Dismissed

B. Vara Venkata Narayana Rao (Died) per LRs a- 4 to 6 v. Vemuri Satyavathi (Died)

Telangana HC17 Apr 2013AS/1805/1999

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against the dismissal of a suit seeking declaration of title and possession. The court held that the Will was invalid due to lack of attestation evidence and insufficient proof of the testator's capacity and intent, also refusing additional evidence.

What did the court decide?

The appeal and the application for additional evidence were dismissed. No costs.

B. Vara Venkata Narayana Rao (Died) per LRs a… — Succession and Inheritance | Telangana HC (2013)

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HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO

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APPEAL SUIT.No.1805 of 1999

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AND

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APPEAL SUIT M.P.No.3115 of 2012

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JUDGMENT:

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The plaintiffs in O.S.No.9 of 1995 on the file of the Senior Civil Judge, Avanigadda, are the appellants herein.

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The suit was one filed for declaration of the title of the plaintiffs and for recovery of possession, profits and also for injunction.

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The allegations in the plaint go to show that one Dr. Vemuri Durga Nageswara Sastry was the owner of Item No.1 and half of Item No.2, who got the property in division with his brother Suryanarayana Sastry, the 10^th defendant and late Venkata Lakshminarayana Sastry, who is husband of the first defendant and father of defendant

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Nos.2 to 9, and late Chandrasekhar. He died on 28.02.1972 leaving behind his wife Ranganayakamma. During his lifetime, he executed a Will on 28.01.1966 conveying the properties to his wife and it was a registered Will. He also conveyed the bank accounts in

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her name. The properties were in possession of the tenants and the tenancy was attorned. Item No.1 is in possession of the 13^th defendant and up-stair is in possession of the 11^th defendant. Ranganayakamma continued to live in a portion of Item No.2 of the plaint schedule. She was not healthy; she came to Machilipatnam and lived with her mother and the 2^nd plaintiff in the month of October 1972. On the night of 23.01.1973 Ranganayakamma had slight attack of paralysis and she has executed a Will on 25.01.1973 in a sound and disposing state of mind conveying the properties in

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Item No.1 to her mother Gnana Prasunamba and Item No.3 to the 2^nd plaintiff. She also should take possession of the Item No.2 and she enjoyed the properties without any powers of alienation and shall be enjoyed by the 3^rd plaintiff after her death, who is the daughter of the 2^nd plaintiff. If for any reason the 3^rd plaintiff happens to die before she became major, her mother, should take possession of the said property and on 28.01.1973 Ranganayakamma died and Will has came into operation.

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Late Lakshminarayana Sastry and defendant Nos.2 to 6 and their deceased brother Chandrasekhar were always inimical towards late Durga Nageswara Sastry.

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Consequently, he never intended to give any properties to D-10, D-2 to 6 and it was mentioned in his Will that they do not have any right in the property. When the 2^nd plaintiff demanded the money to be paid from the Bank, he was asked to produce the certificate. The 13^th defendant paid rents for some time, but subsequently discontinued. The 12^th defendant regularly paid rents to Gnanaprasunamba till her death and the 11^th defendant paid rents till December, 1974 and thereafter he committed default in payment of rent and R.C.C.No.354 of 1978 was filed. The son of the 1^st defendant by name Vemuri Chandrasekhar gave a notice with false allegations disputing the Will, a reply was also given and subsequently Chandrasekhar died in 1978. The 8^th defendant also gave a notice disputing the Will.

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The defendants have filed a written statement denying the allegations in the plaint and contending that the alleged Will executed by Nageswara Sastry or Ranganayakamma are not valid and true. The allegation was that the Ranganayakamma lived with her mother and the 2^nd plaintiff entitled to the properties under the Will is also disputed. Defendant Nos.2 to 9 and late Chandrasekhar are the legal heirs of Late Ranganayakamma, and she died intestate and has

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succeeded all the properties from her husband. According to them, the property shall devolve upon them being the heirs of her husband. The attornment of the tenancy and payment of the rents is also disputed. The suit is bad for mis-joinder of cause of action and is also barred by time. The defendants have pleaded for the dismissal of the suit.

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The 13^th defendant filed a written statement claiming statutory tenancy and claims to have been paid the money for some time to the 2^nd plaintiff, thereafter when the 7^th defendant issued a notice, a suitable reply was given. The rent was being deposited in A.T.C.No.3 of 1985 and he is a statutory tenant and cannot be evicted.

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On the basis of the above pleadings, necessary issues have been framed for trial. On behalf of the plaintiffs PW.1 was examined and marked Exs.A1 to A29. On behalf of the defendants Exs.B1 to B8 were marked. After considering the evidence on record, the Court below has dismissed the suit of the plaintiffs. Aggrieved by the said judgment, the present appeal is filed.

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Pending disposal of the Appeal, A.S.M.P.No.3115 of 2012 was filed by the appellants to adduce further evidence and to mark death certificate of one Dr. Gandikota Venkata Rao, who was said to be attestor

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on the Will.

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The point that arises for consideration is:Whether the Will executed by deceased Ranganayakamma is true and valid?

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POINT:

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Though several contentions were raised in the lower Court, it was held by the Court below even if the Will was said to have been executed by Nageswara Sastry, which is Ex.A1, it is not a considered Will. Ranganayakamma will be the person entitled to the estate of the deceased and this finding also cannot be faulted, and in fact, there was no appeal against this finding. It was also found that as per the adoption deed, PW.1 was held to be the adopted son of Jnanaprasunamba.

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This is an unfortunate case where in spite of the fact that the defendants who are now claiming to be the legal heirs of Nageswara Sastry, during his life time they are highly inimical with him and the Will-Ex.A1 executed by late Nageswara Sastry reflects as to how the defendants behaved and as to why he wanted that they should not succeed to his estate. But, however, what he has willed under Ex.A1 cannot come true, if the Will Ex.A8 is not proved. In order to prove the Will Ex.A8, except the evidence of PW.1 there is no evidence. PW.2 is the scribe of the Will and he is said to be the retired Sub Registrar.

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There cannot be any dispute about the proposition of law that when once the execution of the Will was specifically denied, it is the duty of the profounder to examine at least one of the attestors of the Will. There are said to be four attestors and the evidence of PW.2 who is the scribe does not disclose their names specifically nor could he identify them. As per the evidence of PW.1, except the Dr. G. Venkata Rao, who is one of the attestors, all the other attestors have died. The lower Court found that the living attestor was Venkata Rao, who was not examined and therefore there is no proof of the Will.

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According to the counsel for the appellants, by the date when PW.1 was examined, Dr. G. Venkata Rao is alive, but subsequently, he died and therefore the present additional evidence is filed for exhibiting the death of Venkata Rao. Therefore, even assuming to be that the claim of the appellants is true, the finding of the Court below for

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non-examination of Venkata Rao cannot be taken as a correct one. In spite of the alleged Memo said to have been filed before the Court, still a question is, whether the appellants have proved the Will. It is not in dispute when the attestor is not available, there is ample opportunity to prove the signature by examining the persons who are familiar with the signatures. This is the simple principle of evidence, which could have been cautiously taken care

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of, when a Will has been set up. But, in spite of the fact that all the attestors are no more, no effort was made in the lower Court to examine any of the persons, who are acquainted with the signatures of the above attestors and now in the additional evidence petition, one person who is said to be having knowledge of signature of Hemadri Satyanarayana was sought to be examined. In fact, additional evidence can be allowed only when the party with due diligence would not have noticed the evidence or when it is a subsequent development. But, in this case when the appellants have gone for trial, it is quite clear he is aware that all the four attestors are no more and therefore it is his bounden duty to secure the evidence of persons who are associated with the identification of signature of the attestors.

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Therefore, in view of the above circumstances, at this stage, the request for additional evidence cannot be considered as it is against the settled principles under Order XLI Rule 27 Civil Procedure Code.

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Apart from the non-examination, of the persons, who are acquainted with the signatures of the attestors, the evidence of PW.2 clearly shows as to how the Will is improbable. According to the specific case of the plaintiffs, the deceased was having some ill-health and on 25.01.1973, she had a mild paralytic attack and her right

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leg and hand were effected. Even very prior to that, she was said to be taking Ayurvedic medicine and there was improvement. She was said to have been came to Machilipatnam in October, 1972 and she was treated earlier at Hyderabad for B.P.. In fact para 3 of the plaint discloses that she was not able to attend her regular work. The evidence of PW.2, who is the scribe of the Will, does not reflect as to the condition of Ranganayakamma. According to him, when he asked Ranganayakamma to sign, she disclosed that she could not sign and this fact is not aware prior to the drafting of the Will. According to him, till the time he asked her to sign on the Will, he is not aware that she was attacked with paralysis, but he noticed even prior to the scribing of the Will that she was attacked with paralysis. If that is so, it is difficult to believe that Ranganayakamma could have taken the Will and could have gone through the entire contents. His evidence in chief examination does not disclose that at the time of Ex.A8, Ex.A1 Will was given by her. Even in crossexamination, he stated that he did not see the Ex.A1, but Ranganayakamma has given the information by looking into Ex.A1. According to him, he did not prepare even a draft of a Will, which comes to 10 pages, and he could not also say as to who helped Ranganayakamma to affix her left thumb impression. His evidence is that the health of Ranganayakamma is alright and inconsistent. As per the

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allegations in the plaint, from 1972, she was having ill-health and not able to perform her routine duties. Further more, being a document writer and Sub Registrar, there is no reason as to why he did not advise the Will to be registered.

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Added to that when it was subsequently pleaded that even prior to 25.01.1973 Ranganayakamma was having ill-health, there is no reason as to why she had not executed any Will prior to that. On the other hand, according to the case of the plaintiffs, Ranganayakamma had slight attack of paralysis on the night of 23.01.1973 and her right leg and hand were effected and they become immovable. There is nothing on record as to where she was treated for the alleged ill-health and there is no proof of her admission in any hospital and the evidence of doctor was also not adduced. The prescription Ex.A7 by itself cannot show that she was having any long ill-health, it can only be that there might not have been any contemplation of death and if there is any contemplation of death and in view of the fact that her husband never intended the property to be enjoyed by his brothers and other family members, Ranganayakamma would not have failed to execute the Will and register the same. The fact that the evidence of PW.2 discloses that Ranganayakamma was healthy and alright clearly goes to show that by 25.01.1973 there was no contemplation of

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death and there is no proof of cause of death and therefore the Will appears to be improbable. Though the learned counsel for the appellants relied upon the decisions reported in Veerappudayan and another Vs. Muthukarappan Thevan and others^[1] and M. Venkasubbaiah Vs. M. Subbamma and others^[2] in order to show that the scribe can also be an attestor, but in view of the subsequent law the above decision has no application. But in view of the judgment reported in Gondrala Sithamahalakshmi and another Vs. Pulipati Rajarao and others^[3] the scribe cannot be treated as attesting witness, therefore the contention has no value.The Court below has given sufficient reasons to disbelieve the Will and I do not find any reason to give a different conclusion. There are no merits in the appeal.

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Accordingly, the Appeal and also the application A.S.M.P.3115 of 2012 are dismissed. No costs. Consequently, Miscellaneous Petitions, if any, pending in this appeal shall stand closed.

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N.R.L. NAGESWARA RAO, J

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Dated: 17.04.2013 Ska

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[1] 1913-MLJ-534

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[2] 1956 ANDHRA 195

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[3] 2002 (4) ALD 277 (DB)

B. Vara Venkata Narayana Rao (Died) per LRs a- 4 to 6 v. Vemuri Satyavathi (Died)

Case brief

What is this about?

What did the court decide?

B. Vara Venkata Narayana Rao (Died) per LRs a- 4 to 6 v. Vemuri Satyavathi (Died)

Case brief

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What did the court decide?

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