Dismissed

P. Narsingrao v. P. Ramarao (Died)

Telangana HC7 Sept 2011CCCA/102/2003

Case brief

AI extract

What is this about?

Appeal against decree confirming validity of mother's 1996 will and rejecting son's claim based on invalid 1978 will. Court found sufficient suspicious circumstances to reject father's will but accepted proof of mother's will execution via attesting witnesses.

What did the court decide?

City Civil Court appeal dismissed with costs; the decree of the Court below confirming the 1996 will and rejecting the 1978 will was upheld.

P. Narsingrao Vs P. Ramarao (Died) — Succession and Inheritance | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR

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CITY CIVIL COURT APPEAL No.102 of 2003

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Dated:- 07th September, 2011

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Between:- P.Narsing Rao …Appellant And P.Ramarao and others

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…Respondents

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THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CITY CIVIL COURT APPEAL No.102 of 2003

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JUDGMENT:-

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This appeal is directed against the judgment and decree dated 18.11.2002 passed in O.S.No.543 of 1995 by the II Senior Civil Judge, City Civil Court, Hyderabad, whereby and whereunder, the suit filed by the respondents herein was decreed.

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2. The appellant herein is the first defendant, respondents 1 to 5 herein are plaintiffs 1 to 5 and respondents 6 and 7 herein are defendants 2 and 3 before the Court below. For the sake of convenience, the parties will be hereinafter referred to as they were arrayed before the Court below.

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3. Initially, the suit in O.S.No.543 of 1995 seeking partition and separate possession and damages in respect of residential house bearing municipal number 16-2-147/F, with plinth area of approximately 1,000 square feet consisting of Ground Floor, over an extent of 417 square yards situated at Ward No.16, Block II, Anandnagar, Malakpet, Hyderabad (the suit schedule property) was filed by the first defendant – P.Narsing Rao.

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Since he died during the pendency of the proceedings, his wife, sons and daughter were brought on record as his Legal Representatives, as per the order dated 20.04.1998 of the Court below in I.A.No.1639 of 1996. The first plaintiff – P. Rama Rao and the first defendant are the sons, second defendant – P.Kalavathi is the wife and the third defendant – Smt. B.Girija is the daughter of Late P.Narayan Swamy, who was working as typist in Municipal Corporation of Hyderabad. His daughter – Smt. B.Girija – the third defendant was married in the year 1960 when she was aged about 12 years. The specific case of the first plaintiff is that his father Late P.Narayan Swamy purchased residential plots bearing Nos.141,142 and 143 totally admeasuring 417 square yards situated at Ward No.16, Block No.2, Malakpet, Hyderabad, under Ex.A.1 from his vendor – Sri Khaja Shamseeuddin under registered sale deed dated 30.04.1964 out of his own savings; that his father, having obtained the permission under Ex.A.2 and sanction plan under Ex.A.3 from Municipal Corporation of Hyderabad, constructed the suit schedule property in different phases with the money saved by him, which was mutated in his own name during his lifetime and was paying the property tax to the municipal authorities; that his father Late P.Narayan Swamy died on 20.09.1975 leaving behind him and defendants 1 to 3; that except the suit schedule property, his father was not having any other property; that after the death of his father, he, being the son of Late P.Narayan Swamy, is entitled to 1/4^th share in the suit schedule

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property and defendants 1 to 3 are also entitled to 1/4^th share each; that he and defendants 1 and 2 were in joint possession of the suit schedule property, but however, the first defendant is in occupation of large extent of it; that in spite of several demands for partition and separate possession of the suit schedule property, the first defendant went on dodging the matter and the efforts made by him for amicable settlement through the elders failed; that he got issued legal notice through his counsel P.Narsing Rao on 21.02.1995 to the first defendant and as the first defendant avoided to receive the said notice, he got issued another notice on 14.03.1995 and though the said notice was served on the first defendant, he did not give any reply notice; that the first defendant postponed the partition on the ground that the partition would be affected immediately after the marriage of his daughter; that the marriage of the daughter of the first defendant was solemnized on 26.03.1995, but even after performing the marriage of his daughter, the first defendant did not effect partition of the suit schedule property. Alleging that the first defendant was trying to alienate the suit schedule property, the plaintiff filed the suit before the Court below for partition and for allotment of his 1/4^th share and for costs.

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4. The first defendant alone filed written statement. Besides denying the material averments made by the first plaintiff, the specific case of the first defendant is that the plots under Ex.A.1 Sale Deed were purchased

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by his father – Late P.Narayan Swamy with the ‘Stridhana’ money of his wife Smt. P.Sunitha; that the income of his father Late P.Narayan Swamy was only Rs.300/- per month and it was not sufficient to meet the household expenses of the family; that the plaintiff, who was in teens, was enjoying wayward life; that during his engagement, his in-laws presented Rs.10,000/- in cash on 05.04.1964 to his wife; that out of the said amount of Rs.10,000/-, his father Late P.Narayan Swamy had spent Rs.2,500/- for purchasing the above referred three plots; that his marriage was solemnized on 25.05.1964 and after the marriage, his father had initially constructed one room and kitchen and hall with lime and mortar over the suit schedule property, spending about Rs.5,000/-; that he was aged about 19 years at the time of his marriage and that since he was only 19 years old and immature, his father has purchased the suit schedule property in his own name; that his father – Late P.Narayan Swamy never availed any loan for construction of the suit schedule property; that he got registered himself as a contractor with Municipal Corporation of Hyderabad in the year 1967 itself and did number of contract works and got a telephone in his name in the year 1971 itself; that another three rooms were constructed over the suit schedule property with his earnings in the year 1975; that the first plaintiff was roaming like a vagabond with all vices and did not contribute a single pie to the family; that he was looking after his father till the death of his father; that after retirement, his father purchased two plots in People’s

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Cooperative Society, Chikkadpally, in the name of the first plaintiff and the third defendant, each plot worth of Rs.23,000/-; that his father performed the marriage of the first plaintiff with plaintiff No.2 who hails from a poor family and the said marriage was performed by the money contributed by the elders and well-wishers; that his father, who could foresaw evil designs and quarrelsome character of the first plaintiff, executed Ex.B.10 – Will on 21.12.1978 bequeathing the entire suit schedule property in the name of his wife and further bequeathed the plots which were purchased in the Peoples’ Cooperative Society, Chikkadpally, in the name of the first plaintiff; that due to sympathy, he allowed the first plaintiff to live in a room in the suit schedule property and the plaintiffs never paid any amounts to him towards electricity and water charges; that the third defendant was married in the year 1960 and she had no right in the suit schedule property and that she had knocked away all the gold ornaments of his mother at the time of the funeral of his mother. Thus, the specific case of the first defendant is that the suit schedule property is not the self-acquired property of his father – late P.Narayan Swamy, but it was purchased in the name of Late P.Narayan Swamy with the amount gifted to his wife as ‘Stridhana’ at the time of his marriage. It is also his case that Late P.Narayan Swamy is having 20% shares in S.R.Chemicals, which is being managed by the husband of the third defendant; that after the death of his father, the profits of S.R.Chemicals were not given to him and subsequently, the unit was sold; that the first

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plaintiff filed the present suit on the ill-advice of the third defendant; that the third defendant also instigated the second defendant to breed litigation; that Late P.Narayan Swamy declared to the income tax authorities in the year 1967 itself that the suit schedule property purchased by him were with the ‘Stridhana’ of his daughter in law – P.Sunitha. The first defendant also denied the allegation that the plaintiffs have made any demands for partition or that any notice was issued to him. It is also his case that the first plaintiff has realized his mistake and was intending to withdraw the suit.

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5. During the pendency of the suit, the second defendant – the mother of the first plaintiff and defendants 1 and 3, died. Then, the plaintiffs’ got amended the plaint contending inter alia that the second defendant, during her life time, having satisfied with the services rendered by the second plaintiff in her old age and due to love and affection on her, bequeathed her 1/4^th share in the suit schedule property in favour of the third plaintiff by executing Ex.A.1 – registered Will dated 19.04.1996 vide document bearing No.23/95 and that the said Will came into effect upon the death of the second defendant, i.e., on 06.02.1997. It is also contended that by virtue of the said Will, the third plaintiff is entitled to 1/4^th share in the suit schedule property apart from his share in the property of his father. Thus, the third plaintiff claimed 1/4^th share of the second defendant and also his 1/4^th share in the suit schedule property (At some places, it is wrongly

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mentioned as second plaintiff instead of third plaintiff in the record.)

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6. The first defendant filed additional written statement and denied that his mother executed Ex.A.10 – Will dated 19.04.1996 and registered it in favour of the second plaintiff. His specific case is that his mother died in the year 1996 and prior to her death, she was suffering from paralysis stroke as a result of which, she was completely bed-ridden and that his wife and children were attending on her. It is also his case that his mother could not recognize anybody for about eight or nine months prior to her death in the year 1996 and that she was never in a position to execute a Will and that the alleged Will is a forged and fabricated for the purpose of this case. It is also his case that his mother was not the absolute owner of the suit schedule property and that it is not even the self-acquired property of his father and, therefore, his mother had no right to execute any Will.

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7. Basing on the above pleadings, the Court below framed the following issues and subsequently additional issues on 09.07.1999 and 08.08.2001 respectively, which are as follows:-

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Issues: Dt. 09.07.1999:-

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1. Whether the suit property can be partitioned?

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2. If so, whether the plaintiff is entitled to

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1/4^th share separately in the suit

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property?

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3. Whether the suit property is selfacquired property of Late P.Narayan Swamy as alleged in the plaint?

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4. Whether the suit property is purchased with the money of ‘Stridhana’ of the wife of D-1 as alleged in the Written Statement?

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5. To what relief

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Additional Issues: Dt.08.08.2001:-

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1. Whether the defendant No.2 is entitled to 1/4^th share in the suit schedule property?

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2. Whether the second defendant executed a registered will deed bequeathing his share in favour of the third plaintiff?

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3. Whether the plaintiff No.3 is entitled for 1/4^th share of the deceased defendant No.2

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8. Evidence was let in. On behalf of the plaintiffs, the second plaintiff – P.Sabitha Rani was examined as P.W.1 and the third defendant – Smt. B.Girija was examined as P.W.2 and Exs.A.1 to A.10 were marked. On behalf of the defendants, the first defendant – P.Narsing Rao himself was examined as D.W.1 and D.Ws.2 to 5 were examined and Exs.B.1 to B.5 were marked.

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9. The learned II Additional Senior Civil Judge, on appreciation of oral and documentary evidence on record, came to the conclusion that there is no evidence to

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show that the father-in-law of the first defendant paid an amount of Rs.10,000/- towards ‘Stridhana’ to his wife at the time of marriage and with that money, Late P. Narayan Swamy purchased the suit schedule property. It was also observed that no steps were taken by the first defendant to mutate the name of his wife after the death of Late P. Narayan Swamy and that if at all Ex.B.1 – Will is true and genuine document, the first defendant would have taken steps to see that the name of his wife is mutated in municipal records. Learned Judge also came to the conclusion that the presence of the second defendant at the time of alleged execution of Ex.B.1 – Will dated 21.12.1978 is improbable and that the evidence of the second defendant and the third defendant is far for satisfactory and thus disbelieved Ex.B.1 – Will. The learned Judge, on appreciation of evidence of P.Ws.1 and 2, believed the evidence of P.W.2 and consequently Ex.A.10 – Will dated 09.04.1996 executed by the second defendant and, accordingly, decreed the suit. Aggrieved by the same, the first defendant is before this Court as appellant.

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10. Sri A. Ravinder Reddy, learned counsel for the appellant/first defendant, submitted that the income of Late P. Narayan Swamy was meager and that he had no money to purchase the suit schedule property and that at the time of marriage of the first defendant, his wife was presented with a sum of Rs.10,000/- towards ‘Stridhana’ and with that amount, Late P. Narayan Swamy purchased the suit schedule property and subsequently constructed

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the house and that the first plaintiff was a vagabond and he was not earning anything and that in view of the contribution made by the wife of the first defendant to construct the suit schedule property, Late P. Narayan Swamy executed a Ex.B.1 – Will dated 21.12.1978 bequeathing the suit schedule property in her favour. It is also submitted that though the suit schedule property was bequeathed to the wife of the first defendant by Late P. Narayan Swamy, on humanitarian grounds, the first defendant allowed his brother – the first plaintiff to reside in that house and that after the death of the first plaintiff, his wife and children were allowed to reside in a room and that does not mean that they have any share in the suit schedule property. It is also his submission that Late P. Narayan Swamy was having two other plots and that one of the plot was bequeathed to the first plaintiff and another plot to the first defendant and that his daughter was given money and gifts at the time of her marriage and since the first defendant himself was looking after his mother, no provision was made in favour of the wife of Late P. Narayan Swamy in the Ex.B.1 – Will dated 21.12.1978. It is also his submission that the first defendant has examined both the attestors of Ex.B.1 – Will dated 21.12.1978 and thus complied with Section 73 of the Indian Evidence Act, 1872, and proved Ex.B.1 – Will dated 21.12.1978. Relying on the judgment of the Apex Court in the case between Bharpur Singh Vs. Shamsher Singh^[1] , learned counsel submitted that by examining one or more attesting witnesses, the first defendant proved

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the execution of Ex.B.1 – Will dated 21.12.1978 and further submitted that when the plaintiffs’ are challenging the validity of the Will on the ground of fraud, coercion or undue influence, the burden to prove the same would be on the caveator. On the same proposition, he had relied upon the judgment in the case between Doulat Ram and

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others Vs. Sodha and others^[2] .

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11. Learned counsel further submitted that when the first defendant had specifically pleaded that his father executed Ex.B.1 – Will dated 21.12.1978, the plaintiffs have not filed any rejoinder and denied the averment made by the first defendant. It is also his submission that no specific issue was framed as to whether Late P. Narayan Swamy executed Ex.B.1 – Will dated 21.12.1978 or not and, therefore, the Court below ought not to have gone into that issue. It is also his submission that the Court below ought not to have compared the signature of Late P. Narayan Swamy available on the Ex.A.3 – Municipal Sanction Plan with his signature on Ex.B.1 – Will dated 21.12.1978 and that it is not safe to compare the signatures by the Court since the Court is not an expert to compare the same. Relying on the judgment of this Court in the case between Thumu Srikanth Vs. Akula Babu^[3] , learned counsel submitted that the mother of the first defendant could not have bequeathed her share in favour of the first plaintiff, since, in a joint family, even the father, being a coparcener, cannot device a Will of the joint family property or any part there of. It is also his submission that the Court below

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ought to have accepted the evidence of D.Ws.2 and 3. Referring to Ex.A.10 – Will dated 09.04.1996, it is submitted its execution is surrounded with suspicious circumstances and that there is no independent attestor to the said Will. It is also his submission that mere registration of Will is not a proof of its execution. It is also his submission that though P.W.1 deposed that her mother-in-law affixed her thumb impression on Ex.A.10 – Will dated 09.04.1996, but in fact, she was not present at the time of execution of the said Will.

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12. Per contra, Sri K.Raghuveer Reddy, learned counsel for the respondent submitted that Late P. Narayan Swamy was working as Typist in Municipal Corporation of Hyderabad and that he was having sufficient income and that the suit schedule property was purchased for a sum of Rs.2,000/- and it cannot be said that Late P. Narayan Swamy was not having Rs.2,500/and had no capacity to purchase the suit schedule property. His main submission is that Late P. Narayan Swamy retired in the year 1975 and the suit schedule property was purchased in the year 1964 and subsequently, he had constructed a house in a phased manner and gradually developed it. His main submission is that there is nothing on record to show that the first defendant’s wife was presented with as um of Rs.10,000/towards ‘Stridhana’ and if at all the said version is true, the first defendant would have got the name of his wife mutated in the municipal records. His main submission is that the whole trouble started when the first plaintiff got

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issued legal notice to the first defendant demanding partition in the year 1996 and till such time, the alleged Will dated 21.12.1978 in Ex.B.1 did not see the light of the day. It is also his submission that Late P. Narayan Swamy was having a wife, two sons and one daughter and that no provision is made for the maintenance of his wife and no property has been given to the other children and that the dispossession made in Ex.B.1 – Will dated 21.12.1978 are unnatural, improbable and totally unfair. It is also his submission that D.Ws.2 and 3 were not summoned by Late P. Narayan Swamy and Late P. Narayan Swamy had never expressed his intention to execute a Will and that Ex.B.1 – Will dated 21.12.1978 is only on a paper torn from a note book and when there are several suspicious circumstances surrounding the execution of a Will, the burden lies on the propounder of the Will to remove such suspicious circumstances by adducing satisfactory evidence. In support of this contention, he had relied upon the judgment in the case between Malampati Suryamba and others Vs. Venigalla Koteswaramma and others^[4] and submitted that mere proof of Will in accordance with law is not an end in itself and the Court has to satisfy its conscience and come to the conclusion that the Will propounded is truly the last testament of a person who died. For the same preposition, he had relied on the judgment in the case between Kalyan Singh Vs. Smt.Chotti and others^[5] . He had also relied upon the judgment in the case between Ajit Savant Majagavi Vs. State of Karnataka^[6] in support of his contention that the

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Court may compare the signatures in the case of necessity. Relying on the judgment in the case between Kali Prasad Agarwalla (died by LRs) Vs. M/s. Bharat Coking Coal Ltd. ,^[7] , it is his submission that both the parties, with open hands, went to trial and from the evidence and suggestions given to the parties, the parties came to know that the main issue and dispute is with regard to the execution of Ex.B.1 – Will dated 21.12.1978 and execution of Ex.A.10 – Will dated 09.04.1996 and, therefore, even in the absence of any specific plea on such issue, no prejudice will be caused to the parties. It is also his submission that if really the suit schedule property was purchased with the money of the wife of the first defendant, nothing prevented Late P. Narayan Swamy to present the same to his daughter-in-law during his lifetime. It is also his submission that since the plaintiffs’ were denied the justice, the second defendant – mother of the first plaintiff had executed a Ex.A.10 – Will dated 09.04.1996 and that the same was attested by the first plaintiff and the third defendant, who is no other than the sister of the first plaintiff and the first defendant. It is also his submission that P.W.2 (third defendant) is natural witness and that she had accompanied her mother to the Registration Office and that she categorically deposed that her mother had put her thumb impression on Ex.A.10 – Will dated 09.04.1996. It is his further submission that Ex.A.10 – Will dated 09.04.1996 is a registered one and thus, the plaintiffs have proved the same.

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13. In view of the above rival claims of both the parties, the points that arise for consideration in this appeal are (1) Whether there are any suspicious circumstances surrounding the execution of Ex.B.1 – Will dated21.12.1978; and (2) Whether the plaintiffs have proved the execution of Ex.A.10 – Will dated 09.04.1996. Point No.1:-

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14. The relationship between the parties is not in dispute. The first plaintiff – Late P.Rama Rao and the first defendant – P.Narsing Rao are the sons and the third defendant – Smt. P.Girija is the daughter of Late P. Narayan Swamy and Late P.Kalavathi. The first plaintiff died during the pendency of the proceedings and his wife, sons and the daughter were brought on record as his legal heirs. During the pendency of the proceedings, the second defendant, who is the mother of the first plaintiff and defendants 1 and 3 and the wife of Late P. Narayan Swamy, also died. It is also not in dispute that Late P. Narayan Swamy purchased the suit schedule property under Ex.A.1 – Sale Deed 30.04.1964 for a total consideration of Rs.2,919/-. The recitals of Ex.A.1, which are not in dispute, go to show that Late P. Narayan Swamy has paid a sum of Rs.417/- as advance at the time of the agreement of sale and subsequently paid an amount of Rs.2,502/- on the date of registration of the sale deed. Ex.A.2 is the permit dated 02.07.1973 and Ex.A.3 is the sanction plan dated 02.07.1973, both issued by the Municipal Corporation of Hyderabad. Ex.A.4 is the

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Property Tax extract of Municipal Corporation of Hyderabad pertaining to years 1981 to 1985 which shows the payment of the property tax by Late P. Narayan Swamy. Ex.A.5 is the Death Certificate dated 13.04.1995 of Late P. Narayan Swamy showing that he died on 20.09.1979. The marriage of the first defendant was solemnized on 24.05.1964. Late P. Narayan Swamy retired in the year 1975. The third defendant – the only daughter of Late P. Narayan Swamy was married when she was minor in the year 1964 itself. The second defendant is the wife of Late P. Narayan Swamy who was suffering from Paralyses in 1995 and she died on 06.02.1997. The plaintiffs’ case is that since the suit schedule property is their joint family property, after the demise of his father, the plaintiff and defendants 1 to 3 are entitled to each 1/4^th share. The specific case of the first defendant is that his father had no money to purchase the suit schedule property and that at the time of his marriage, his wife was presented with a sum of Rs.10,000/- towards ‘Stridhana’ and with that amount, his father had purchased the suit schedule property under Ex.A.1 and subsequently constructed a house. The plaintiffs’ further case is that during the pendency of the suit, the mother of the first plaintiff (second defendant) executed Ex.A.10 – Will dated 09.04.1996 bequeathing her 1/4^th share to the third plaintiff – P.Sailendra Goud, son of the deceased first plaintiff.

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15. As can seen from the entire evidence on

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record and the contentions of the parties, though no specific issue was framed as to whether Ex.B.1 – Will dated 21.12.1978 was executed by Late P. Narayan Swamy or not, but the parties know fully well about the controversy and in fact, the first defendant had examined P.Ws.2 and 3 who are the attestors of Ex.B.1 – Will dated 21.12.1978 and, therefore, it is clear that non framing of issue with regard to Ex.B.1 – Will dated 21.12.1978 becomes immaterial. Moreover, the first plaintiff has filed a suit for partition and it is in the written statement that the first defendant had come forward with a plea of execution of Ex.B.1 – Will dated 21.12.1978 by his father. When an averment is made in the plaint is not denied, the same has to be treated as admitted fact. However, when an averment in the written statement is not specifically denied, there is nothing in law to treat it as an admitted fact. Anyhow, as seen from the suggestions given to the witnesses and the evidence let in by both the parties, it is clear that the plaintiffs have denied the execution of Ex.B.1 – Will dated 21.12.1978 and, therefore, even in the absence of any rejoinder by the plaintiffs, it cannot be said that any prejudice will be caused to the first defendant.

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16. Coming to the cases cited by the learned counsel for the both the parties, in the case between Kali Prasad Agarwalla (died by LRs)’s case (7 supra) the issue that came up for consideration is whether the suit land, which is also adjacent to the coal mine, is being used for the purpose of said mine. It was argued that there is no proper pleading or issue for determination. Then the

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Apex Court observed as follows:-

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“The parties went to trial knowing fully well what they were required to prove. They have adduced evidence of their choice in support of the respective claims. That evidence has been considered by both the Courts below. They cannot now turn around and say that the evidence should not be looked into. This is a well accepted principle.”

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17. The law regarding the proof of execution of a Will is well settled. Under section 68 of the Indian Evidence Act, 1872, the propounder of a Will was to prove its execution by examining one or more attesting witnesses. This Court has considered the principles laid down regarding the proof of execution of a Will in the case between Malampati Suryamba and others’s case (4 supra) wherein, it was observed as follows:-

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“It is axiomatic that mere proof of a Will in accordance with law is not an end in itself. If the caveator challenges the Will on the ground that it is surrounded by suspicious circumstances, propounder has to remove all suspicious circumstances and come forward with satisfactory explanation.”

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18. In the case between Kalyan Singh’s case (5 supra), while considering the validity of a Will, the Apex Court observed as follows:-

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“It has been said almost too frequently to require repetition that a will is one of

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the most solemn documents known to law. The' executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order or judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. it would be also open to the court to look into surrounding circumstances as well as inherent improbabilities; of the case to reach a proper conclusion on the nature of the evidence adduced by the party.”

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19. Learned counsel for the appellant/first defendant submitted that when fraud, forgery is alleged, the burden lies on the party to the alleged forgery to prove the same and in support of this contention, he had relied upon the judgment of the Apex Court in the case between Doulat Ram and others’s case (2 supra). In that case also, no provision was made by the attestor of the Will in favour of his wife or daughter. In the circumstances, the

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Apex Court held as follows:-

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“In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other”

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20. However, in the same judgment it was

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further observed as follows:-

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“But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing fraud is on the person who alleges it to be so.”

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21. Coming to the facts of the case on hand, it is not in dispute that Late P. Narayan Swamy was working as Typist in the Municipal Corporation of Hyderabad. It appears that he had purchased the suit schedule property under Ex.A.1 about 10 years prior to his retirement. That means, Late P. Narayan Swamy had put up considerable service as on the date of purchase of the suit schedule

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property. He had also performed the marriage of his daughter (third defendant) in the year 1960 itself. It has to be seen that the first defendant was aged about 19 on the date of his marriage in the year 1964. Admittedly, Late P. Narayan Swamy purchased the suit schedule property under Ex.A.1 for a sum of Rs.2,919/- and that he paid an amount of Rs.2,502/- on the date of registration, i.e., 30.04.1964 and prior to that, he had paid an advance of Rs.417/-. Therefore, in all probabilities, it appears that he had the capacity to purchase the suit schedule property in Ex.A.1 and that too, the sale consideration being less than Rs.3,000/-. It is to be seen that the suit schedule property has been purchased in the name of Late P. Narayan Swamy in the year 1964. After about a decade of such purchase, he started construction and at that time also, he had obtained the municipal permission in his name and subsequently paid municipal taxes in his name. The case of the first defendant is that Late P. Narayan Swamy had no money to purchase the suit schedule property and that his marriage was performed on 22.05.1964 and at the time of marriage, his wife was presented with a sum of Rs.10,000/- towards ‘Stridhana’ and with that amount, Late P. Narayan Swamy purchased the suit schedule property and constructed the house. Except the selfserving evidence of his own, there is no other evidence on this aspect. Even the wife of the first defendant was not examined in support of his case and neither the father-inlaw of the first defendant nor any other close relative was examined to show that any amount was given as

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‘Stridhana’ to the wife of the first defendant at the time of her marriage.

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22. On behalf of the defendant, D.Ws.1 to 5 were examined. D.W.5 is a close relative of the wife of the first defendant. According to him, D.W.1 (the first defendant) is his co-son-in-law. Another attestor – D.W.2 is the elder brother of D.W.5. He deposed that after the marriage of first defendant with his sister-in-law, their acquaintance increased. It has to be seen that even D.W.5 did not whisper anything about the amount paid towards ‘Stridhana’ to the wife of the first defendant. Of course, according to D.W.1, he was doing contract works and he has been a earning member from the year 1965 onwards.

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23. Now, it has to be seen whether there are any suspicious circumstances surrounding the execution of Ex.B.1 – Will dated 21.12.1978. Admittedly, Late P. Narayan Swamy was having a wife, two sons and a daughter. Admittedly, he had not made any provision for the maintenance of his wife. Allegedly, the entire suit schedule property has been bequeathed to the wife of the first defendant. Thus, it is clear that the said disposition is unnatural and unfair. No reason has been assigned in Ex.B.1 – Will dated 21.12.1978 for disinheriting any property to his wife and the first plaintiff. The known circumstance is that though Ex.B.1 – Will dated 21.12.1978 is said to have been executed in the year 1978, admittedly, the said Will was not produced by the

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first defendant before any authority or he had taken any steps to mutate the name of his wife in the municipal records till the first plaintiff got issued legal notice to the first defendant in the year 1995. That means, for about one and half decade (17 years) the alleged Will under Ex.B.1 had not seen the light of the day. Exs.A.6 and A.7 are the Xerox copies of the legal notices dated 21.02.1995 and 14.03.1995 respectively sent to the address of the first defendant in which he was residing. Ex.A.8 is the postal receipt. Ex.A.9 is the certificate of posting. The plaintiff’s case is that the advocate engaged by the first plaintiff has not given the acknowledgement to the first defendant nor returned the copies of the legal notices and, therefore, they had to file the Xerox copies of the legal notices. The circumstance that the first defendant did not whisper about Ex.B.1 – Will dated 21.12.1978 for about one and a half decade (17 years) is a strong suspicious circumstance against the first defendant.

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24. The next suspicious circumstance is that the first defendant himself admitted that his father had constructed the house over the suit schedule property in a phased manner. He had specifically deposed that “the building was constructed one room after the other as and when money was ready”. This admission by the first defendant shows that the building was not constructed with the ‘Stridhana’ of his wife in the year 1964, more so, when Late P.Narayan Swamy had obtained permission for construction of the building in the year 1973. Coming to the aspect of the attestors, admittedly, D.W.2 is the close

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relative of the first defendant. According to him, his maternal uncle’s daughter was given in marriage to the first defendant in the year 1964. Admittedly, D.W.2 was working as a teacher in Hanumakonda, Warangal District. He took retirement in the year 1989. Admittedly, the day on which Ex.B.1 – Will dated 21.12.1978 was executed was a working day for him. It has to be seen that in the chief-examination, D.W.2 deposed that Late P.Narayan Swamy had purchased an open plot and constructed a house on it through the amount given to the wife of the first defendant during her marriage, but in the crossexamination, he had admitted that neither he knows about the family members and brothers and sisters and other relatives of Late P.Narayan Swamy nor does he know whether Late P.Narayan Swamy had any step mother or not. He further deposed that he does not know for how much amount Late P.Narayan Swamy purchased the open plot under Ex.A.1. Thus, though D.W.2 does not know the particulars of the family members of Late P.Narayan Swamy and for how much amount does Late P.Narayan Swamy purchased the open plot, yet he deposed that the plot was purchased by Late P.Narayan Swamy with the amount given to the wife of the first defendant at the time of her marriage. This shows his interestedness. It has to be seen that the first defendant and D.W.3 both were contractors undertaking works from Municipal Corporation of Hyderabad.

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25. Now it has to be seen whether D.W.2 and

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D.W.3 were present at the time of execution of Ex.B.1 – Will dated 21.12.1978. It is not the case of the witnesses that Late P.Narayan Swamy had at any time expressed his intention to execute a Will and had discussed about the same with anyone of them. Normally, when a person is intending to execute a Will, he will call his close friends or close relatives specifically informing about his intention to execute a Will. D.Ws.2 and 3 both of them have admitted that nobody called them to attest the will. When nobody called them to attest the Will, it is most unusual and unnatural to say that both the witnesses had went to the house of Late P.Narayan Swamy and made themselves present there to enable Late P.Narayan Swamy to execute the Will. Thus, it appears that taking advantage that D.W.2 is his close relative and D.W.3 is his friend, the first defendant seems to have introduced these two witnesses to suit his case. Therefore, there cannot be any iota of doubt to say that the first defendant has failed to remove the suspicious circumstances surrounding the execution of Ex.B.1 – Will dated 21.12.1978 by Late P.Narayan Swamy and the Court below has rightly rejected the case of the first defendant. It is also argued that the Court below ought not to have compared the signatures of Late P.Narayan Swamy on Ex.B.1 – Will dated 21.12.1978 with his signature available on Ex.A.3 – Sanction Plan. Of course, it is always better if the opinion of the expert is taken aid for deciding the disputed signatures as held by this Court in Thumu Srikanth’s case (3 supra) but nevertheless, the Court has power

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under Section 73 of the Indian Evidence Act, 1872, to compare the signatures by sending it to the expert.

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26. In Ajit Savant Majagavi’s case (6 supra), the Apex Court, while dealing with a murder case and comparing the signatures of the accused who said to have been signed in a register of a Lodge with his signature available on the Vakalat, observed as follows:-

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Section 73 does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.

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27. However, in the same case, it was further held as follows:-

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“As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73.”

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Point No.2

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28. Coming to the aspect whether the plaintiffs’ have proved execution of Ex.A.10 – Will dated 09.04.1996, admittedly, P.W.1 is the wife of the first plaintiff. According to her, after her husband filed the present suit against the first defendant, the first defendant and his son severely beat her husband and children and when her mother-in-law (second defendant) came to the rescue of her husband, she was also beaten and that she sustained injury to her nervous system and on account of clotting of blood, she suffered paralysis stroke on the right side. It is also her case that they got treated her in Sathya Woodland Hospital and Yashoda Hospital and in Indira Nursing Home and that subsequently, she started living with her daughter – the third defendant. Her specific case is that seeing the harassment caused to her and her husband by the first defendant and in view of the services rendered by them, her mother-in-law (second defendant) executed registered Will in Ex.A.10 on 09.04.1996 bequeathing her 1/4^th share in the suit schedule property to her son – the third plaintiff. It is also her case that her husband and the third defendant were present at the time of execution of Ex.A.10 – Will dated 09.04.1996. The third defendant was examined as P.W.2 who is no other than the daughter of the second defendant – the executor of Will in Ex.A.10. According to her, her mother executed the Will in Ex.A.10 and as she was suffering with Paralysis, she was not in a position to sign on the Will and, therefore,

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she had put her thumb impression on Ex.A.10 – Will dated 09.04.1996. It is also her case that when her mother was sick, P.Ws.2 and 5 served her. Admittedly, Ex.A.10 is a registered Will dated 09.04.1996. The evidence of P.Ws.1 and 2 reveals that the second defendant – P.Kalavathi was taken to the Sub-Registrars office and when she was not in a position to get down of the car, an official of the Sub-Registrar’s Office came to her and obtained her thumb impression on Ex.A.10 – Will dated 09.04.1996. According to P.W.2, her mother was alright at the time of execution of Ex.A.10 – Will dated 09.04.1996. Admittedly, one of the attestors of Ex.A.10 – Will dated 09.04.1996, i.e., the first plaintiff is no more. The other attestor is P.W.2 who is no other than the daughter of the second defendant who executed Ex.A.10 – Will dated 09.04.1996. The evidence of P.W.2 appears to be natural, probable and there is nothing to disbelieve the same. Hence, I hold that the plaintiffs have proved the execution of Ex.A.10 – Will dated 09.04.1996 Therefore, I hold that the learned II Senior Civil Judge, City Civil Court, Hyderabad, has rightly held that the plaintiffs have proved the execution of Ex.A.10 – Will dated 09.04.1996 by Late P.Kalavathi, the second defendant.

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29. A feeble argument has been advanced by the learned counsel for the appellant that a Will executed by a coparcener, including the father, is invalid since he cannot device a Will of a joint family property or any part thereof. There is no need to discuss about citation which was relied upon by the learned counsel for the appellant

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in the case between M.N.Aryamurthi Vs. M.L.Subbaraya Setty^[8] in support of this contention, wherein, it was held as follows:-

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“….a coparcener cannot device a joint family property by Will because, on the date of his death when the Will takes effect, there is nothing for the will to operate on, as at the moment of his death, his interest passed by survivorship to the other coparceners.

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30. First of all, Late P.Kalavathi is not a coparcener. Moreover, after the death of her husband, she is entitled to 1/4^th share and, therefore, she had every right to bequeath the same by executing a Will.

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31. In view of the above discussion and for the foregoing reasons, I hold that the Court below had appreciated the evidence in proper perspective and I do not find any reason to interfere with the reasoned judgment of the Court below. The appeal lacks merits and is liable to be dismissed.

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32. Accordingly, the City Civil Court appeal stands dismissed with costs.

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_____ September, 2011 Bvv

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_________________________ Justice B.Chandra Kumar

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[1] 2009 (2) SCJ 180 [2] 2005 (1) SCJ 130 [3] 2010 (3) ALT 233 [4] 2010 (1) ALT 228 [5] AIR 1990 SC 396 [6] AIR 1997 SC 3255 [7] AIR 1989 SC 1530 [8] AIR 1972 SC 1279

P. Narsingrao v. P. Ramarao (Died)

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P. Narsingrao v. P. Ramarao (Died)

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