O.S.No.112/2018 1 Dt.20.03.2020
IN THE COURT OF PRL. JUNIOR CIVIL JUDGE CUM JUDICIAL FIRST CLASS
MAGISTRATE :: GUDIVADA
Present : SRI.CH.SRINIVASA BABU Prl. Junior Civil Judge cum Judicial First Class Magistrate, Gudivada
Friday this the 20th day of March, 2020
Original Suit No.112 of 2018
Between:
Maddinala Mary Gold, W/o. Aasirvadam, Hindu, aged 60 years, Housewife, R/o Pedayerukapadu,
Gudivada, Krishna District. .... Plaintiff
Vs., Marla Benerji Suvarna Raju, S/o. Nagabushanam, Hindu, aged 78 years, Retired employee, R/o D.No.18/64B, Pedayerukapadu, Gudivada, Krishna District. … Defendant
This suit is coming on 10.03.2020 before me for final hearing in the presence of
Sri G.L.N.V.Appaji learned Advocate for Plaintiff and of Sri M.S. Ram Prasad learned
Advocate for defendant; and upon hearing the arguments and having stood over for consideration till this day, this Court delivered the following :
// J U D G M E N T \\
01. This suit is filed by the Plaintiff for declaration that the plaintiff is the absolute owner of the plaint schedule property as per the registered Will dated 15.07.2015 and direct the defendant to deliver possession of the property within the stipulated time fixed by the Honourable court, in case of his failure deliver the same through the court to the plaintiff, for costs and for other reliefs.
02.The brief averments of the Plaint, in nutshell are that, the plaintiff is the absolute owner of the plaint schedule property. The plaintiff and defendant are sister and brother.
Marla Victoriamma and Nagabushanam are the parents of defendant and five others by name Marla Henry Vijayaraju, Marla Raghava Menon, Marla Rajendra Prasad, Mikkili
Nirmala Kumari and Tummala Amrutha Kumari. Originally the plaint schedule property belongs to Marla Victoriamma and she got the same by way of pasupukumkuma as her mother Kaila Chukkamma has gifted the same at the time of the marriage and she purchased the said property under registered sale deed bearing document number
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1792/1938 dated 20.06.1938, since from the date of gift Marla Victoriamma was in possession and enjoyment of the same. The said Marla Victoriamma has executed a registered gift on 15.07.2015 in a sound and dispossessing state of mind bequeathing the plaint schedule property to the plaintiff and she passed away on 04.07.2016, since then she had been in possession and enjoyment of the same. The plaintiff through her husband cultivated the plaint schedule property for the year 2017 sarva and blackgram for 2018. In the month of June, 2018 the plaintiff has submitted an application to the revenue authorities to measure and fix the boundaries of the plaint schedule property for obtaining e-pass book and mutation of name in the revenue records by paying necessary charges. The deputy inspector of surveyor, Gudivada measured the site and fixed the boundaries and he submitted report to Tahsildar, Gudivada recommending for issuance of e-pass book and for mutation of name. In the end of June 2018 the plaintiff and her husband left Yeleswaram of East Godavari District to their younger daughter’s house as she was suffering with serious ill health and stayed there up to 3rd September, 2018. When the plaintiff and her husband came back they came to know that the defendant high handedly entered into the plaint schedule property and cultivated the land, when they questioned about the high handed activities of the defendant, the defendant threatened them with dire consequences. The plaintiff being lady, being law abiding citizen unable to resist the same was constrained to file the suit.
03.On the other hand the defendant has filed written statement admitting the relation of the plaintiff with the defendant and denied major of the contents of the plaint and further added that the suit is not maintainable without impleading all legal heirs of Marla
Victoriamma and the plaintiff is not entitled for the relief of declaration and possession.
Marla Victoriamma was aged about 85 years as on the year 2015 from the middle of the year 2014 onwards she suffered with Alzheimer’s disease because of her old age and she was not in a sound state of mind and the plaintiff is not only one of the care takers of Marla Victoriamma along with the defendant and his wife as they are residing at
Gudivada. The registered Will must be a forged document and germinated by fraud with the active assistance of attestors who are no other than the husband and daughter
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of the plaintiff. The person who typed the Will deed on computer might be a close associate of the plaintiff’s husband. The plaint schedule property is incorrect and the extent of Ac.0.24 cents in R.S.No.114/1 of Tativarru is the only property left by Marla
Victoriamma and the remaining Ac.0.08 cents is in R.S.No.192/8E is a poramboke adjacent to the west side of Ac.0.24 cents. The alleged Will is full of suspicious circumstances. The plaintiff is put to strict proof of alleged Will dated 15.07.2015 in accordance with the provisions of Section 68 of Indian Evidence Act and Section 63 of
Indian Succession Act and the defendant has denies the truth validity and genuineness of the registered Will deed, the plaintiff was never in possession of the property based on the alleged Will deed and never cultivated the property. All the legal heirs of Marla
Victoriamma are in joint and constructive possession of the property, the plaintiff and her husband are responsible for golden jewelry and liquid cash of Marla Victoriamma and the plaintiff is accountable for the same. The certificate said to be issued by deputy inspector of surveyor is invalid and he is not competent to issue said certificate and the same has no validity in the eye of law. The defendant is a retired employee aged about 83 years and law abiding citizen and is paying land revenues to the property of deceased Marla Victoriamma and that there is no cause of action for filing the suit, hence prayed the court to dismiss the suit.
04.Basing on the above pleadings as there was no elements of settlement this Court framed the following issue for the purpose of trial :-
1.Whether the plaintiff is entitled for the relief of declaration as prayed for?
2. Whether the plaintiff is entitled for suit claim? To what relief?
05.On behalf of the plaintiff, P.Ws.1 to 3 were examined and Exs.A.1 to A.7 were marked. On behalf of defendant, D.W.1 was examined and Ex.B.1 was marked.
06.Heard arguments of both sides.
07.The learned counsel for the plaintiff has argued that, originally the plaint schedule property belongs to maternal grandmother of the plaintiff by name Kaila Chukkamma and she purchased the same under the registered sale deed bearing document number
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1792/1938 and she gifted the plaint schedule property to the mother of the plaintiff
Marla Victoriamma as pasupukumkuma at the time of her marriage and that she enjoyed the same with absolute rights till her death and she executed a Will deed under
Ex.A.2/A.5. After the death of Marla Victoriamma on 06.10.2016 the plaintiff took possession of the property and enjoyed the same with absolute rights and cultivated paddy and blackgram in the plaint schedule property and the name of the plaintiff was mutated in the revenue records and the revenue authorities have issued pattadar pass book cum title deed under Ex.A.6 and the plaintiff has also paid cist under Ex.A.7.
Taking advantage of temporary absence of plaintiff and her husband the defendant has took possession of the property. The plaintiff has proved the Will and the same is acted upon D.W.1 as he admitted possession of the plaintiff after the death of her mother and the defendant has to be prove his pleadings in a suit for declaration as he denied execution of Will. None of the witnesses were examined by the defendant to substantiate his plea. P.W.2 who was present at the time of execution of Will has categorically deposed that Marla Victoriamma in a sound and dispossessing state of mind has executed the document. Though the defendant has pleaded that the yield was shared to the legal heirs of Marla Victoriamma, there is no documentary proof placed before this court to that effect. As the plaintiff has acquired the plaint schedule property under Ex.A.2 as such the plaintiff has no necessity to add the other legal representatives of Marla Victoriamma as they have not denied execution of Will deed.
As the defendant has took possession of the property forcibly as such the plaintiff has filed the suit and the plaintiff is able to establish her case and she has examined P.W.3 who deposed that Ex.A.6 was issued and the name of the plaintiff was mutated in the revenue records. The plaint schedule property is situated on the western side of the property of Ex.B.1. On comparative study of Ex.A.1 and B.1 it reveals that the property belongs to Marla Victoriamma. As the plaintiff is able to establish her title over the plaint schedule property, the plaintiff is entitled for the relief of declaration, as the defendant has forcibly took possession of the property the plaintiff is entitled for recovery of possession.
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08.The learned counsel for the defendant has argued orally and filed written arguments and the contents of the same in nutshell are that other legal representatives of Marla Victoriamma are necessary parties as succession opens immediately after the death of Marla Victoriamma. The suit is not maintainable for declaration without adding all the parties as representatives as they became co-owners under the provisions of
Order I Rule 9 of Civil Procedure Code. The plaintiff has intentionally failed to add all the parties and the suit is liable to be dismissed on sole ground. Onus of proof is on the prepounder to prove the Will, however the plaintiff has failed to remove of suspicious circumstances with regard to execution of Will. P.W.2 is interested witnesses of the plaintiff and another witness was not examined, which is fatal to the case of the plaintiff.
As per the evidence of P.W.1 the Will was executed at the office of document writer, whereas P.W.2 has deposed that she signed on Exs.A.2/A.5 at sub-register office, which reveals a suspicion with regard to execution of Will, the pleadings and evidence is contrary to each other. In Christian community there is no custom of pasupukumkuma, though the plaintiff has claimed that his mother has acquired the property by way of pasupukumkuma it is for the plaintiff to establish the same, however the plaintiff has failed to establish the gift at the time of her mother’s marriage. In Ex.B.1 Marla
Victoriamma has categorically mentioned that she acquired the property by way of succession, whereas in Ex.A.5 the said fact was not mentioned. As the plaintiff has failed to establish execution of Will, as such the plaintiff is not entitled for the relief claimed. It is well settled law that onus of proving the Will is on the prepounder and she shall adduce satisfactory evidence that the Will was signed by the testator in a sound and dispossessing state of mind, however the plaintiff has failed to establish the same and the suspicious circumstances were not removed by the plaintiff and it reveals a doubt with regard to the execution of said document. Ex.A.5 was not executed by Marla
Victoriamma in a sound and dispossessing state of mind and that the signatures on
Ex.A.5 of the testator are very shaky and different to each and P.W.2 has admitted that
Marla Victoriamma has signed on Ex.A.5 with lot of difficulty, which clearly establishes that the mind of the testator appears to be very feeble and debilitated and the plaintiff
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has not succeeded in removing the legitimate doubt as to the mental capacity of the testator. There are several admissions in the evidence of P.W.1, which reveals that
P.W.2 is the close associate of the plaintiff. The scribe has got close acquaintance with the husband of the plaintiff, as such Ex.A.5 was brought into existence and the plaintiff has failed to prove execution of Will. As P.W.1 has categorically admitted that his mother has not acquired any property during her life time, immediately after the death of
Marla Victoriamma succession opens. The recitals of Ex.B.1 clearly reveals that the property gifted by her is out of love and affection, but not towards pasupukumkuma at the time of her marriage and reveals that she acquired the property by way of succession, as such the said Marla Victoriamma is not having absolute right over the property. Though P.W.1 has admitted that her husband was present at the time of execution of Will deed and registration, he was not examined on behalf of the plaintiff.
The documents, which are relied by the plaintiff are no way related and further the deputy inspector of surveyor is not competent witness and he was not examined to prove Ex.A.4 and he has not followed the procedure for issuing the same. At the time of issuing Ex.A.6 the Tahsildar has not obtained any report from mandal surveyor and that there is no report enclosed pertaining to the possession of the plaintiff, which reveals that Ex.A.6 was issued without proper verification and no notice was issued to the legal heirs of Marla Victoriamma and that the previous pass book was not surrendered. The presumptions under Section 6 of the A.P. Rights in Land & Pattadar Books Act, 1977 is not conclusive and the entries in the revenue records cannot be basis for declaration of title. Ex.A.7 was obtained during the pendency of the suit and the same cannot be taken into consideration and that it reveals a doubt with regard to issuing of Ex.A.1 and that the same was issued without proper verification. The admissions of P.W.1 that she took possession of the land in the year 2018 falsify the allegations in the plaint and that the plaintiff has not produced any evidence before this court to show that the defendant has high handedly occupied the property. The plaintiff has not filed any report against the defendant and the plaintiff has approached the court with unclean hands by suppressing the material facts as such the suit is liable to be dismissed and prayed the
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court to dismiss the suit. The learned counsel for the defendant has relied upon the findings given by Hon’ble Apex Court and Hon’ble High Court of Andhra Pradesh in
1. H.Venkatachala Iyengar Vs. B.N.Thimmajamma Others (AIR 1959 page 443)
2. Uppalapati Subba Raju Vs. Kakarlapudi Surya Kumar and another (2009 (1) ALT 644)
3. K. Bhaskar Rao Vs. K.A. Rama Rao (2010 (6) ALT 109).
09. Issue No.1:
In a suit for grant of declaration the plaintiff has to prove that she got right over plaint schedule property on the documents, which she relied upon and that the plaintiff has got valid and perfect title over the plaint schedule property. The relief of declaration is governed by Section 34 of Specific Relief Act 1963, it is clear that the plaintiff shall have right over the property or she shall have any legal character then only she can institute a suit against a person denying or interested to deny her right to such property. In other words a declaratory decree is not a new right that will confer to a person and the plaintiff incidentally shall have right, once her right is denied i.e., to say that there was a cloud or mist covered around the title of the plaintiff, the court clears cloud or mist and passes a declaratory decree in favour of plaintiff, as such it is for the plaintiff to establish that she has right over the plaint schedule property and that the defendant is taking away her right over the plaint schedule property.
10.The claim of the plaintiff is that, the plaint schedule property was acquired by the mother of the plaintiff by name Marla Victoriamma by way of pasupukumkuma gift at the time of her marriage and the same was presented by her mother Kaila Chukkamma and the said Marla Victoriamma enjoyed the same with absolute rights and she executed a
Will deed on 15.07.2015 in a sound and dispossessing state of mind and after her death the plaintiff being legatee acquired possession of the property on 04.07.2016, whereas the defendant has denied the execution of gift and the defendant has took the plea that all the legal heirs of Marla Victoriamma have got right over the property and that the suit filed by the plaintiff is bad for nonjoinder of necessary parties. As the plaintiff herein was claiming her right based on the registered Will it has to be verified by the court whether the testator has got testimonial capacity to execute the Will. It is an admitted fact that
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the plaint schedule property belongs to Kaila Chukkamma and she purchased the same under registered sale deed bearing document number 1792/1938, as the plaintiff herein is claiming that the plaint schedule property was gifted to Marla Victoriamma by her mother as such it has to be verified by this court whether the plaintiff has placed any document before this court to show that Kaila Chukkamma has executed a gift deed in favour of Marla Victoriamma and whether the plaintiff has complied the provision of registration Act and transfer of property to establish gift.
11. Section 17 of Registration Act, 1908 Documents of which registration is compulsory :- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866, or the Indian
Registration Act 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely :-
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
In view of the provisions of Section 17 of Registration Act, 1908, gift, instrument of gift of immovable property is a compulsory registrable document, however the plaintiff herein was claiming the property by way of oral gift.
Section 122 of Transfer of Property Act, “Gift” defined.—“Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.
Section 123 of Transfer of Property Act, 1882 Transfer how effected.—For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
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For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.
Under section 123 of Transfer of property Act a gift of immovable property cannot pass any title to the donee if it is not registered. Any oral gift of immovable property cannot be made in view of the provision of section 123 of the Act, mere delivery of possession without written instrument cannot confer any title. In view of the provisions of
Registration Act, 1908 and Transfer of Property Act, 1882 oral gift is not recognized under law and that gift deed shall be in writing and the same is compulsorily registrable document. Though the plaintiff herein has claimed that her mother has acquired the property by way of pasupukumkuma or oral gift the same was not established by the plaintiff and that the plaintiff has not placed any document before this court to that effect.
The plaintiff has failed to file any authenticated document or complied the provisions of
Registration Act and Transfer of Property Act to establish alleged gift.
12.Further P.W.1 in her cross examination has categorically admitted that Ac.1.24 cents was acquired by her maternal grandmother in R.S.No.114/4 and her maternal grandmother has two daughters, i.e., mother of P.W.1 Marla Victoriamma and Gunja
Devamallipuvvu and that Chukkamma has predeceased her husband and after the death of her paternal grandparents her mother and Gunja Devamallipuvvu have acquired their properties and her mother has not personally acquired any properties during her life time and that the property covering in an extent of Ac.0.08 cents in
R.S.No.192/8E of Tativarru Village is not covered under Ex.A.1. The claim of the plaintiff is that the plaint schedule property was acquired by the mother of the plaintiff in pursuance of oral gift and the plaintiff has relied upon Ex.A.1, however on perusal of
Ex.A.1 the property covered under R.S.No.192/8E covering in an extent of Ac.0.08 cents was not reflected in Ex.A.1. P.W.1 has admitted that except the recitals of Ex.A.5 there is no other document stands in the name of her mother pertaining to the property covered in R.S.No.192/8E. The testator who executed Will deed shall have testamentary capacity to execute the document, as discussed supra though the plaintiff
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has relied upon Exs.A.2/A.5 the property covered in R.S.No.192/8E was not reflected in any document to show that the plaintiff has got right over the same. Further on perusal of Exs.A.6 and A.7 the property covering in an extent of Ac.0.08 cents in R.S.No.192/8E of Tativarru was not referred.
13.As the plaintiff herein is claiming declaration based on the Will deed under Ex.A.5 it has to be verified by this court whether the plaintiff has complied the provisions of section 63 of Indian Succession Act, section 68 of Indian Evidence Act and section 3 of
Transfer of Property Act
Section 63 of Indian Succession Act Execution of unprivileged Wills:
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his
Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him,shall be so placed that it shall appear that it was intended there by to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
Section 68 of Indian Evidence Act Proof of execution of document required by law to be attested : If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the
Court and capable of giving evidence:
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Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
Section 3 of Transfer of Property Act : Attested in relation to an instrument means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.
14.P.W.1 in her evidence has deposed that her husband along with P.W.2 and her mother went to sub-registrar office, Gudivada and Ex.A.5 was registered and she do not know whether her mother has carried any document while proceeding to sub-registrar office along with her husband and she have no acquaintance with M.V.Padmavathi scribe of Ex.A.5 and her husband has got acquaintance with her. P.W.2 who was said to be acted as attestor of Ex.A.5 has deposed in her chief examination that the Will deed was prepared by M.V.Padmavathi at her office and she along with Maddinala
Aseervadam attested the Will and they have seen when Victoriamma / testatrix subscribing her signature on the Will, however P.W.2 in her cross examination has deposed that she signed on Ex.A.5 at sub-registrar office, Gudivada and she further added that she was present at the time of typing the Will deed and the executant Marla
Victoriamma has shown the registration extract of the document executed in her favour by her mother along with cist receipts to the document writer and the contents of registration extract of the document were read over to her by the scribe. P.W.1 in her cross examination has deposed that she do not know whether her husband has carried
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any document while going to sub-registrar office with her mother, whereas the evidence of P.W.2 is that the testatrix Marla Victoriamma has shown a registration extract of the document executed in her favour by her mother along with cist receipts, however the said documents were not placed before this court by the plaintiff and same were not refereed in Ex.A5. Without producing the document by the plaintiff how the scribe has saw the document with the document writer was not explained by the plaintiff, further
P.W.2 has categorically deposed that the contents of the registration extract were read over to her by the scribe, however the said scribe was not examined on behalf of the plaintiff. The plaintiff has pleaded that the mother of the plaintiff has acquired the plaint schedule property by way of oral gift, however the evidence of P.W.2 is that the contents of the registered document in favour of Marla Victoriamma were read over to her, which is contrary to that of the pleadings. Though P.W.2 has mentioned her avocation as private employee and she expressed her ignorance for the question put by the defense counsel whether the office of scribe M.V.Padmavathi is adjacent to the office of document writer, however she admitted that she worked in the office of document writer
Rambabu and that the office of scribe M.V.Padmavathi is adjacent to the office of the document writer Rambabu, which speaks about the volumes of truth deposed by P.W.2.
The learned counsel for the defendant has relied upon the findings of given by Hon’ble
Apex Court in H.Venkatachala Iyengar Vs. B.N.Thimmajamma Others (AIR 1959, 443) and findings given by Honourable High Court of Judicature at Hyderabad inUppalapati
Subba Raju Vs. Kakarlapudi Surya Kumar and another (2009 (1) ALT 644) In view of the findings given by the Honourable Apex Court in H.Venkatachala Iyengar if there are suspicious circumstances the onus would be on the propounder to explain them to the satisfaction of the court before the Will can be accepted as genuine. Further the
Honourable Apex Court was pleased to discuss about the Mode of proof, Onus,
Suspicious circumstances, Removal of such suspicion, if part of the initial burden on the propunder.
15.The Honourable Apex Court was pleased to held in H.Venkatachala Iyengar
Vs. B.N.Thimmajamma Others (AIR 1959, 443) that
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What is the true legal position in the matter of proof of wills ? It is well- known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject.
The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under s. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution.
These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law.
Similarly, sections 59 and 63 of the Indian Succession Act are also relevant.
Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression " a person of sound mind " in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will.
This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he
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understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by section 63 of the Indian
Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty.
The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters.
However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not ; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily 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 the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. There may, however, be cases in which the execution of the
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will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and
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satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson (1) " where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth ". It would sound platitudinous to say so, but it is nevertheless true that in discovering
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truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.
If an undivided brother of P.W. 4 has received this benefit it would not be accurate to say that the witness is wholly disinterested. Besides, it appears from the evidence of Kalbagal that he knew nothing about the execution of the will until the appellant asked him to get some attesting witnesses for the will. This evidence does not strike us as natural or probable; but apart from it, even Kalbagal's evidence does not show satisfactorily that the will was read out to the testatrix so as to enable her to understand its full effect
before it was signed by her. That is the whole of the evidence led by the
appellant on the question of the execution of the will. On this evidence we are not prepared to hold that the High Court was in error in coming to the conclusion that it was not shown that the testatrix fully understood the contents of the will and put her signature on the instrument intending that the recitals and the dispositions in the will should be her recitals and dispositions.
16.Further the Honourable High Court of Judicature at Hyderabad in Uppalapati
Subba Raju Vs. Kakarlapudi Surya Kumar and another ( 2009 (1) ALT 644) at para
Numbers 13 and 15 was pleased to held
13.As the points formulated supra are interconnected all are dealt with together to avoid repetition. No doubt as contemplated by Section 63 of the
Indian Succession Act so far as proof of will concerned, the person who wants to rely on the will must prove the due execution and attestation of the will by examination of one of the attestors and even the presumption of 30 years old document no way applicable to the wills and even an admission or non-denial of the will does not exempt the proof, but for to say though not the attestor deposed about the due execution with literal wording of the attestation it can be inferred from the reading of the evidence of the attestor if deposed as to due attestation as also held by this court by
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Scanning the law in SA.No. 654/1997 between T. Ramesh V. Laxmamma(1) 201 (4) ALT 628 dated 20.06.2017. It is for the person who propounded the will not only to prove due execution and attestation, but also to dispel the suspicious circumstance shrowded if any around the will other wise the due execution and attestation like any compulsory attestable document of evidence adduced is enough as held in the expression of Ramesh supra referring to several expressions of the Apex Court. It is important to say even taken for arguments sake that the signature as of the attestors referred that of the plaintiff in Ex.B1 will that itself is not enough to say that the will is proved in the absence of due attestation as contemplated by
Section 63 of the Indian Succession Act by examination of one of the attestors at least and as such, but for to appreciate for the evidence of D1 as D.W.1 and D.W.3, two out of the three attestors including alleged that of the plaintiff to Ex.B1 will, as to there is proof of due execution of the will by the father of the plaintiff and defendants by name Venkanna Raju on 27.09.1994 and in a sound and disposing state of mind before his death on 01.11.1994 and as last will and testament and as to there is any propounded influence and there are any suspicious circumstances and the same could be dispelled and cloud cleared and whether the evidence of
D.Ws.1 and 3 proves due attestation by due execution of they saw the testator signing and while their signing seen by the testator. Here so far as
DW3 evidence concerned, in his cross examination he deposed that it is after he attested the executant put his signature that itself no compliance.
The due attestation contemplated by Section 3 of the Transfer of Property
Act and the evidence of at least one of the attestors of due attestation as required compulsory by Section 63 of Indian Succession Act. Thus leave about a stray sentence is not enough but for to appreciate the evidence as a whole even from that reading besides this stray sentence there is no clear evidence from reading of the evidence of DW3 as a whole of he saw when
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testator was signing and later he signed in the presence and seen by the testator, as attestor. Once such is the case, leave about DW3 is not even an independent witness for Co-employee with D2-DW2 since 1990 in same office and is interested there is no proof of due attestation of the will by
DW3 as one of the attestors of the will. Though it was not stated in so many words by the trial court this conclusion arrived by the trial court is sustainable from what is discussed supra in not giving credence to the evidence of DW3. Leave it apart, from there is only evidence of D1-DW1 the other attestor to the will who is no other than sister of plaintiff and D2.
There is nothing to believe her evidence for she is otherwise also entitled to share had there been no bequeath by their father in favour of D2 no Ex.B1- will as a testament. However, the fact remains that even from the reply notice given by her (D1) without even notice served on her itself shows something fishy as a circumstance in saying of sailing with D2 to the claim of their father executed Ex.B1-will in his life time that was attested by D1 and plaintiff besides another person. It is not only that will is not just created though unregistered and no reason fro non-registration leave about a mere non-registration no way fatal but for if at all proved of due execution and attestation. The other circumstance of any propounder’s influence cloud cleared in showing the intention of the testator as one of the important tests of the polestar and nectar of the instrument as held in Doe Long V. Laming (2 Burr. At pp. 11-12) by Lord Wilmot, C.J. and as also stated in Halsbury’s 4th Edition Volume 50 page 239 head note 408 of testator’s intention is criteria that to be determined from the evidence adduced properly and of its admissibility and the will has four essentials of the intention of the testator must be by a legal declaration and with respect to his property that can be bequeathed and it expresses his desire of that declaration of intention how the property to take effect after his death with other essential quality of testamentary disposition is ambulatoriness of revocability during lifetime of
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the testator and as the will speaks from the grave of the executant of the will cannot be called upon to admit or deny its execution much less to explain any circumstance raising suspicion surrounding the execution and testamentary capacity and condition with reference to sound and disposing state of mind besides intention for duty of the Court itself to appreciate by sitting in the arm chair of the executant/testator to ascertain the intention from the contents of the words used and surrounding circumstances so that it is on the executant’s death the vigor and effect of the will and the bequeaths come into force subject to proof of the will by examination of at least one of the attestors out of at least 2 attestors as contemplated by
Section 63 of Indian Succession Act of not mere examination but due attestation to speak that the will was attested by the attesting witness who saw the testator while signing the will or testator must personally acknowledge the signature of the will that of him in the presence of the 2 attesting witnesses and they themselves signed the same in the presence of the testator when seen by him and without that attestation even execution of the deed of the will is not valid to enforce the bequeaths.
15.Having regard to the above and in the result, the appeal is only partly allowed by holding that the Ex.B1 will is not proved as last will and testament of the father of the plaintiff and defendant and as duly executed in sound and disposing state of mind by clearing any cloud of suspicious circumstances and propounder’s influence from the so called presence admittedly of D2 and for not proved of due execution and due attestation as contemplated by Section 63 of the Indian Succession Act and
Section 3 of Transfer of Property Act as referred supra and however so far
as 1st floor constructed by the 2nd defendant by availing bank loan in the
year 2002 for which the plaintiff did not object and it is not the case of the plaintiff of there was any oral arrangement of plaintiff and 1st defendant to
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take ground floor and 2nd defendant to take 1st floor, from her deemed relinquishment…..
In view of the findings given by the Honourable Apex Court and Honourable High Court of Judicature at Hyderabad it is for the plaintiff who propounded the Will not only to prove due execution and attestation but also to disprove suspicious circumstances showed if not arrange the Will otherwise due execution and attestation like compulsorily attestable document of evidence itself is enough. However in the present case though
P.W.1 has deposed that her husband has accompanied her mother at the time of execution of the Will deed and though he accompanied P.W.1 to the court at the time of depositing evidence he was not examined so also another scribe and attestor were not examined. As discussed supra on perusal of the evidence of P.W.2 it reveals a suspicion with regard to her presence at the execution of the Will under Ex.A.5.
17. On one hand P.W.2 has deposed that she attested the Will in the office of scribe
M.V.Padmavathi, whereas in her cross examination she categorically admitted that she signed on Ex.A.5 at sub-registrar office. Under the provisions of Section 68 of Indian
Evidence Act as the Will is compulsorily attestable document the same shall be proved by examining at least one of the witness, however as seen from the evidence of P.W.2 her presence at the time of execution seems to be doubtful and that the evidence of
P.W.2 that she was present at the time of execution of Will under Ex.A.5 is not enough and the plaintiff shall prove due attestation as contemplated under Section 63 of Indian
Succession Act. But as discussed supra on perusal of the entire evidence of P.W.2 the other circumstances of propounder influence, which was pleaded by the defendant was not cleared by the plaintiff and the plaintiff has failed to establish execution of Will.
Though the plaintiff has relied upon Exs.A.6 and A.7 as discussed supra the plaintiff has failed to establish that testator has got testator capacity to execute the Will, as such mere entries in the revenue records will not create title in favour of the plaintiff and the same was held by the Honourable High Court of Andhra Pradesh in Sajana Granites,
Madras and Ors. Vs. Manduva Srinivasa Rao and Ors. Dated 03.08.2001 (2002 (2)
ALD 436) wherein the Honourable High Court was pleased to held that “Entries in the
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revenue records does not confer title and the plaintiff cannot seek declaration of title by relying merely on patta.”
Further the Honourable High Court of Judicature at Hyderabad, in Mohd. Abdul Sattar
@ Shaik Mahaboob Vs. Rahmatunnissa (died) per L.Rs. And others, 2015 (3) ALT
118, wherein the Honourable High Court was pleased to held at para number 62
62.In a suit for declaration the initial burden heavily lies on the plaintiff to prove to his ownership of the property. Here, the plaintiff miserably failed to establish that he is the legal owner of the property and also failed to establish that the transaction covered under the original of Ex.A.4 is a benami transaction, as such, he is not entitled to obtain decree for declaration that he is the lawful owner of the schedule property.
The Honourable High Court of Judicature at Hyderabad, in P. John Nelson Vs. V.
Benjamin, 2016 (6) ALT 17, wherein the Honourable High Court was pleased to held at para number 24
24. The relief of declaration is purely discretionary under section 34 of the Act of 1963. Unless the plaintiff established his title by cogent and satisfactory evidence approaching Court with clean hands, the
Court cannot exercise such discretion in favour of the plaintiff to grant such relief of declaration of title. Here, the plaintiff’s contention initially was based on a will allegedly executed by Moses, father of the plaintiff, but later the plaintiff changed his version contending that he was granted Ex.A.4 patta and claiming title over the property.
Therefore, the plaintiff both in evidence and pleadings and registered correspondence between the parties admitted about title of his father directly but now set up a different claim that he property was classified as Hill Poramboke and the property was assigned to him under Ex.A.4. Thus, the plaintiff did not approach the Court with clean hands and suppressed several facts obviously for different
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reasons known to him. In such case, the plaintiff is disentitled to claim equitable and discretionary relief under Section 34 of the Act of 1963 as he did not approach the Court with clean hands. Hence, I find no illegality or irregularity warranting interference of this Court with the decree and judgment of the trial Court. Consequently, the finding of the trial Court is hereby confirmed holding this point in favour of the defendants and against the plaintiff.
In view of the finding given by the Hon’ble High court entries in the revenue record will not confer any title to the plaintiff and the plaintiff who approached the court with un clean hands is not entitled for the discretionary relief under Section 34 of the Act of 1963.
18.Further P.W.3 in her cross examination has admitted that he has not obtained any report from mandal surveyor for issuing pass book and that the Tahsildar has to verify whether the applicant in physical possession before issuing e-pass book, however though P.W.3 was examined on behalf of the plaintiff, she has not produced any report submitted by mandal surveyor for issuing pattadar pass book and that there is no material placed before this court that the plaintiff was in possession of the property at the time of issuing e-pass book. P.W.3 has categorically admitted that Ex.A.6 reveals that the plaintiff has acquired the property by way of sale, which is the property covered under Ex.A.6, however the plaintiff herein has pleaded that she acquired the property by way of Will deed under Ex.A.5, though the plaintiff tried to give clarification by examining
P.W.3 stating that at coloumn number six of Ex.A.6 the proceedings number for mutation was mentioned, however in coloumn number five it was categorically mentioned that the property was acquired by the plaintiff by way of sale. The pleadings and the recitals of Ex.A.6 are contrary to each other. The plaintiff herein has admitted in her pleadings that the plaintiff has lost her possession over the plaint schedule property in the month of June, 2018. The learned counsel for the plaintiff has relied upon the cross examination of D.W.1 and argued that D.W.1 has admitted that after the death of mother of the plaintiff she took possession of her property. D.W.1 has not admitted
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about the possession of the plaintiff over the plaint schedule property, as such the evidence of D.W.1 will not help the case of the plaintiff. The learned counsel for the defendant has argued that though the defendant has took the plea that the suit is not maintainable for nonjoinder of necessary parties, the plaintiff has failed to join all the legal representatives, where as the learned counsel for the plaintiff has argued that as the suit filed by the plaintiff was based on Will deed under Ex.A.5 there is no necessity for the plaintiff to add all the legal representatives, however as discussed supra though the plaintiff herein has claimed that her mother has acquired the property by way of gift, the same was not established by the plaintiff, as such the mother of the plaintiff and
Gunja Devamallipuvvu will inherit the property of Kaila Chukkamma as she died intestate. As the plaintiff has failed to establish that the testator has got absolute rights to execute Will deed covered under Ex.A.5, the plaintiff, the defendant and other legal heirs of Marla Victoriamma are proper and necessary parties to the suit, however the plaintiff has not added them as party to the suit, which is one of the fatal to the case of the plaintiff, however as discussed supra the plaintiff has failed to establish that the testator has got absolute rights to execute Will deed and the plaintiff has failed to prove execution of Will deed, as such the plaintiff is not entitled for the relief claimed.
Accordingly the issued is answered against the plaintiff.
19. ISSUE No.2:
In view of the findings given by this court in issue No.1, as the plaintiff has failed to establish her case, as such the plaintiff is not entitled for the relief claimed, however in view of the facts and circumstances of the case both parties shall bear their own costs. Accordingly the issue is answered.
20.In the result, the suit is dismissed without costs.
Dictated to the Personal Assistant, transcribed by her, corrected and pronounced
by me in open court this the 20th day of March, 2020.
Sd/- Ch.Srinivasa Babu,
Prl. Junior Civil Judge cum Judicial First Class Magistrate, Gudivada.
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// APPENDIX OF EVIDENCE // Witnesses Examined
For Plaintiff For Defendant
PW1 : M.Mary Gold DW1 : Marla Banerjee Suvarnaraju
PW2 : M.Kalpana
PW3 : Ch.Gopalarao
Documents Marked
For Plaintiff
Ex.A.1Registration extract of sale deed bearing document number 1792/1938 Ex.A.2Registration extract of Will bearing document number 180/BK3/2015 Ex.A.3Death certificate of Marla Victoriamma dated 06.10.2016 obtained from meeseva Ex.A.4Certificate issued by deputy inspector of surveyor, Survey and
Land Records, Gudivada [marked subject to proof] Ex.A.5Registered Will deed bearing document number 180/BK3/2015 [marked subject to proof] Ex.A.6Title deed cum pattadar pass book stands in the name of plaintiff Ex.A.7Cist receipt dated 08.01.2019
For Defendant
Ex.B.1Registration extract of gift deed bearing document number 4928/1981
Sd/- Ch.Srinivasa Babu,
Prl.Junior Civil Judge cum Judicial First Class Magistrate, Gudivada.
// True copy //
Prl.Junior Civil Judge cum Judicial First Class Magistrate, Gudivada.