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IN THE COURT OF THE II ADDITIONAL SENIOR CIVIL
JUDGE (FAST TRACK COURT)::
RAJAMAHENDRAVARAM
Present: Sri N.Naga Raju,
Principal Senior Civil Judge, Kakinada
(FAC) II Addl. Senior Civil Judge, Rajamahendravaram(FTC)
Tuesday, the 3rd day of April, 2018.
ORIGINAL SUIT No.229 of 2010
Between:
Kundrapu Mary Vijaya Lakshmi Kumari Plaintiff
And
Kaparapu Babulu Defendant.
This suit having come before me on 20-03-2018 for final hearing in the presence of Sri I.V.Ramana Murthy, Advocate for plaintiff and of Sri K.S.Lakshminarayana, Advocate for defendant and upon perusing the material on record and hearing arguments of both sides, the Court delivers the following:
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J U D G M E N T
1.The suit has been filed by the elder sister of defendant for partition of the plaint schedule properties and other incidental reliefs.
2.The case of plaintiff as set out in the plaint in a nutshell is that she is the daughter and defendant is the son of late.
Ramachandra Rao and his wife late. Chittemma. The plaint schedule properties comprise of landed and house properties including fixed deposits belonged to late. Ramachandra Rao and his wife late.
Chittemma.
3.The plaintiff pleads that her father Ramachandra Rao died, intestate on 28-11-2009 and mother Chittemma died, intestate on 4- 10-2009, leaving behind them, the plaintiff and defendant as their only legal heirs.
4.It is thus, the plaintiff pleads intestate succession of the plaint schedule properties, consequent upon intestate death of her father Ramachandra Rao and mother Chittemma and thereby, claims half share in plaint A, B and C schedule properties.
Alternatively ;
She has sought partition of item No.1 ‘A’ and item No.1 ‘C’ of the plaint schedule put together into two equal shares and to allot one such share to her and items No 2 to 4 of ‘A’ schedule into three equal shares and to allot one such share to her and also for possession of item No.2 of plaint ‘C’ schedule, in the event the court comes to a conclusion that mother of plaintiff late
Chittema executed a Will dt.16-07-2009 and is believed to be true and binds on the plaintiff.
5.Opposing the suit claim of plaintiff for partition of plaint A,
B and C schedule properties into 2 equal shares and to allot one such share to her, the defendant younger brother of plaintiff has filed written statement.
3 5.1Propounding a notarized Will dt.25-12-2008, the defendant has denied that his father late. Ramachandra Rao died, intestate. He pleads that late. Ramachandra Rao executed a notarized Will dt.25-12-2008, bequeathing all his movable and immovable properties of him to his wife and died on 28-04-2009. Therefore, the defendant contends that his mother late Chittemma became the absolute owner of the plaint schedule properties.
5.2Propounding an another registered Will dt.16-07-2009 which the plaintiff is alleged to have not disputed, the defendant pleads that his mother late. Chittemma executed the said Will dt.16-07- 2009, bequeathing an extent of 1.061/2 cents of land, covered by item No.1 of plaint ‘C’ schedule to plaintiff and other landed and house properties, covered by items No.1 to 4 of plaint ‘A’ schedule property; item No.1 of plaint ‘C’ schedule and fixed deposit amounts, covered by plaint B schedule, stand in the name of late Chittemma to him and died on 4-10-2009. Thereby, the defendant contends that except item No.1 of plaint 'C' schedule, he has become the absolute owner of other plaint schedule properties by virtue of the registered Will dt.16-07- 2009. He states that he is ready to hand over item No.2 of plaint 'C' schedule property to plaintiff.
6.On the basis of pleadings of both the parties to the suit, following issues have been settled for trial.
1) Whether the father of defendant executed a Will
dt.25-12-2008 and whether it is true and valid.
2) Whether the mother of defendant executed a registered Will dt. 16-07-2009 bequeathing the schedule properties in favour of defendant, except
item No.2 of plaint 'C' schedule property?
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3) Whether the plaintiff is entitled for partition of the schedule properties as prayed for.
4) Whether the plaintiff is entitled for rendition of accounts.
5) Whether the plaintiff is entitled for the alternative relief as prayed for.
6) To what relief.
7.Substantiating the suit claim of plaintiff, she herself as
P.W.1, one Dr.K.Babji Consultant Surgeon, Life Line Emergency
Hospital, Kakinada as P.W.2, Gali Srinivasa Rao, Deputy Branch
Manager, State Bank of India, Korukonda Branch as PW.3, G.V.H.V.
Prasad Director Truth Labs, Hyderabad as P.W.4 have been examined and exhibited documents Exs.A.1 to A.11 and X1 to X3 on behalf of plaintiff. Denying the suit claim of plaintiff and substantiating his defence, defendant himself as D.W.1, one Pampana Satyanarayana, one of the attestors of a notarized Will dt.25-12-2008 as D.W.2,
Pulidindi Srikanth another attestor of the said Will dt.25-12-2008 as
D.W.3 and Sripada Venkateswara Rao who deposes about execution of a registered Will dt.16-07-2009 as DW.4 have been examined and exhibited documents Exs.B.1 and B.2 on behalf of defendant. The affidavit, filed in lieu of examination in-chief of Bade Venkata Apparao who is said to be the 1st attestor of the registered Will dt.16-07-2009 stands eschewed.
8.Learned counsel for plaintiff has centered on the point that mere proof of execution of Ex.B.1 and B.2 Wills in question is not sufficient and the defendant is burdened, further to dispel the suspicious circumstances to lend credence to Ex.B.1 and B.2. In that context a judgment in the case of N.Tyagaraju and others Vs
S.Narayana Swami and others 2014 (2) ALT 540 has been relied 5 upon. He has argued that the defendant has failed to explain the suspicious circumstances which lead to doubt the veracity of Ex.B.1 and B.2 and thereby, both Ex.B.1 and B.2 are shrouded by suspicious circumstances.
9.Encountering the case of plaintiff and refuting the submissions made by learned counsel for plaintiff, learned counsel for defendant has made an endeavor to impress upon the court that the plaintiff got issued a notice under Ex.A.5, where under, she made admission, voluntarily that her mother late Chittemma executed Ex.B.2 and therefore, there is no need for defendant to prove Ex.B.2 in compliance of statutory requirements under section 63 of the Indian
Succession Act.,1925 and section 68 of the Indian Evidence Act., 1872 by examining at least one of the attestors of Ex.B.2. Therefore, he submits that by virtue of Ex.B.2, except item No.1 of plaint 'C' schedule, the defendant has become the absolute owner of other plaint schedule properties and that the defendant is ready to deliver possession of item No.2 of plaint ‘C’ schedule property to plaintiff.
10.Learned counsel for defendant has argued that the evidence on record goes to probablize execution of Ex.B.1 and there are no suggesting inferences to discredit Ex.B.1 and disbelieve the evidence of D.W.1, whose evidence is corroborated by the attestors of
Ex.B.1 D.W.2 and 3. Placing reliance on the judgment in the case of
Lagadapati Dhalakshmi and others Vs. Lagadapati Anjaneyulu
AIR 2010 AP 14 and Neera Agarwal Vs Mahender Kumar
Agarwal 2009 (5) ALT 518, learned counsel for defendant has centered on the point that no weight can be given to the evidence of
P.W.4 and his opinion given under Ex.X2 on the premise that the evidence of P.W.4 is only an opinion evidence but not a substantive 6 piece of evidence to discredit Ex.B.1.
11.Relying on the judgment in the case of State of Himachal
Pradesh Vs Jai Lal AIR 1999 SC 3318 that in order to bring the evidence of a witness as that of an expert, it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. Pointing out that taking Exs.A.7 to
A.10 as that of the standard signatures of late Ramachandra Rao by
P.W.4, learned counsel has argued that no sanctity can be attached to the opinion of P.W.4 that the signatures appended on Ex.B.1 are traced forgery and the person who wrote S1 to S4 signatures did not write Q1 and Q2 signatures. That in any view of the matter, the defendant could prove and establish that both Ex.B.1 and B.2 beyond any suspicion and there are no suggesting inferences to discredit Ex.B.1 and B.2.
12.After having heard rival contentions of learned counsel for both the parties to the suit, the contentious issues are decided as follows:
ISSUE NO.1:
13.To answer the issue whether the father of plaintiff and
defendant Late. Ramachandra Rao executed a notarized Will dt.25-
12-2008 and is true and valid and whether the propounder of the
said Will who is the defendant could dispel the suspicious
circumstances that are pointed out by plaintiff, it is necessary to note at the outset that the suit claim of plaintiff for partition of the plaint schedule properties is based on intestate succession.
14.She claims that consequent upon intestate death of her father Ramachandra Rao on 28-04-2009 and mother Chittemma on 04-10-2009, the plaint schedule properties devolve upon her and 7 defendant who are the class-I legal heirs of deceased Ramachandra
Rao and his wife Chittemma. As such, the plaintiff claims half share in plaint A, B and C schedule properties.
15.Per contra,the claim of defendant is based on testamentary succession of the plaint schedule properties, except item
No.2 of plaint 'C' schedule. He has propounded Ex.B.1 notarized Will dt.25-12-2008, allegedly executed by his father Ramachandra Rao in favour of his wife Chittemma, bequeathing all his movable and immovable properties in her favour and thereby, Chittemma became the absolute owner of movable and immovable properties of her husband Ramachandra Rao consequent upon his death on 28-04-2009.
16.Propounding an another registered Will Ex.B.2 dt.16-07- 2009, truth or otherwise of which would be decided while answering issue No.2, defendant claims that in a sound disposing state of mind, his mother Chittemma executed Ex.B.2 on 16-07-2009, bequeathing all the plaint schedule properties except item No.2 of plaint 'C' schedule in his favour; whereas, item No.2 of plaint 'C' schedule is in favour of plaintiff and thereby, he has become the absolute owner of all the plaint schedule properties except item No.2 of plaint 'C' schedule. It is thus, defendant has denied the suit claim of plaintiff, propounding Ex.B.1 and B.2.
ADMITTED AND UNDISPUTED FACTS:-
17.Before adverting to the point, it is apposite to note the admitted and undisputed facts of the case on hand in chronological order:
I)Plaintiff is the daughter and defendant is the son of late
Ramachandra Rao and his wife Chittemma.
ii)Ramachandra Rao died on 28-04-2009 and his wife Chittemma died on 4-10-2009.
8 iii)Plaintiff and defendant are the only class-I legal heirs of deceased Ramachandra Rao and Chittemma.
iv)Chittemma got item No.2 of plaint 'C' schedule under original of
Ex.A.4 registered sale deed DOC No.1488/1974 S.R.O,
Korukonda dt.11-06-1974.
v)Both Rama Chandra Rao and his wife Chittamma got item No.1 of plaint A and item No.1 of plaint 'C' schedule properties under original of Ex.A.1 registered sale deed DOC No.92/1980 of
Korukonda SRO dt.11-02-1980.
vi)Ramachandra Rao got item No.2 of plaint A schedule under original of Ex.A.2 registered sale deed DOC No.1428/1999 of
SRO Korukonda dt.15-07-1999.
Vii)Ramachandra Rao got item No.3 of plaint A schedule under original of Ex.A.3 registered sale deed DOC No.873/2002 of
S.R.O, Korukonda dt.20-06-2002.
Viii)Ramachandra Rao owned item No.4 of plaint A schedule house.
xi)All the plaint B schedule fixed deposits stand in the name of both
Ramachandra Rao and his wife Chittemma.
x)All the plaint A, B and C schedule properties were acquired during life time of late. Ramachandra Rao and his wife late.
Chittemma and both of them died, possessed with those properties.
PRINCIPLES OF LAW:
18.At this point of discussion, it is expedient to note the rudimentary principles of law for effective adjudication of the dispute and to decide truth or otherwise Ex.B.1 and Ex.B.2
In the land mark Judgment rendered by the Constitution Bench of the Apex Court in the case of SHASI KUMAR BENERJEE Vs.
SUBODH KUMAR BENERJEE, AIR 1964 S.C.525 is an authority and is relevant to note on this context. It reads as follows:
“The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the 9 onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances given rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator’s mind, the dispositions made in the Will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator’s mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence”.
The Judgment in KALYAN SINGH Vs CHHOTI, AIR 1990 SC 396 is an another guiding authority for appreciation of genuineness and authenticity of a Will, in a case like this.
“….a Will is one of the most solemn documents known to law.
The executant of the Will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into 10 surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party”. (Emphasis is mine)
In another Judgment of the Apex Court in BENI CHAND Vs
KAMLA KUNWAR, AIR 1997 SC PAGE 63 , their Lordships observed as follows:
“It is well settled that the onus probandi lies in every case upon the party propounding a Will, and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator…..By “free and capable testator” is generally meant that the testator at the time when he made the WILL had a sound and disposing state of mind and memory. Ordinarily, the burden of proving the due execution of the Will is discharged if the propounder leads evidence to show that the Will bear the signature or mark of the testator and that the Will is duly attested. For proving attestation, the best evidence would naturally be or an attesting witness and indeed the Will cannot be used as evidence unless at least one attesting witness, depending on availability, has been called for proving its execution as required by Section 68 of the Evidence Act. But where……the circumstances surrounding the execution of the Will are shrouded in suspicion, it is the duty and the function of the propounder to remove that suspicion by leading satisfactory evidence”. (Emphasis is mine)
In the case of Jaswant Kaur v. Amrit Kaur , 1977 1 SCC 369 the Apex Court reiterated the principles governing the proof of a Will which is alleged to be surrounded by suspicious circumstances. His
Lordship Sri Justice Chandrachud speaking for the Court observed as follows:
"8. The defendant who is the principal legatee and for all practical purposes the sole legatee under the will, is also the propounder of the will. It is he who set up the will in answer to the plaintiff's claim in the suit for a one-half share in her husband's estate. Leaving aside the rules as to the burden of 11 proof which are peculiar to the proof of testamentary instruments, the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it, not on him who denies it. In other words, the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him. Accordingly, the defendant ought to have led satisfactory evidence to prove the due execution of the will by his grandfather Sardar Gobinder
Singh.
9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will."
19.It is discernable from the authorities referred to supra that merely because the propounder of a Will in compliance of the provisions under section 63 of the Indian Succession Act, 1925 and section 68 of the Indian Evidence Act, 1872, got attested the Will in question by two witnesses and got examined one of them, the propounder would not relieve from the burden that has shouldered on him; eventually, it cannot be said that the Will in question has been proved.
20.Dehors, the proof of execution of the Will, it is bounden duty of the propounder of the Will to dispel and remove all surrounding suspicious circumstances; as well as, inherent improbabilities by leading satisfactory evidence to gain confidence of the court that the instrument, so propounded is the last Will and free from all shrouded 12 suspicious circumstances, embezzlements and improbabilities.
21.Turing to the case on hand, to prove due execution of
Ex.B.1 and to establish that the testator Ramachandra Rao in a sound disposing state of mind, executed Ex.B.1 in favour of his wife
Chittemma, bequeathing all his movable and immovable properties in her favour and died on 28.04.2009, the defendant himself is examined as D.W.1 and both the attestors of Ex.B.1 as D.W.2 and 3.
22.The defendant as D.W.1 deposes that all the plaint schedule properties are self acquired properties of his father
Ramachandra Rao who executed a notarized Will under Ex.B.1 on 25.12.2008, bequeathing all his movable and immovable properties to his wife Chittemma. Tuning with D.W.1, both the attestors of Ex.B.1
D.W.2 and 3 depose that late. Kaparapu Ramachandra Rao executed a notarized Will dt.25-12-2008 with his free will, consent and on his own accord without any coercion in their presence and in the presence of notary public Sri D.V.K.Rama Krishna, bequeathing all his movable and immovable properties to his wife Kaparapu Chittemma with absolute rights. They depose further that Ramachandra Rao signed on the Will in their presence and have witnessed Ramachandra Rao signing on the
Will; so also, Ramachandra Rao witnessed their making attestation on the said Will.
23.As pointed out in earlier discussion that mere examination of propounder of Ex.B.1 i.e., defendant and both the attestors of
Ex.B.1 is not suffice for the defendant to get himself relieved from the burden, shoulders on him and further more, he must establish that
Ex.B.1 is free from all shrouded suspicious circumstances and inherent improbabilities. Therefore, dehors the proof of execution of Ex.B.1, it 13 needs to consider truth or otherwise of Ex.B.1 in the light of rudimentary principles of law, highlighted above.
ABSENCE OF REFERENCE OF EX.B.1 IN EX.B.2:
24.For answering the point, it is expedient to extract the contents of Ex.B.2. The contends of Ex.B.2 reads as follows:
తతరరగదవరజలలకరకకడమకడలకబతరగపడగగమకపరసస రలలటకపరప రమచకదదరవగరభరరచటటమమవయసస 65 సక,,లమకచతలవతన, మకచబదదతన, సరస హతన, వరకసతతన, చపరవగయకచకననవలనమఅనమరణశసనక. నకసమర 65 సక,,లవయససకలద. నభరసగరసమర 3 నలలకకతమచనపయనర. నక కపరపబబలఅనఒకకమరడనతన, కకడదపమరవజయలకకమరఅనఒక కమరసయనతనకలర. నకమరనక, నకమరసకఇరవరకవవహదశభకరరమల జరపకచయననమ. నకమరడ, నకమరసఇరవరఎవరకపరమలవరసఖమగ చసకనచననర.నకమరసకఇవవవలసనలకఛనమలఅననయఇదవరలన యచయననన. ననకకతకలమనకడఅనరగరమతబథపడచననన. జవతమల అశశవతమలఅనతలకచఎపరటకఏవథమగయకడనఅనతలకచననజవకచయకడగన చర, ససరసస లవయమలలమకటకబసభరలఏవథమమనతగయదలపదకకడ యకడటమకచదనతలకచననమకచతలవతన, మకచబదదతన, సరస హతన, వరకస తతనచపరవగయకచనవలనమఅనమరణశసనమ. నఆరగరవషయమలనయకక మకచచడదలబగగలఅననయతనకమరడమనకపరపబబలచతచచననడ. వరకకట నకమఖరమమనవరఎవవరనతలర.
కబటటఈదగవనఉదహరకచనపకకరకనఅనకతరకనకచఅమలజరగటక ఏరరటచసఈవలనమఅనమరణశశసనమనవగయకచడమమనద.
నననసవరరతమగద. 11-06-1974 సక. రక. తదనపకడపగలకమశవర గరవలలకకయకపకదశకరకకడసబరజషసస రవరఆఫసల 1 వపససకక, ద. నక.1488/1974 రగరజసటసకబడనకకయదసస వజరతరబతరగపడగగమకతలతక నకధఖలపడనజరయతపలలకర.స.నక.646/3 రపరయ. 2.13 టల ల పడమరవమపయ. 1.06 1/2 భతమనఅనకతరకనకమరసఅయనకకడదపమర వజయలకకమరసవదనకచసకనఅపరటనకచఆమపననలవగమరలచలలకచకకట ఆమపతక, పతకవకశపరకపరరయకధన, వకకయసమసస ధకరమలతఆచకదగరకకఆమ ఇషట నసరకఅనభవకచగలనరరయక. నననభరసగరకలసద. 11.02.1980 సక. రక. తదనగడడకగకగరజగరవదదకకయకపకదశకరకకడసబదజసట రవరఆఫసల 1 వ పససకక, ద. నక. 92/1980 రగరజసటసకబడనకకయదసస వజరతరనకనభరసగరక దఖలపడదరమలనభరసగరచనపయనకదననభరసగరఅనకతరకనక దఖలపడనబతరగపడగగమకతలతకజరయతపలలకర.స. నక.646/2 రపర య. 2.14 టల లపడమరవమపయ. 1.43 టలభతమనన, మరయనభరసగరసవరరతమగ ద.15.07.1999 సక. రక. తదనదకడమతడగతలకగరవదదకకయకపకదశకరకకడ సబదజసట రవరఆఫసల 1 వపససకక, ద.నక. 1428/1999 రగరజసటసకబడన కకయదసస వజరతరయనతనవరఅనకతరకనకదఖలపడనబతరగపడగగమక తలతకజరయతపలలకర.స. నక. 749/1 రపరయ.2.48 టల లపడమరవమపయ. 1.00 టలభతమనన, మరయనభరసగరసవరరతమగద. 20.06.2002 సక. రక. తదనగజరలచకటయరవగమరలవదదకకయకపకదశకరకకడసబరజసట రవరఆఫసల 1 వపససకక, ద. నక.873/2002 రగరజసటసకబడనకకయదసస వజరతరయనతనవర 14 అనకతరకనకదఖలపడనబతరగపడగగమకతలతకజరయతపలలకర.స. నక.490/2 రపరయ.1.57 టలపరభతమనన, వరశయ. 4.00 టలభతమనన మరయనభరసగరఅనకతరకనకదఖలపడనబతరగపడగగమకతలతకడర. నక. 3-149 రగలబకగళపకకటఇలలదనకసకబకదకచనఖళససలక, బతతకక, లటటన, కరకటసరవస, యవతతసగక హపరకరమలతసహనఅనకతరకయ. 4.00 టల భతమ, మరయఇలలనకమరడమనకపరపబబలసదరసస లనసవదనకచసకన అపరటనకచపననలవగమరలచలలకచకకటవనపతకపతకవకశపరకపరరయక ఆచకదగరకకసఖనవనఇషట నసరకఅనభవకచవలన. ఇవగకనఅనకతరకక నలచయకడయవతతసచర, ససరసస లఅననయనకమరనకచకదగలనరరయక. ఈవలనమలనఅకశమలననయతనఅనకతరకఅమలలకరగలనరరయక. సదరవలనమనమరరచసకనటకరదదపరచకనటకమరయక వలనమవగసకనటకగలపరసఅధకరమలననవదదఉకచకవడమమనద. సదర వలనమలనహకశమలఅననయతయధరరమలఅనఈవలనమఅనమరణ శసనమనసవయమగచపరవగయకచడమమనద. చదవగవననన, సరగయననద. ఇదన యషటపరవకమగనసమమతనవగయకచనవలనమఅనమరణశసనక. (emphasis supplied)
25.Thus, according to the admitted case of defendant that by virtue of Ex.B.1, his mother Chittemma became the absolute owner of the plaint schedule properties after demise of his father Ramahandra
Rao. That his mother Chittemma executed Ex.B.2, bequeathing all her properties which she got from her husband Ramachandra Rao by virtue of Ex.B.1 to defendant. Thereby, it is abundantly clear from the case of defendant and the evidence let in by him that the source of title for Chittemma to execute Ex.B.2 in favour of defendant is Ex.B.1.
In other words, Ex.B.1 is a link testament to Ex.B.2 and without reference of Ex.B.1 in Ex.B.2, Ex.B.1 is unimaginable.
26.Surprisingly, a glance at Ex.B.2, no where reference of
Ex.B.1 finds place. Put it in clarity, reference of Ex.B.1 cannot be traced out from Ex.B.2. As such, Ex.B.2 maintains total silence about existence of Ex.B.1 and Chittemma the testatrix of Ex.B.2 had acquired right, title and interest over the schedule properties through
Ex.B.1. Not making any reference of Ex.B.1 in Ex.B.2 is sufficient to arrive at an irresistible conclusion that by the date of Ex.B.2, Ex.B.1 was not in existence. Had really, Ex.B.1 was in existence by the date of execution of Ex.B.2, certainly, reference of Ex.B.1 would have been 15 made in Ex.B.2 and there was no possibility for getting Ex.B.1 excluded from referring in Ex.B.2. Therefore, from unexplainable inference of not making any reference of Ex.B.1 in Ex.B.2, it can safely be concluded that Ex.B.1 has been brought into existence subsequent to Ex.B.2.
OPINION OF EXPERT:
27.To disprove Ex.B.1 and to substantiate her contention that
Ex.B.1 is a forged and fabricated testament, brought into existence to exclude her share from the plaint schedule properties, the plaintiff has taken steps to get the disputed Ex.B.1 sent to an expert for comparison of the disputed signatures alleged to be that of the testator Ramachandra Rao, appended on Ex.B.1 with that of the available admitted signatures on Ex.A.7 to A.10 letters, written by
Ramachandra Rao to plaintiff and has sought an opinion of expert who has been examined as P.W.4.
28.P.W.4 G.V.H.V.Prasad, Director, Truth Labs deposes that he underwent training in Forensic Handwriting Examination at APFSL,
CFSL, Hyderabad and MACFS Delhi and worked as a Forensic document expert for 10 years for APFSL, Hyderabad. Referring Ex.X.2 report, he deposes, candidly that the person who wrote the standard signatures marked as S-1 to S-6 did not write the questioned signatures, marked as Q-1 and Q-2. He has given reasons for arriving such opinion as follows:
1. The questioned signatures marked 'Q1' and 'Q2' were printed upon a transparent sheet for examination and found out that 'Q1' and 'Q2' are exactly superimposing over one another and mathematically identical to each other.
2. This kind of identity occurs only in case of traced forgery that is when a signature is traced from a model genuine signature.
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3. The questioned signatures marked 'Q1' and 'Q2' exhibit slow writing, lack of skill, lack of freedom in execution of strokes and also blunt commencements and terminations.
4. On the other hand standard signatures marked 'S1' to 'S6' exhibit natural variations, free and fast writings with superior skill, advanced wrist movement, good line quality and sharp commencements and terminations when compared with questioned signatures.
5. The alignment, combinations and relative location of the letters etc. also differs between questioned and standard signatures.
6. The fundamental handwriting characteristics are distinctly different between questioned and standard signatures.
The above differences are significant and are sufficient in nature and are not due to intended disguise or natural variations and when considered collectively, lead me to the above opinion.”
29.From the reasons mentioned under Ex.X.2 and for arriving opinion that the person who wrote the blue enclosed signatures, marked as S-1 to S-6 did not write the blue enclosed signatures, marked as Q-1 and Q-.2, it is understood that Q-1 and Q-2 questioned and disputed signatures, appended on Ex.B.1 are traced forgery.
30.Learned counsel for defendant submits that the signature, appended on Ex.A.7 to A.10 cannot be construed as standard signatures and therefore, no weight shall be given to Ex.X.2 and the evidence of P.W.4.
31. During his cross examination, D.W.1 affirms that he is acquired with the hand writings and signatures of his parents. On confronting Ex.A.7 to A.10, he admits, candidly that Ex.A.7 to A.10 bear hand writings of his father and they contain the signatures of his father. He states that Ex.A.7 to A.10 are the letters addressed to plaintiff and her husband by his father. In that view, there is no point in appreciating the contention of learned counsel for defendant that 17 the signatures appended on Ex.A.7 to A.10 cannot be construed as standard signatures of late Ramachandra Rao.
32.From the evidence of P.W.4, it is clear that he is having vast experience as an hand writing expert and is proficient in the field of Forensic Science with reference to examination of questioned documents. Therefore, the judgment in the case of state of State of
Himachal Pradesh Vs Jai Lal AIR 1999 SC 3318 has no application to the case on hand to say that P.W.4 has no special study of the subject or acquired a special experience or knowledge in the field of
Forensic Science with reference to examination of questioned documents.
33.No doubt that the evidence of an expert is only an opinion evidence and is not a substantive piece of evidence; nevertheless, in the light of finding that Ex.B.1 was not in existence by the date of
Ex.B.2 and was brought into existence subsequent to Ex.B.2, the evidence of P.W.4 and the opinion given by him under Ex.X.2 cannot be brushed aside on the premise that it is only an opinion evidence. As many as six reasons have been given to say that Q.1 and Q.2 signatures are traced forgery and the person who wrote S.1 to S6 signatures did not write Q.1 and Q.2 signatures, it cannot be said that the opinion of P.W.4 is baseless. The reasons given under Ex.X.2 for arriving at such conclusion that Q.1 and Q.2 signatures are traced forgery are cogent and convincing for believing the evidence of P.W.4 and his opinion given under Ex.X.2. In that view, the principle of law, laid down in the case of Lagadapati Dhalakshmi and others Vs.
Lagadapati Anjaneyulu AIR 2010 AP 14 and Neera Agarwal Vs
Mahender Kumar Agarwal 2009 (5) ALT 518 cannot be made applicable to the case on hand as the facts of the judgments are 18 distinguishable from the facts of the case on hand.
34.The evidence of P.W.4 and the opinion given by him under
Ex.X.2 give an echo to the case of plaintiff that Ex.B.1 is a forged and fabricated testament, brought into existence to defeat the claim of plaintiff.
KNOWLEDGE:
35.From the statement made by defendant as D.W.1 which reads “ I came to note about the Will executed by my father after the
death of my mother. After the death of my mother while going
through the records, I found Ex.B.1 Will. That Will was found in the
records kept by my father at Burugupudi. Because my mother died I
had to search for the records in the house at Burugupudi. After the
death of my father, I did not think of searching of his records, in the
house at Burugupudi. In the search of records at Burugupudi I found
the Wills executed by my parents that is Ex.B.1 and B.2 and land
documents”, it clinches that the defendant got knowledge about
Ex.B.1 and B.2 after death of his mother for the first time when he was searching for the records in the house, situated at Burugupudi. Father of defendant Ramachandra Rao died on 28-04-2009 and mother died on 04-10-2009. Therefore, the defendant is presumed to have been got knowledge about Ex.B.1 and B.2 subsequent to 4-10-2009.
36.The veracity of evidence of defendant and genuineness of
Ex.B.1 can also be tested from the factum of defendant getting knowledge of Ex.B.1 and B.2. Allegedly, Ex.B.1 was executed on 25- 12-2008. Admittedly, from the testimony of D.W.1 in his cross examination, “I was at Kakinada in my house, on 25-12-2008. I
cannot say when my father went out of my house on that day and
returned to house. I was not aware about my father going out of the
house on 25-12-2008. My father did not go to any church on that day
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though it was a Christmas day. I also did not go to any church on
that day.”, it is clear that Ex.B.1 is alleged to have been executed when father of defendant Ramachandra Rao was taking shelter at the house of defendant in Kakinada.
37.Further, from the evidence of D.W.1, it was surfaced that defendant was not present at the time of execution of his father executing Ex.B.1. He states that his father never informed him about his intention to execute a Will. During his cross examination, defendant admits the fact that the 1st attestor of Ex.B.1, P.W.3
Pulidindi Srikanth is brother of his wife and is a resident of
Dowlaiswaram and the 2nd attestor D.W.2 Pampana Satyanarayana is his friend.
38.During his cross examination, friend of defendant and the 2nd attestor of Ex.B.1 as D.W.2 deposes that he went to the house of defendant on date of Ex.B.1 and the father of defendant requested him to take him to the office of the advocate. So also, brother in law of defendant and the 1st attestor of Ex.B.1 as D.W.3 deposes in his cross examination stating that the date of execution of Ex.B.1 happened to be Christmas day, he went to the house of defendant to great his father Ramachandra Rao.
39.Thus, from the facts narrated above, it is clear that the defendant got knowledge about Ex.B.1 only after death of his mother and when he was searching for records at Burugupudi, he found Ex.B.1 and B.2 is a blatant lie. No prudent man believes that the defendant had no knowledge about Ex.B.1 despite the fact that his brother in law and friend visited the house of defendant on the date of Ex.B.1. In view of relationship and friendship of defendant with D.W.2 and 3, they would not restrain themselves from revealing about execution of 20
Ex.B.1, had really Ex.B.1 was executed on 25-12-2008.
40.Furthermore, no prudent son would restrain from questioning his father, had really, his father went outside, accompanied by his brother-in-law and friend with out his intimation. Therefore, by any stretch of imagination, it cannot be believed that Ex.B.1 was executed on 25-12-2008. Had really, such execution was taken place on 25.12.2008, the father, D.W.2 and D.W.3 would have been informed about execution of Ex.B.1 to defendant.
AN OMNIBUS (COMPRIHENSIVE) RECITAL “న చర ససరసస లననయ” :
41.To answer the point, again Ex.B.2 recitals which are extracted above, have to be looked into. From Ex.B.2, it is clear that the details of each and every item, covered under plaint A and C schedule immovable properties have been given; whereas, in Ex.B.1,
except mentioning "న చరససరసస లననయ" i.e., all movable and
immovable properties, no details of a single item, covered under plaint schedule properties have been given. For which, no plausible explanation has forth come from defendant to say that why his mother
Chittemma could not give instructions about the details of all immovable properties mentioned under Ex.B.2 and why not his father
Ramachandra Rao could not give instructions in such manner as in the case of his mother Chittemma. Therefore, non mentioning the details and description of properties as mentioned in Ex.B.2 in Ex.B.1 is another added strong circumstance to arrive at a just decision that
Ex.B.1 is forged and fabricated Will.
NON-REGISTRATION:
42.Pointedly, registration of a Will is not sina qua non for its validity and to attach credibility to it; but, it has got its own probative value when the Will in question has been disputed, seriously.
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Admittedly, Ex.B.2 is a registered Will; where as, Ex.B.1 is an unregistered Will. The defendant has failed to explain why Ex.B.2 was preferred to be got registered and why not in the case of Ex.B.1. When the testator of Ex.B.1 Ramachandra Rao was alleged to have preferred to get Ex.B.1 notarized, nothing was prevented him to get Ex.B.1 registered.
43.In that view of the matter, an adverse inference can safely be drawn that as Ex.B.1 came to be brought into existence subsequent to Ex.B.2 and is a forged and fabricated testament, an unregistered testament in the form of Ex.B.1 came to light and that had really,
Ex.B.1 was executed on 25-12-2008, it would have been got it registered as in the case of Ex.B.2.
44.In the circumstances highlighted above and the inferences drawn against the case of defendant, it is inevitable to come to a conclusion that the evidence of D.Ws 1 to 3 is unworthy of credence and does not inspire any confidence to believe that in a sound disposing state of mind late. Kaparapu Ramachandra Rao executed a notarized Will dt.25-12-2008 with his free will and consent, without any coercion, bequeathing all his movable and immovable properties to his wife Kaparapu Chittemma with absolute rights as propounded by defendant.
45.On the other hand, from the evidence of D.Ws 1 to 3, it is well founded to arrive at an irresistible conclusion that Ex.B.1 is a forged and fabricated testament, brought into existence subsequent to
Ex.B.2, only in order to exclude the plaintiff from claiming share in the plaint schedule property. Accordingly, the issue is answered holding that the father of defendant never executed any testament, much less,
Ex.B.1 and therefore, Ex.B.1 is held to be forged and fabricated Will.
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ISSUE NO.2:
46.To answer the issue “Whether the mother of plaintiff and
defendant late.Chittemma executed Ex.B.2 registered Will
dt.16.07.2009, bequeathing all plaint A, B and C schedule properties,
except item No.2 of plaint ‘C’ schedule in favour of defendant”, it needs to consider whether the recital “She executed a Will
dt.16.07.2009 under which, she bequeathed an extent of 1.06 cents
in S.No.646/3 to my client……………….” got mentioned in Ex.A.5 notice got issued by plaintiff to defendant is an absolute admission of execution of Ex.B.2 against plaintiff and thereby, the plaintiff is estopped from questioning truth or otherwise of Ex.B.2.
47.The case and contention of defendant/propounder and legatee of Ex.B.2 is that his mother Chittemma executed Ex.B.2 registered Will dt.16-07-2009, bequeathing her movable and immovable properties except item No.2 of plaint ‘C’ schedule to him and Ex.B.2 is the last testament of his mother, executed with her free will and consent.
48.Per contra, disputing Ex.B.2, the case and contention of plaintiff is that her mother Chittemma died, intestate leaving her and defendant as only her legal heirs. In support of her plea that her mother Chittemma was not physically; as well as, mentally healthy and was not in a possession to execute any documents, much less,
Ex.B.2.
49.The plaintiff as P.W.1 deposes that during May 2009, after her mother undergoing Special Clinical examinations, the doctors of
Life Line Hospital, Kakinada diagnosed and found that the liver of her mother was partially damaged which resulted in malignancyof Kidney and was in advanced stage. She states that the doctors opined that if 23 any treatment was given to her mother, at best she could survive for few months and the doctors advised to get her mother treated by keeping her at house itself. She affirms that for undergoing clinical examinations, her mother was in Life Line hospital for 10 days as an inpatient and that her mother suffered from severe pain and mental agony as such, she was not in a position to understand the things that were going around her.
50.P.W.2 Dr.K.Balaji was examined to get corroboration to the evidence of P.W.1 that Chittemma took treatment in Life Line Hospital,
Kakinada. P.W.2 deposes that he is a consultant surgeon to Life Line
Emergency Hospital, Kakinada. The hospital authorities were directed to produce the copies of case sheets and other relevant records pertaining to Kaparapu Chittemma W/o.Ramachandra Rao of Kakinada for the treatment undergone by her in Life Line Hospital for the period from 4-2-2009 to 7-2-2009 and during the period May 2009. PW.2 has produced Ex.X.1 case sheet pertaining to Kaparapu Chittemma and deposes that Ex.X.1 is for the period from 4-2-2009 to 7-2-2009. He affirms that chest X-ray of Chittemma gives an indication of infection or cancer to lung.
51.Therefore, the plaintiff contends that her mother
Chittemma was not physically; as well as, mentally sound disposing stage of mind and therefore, she executed Ex.B.2 with free state of mind cannot be believed.
52.Explaining the circumstances under which her admitting execution of Ex.B.2 in Ex.A.5 notice got issued by her, P.W.1 deposes that she was carried away by the representation of defendant which made her state in her lawyer’s notice Ex.A.5 dt.8-11-2009 that her mother executed Will dt.16-07-2009; but, later it was turned out that 24 the said Will is not true and genuine. Therefore, she contends that the recitals mentioned in Ex.A5 can not be construed as admission of
Ex.B2.
PRINCIPLE OF LAW:
53.In Olluri Jaganmohini Seetha Rama Lakshmi and
another vs. Kaparapu Ramachandra Rao 1994 (1) ALT 217
(DB), their lord ships held that execution of Will need not be proved when it is admitted by other side and the context is only legal aspects as to validity of bequeathing certain properties covered by the Will.
54.Therefore, in the light of the principal of law laid down by
Hon’ble High Court, there is a point in appreciating the contention of
learned counsel for defendant that in view of the admission made in
Ex.A.5, the defendant is relieved from the burden to prove execution of Ex.B.2 and the plaintiff is estopped from disputing validity of Ex.B.2.
But, at the same time, it is necessary to appreciate the contention of plaintiff that only under misconception of fact, on the representation of her brother defendant only she made to instruct her counsel as such in issuing Ex.A.5 that her mother executed Ex.B.2.
MISCONCEPTION OF FACT:
55.In the case of Gautam Sarup Vs. Leela Jetly , 2008 7
SCC 85 wherein it was observed as follows:
"16.A thing admitted in view of Section 58 of the Evidence Act need not be proved. Order 8 Rule 5 of the Code of Civil
Procedure provides that even a vague or evasive denial may be treated to be an admission in which event the court may pass a decree in favour of the plaintiff. Relying on or on the basis thereof a suit, having regard to the provisions of Order 12 Rule 6 of the Code of Civil Procedure may also be decreed on admission. It is one thing to say that without resiling from an admission, it would be permissible to explain under what 25 circumstances the same had been made or it was made under a mistaken belief or to clarify one's stand inter alia in regard to the extent or effect of such admission, but it is another thing to say that a person can be permitted to totally resile therefrom."
28. What, therefore, emerges from the discussions made herein
before is that a categorical admission cannot be resiled from
but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other." (Emphasis is mine)
From the principle emerges from the judgment, cited above, it is clear that the plaintiff cannot resile from the admission made under
Ex.A.5; but, she can explain under what circumstances she was made to make such statement under Ex.A.5.
56.A glance at Ex.A.5, it would reveal that the plaintiff had no knowledge about Ex.B.2 and therefore, she requested the defendant under Ex.A.5 for furnishing a copy of Ex.B.2 to her. Accordingly, obliging the request of plaintiff, the defendant got furnished a copy of
Ex.B.2 by annexing the same with Ex.A.6 reply notice, got issued by him to plaintiff. Therefore, it is abundantly clear that the plaintiff has no personal knowledge about Ex.B.2 and she was informed by the defendant that her mother executed Ex.B.2.
57.Notwithstanding, the inference drawn from the request of plaintiff for furnishing copy of Ex.B.2 under Ex.A.5 and in compliance of such request, defendant furnishing copy of Ex.B.2, appended with
Ex.A.6 that the defendant has no personal knowledge regarding execution of Ex.B.2 and she was guided by the information furnished by defendant, the clear and categorical admission made by defendant 26 itself is sufficient to believe the contention of plaintiff that she was carried away by the representation of defendant that her mother executed Ex.B.2. On this aspect, the defendant has made clear and categorical admission in his cross examining stating;
“It is true to say that basing on my information, my
mother executed Will, the plaintiff in her notice in Ex.A.5,
made a mention about the said Will carried away by my
information to her that my mother executed a Will.”
Nothing more is required to conclude that under misconception of fact, guided by the information furnished by her brother defendant, plaintiff made to instruct her counsel for getting mentioned in Ex.A.5 that her mother executed Ex.B.2. Therefore, by any stretch of imagination, it cannot be construed that the plaintiff has admitted execution of Ex.B.2 under Ex.A.5 and such admission is only a misconception of fact and is not an absolute admission.
58.Learned counsel for plaintiff has placed reliance on the judgment in the case of N.Tyagaraju and others Vs S.Narayana
Swamy 2014 (2) ALT 540 and contends that in the light of the facts and circumstances highlighted above, the statutory requirement under section 68 of Indian Evidence Act., 1872 in examining at least one of the attestors of Ex.B.2 cannot be dispensed with.
His lordship held:
“The Court below accepted Exs.B.13 and B.14 on the ground that there is a recital about Ex.B.13 and Ex.B.14 in Ex.A.110 (=A.86), a registered Will executed on 10.03.1975 by D.3 which was relied upon by the plaintiff. This finding is also not sustainable.
In S.R.Srinivasa and others v. S.Padmvathamma (19) 2010 (4) ALT 12(SC) = 2010 (4) SCJ 835 = (2010) 5 SCC 274, a similar contention was raised. In that case, in a plaint in a previous suit, and in the evidence of P.W.1 in the suit out of which the civil 27 appeal arose, there was a statement about the making of a prior
Will. The High Court held that it amounted to an admission and therefore, the requirement of Section 63(c) of the Succession
Act, 1975 and Section 68 of the Indian Evidence Act, 1872 can be dispensed with. The Supreme Court rejected the said contention and held that the said statements amount to only an admission about making of the Will but not about its due execution or genuineness and independent proof of execution of the Will is required in the manner required by the above provisions of law. In view of this principle of law, and as their attestors are not examined, the finding of the Trial Court that
Exs.B.13 and B.14 have been proved by the admission in
Ex.A.110/Will relied upon by plaintiff, is unsustainable”.
-- Paragraph No.92.
59.Having given finding that admission made under Ex.A.6 as to execution of Ex.B.2 is only a misconception of fact, necessarily rigor of section 63 of the Indian Succession Act., 1925 and section 68 of the
Indian Evidence Act., 1872 comes into play in the light of the principal laid down in the judgment cited supra and the defendant cannot take defence that in the light of admission of plaintiff that as his mother executed Ex.B.2, he need not prove execution of Ex.B.2.
60.Inasmuch as, none of the attestors has been examined to prove due execution of Ex.B.2, it is inevitable to hold that Ex.B.2 could not be proved in terms of section 63 of the Indian Succession Act., 1925 and section 68 of the Indian Evidence Act., 1872. In connection with Ex.B.2, the defendant has chosen to examine D.W.4; but, as he is neither attestor nor the scribe, his evidence is of no value and in the light of findings made in earlier discussion that the evidence of D.Ws 1 to 3 is unworthy of credence, no sanctity can be given to D.W.4 also.
CONSEQUENCE OF FINDING MADE ON EX.B.1:
61.Assuming that the admission of execution of Ex.B.2 made 28 under Ex.A.5 estopped the plaintiff from disputing Ex.B.2, the pertinent question that lingers in the mind of court is whether the defendant becomes an absolute owner of plaint schedule properties except item No.2 of plaint 'C' schedule in the light of finding made under issue no.1 that Ex.B.1 is forged and fabricated testament.
SOURCE OF TITLE:
62.It is not in dispute that the source of title for executing
Ex.B.2 by the testatrix late. Chittemma is Ex.B.1. Late. Ramachandra
Rao, husband of testatrix Chittemma was alleged to have executed
Ex.B.1 for his movable and immovable properties in favour of
Chittemma and thereby, Chittemma became the absolute owner of the properties covered under Ex.A.2 to A.4 stand in her name and in the name of her husband Ramachadra Rao. Later, for the said properties covered under Ex.A.2 to A.4, Chittemma was said to have executed
Ex.B.2 in favour of defendant.
63.Inasmuch as, Ex.B.1 is held to be a forged and fabricated testament as per the findings made under issue No.1, subsequent Will executed by late Chittemma becomes invalid for the reason that the source of title for executing Ex.B.2 has been derived from Ex.B.1 according to the admitted case of defendant. In that view, Ex.B.2 is held to be in valid. Accordingly, the point is answered.
MENTAL CONDITION OF TESTATRIX:
64.Learned counsel for plaintiff has made an endeavor to impress upon the court that even if execution of Ex.B.2 is admitted, the propounder of Ex.B.2 i.e., defendant must dispel the suspicious circumstances to lend credence to the testament to the satisfaction of the court. He has argued that the testatrix Chittemma was not in a position to give instructions for getting prepared Ex.B.2 as she 29 suffered from acute and traumatic pain and mental depression during those days. As such, he submits that the defendant is instrumental in bringing to existence of Ex.B.2 and therefore, it cannot be said that the testatrix was not in sound disposing state of mind to execute
Ex.B.2.
65.In the context vis-a-vis physical and mental condition of testatrix, the defendant as D.W.1 deposes in cross examination, stating; “My mother died on 4-10-2009. My mother was suffered from
Cancer since five months prior to her death. The testatrix informed that she had Cancer to her Liver. My mother is underwent treatment at Safe Hospital, Life Line hospital, Cristian
Cancer Hospital and Jawarhar Hospital Kakinada. I have collected summary discharge relating to my mother their Life Line
Hospital and Safe hospital.”
He deposes further, stating; “In the initial stages my mother did not undergo any physical or mental agony but since furst week of August 2009, she started suffering both physical and mentally with the ailment of Cancer.
I used to take my mother to Safe Hospital for cancer treatment for every two weeks and on all such occasions she used to be in the hospital of inpatient for five to seven days.”
Further, he deposes, stating:
“My mother had a sudden fall on two occasions between a gap of 15 days in the bathroom. So I took her to life line hospital. It was may, 2009 my mother fell down in the bathroom. I joined my mother in safe hospital in Kakinada for the second time. During the medical tests in the said hospital, it was diagnosed that my mother was suffering from Cancer in lungs and liver, and the doctors opined that the cancer is in advanced stage and no purpose is served by any treatment.” …. (Advocate-Commissioner recorded evidence) 30
In such circumstances, no prudent man can visualize that the testatrix was in such sound disposing state of mind to give instructions for getting scribed Ex.B.2.
66.As pointed out in earlier discussion that according to the case of defendant, he was not present at the time of execution of
Ex.B.2. Further, according to the case of defendant that during the relevant period at which Ex.B.2 was executed, the testatrix Chittemma was staying with defendant. Admittedly, Ramachandra Rao husband of testatrix predeceased her and plaintiff was residing in Visakhapatnam by the time of Ex.B.2. The only person staying with the testatrix in her last days was defendant alone.
67.Visualizing the situation at which the testatrix was placed during her last days, D.W.1 was questioned about physical condition of testatrix for her alone going to Korukonda for getting the Will scribed, executed and registered with SRO, Korukonda. For which, the defendant answers as follows; “I do not know Bade Venkata Apparao and G.China Abbulu who signed as attestors in Ex.B.2 Will. My mother alone went to
Korukonda on the date of Ex.B.2 in the morning and returned to
Kakinada on the same day evening. My mother did not informed me on the previous day about her going to Korukonda. Even after she returned from Korukonda I did not enquire my mother as to why she had gone Korukonda especially when her health condition was not good.”
68.No prudent man can visualize the situation, where at, the testatrix was placed at the time of execution of Ex.B.2 that without assistance of anybody, when ailment of Cancer was in advanced stage and doctors advised that there was no certainty of survival of testatrix and no purpose would be served even if she was treated in such 31 condition, the testatrix going alone from Kakinada to Korukonda in the morning without informing the only one attendant of her who is defendant and coming in the evening on the date of Ex.B.2. By any stretch of imagination, it is humanly not possible for the testatrix of her going alone from Kakinada to Korukonda in the morning and returning in the evening Kakinada for the purpose of execution of
Ex.B.2 and getting it registered with S.R.O., Korukonda.
MAINTAINING SECRECY:
69.According to the case of defendant, in respect of both the
Wills i.e. Ex.B.1 and B.2, he has stated that after death of his mother
Chittemma, he found Ex.B.1 and B.2 in the house at Burugupudiwhen he was searching for records. The defendant has not explained the reason for his parents Ramachadra Rao and Chittema maintaining secrecy in not disclosing execution of Ex.B.1 and B.2 and keeping them in the house which was put under lock and key at Burugupudi.
When both the parents of defendant were staying with defendant during alleged relevant point of time at which Ex.B.1 and B.2 were executed, it is improbable to believe that the defendant had no knowledge about execution of Ex.B1 and B2 and after death of his mother, when he was searching for records, found Ex.B.1 and B.2 in the house at Burugupudi.
70.In any view of the matter and for the foregoing reasons, it is inevitable to answer the issue, holding that Ex.B.2, allegedly executed by testatrix Chittemma is not valid and that her bequeathing plaint schedule properties except item No.2 of plaint ‘C’ schedule in favour of defendant; where as, item No.2 of plaint schedule is in favour of plaintiff cannot be believed.
WHO GAVE INSTRUCTIONS:
32
71.Another important point to be answered is who gave instructions for getting scribed Ex.B.2. A look at Ex.B.2, it is evident there from that a detailed description of schedule properties was given for each and every item of the plaint schedule properties, covered under Ex.A2 to A.4. During his cross examination, defendant admits that Ex.A.2 to A.4 were in his custody. According to him, he was not present at the time of execution of Ex.B.2 for giving such instructions for getting scribed Ex.B.2. On the other hand, as pointed out in earlier discussion, the testatrix alone went to Korukonda for getting Ex.B.2 executed and registered in favour of defendant. In such circumstances, it is improbable to believe that the testatrix alone gave instructions in getting Ex.B.2 prepared in the absence of availability of Ex.A.2 to A.4 with her and without assistance of any family member at her advanced stage of ailment of Cancer. Thus, at every stage, the court finds unusual conduct of defendant and unexplainable infirmities herein
before highlighted.
72.For the forgoing reasons and discussions; coupled with unexplainable infirmities, highlighted above, it is invitable to hold that
Ex.B2 is shrouded by suspecious circumstances. Accordingly, the issue is answered, holding that Ex.B2 is not valid, true and its genuineness is highly suspecious and doubtful.
ISSUE NO.3:
73.For answering issue whether the plaintiff is entitled for partition of the schedule properties as prayed for, it is necessary to note the availability of amounts of both late Ramachandra Rao and
Chittemma, covered under plaint B schedule.
74.The contention of plaintiff is that her father Ramachandra
Rao invested amounts by way of fixed deposits with Andhra Bank, 33
West Gonagudem, Korukonda Mandal, detailed in B schedule which is joint position of himself and his wife and to her knowledge, the amount due under the said fixed deposit by the date of filing of the suit was nearly 5 to 6 lacks. As such, the plaintiff claims half share from the said fixed deposits.
75.The plaintiff has chosen to examine P.W.3 Gali Srinivasa
Rao, Deputy Branch Manager, SBI Branch, Korukonda to prove that her fatherRamachandraRaomaintainedaccount,bearing
No.113886657178 in his name; as well as, joint account, bearing
No.11388698427 in his name and in the name of his wife.
76.In this connection, it is pertinent to note that proof of plaint B schedule deposits and examination of P.W.3 are futile exercises in the light of the evidence of defendant. During his cross examination, defendant deposes, stating as follows:
“My parents died possessed of amounts invested in F.D.Rs,
Andhra Bank, Ganugugudem and S.B.I, Korukonda. All the said deposits except one are in the names of my parents and they are either or survival deposits. Only other deposit which is also in
F.D.R. was in the name of my father for which, I was the nominee. By the time of death of my father the amount lying to the credit of my parents under the F.D.Rs in their names was about 4,80,000/-. My mother after the death of my father withdrawn an amount of Rs.1,05,000/- from the said F.D.Rs and by the time of her death the amount lying to her credit in the
F.D.Rs was about Rs.3,30,000/-. Apart from the said amount there was the amount in the F.D.R. in the name of my father for which also I was the nominee. The F.D.R. for which I was nominee by encashed by me after the death, on my father and during the life time of my mother and I realized an amount of
Rs.85,000/-.”
77.Therefore, it is evident from the testimony of D.W.1 that by 34 the time of death of late Ramachandra Rao, an amount of
Rs.4,80,000/- was available and after his death, his wife withdrew an amount of Rs.1,05,000/-. Thereby, an amount of Rs.3,75,000/- was available during life time of Chittemma mother of plaintiff and defendant.
78.Further, it is abundantly clear from the evidence of D.W.1 that after death of late Chittemma, the amount available was
Rs.3,30,000/- besides an amount on Rs.85,000/- which was encashed by the defendant in the capacity of nominee of his father late
Ramachadra Rao.
79.In this connection, it is expedient to note that judgment in the case of Smt. Sarbati Devi and Anr. Vs Smt Usha Devi, 1984 (1) SCC 424. The Apex Court held as follows:
“12.Moreover there is one other strong circumstance in this case which dissuades us from taking a view contrary to the decisions of all other High Courts and accepting the view expressed by the
Delhi High Court in the two recent judgments delivered in the year 1978 and in the year 1982. The Act has been in force from the year 1938 and all along almost all the High Courts in India have taken the view that a mere nomination effected under
Section 39 does not deprive the heirs of their rights in the amount payable under a life insurance policy. Yet parliament has not chosen to make any amendment to the Act. In such a situation unless there are strong and compelling reasons to hold that all these decisions are wholly erroneous, the Court should be slow to take a different view. The reasons given by the Delhi
High Court are unconvincing. We, therefore, hold that the judgments of the Delhi High Court in Fauza Singh case and in
Uma Sehgal case do not lay down the law correctly. They are, therefore, overruled. We approved the views expressed by the other High Courts on the meaning of Section 39 of the Act and hold that a mere nomination made under Section 39 of the Act does not have the effect of conferring on the nominee any 35 beneficial interest int eh amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.” -- Paragraph No.12.
80.In the light of the 'ratio', it is clear that merely because, the defendant was a nominee for his father late. Ramachandra Rao, he is entitled to receive the said amount of Rs.85,000/- in the capacity of such nominee. Therefore, any payment made to a nominee who is defendant herein is a legally valid defence for the Banker as to valid discharge of the payment due to the deceased.
81.In any view of the matter, it is well founded that by the time of death of late Chittemma mother of plaintiff and defendant, the available amount by way of fixed deposits was Rs.4,15,000/- (Rs.3,30,000/- + Rs.85,000/-) in which, the plaintiff is entitled to get half share with subsequent interest on her half share, from the date of death of Chittemma i.e., 4-10-2009.
82.Apart from liquidated amount of Rs.4,15,000/-, L.I.C policies stand in the name of late Ramachandra Rao and his wife late
Chittemma are there. In this regard, the defendant admits in cross examination stating; “My parents were each holding L.I.C policies for an amount of
Rs.50,000/-. The said policies remained on encashed till today.
Advocate was given a notice to me by the plaintiff to produce the copies of the Fixed Deposit receipts the Policies relating to S.B accounts and LI..C policies in the names of my parents.” (Evidence was recorded by advocate commissioner).
83.Therefore, the plaintiff being a class-1 legal heir of deceased late Ramachandra Rao and late Chittemma along with the 36 defendant, she is entitled to get half share from the amounts that would be realized under L.I.C policies stand in the name of late
Ramachandra Rao and Chittemma.
84.In the light of findings made in issues 1 and 2, coupled with the findings made under this issue, it is inevitable to hold that the plaintiff is entitled for partition of plaint A, B and C schedule properties.
ISSUE NO.4:
85.In the light of findings made in issues 1 to 3, the plaintiff is entitled for rendition of accounts. Accordingly, issue is answered.
ISSUE NO.5:
86.In the light of findings made in issues 1 to 3 as the plaintiff is held to be entitled for substantial relief, the question of her entitlement for alternative relief does not arise. Accordingly, the issue is answered.
ISSUE NO.6:
87.On an earnest consideration of respective pleadings of both the parties to the suit and the evidence oral and documentary let in by them; coupled with the findings made in aforementioned issues, it is inevitable to hold that the suit is deserved to be decreed.
88.In the result, suit is decreed preliminarily, with costs in favour of plaintiff:
i) For partition of plaint A and C schedule properties into two equal shares and to allot one such share to plaintiff and remaining share to defendant.
ii)That an amount of Rs.4,15,000/- came to be arrived at by 4-10-2009 on which date, the mother of plaintiff and defendant Chittemma passed away. Therefore, the plaintiff 37 is entitled to get half share in the said amount of
Rs.4,15,000/- with subsequent interest on her half share amount at 6% per annum from 4-10-2009 till the date of realization.
Iii)Further, the plaintiff is entitled to get half share in the amounts that would be realized from the insurance policies, stand in the name of late Ramachandra Rao and his wife Chittemma with Life Insurance Corporation.
iv)For the purpose of withdrawing the fixed deposits if any, lying with Andhra Bank, Gonagudem and SBI, Korukonda, production of the decree itself is sufficient and there is no need either for the plaintiff or the defendant to obtain succession certificate.
v)So also, for payment of amounts due under life insurance policies stand in the name of Kaparapu Ramachandra Rao and Kaparapu Chittemma consequent upon their death, both plaintiff and defendant are entitled to get equally.
Therefore, the decree passed herein is sufficient and there is no need to obtain succession certificate in that regard.
vi)Further, the plaintiff is entitled for rendition of accounts, for plaint ‘A’ and ‘C’ schedule properties
Dictated to the Personal Asst. transcribed by her, corrected and
pronounced by me in open court on the 3rd day of April, 2018.
PRINCIPAL SENIOR CIVIL JUDGE
KAKINADA.
(FAC) II ADDL. SENIOR CIVIL JUDGE
RAJAMAHENDRAVARAM(FTC)
38
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the Plaintiff:
P.W.1: Kundrapu Mary Vijaya Laksmi Kumari
P.W.2: Dr.K.Babji
P.W.3: Gali Srinivasarao
P.W.4: G.V.H.V.Prasad (Director, Truth Labs)
For the Defendant:
D.W.1: Kaparapu Babulu
D.W.2: Pampana Satyanarayana
D.W.3: Pulidindi Srikanth
D.W.4: Sripada Venkateswarao
D.W.5: Bade Venkata Apparao (escheved)
DOCUMENTS MARKED
For the Plaintiff:
Ex.A.1: Registered extract of sale deed in favour of the plaintiff's parents, dt.11-02-1980
Ex.A.2: Registered extract of sale deed in favour of the plaintiff's father dt.15-07-1999
Ex.A.3: Registration extract of sale deed in favour of plaintiff's father dt.20-06-2002.
Ex.A.4: Registration extract of sale deed in favour of plaintiff's mother dt.01-06-1974.
Ex.A.5: Office copy of lawyer's notice got issued by the plaintiff, dt.8-11-2009
Ex.A.6: Reply notice got issued by the defendant dt.07-12-2009 39
Ex.A.7: The Inland Letter written by plaintiff's father to plaintiff's husband dt.13-06-1997.
Ex.A.8:The Inland letter written by plaintiff's father to the plaintiff's husband.
Ex.A.9: the Inland letter written by plaintiff's father to plaintiff's husband dt.12-06-1998.
Ex.A.10: Post card written by plaintiff's father to plaintiff's husband, dt.26-02-1999.
Ex.A.11: Coupon for the M.O sent by the plaintiff's father to the plaintiff
Ex.X.1: case sheet of Kaparapu Chittemma
Ex.X.2: Forwarding Letter from Truth Labs, Hyderabad
Ex.X.3: Letter from Truth Labs, Hyderabad.
For the Defendant:
Ex.B.1: Original Notarized Will dt.25-12-2008 executed by late K.Ramachandra Rao
Ex.B.2: Original will dt.16-07-2009 executed by late Smt.Kaparapu Chittemma.
PRINCIPAL SENIOR CIVIL JUDGE
KAKINADA.
(FAC) II ADDL. SENIOR CIVIL JUDGE
RAJAMAHENDRAVARAM(FTC)