The fact that she went to
the extent of filing a suit informa paupuris itself shows that she did
not have cordial terms with the appellant No.1 and that she was
almost in penury. In this connection, one needs to examine the
sequence in which the two Wills were executed. When O.S.No.129 of
1976 filed by Vasantha Devi was pending, she has executed Will
dated 11-3-1980. Under this Will, except a meager extent of Ac.2-00
given in favour of respondent No.2, nothing of significance was given
by the testatrix to her sister and her family. The compromise decree
was passed on 25-4-1981. The bitter feelings Vasantha Devi had
towards appellant No.1 even after passing of the compromise decree
are reflected in Ex.B-1 letter dated 30-10-1981, which was about six
months after passing of the compromise decree. She has complained
in that letter addressed to appellant No.1 that he has been
appropriating rents of both the houses; that even when she was in
hospital and has written letter, she has not received any reply and that
though he was an adopted son, she has treated him with affection but
he has let her down. She has finally cautioned him in that letter that if
his mother does not come and see her, she may think of executing a
fresh Will. Within less than four months of writing this letter,
Vasantha Devi executed Ex.A-5 Will in favour of respondent Nos.1
and 2, who are none other than her own sister and niece. In these
incontrovertible factual matrix, I am of the opinion that the Will is not
shrouded by any suspicious circumstances and in the natural course of
events that have taken place, the testatrix has obviously developed
thorough dissatisfaction and disillusionment at the treatment meted
out to her by appellant No.1 and his mother, resulting in her change of
mind and making the threat hurled by her through Ex.B-1, a reality by
executing Ex.A-5-Will. Indeed, a perusal of Ex.A-5-Will would show
that the testatrix referred to Will dated 11-3-1990 and rescinded the
same. From the evidence of appellant No.1, who was examined as
DW-1, it is clear that he had admitted the signature of the testatrix
while denying the execution of Ex.A-5 Will. In the face of the
evidence of PW-3 to PW-5, which remained unshaken, it needs to be
held that respondent Nos.1 and 2 are able to prove Ex.A-5-Will as true
and valid. Even if PW-1 and PW-2 did not have personal knowledge
of the manner in which Vasantha Devi executed the Will, the same
would not in any manner affect its genuineness. On the contrary, their
non-involvement in the execution of the Will strengthens its
genuineness as it was the testatrix who obviously wanted to bequeath
the property to her only surviving blood relations, namely, her natural
sister and her daughter.
As regards the submission of the learned Counsel for the
appellants in A.S.No.162 of 1997, they have purchased in all Ac.5-00
of land out of item No.2 of A-Schedule property. From the evidence
on record, it is not in dispute that in the compromise decree in
O.S.No.129 of 1976, the testatrix and appellant No.1 have got Ac.8-00
each. The extent of Ac.8-00 which fell to the share of the testatrix is
shown as item No.2 of A-Schedule. Out of this property, the testatrix
has bequeathed Ac.2-00 to the daughter of the sister of appellant No.1
and Ac.1-00 was bequeathed to defendant No.7, which is a religious
institution. Respondent Nos.1 and 2 were accordingly left with Ac.5-
00 of the said property. In his cross-examination, DW-1 deposed :
..I am having Ac.8-00 as per Ex.A-4. I do not remember
whether I sold more than Ac.8-00 of land or not. I sold 10
years back. I did not mention in my written statement the
particulars of land I sold and whom they were sold. On 28-3-
85 I sold Ac.3-00 of land to one Dasari Anandabayamma. On
11-4-86 I sold another Ac.2-00 to Dasari Ananthabayamma.
On 10-6-87, I sold Ac.8-00 land to one Midathada Raju. I do
not remember whether I sold Ac.4-00 of land to one Karavada
Appalareddy on 28-3-85. I did not mention in the document
that I got the land by way of compromise. I cannot give any
reason why I sold Ac.13-00 as I am having only Ac.8-00 of
land.
The above evidence of DW-1 categorically shows that he has not only
sold the extent of Ac.8-00 of land which fell to his share under Ex.A-4
compromise decree, but he has also sold Ac.5-00 of land which was
bequeathed to respondent Nos.1 and 2 under Ex.A-5-Will to
defendant Nos.8 and 9. It is also not in dispute that these properties
were sold after the suit was instituted. In these facts and
circumstances, defendant Nos.8 and 9 cannot claim any equities
against respondent Nos.1 and 2. At the most, they can proceed
against appellant No.1 for recovery of the money paid to him and also
for damages, if any.
On the analysis as above, I do not find any merit in the appeals
and the same are accordingly dismissed.
As a sequel to the dismissal of the appeals, the pending
interlocutory applications shall stand disposed of.
________________________
Justice C.V. Nagarjuna Reddy
Date : 29-4-2015
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