HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY APPEAL SUIT No. 118 of 1995
Dated: 20.09.2014
Between:
Baratam Narayana Rao and another. - - - Appellants.
And Baratam Ganapathi Rao and three others. - - - Respondents.
The Court made the following :
HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
APPEAL SUIT No. 118 OF 1995
JUDGMENT:
The unsuccessful plaintiffs in Original Suit No.46 of 1989 on the file of the Additional Subordinate Judge (Additional Senior Civil Judge), Srikakulam (for short, ‘the trial Court’), preferred this Appeal challenging the decree and judgment dated 30.09.1994.
2. For convenience of reference, the ranks given to the parties in O.S. No.46 of 1989 will be adopted throughout this judgment.
3. The plaintiffs filed suit for partition of schedule property into three equal shares and to allot one such share to each of the plaintiffs and 1st defendant alleging that the plaintiffs and 1st defendant are brothers and sons of Baratam Satyanarayana, who constituted as members of undivided Hindu joint family. The 2nd defendant is wife of the 1st defendant, 3rd defendant is the Bank, where the amount belonging to late Satyanarayana is lying and the 4th defendant is the tenant of Satyanarayana.
4. Satyanarayana, father of the plaintiffs and 1st defendant, died intestate on 17.03.1989, and his wife predeceased him on 18.01.1986, leaving behind the plaintiffs and 1st defendant to succeed the estate of Satyanarayana and his wife Sasirekhamma. Thus, the plaintiffs and the 1st defendant succeeded the estate of the deceased Satyanarayana, being the legal heirs.
5. Satyanarayana and his two brothers, viz., Ramanayya Chetti and Viswanadham partitioned their joint family property under registered partition deed dated 15.03.1956 and in the said partition, Satyanarayana was allotted 1/3rd share in the joint family property.
Satyanarayana lived along with his sons jointly from 1956 to 1970 i.e., for a period of 14 years. Satyanarayana and his sons used to carry on cloth business, medical shop, earned income both from business apart from letting out their houses. They lived jointly in the houses situated in Chinnabaratam street and with their joint efforts acquired house property in southern row of Nehru Road, Srikakulam. Later, constructed a terraced room and established medical shop in the name and style of ‘Satyanarayana Medical and General Stores’ in the year 1966 - 67. They used to run cloth business in the name and style of ‘Satyanarayana Cloth House’ at Chowk Bazaar street in a rented shop. With the income of joint business, Satyanarayana purchased major items of gold ornaments and other movable property described in plaint B and C schedule, renovated old tiled house, where Rama Mandhiram is situated in GorlaVari Street, Srikakulam, which is described in plaint E schedule and deposited huge amount, which was derived from the collections of Rama Mandhiram, in the 3rd defendant - Bank, which is described in D schedule. Thus, Rama Mandhiram is also a joint family property of Satyanarayana and his two brothers Ramanayya Chetti and Viswanadham.
6. In the year 1970, Satyanarayana, plaintiffs and the 1st defendant made a tentative arrangement of apportioning the joint family property among themselves, as they would not continue in one mess due to increase of family members. In the said arrangement, the house situated at Chinnabaratam street was allotted to the 1st plaintiff to live with his family members; the medical shop room in Nehru road was divided into two parts and the western portion bearing Door No.8- 6-145 was allotted to the 1st plaintiff to run his medical business with medical stock; the eastern portion bearing Door No.8-6-145-A was allotted to the 2nd plaintiff together with open site in its backyard to facilitate construction of the house; the southern part of tiled house situated at Chinnabaratam street was allotted to the 1st defendant to live with his family members and northern portion was allotted to Satyanarayana and the 2nd plaintiff to live therein.
7. Cloth business was divided into two parts and the 2nd plaintiff was given half share. He established his cloth business in the name and style of ‘Goreswara Textiles’ in the eastern portion of terraced house situated at Nehru Road, Srikakulam. The 1st defendant vacated the rented room, in which originally ‘Satyanarayana Cloth House’ was carrying on business together with stock to the tiled house allotted to him. Later, the 1st defendant converted the cloth business into medical business and running the same in the name and style of ‘Taj Medical Hall’.
8. Plaint C schedule contains the gold ornaments, kept with the mother of the plaintiffs, Sasirekahamma, with an understanding that they be divided among the plaintiffs and the 1st defendant equally, after her demise.
9. The house in Gorlavari Street, Srikakulam, which was under the occupation of tenant, is not partitioned by Satyanarayana as it is meant for his maintenance, till his death with an understanding between the plaintiffs and 1st defendant to divide the same equally after the demise of Satyanarayana. Plaint ‘B’ and ‘C’ schedule property is in the custody of the 1st defendant and the plaintiffs, and the 1st defendant is not entitled to claim equal share in plaint A to D schedule property being the legal heir of Satyanarayana, whereas E schedule property is liable to be partitioned among the children of Satyanarayana, Ramanayya Chetti and Viswanadham and the plaintiffs and the 1st defendant are entitled to 1/9th share each in the E schedule property.
10. After the arrangement referred supra, the plaintiffs and the 1st defendant lived in their respective parts of houses allotted to them. The 1st defendant and Satyanarayana lived together till 1970. The 2nd plaintiff with his family members lived with his parents in item 1 of plaint A schedule property for a period of 14 years i.e., till August, 1984.
11. The 2nd plaintiff with his business income, stridhana gold of his wife and other investments constructed a lodging house in the backyard of the terraced room allotted to him in Nehru Road, Srikakulam, independently. The 2nd plaintiff improved the property allotted to him. Similarly, the 1st plaintiff improved the house allotted to him in Chinnabaratam street by getting it repaired, constructed an up stair portion on the medical shop.
12. Satyanarayana while maintaining himself with the income from item No.2 of plaint A schedule property and paddy yield from the agricultural lands, which were kept joint, also used to maintain Rama Mandhiram and the collections of Rama Mandhiram were kept in F.D.R. in Andhra Bank, which is shown in plaint D schedule.
13. Plaint A and D schedule property was in the custody of Satyanarayana, initially, and after his death, 1st defendant is continuing in possession and enjoyment of the same. After death of Satyanarayana plaintiffs demanded the 1st defendant to cooperate for partition of the suit schedule property; then, the 1st defendant disclosed about execution of a Will dated 02.02.1989 bequeathing entire plaint A to D schedule property in his favour and his wife.
14. The plaintiffs specifically contended that Satyanarayana never executed any Will and he was in unsound disposing state of mind as on the date of execution of Will. Satyanarayana was of unsound mind for a period of six months prior to his death. Therefore, Satyanarayana, who is in unsound state of mind, never executed any Will, thereby testamentary dispossession of Satyanarayana is not valid and binding on the plaintiffs. As the 1st defendant failed to cooperate for partition of plaint schedule property, the plaintiffs are forced to file the present suit for partition of plaint A to D schedule property into three equal shares and allot one such share to each of the plaintiffs and 1st defendant.
15. The 1st defendant filed written statement and the same is adopted by 2nd defendant. Defendants 3 and 4 also filed separate written statements.
16. The 1st defendant while admitting his relationship with the 2nd defendant and deceased Satyanarayana, so also the partition of the property in the year 1970 denied the material allegations made in the plaint and the alleged tentative arrangement. He specifically contended that the property was partitioned in the year 1970 itself among brothers i.e., plaintiffs and the 1st defendant, and their father Satyanarayana; since then, they are in exclusive possession and enjoyment of their respective share of property, allotted to them in the said partition. Therefore, the joint family ceased to exist from the date of partition. The defendants denied existence of any gold ornaments agreed to be partitioned after death of their mother, so also the agreement for division of house allotted to their father i.e., northern portion of the house situated in Chinnabaratam street, so also the house at Gorlavari Street, Srikakulam. The deposit lying in the Andhra Bank, 3rd defendant, is the property of Rama Mandhiram and the plaintiffs and 1st defendant are no way concerned with the same.
17. The specific contention of the 1st defendant is that he never withdrew Rs.21,000/- from the Bank and is not liable to pay any amount, much less, Rs.21,000/- alleged to have been withdrawn by him. Item 1 of the plaint A schedule property is not the joint family property of the plaintiffs and 1st defendant, and it was allotted to their father Satyanarayana, in the said partition. Late Satyanarayana was hale and healthy and in sound disposing state of mind till his death, executed a Will on 02.02.1989 bequeathing both movable and immovable property in favour of the 1st defendant and his wife, thereby the 1st defendant and his wife succeeded the property of late Satyanarayana as legatees under the Will, thereby the plaintiffs are not entitled to claim any share in the schedule property, prayed to dismiss the Suit.
18. The 3rd defendant filed written statement disclosing the details of the fixed deposits and accounts maintained by late Satyanarayana during his life time. The 4th defendant, tenant of late Satyanarayana, filed written statement alleging that the house was let out to him on a monthly rent and he had been paying the rent to Satyanarayana during his life time and after his death to the 1st defendant as a legatee under the Will, and during pendency of the Suit, agreed to deposit the rent into the Court.
19. Basing on the above pleadings, the trial Court framed the following issues: (extracted)
1. Whether the plaintiffs are entitled for partition of the suit schedule properties as claimed?
2. Whether the Ramamandhiram is the self acquired property of late Satyanarayana?
3. Whether late Satyanarayana has executed a registered Will dated 02.02.1989 with sound and disposing state of mind bequeathing all his movable and immovable properties which fell to his share during the partition which took place in 1970 and the plaintiffs have no right to question the same?
4. What are the amounts deposited by the late Baratam Ramamurty in Savings Bank Accounts with D.3?
5. Whether 3rd defendant is a necessary party to the suit?
6. To what relief?
20. During course of trial, on behalf of plaintiffs, PWs.1 and 2 were examined and marked Exs.A.1 to A.9. On behalf of defendants, DWs.1 to 3 were examined and marked Exs.B.1 to B.11.
21. Upon hearing argument of both the counsel, considering oral and documentary evidence available on record, the trial Court believed the partition pleaded by 1st and 2nd defendants in the year 1970 and also believed execution of Ex.B.11, Will, by Satyanarayana in favour of the 1st defendant and his wife and dismissed the Suit in toto.
22. Aggrieved by the decree and judgment of the trial Court, the plaintiffs preferred this Appeal on various grounds. The main contentions raised both in the grounds of Appeal and during course of argument are:
a) The defendants failed to prove execution of Will as required under the Indian Evidence Act, 1872 and the Hindu Succession Act, 1956 but the trial Court accepted the evidence of the defendants without proper appreciation of oral evidence;
b) The trial Court erroneously believed the previous partition pleaded by the 1st defendant in the year 1970; and
c) Similarly, the trial Court did not decide the nature of the property left by late Satyanarayana, common ancestor to both the plaintiffs and 1st defendant.
If the evidence on record is appreciated in proper perspective, the trial Court would have granted a decree in favour of the plaintiffs and prayed to allow the Appeal setting-aside the decree and judgment of the trial Court.
23. During course of argument learned counsel for the defendants – respondents argued totally in support of the finding recorded by the trial Court and prayed to dismiss the Appeal confirming the decree and judgment of the trial Court.
24. Considering rival contentions and perusing the material available on record, the points that arise for consideration in this Appeal are:
1. Whether the previous partition pleaded by the 1st defendant in the year 1970 is true, valid and binding on the plaintiffs?
2. Whether the Registered Will, marked as Ex.B-11, was executed by late Satyanarayana during his life time in sound disposing state of mind?
3. Whether the plaintiffs are entitled to a decree for partition of the schedule property into three equal shares and to allot one such share to each of them?
25. POINT No.1: The plaintiffs filed suit for partition contending that late Satyanarayana, 1st defendant and plaintiffs constituted as members of undivided Hindu joint family and consequent upon death of Satyanarayana, plaintiffs became entitled to 1/3rd share each and sought for partition of the schedule property into three equal shares and for allotment of one such share to each of them, and the 1st defendant, resisted the claim of the plaintiffs on the ground that the joint family property was partitioned in the year 1970 itself among the brothers i.e., plaintiffs and 1st defendant, their father late Satyanarayana. Since then, they are in exclusive possession and enjoyment of the property allotted to them in the partition. Thereafter, the joint family ceased to exist from the date of partition. In the partition that took place in the year 1970, certain property was allotted to each of the plaintiffs, 1st defendant and their father late Satyanarayana.
26. The plaintiffs made a clear assertion in the plaint that in the year 1970 there was a tentative arrangement among the legal heirs of deceased Satyanarayana and Satyanarayana in respect of the schedule property own and possessed by the joint family. Admittedly, the plaintiffs, 1st defendant and their father used to carry on cloth and medical business; thus, the family of the plaintiffs and 1st defendant is a trading family. The plaintiffs further admitted that in the tentative arrangement that took place in the year 1970, they apportioned the joint family property as they could not continue in a single mess, and in the said arrangement, the house situated in Chinnabaratam street was allotted to the 1st plaintiff to live with his family members; a medical shop room in Nehru Road was divided into two parts and western portion bearing Door No.8-6-145 was allotted to the 1st plaintiff to run his medical business with medical stock; the eastern portion bearing Door No.8-6-145-A was allotted to the 2nd plaintiff along with open site in its backyard to facilitate him to construct a house and the southern part of the tiled house situated in Chinnabaratam street was allotted to the 1st defendant to live with his family members and northern portion was allotted the Satyanarayana and the 2nd plaintiff to live therein. Similarly, cloth business was divided into two parts and the 2nd plaintiff is given half share wherein he established his cloth business in the name of ‘Gowreswara Textiles’ in the eastern portion of the terraced house situated in Nehru Road, Srikakulam. The 1st defendant vacated the rented room in which he was carrying on cloth business originally in the name and style of ‘Satyanarayana Cloth House’ and with the available stock, he shifted his business to a tiled house allotted to him southern row situated. Later, the 1st defendant converted the cloth business into medical business running the same in the name and style of ‘Taj Medical Hall’. These clear admissions of the plaintiffs are sufficient to conclude that the there is a partition of the joint family property.
27. Defendants did not dispute the alleged division of property in the written statement; on the other hand, contended that the alleged division of property is not a tentative arrangement, it is final partition of joint family property but the question to be decided by this Court is whether such division of joint family property amounts to final partition i.e., division of status of the joint family by metes and bounds. When the joint Hindu trading family divided their property by metes and bounds, it amounts to severance of status of joint family and, similarly, living separately with separate mess also one of the considerations to accept the contention of the 1st defendant that the property was divided by metes and bounds. Yet, judicial admissions made by the plaintiffs in the plaint clearly shows that the property allotted to them was improved by making necessary further constructions converting the tiled rooms into terraced rooms changing their nature of business etc., is a strong circumstance to conclude that the property was divided by metes and bounds and there is severance of joint status of Hindu undivided family. Therefore, judicial admissions of the plaintiffs in the plaint are sufficient to believe severance in the status of joint Hindu family.
28. While the plaintiffs claiming partition of the joint family property, the property allegedly allotted to them in the tentative arrangement in 1970 was not included in the plaint schedule, but filed the suit for partition of the property allotted to the share of their father, Satyanarayana only. If really there was no partition of the joint family, the suit must embrace all the property belonging to the joint family. Therefore, this is another strong circumstance to disbelieve the alleged tentative arrangement and to believe partition of the joint family property by metes and bounds as claimed by the 1st defendant.
29. When I advert to the oral evidence on record, PW.1 admitted in his evidence that the allotment of property to their share in the alleged tentative arrangement in 1970, living separately from the date of the arrangement, running their own business, separately, improving their property. This evidentiary admission also lends support to the case of defendants. Similarly, PW.2 also admitted about the allotment made to the share of the plaintiffs in the alleged tentative arrangement. Obviously for different reasons, the plaintiffs filed the suit only claiming partition of the share allotted to their father, denying partition of the property in the year 1970. If really, the plea of the plaintiffs is true, the entire joint family property shall be included in the plaint schedule. Claiming partition of property allotted to the share of their father itself is suffice to conclude that they strictly accepted the partition that took place in the year 1970. Therefore, the evidence on record clearly established partition of joint family property in the year 1970 and that there exists no joint family as on the date of filing of the Suit to claim share in the suit schedule property and apart from that, the schedule property is the separate property allotted to the share of their father, late Satyanarayana, during his life time. When the partition took place, at best, after death of Satyanarayana, the plaintiffs and 1st defendant are entitled to claim equal share subject to any testamentary dispossession made by late Satyanarayana, during his life time. Therefore, I find no error in the conclusions arrived by the trial in holding that there exists no joint family, as the property was already partitioned, and this finding of the trial Court does not call for interference of this Court, even after reappraisal of entire evidence. Hence, I hold that the joint family property was partitioned in the year 1970 itself dividing the property by metes and bounds.
30. POINT No.2: One of the contentions of the plaintiffs is that after death of Satyanarayana, father of plaintiffs and 1st defendant, plaintiffs and 1st defendant succeeded his estate, being legal heirs. However, the claim of the plaintiffs is resisted by the defendants on the ground that late Satyanarayana, executed a Registered Will dated 02.02.1989, marked as Ex.B-11, in unsound disposing state of mind, bequeathing property allotted to late Satyanarayana in favour of 1st defendant and his wife, 2nd defendant respectively. The trial Court believed execution of the Will by late Satyanarayana in favour of defendants 1 and 2 in sound disposing state of mind. The plaintiffs now challenged the finding of the trial Court regarding execution of Will by late Satyanarayana, on various grounds, mainly pointing out that the 1st defendant, legatee under the will played major role in execution of the Will and apart from that, late Satyanarayana was sick when the Will was executed and not in sound state of mind as on the date of alleged execution; thereby, there is any amount of suspicion regarding state of mind of deceased Satyanarayana, as on the date of execution of Ex.B- 11, Will, and unless those suspicious circumstances are dispelled, the Will cannot be accepted and basing on such will, rights of defendants 1 and 2 being the legatees cannot be upheld and prayed to set-aside the finding of the trial Court.
31. Will is a testamentary dispossession of property of testator executed during his life time which will come into force after his death and there is no possibility of examining the testator when the Will is disputed, but several safeguards are provided under Section 68 of Indian Evidence Act, providing special rules of evidence to prove the Will, which is almost equivalent to Section 63 of Indian Succession Act. Therefore, it is obligatory on the part of propounder of the Will to prove execution of Ex.B-11, dated 02.02.1989, in sound disposing state of mind by late Satyanarayana during his life time and dispel all the suspicious circumstances, as required under Section 68 of Indian Evidence Act. According to Section 68 of Indian Evidence Act, Will is required to be proved by examining any of the attestors, and thus the initial burden is on the 1st defendant, who propounded the Will claiming exclusive right in the schedule property, which was allotted to the father of plaintiffs and 1st defendant in the partition that took place in the year 1970.
32. To substantiate the contentions of defendants and to discharge their initial burden, 1st defendant himself was examined as DW.1 besides examining the attestor as DW.2 and identifying witness before the Registrar as DW.3. In the evidence of PW.1, he testified that his father, Satyanarayana, his wife, 1st defendant with his family members used to live together. Two years after the partition, when mother of the 1st defendant and plaintiffs died, his father was hale and healthy till his death and used to look after the affairs of Rama Mandiram. Father of 1st defendant and plaintiffs executed Ex.B-11, registered will, 15 days prior to his death in sound disposing state of mind on 02.02.1989. As per the terms of Will, Item 1 of plaint A schedule property, vacant site mentioned in Item 3 of plaint A schedule, 1/3rd undivided share in the vacant site was bequeathed to him. The 1st defendant also became trustee of Rama Mandiram after death of his father, as he was appointed as a trustee under the Will. His father bequeathed the agricultural land allotted to him in the joint family partition to 1st defendant and plaintiffs equally and F.D.Rs exclusively to the 1st defendant, the house property described in Items 1 and 2 of ‘A’ schedule was bequeathed to 2nd defendant under the Will and that the 1st defendant himself performed the obsequies of his father, and from the date of death of his father 1st defendant and his wife are in possession and enjoyment of the property bequeathed to them under Ex.B-11, Will. In the cross-examination, DW.1 admitted that his father limited his studies up to 8th or 9th class, used to read and write English and further elicited that in 1976 his name was mutated in the municipal records for the house fell to his share and paying tax in his name. In I.A. No.198 of 1989 filed for appointing an advocate receiver, the 1st defendant admittedly filed his counter, in which there was a reference of bequeath made in his favour except the valuable property. According to him, the valuable property means fans and other small articles in his house, but those admissions in the cross-examination dated 21.07.1994 are no way helpful to the case of the defendants, since DW.1 asserted from the beginning that his father executed a Will bequeathing property to him, his wife and plaintiffs 1 and 2 as mentioned above.
33. The defendants examined one of the attestors and identifying witness. Their evidence is totally consistent with the sound state of mind of father of the 1st defendant that too the testator came to them sitting in a rickshaw and called DW.2, attestor, to come to the office of Sub-Registrar. If really he was not in sound disposing state of mind, question of calling him while proceeding to Sub-Registrar’s office in a rickshaw does not arise. Therefore, it is a strong circumstance to believe that the testator was in sound disposing state of mind. The executant was identified by the witness at the time of execution of document in the Registrar’s office, before the Sub-Registrar. The consistent evidence of all the witnesses cumulatively established that the testator, father of 1st defendant, was in sound disposing state of mind by the time of execution of the Will. Mere death of testator within 15 days after execution of Ex.B-11 is not sufficient to discredit the testimony of the witnesses examined by the defendant on his behalf. Unless evidence is brought on record to establish that the testator was not in a condition to move from the residence for the last more than 15 days prior to his death, or his mental condition was not sound, the evidence of DWs.1 to 3 cannot be discredited. Strangely no iota of evidence is brought on record to establish that the deceased Satyanarayana was not in sound state of mind at the time of execution of Ex.B-11, by the plaintiffs.
34. One of the contentions raised by learned counsel for the plaintiffs – appellants is that dispossession of property by Satyanarayana is unnatural. It is one of the circumstances to disbelieve execution of the will in sound state of mind. Undisputedly, the specific arrangements were made in the Will itself and part of agricultural land was bequeathed even to the plaintiffs while bequeathing the household property to 1st defendant and his wife in addition to the part of agricultural land allotted along with the plaintiffs. Giving preference to wife of 1st defendant is only for the reason that the testator Satyanarayana, 1st defendant and 2nd defendant lived together and defendants 1 and 2 looked after the last days of Satyanarayana, testator, before his death. The testator Satyanarayana would have developed some love and affection towards defendants 1 and 2, as they attended on the needs of the deceased testator during his last days, after death of his wife. Therefore, bequeathing major part of the property to 1st defendant and his wife is not un-natural, but it was only due to love and affection he developed towards them. Hence, it is not a ground to disbelieve execution of Ex.B-11.
35. One of the contentions of plaintiffs – appellants is that the 1st defendant took major role in execution of the registered will by testator Satyanarayana. That may be one of the grounds to disbelieve execution of Ex.B-11, if other circumstances find in their favour, but no other evidence is brought on record to believe that Ex.B-11-Will, was executed due to undue influence or otherwise. If there are no circumstances pointing out the undue influence, misrepresentation or fraud in obtaining the will by the 1st defendant that may be a relevant consideration. In the absence of such pleas, it is difficult to sustain the contention of the plaintiffs that Ex.B-11 was not executed out of free volition.
36. The main endeavor of learned counsel for the plaintiffs – appellants is that when a will is set up by the defendants 1 and 2, it is their obligation to establish execution of the will in sound disposing state of mind by deceased Satyanarayana, during his life time, and dispel all the suspicious circumstances surrounded in execution of the will and placed reliance on a judgment reported in Gorantla Thataiah
[1]
Vs. Thotakura Venkata Subbaiah and others , wherein the Apex Court held as follows:
“6. It is well established that in a case in which a will is prepared under circumstances which raise the suspicion of the court that it does not express the mind of the testator it is for those who propound the will to remove that suspicion. What are suspicious circumstances must be judged in the facts and circumstances of each particular case. If, however, the propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case, the Court should proceed in a vigilant and cautious manner.”
37. If the above principle is applied to the present facts and circumstances, at best the duty of the Court is to be more vigilant and cautious while appreciating the evidence. In the present case, the major role played by 1st defendant was not proved and in fact, he does not know anything more than execution of the Will by Satyanarayana. Even otherwise, there is no disproportionate distribution of property, except bequeathing a share to the wife of 2nd defendant, who looked after the testator during last days of his life. Hence, I find no suspicious circumstances in execution of the will to be dispelled by the defendants by adducing any amount of evidence.
38. The learned counsel for the plaintiffs – appellants mainly contended that under the special rules of evidence contained in Section 68 of Indian Evidence Act, will is to be proved as required under the provisions and placed reliance on judgments of the Apex Court in Yumnam Ongbi Tampha Ibema Devi Vs. Yumnam
[2]
Joykumar Singh and others , Bharpur Singh and others Vs.
[3]
Shamsher Singh , M.B. Ramesh (Dead) By Legal Representatives Vs. K.M. Veeraje Urs (Dead) By Legal
[4]
Representatives and Surendra Pal and others Vs. Dr. (Mrs.)
[5]
Saraswati Arora and another .
39. I n Surendra Pal5, the Apex Court reiterated the general principle as to how a will is to be proved and held as follows in Para 7:
“7. The propounder has to show that the will was signed by the testator: that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the will are not the result of the testator's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the will is accepted. Again in cases were the propounder has himself taken a prominent part in the execution of the will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the
conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. See H. Venkatachala Tyengar v. B.N. Thimmajamma and Others [1959] Supp 1 SCR 426 ; (1) and Rani Purnima Debi and Another v. Kumar Kbagendra Narayan Dev and Another MANU/SC/0020/1961 : [1962] 3 SCR 195. In the latter case this Court, after referring to the principles stated in the former case emphasised that where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine; and where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same.”
40. In Bharpur Singh3, the Apex Court observed that when a Will is surrounded by suspicion, it would not be treated as last testamentary dispossession of the testator and held as follows:
“When a will is shrouded in suspicion, its proof ceases to be simple lis between the plaintiff and defendant. An adversarial proceeding in such cases becomes a matter of Court’s conscience and propounder of the will has to remove all suspicious circumstances to satisfy that the will was duly executed by the testator wherefor cogent and convincing explanation of suspicious circumstances shrouding the making of a will must be offered.
41. It was further held that when propounder took interest in execution of the will is one of the factors which should be taken into consideration for determination of due execution of the will. The propounder of the will must prove : (i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and (ii) when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, Courts would be justified in making a finding in favour of propounder.
42. I n Yumnam Joykumar Singh2, the Apex Court while reiterating the requirements of Will relied on its earlier judgment in
[6]
Daulat Ram Vs. Sodha , wherein it was held as follows at Para 10:
“10. Will being a document has to be proved by primary evidence except where the court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses 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. In addition, it has to satisfy the requirements of Section 63 of the Succession Act, 1925. 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. Once these elements are established, the onus which rests on the propounder is discharged. 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 a fraud is on the person who alleges it to be so.”
43. In K.M. Veeraje Urs4, the Apex Court held that a Will has to be proved in the manner required by Section 63 of the Succession Act. As per Section 68 of the Evidence Act, a will is to be proved by examining at least one attesting witness. However, it does not absolve the obligation of said party from proving valid execution of will by not examining available and alive witnesses.
44. Taking advantage of the principles laid down in the above judgment, learned counsel for the plaintiffs – appellants contended that non-examination of other attestor who is alive is fatal to the case of the defendants, but the law requires proof of a will by examining at least one of the attesting witnesses or in the absence or non availability of the attesting witness, different modes of proof is permitted under Sections 69 and 71 of Indian Evidence Act, and Section 68 of the Indian Evidence Act did not lay down examination of all the witnesses available and non examination of every available attestor is not a ground to disbelieve execution of the will, which is not mandatory as per the law.
45. However, in view of the principle laid down by the Apex Court in the decisions cited supra, the Apex Court is of the view that Section 71 of the Evidence Act is connected to Section 68 of the Evidence Act and Section 63 of the Succession Act, which is permissive and an enabling section permitting a party to lead other evidence in certain circumstances and in any way reduces the rigour of the mandatory provision of Section 68 of the Evidence Act. Section 71 of the Evidence Act is meant to lend assistance and come to the rescue of a party who had done his best, but would otherwise be let down if other means of proving due execution by other evidence is not permitted. At the same time, it cannot be represented to absolve a party from his obligation under Section 68 of the Evidence Act read with Section 63 of Succession Act to present in evidence a witness, though alive and available. If the principle laid down by the Apex Court is accepted, though Section 71 enables propounder of a will to prove document by several means, non examination of available witness to prove the will in terms of Section 68 of Evidence Act and 63 of Succession Act will not absolve his liability to prove due execution of the will. The principle laid down in the above judgment has no application for the reason that the defendants examined the available attestor, DW.2, strictly adhering to the requirements under Section 68 of Evidence Act and Section 63 of Succession Act. Therefore, it is difficult to hold that non examination of the other attestor, who is alive, is fatal to the case and on that ground the plea of the defendants cannot be overthrown, disbelieving the same.
46. The sum and substance of the principles laid down in the above judgments of the Apex Court is that the propoudner has to prove the execution of will in terms of Section 68 of Indian Evidence Act, 67 of Indian succession Act and dispel all the suspicious circumstances besides proving that the will was executed in sound disposing state of mind. Here, the defendants proved, examining the attestor as DW.2 and identifying witness of Ex.B-11 as DW.3 and explained the only suspicious circumstance pointed by the plaintiffs i.e., allotment of major share to the 1st defendant and his wife, 2nd defendant. The reason shown by 2nd defendant for said allotment is that after death of wife of Satyanarayana the testator, he lived with defendants 1 and 2 in the same house, 1st and 2nd defendants looked after his welfare during his last days. Therefore, it is quite common to confer benefit on the persons who looked after the attestor during his last days. Hence, it is not sufficient to disbelieve execution of Ex.B-11. Similarly, the other circumstance pointed out by the learned counsel for the plaintiffs – appellants is that playing major role, which I already discussed in the earlier paragraph of the judgment.
47. On over all consideration of the entire material available on record, I find that defendants 1 and 2 adduced satisfactory and cogent evidence to prove due execution of Ex.B-11, to the satisfaction of the trial Court. Even after discerning entire oral and documentary evidence available on record, I find no material to come to any different conclusion than the conclusion arrived by the trial Court with regard to due execution of Ex.B-11. Accordingly, the point is decided in favour of defendants 1 and 2 and against the plaintiffs.
48. POINT No.3: In view of my finding on point No.1, the joint family
property was partitioned in the year 1970 itself and plaintiffs and 1st defendant started enjoying their respective share of property allotted in the said partition and improved their allotted share making material alterations to the property, I find that the suit schedule property is only a share of the property allotted to the Satyanarayana, father of plaintiffs and 1st defendant, but the testator, late Satyanarayana executed the Will, marked as Ex.B-11, in sound disposing state of mind in view of my finding at Point No.2, making necessary arrangements regarding his movable and immovable property. Therefore, the plaintiffs at best are entitled to claim any share in the agricultural land in terms of the will, but not as legal heirs of deceased Satyanarayana. The main contention of the plaintiffs from the beginning was that Satyanarayana died intestate but defendants 1 and 2 able to establish due execution of Ex.B-11 in view of my finding on point No.2. Thereby the plaintiffs are entitled to claim a share in agricultural land of late Satyanarayana in terms of the will and not entitled to claim entire suit schedule property.
49. The plaintiffs also claimed share in the amount lying in the 3rd defendant – Bank, but the trial Court declined to grant any share in the deposit since the deposits are not joint family property and it belongs to Rama Mandhiram and consequent upon the death of Satyanarayana, the 1st defendant became a trustee under the will and that the plaintiffs are not entitled to claim share. Therefore, on overall analysis of entire evidence on record, including the finding recorded by the trial Court, I find no legal infirmity to interfere with the finding of the trial Court. Hence, the finding of the trial Court is confirmed holding this point in favour of defendants 1 and 2 and against the plaintiffs.
In the result, the Appeal Suit is dismissed, confirming the decree and judgment dated 30.09.1994 passed in Original Suit No.46 of 1989 by the learned Additional Senior Civil Judge, Srikakulam.
In consequence, the miscellaneous petitions, if any, pending in this Appeal, shall stand dismissed. No order as to costs.
Date: 29-09-2014.
Dsh M. SATYANARAYANA MURTHY, J HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY 265
APPEAL SUIT No. 118 OF 1995
Date. 20-09-2014
DSH
[1] AIR 1968 SC 1332
[2] (2009) 4 SCC 780
[3] (2009) 3 SCC 687
[4] (2013) 7 SCC 490
[5] AIR 1974 SC 1999
[6] (2005) 1 SCC 40