THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.278 of 2006
JUDGMENT:
This appeal is filed against the Judgment and Decree of the trial Court in O.S.No.52 of 1999 dated 31.08.2005.
2. One Banisha Ramulu S/o.Parmaiah along with his son Banisha Mallesham filed suit in O.S.No.52 of 1999 against one Manne Parmaiah S/o.Papaiah/Defendant No.1 and defendants 2 to 5 are sons of defendant No.1. The first defendant is the natural father of first plaintiff and defendants No.2 to 5 are natural brothers of plaintiff No.1. Initially suit was filed for perpetual injunction restraining defendants from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule property. During pendency of the suit I.A.No.181 of 1993 was filed for temporary injunction and the same was allowed by the trial Court. Aggrieved by the same, defendants preferred C.M.A.No.15 of 1995 and the same was allowed by Order dated 23.12.1995, setting aside the Order of the trial Court in I.A.No.181 of 1993. Aggrieved by the same, Plaintiffs preferred C.R.P.No.467 of 1996 before the High Court of Andhra Pradesh and the same was disposed of by Order 2 dated 17.06.1999 with a direction to the lower Court to dispose of the suit within a specified period. After the disposal of the said petition, plaintiffs amended their plaint and sought for declaration of ownership and took back the plaint on the point of jurisdiction and presented the same before the Senior Civil Judge, Sangareddy on 08.10.1999.
3. The first Plaintiff stated that he along with his family jointly owned and they are in peaceful possession and enjoyment of the agricultural suit lands and also cultivating the said lands. Presently, Item Nos. 1 to 7 stands in the name of first plaintiff and Item No.8 stand in the name of second plaintiff. Plaintiffs No.1 & 2 are in joint possession and enjoyment of the suit lands as a joint family members. The first plaintiff purchased Item No.8 in the name of second plaintiff who was minor in the year 1979 from the original Pattedar Sharnamma and Manikamma under registered sale deed vide Doc.No.442 of 1990. When the second plaintiff attained majority, the said land transferred into his name. Originally, one B.Yellappa, who is maternal grandfather of the plaintiff No.1, was the pattedar, possessor and owner of item Nos.1 to 7 of the suit schedule lands. He died issueless in the year 1985. 3 During his life time, he adopted first plaintiff. Out of love and affection he executed a registered Will deed dated 07.11.1984 vide document No.13/1984 bequeathing the suit schedule items 1 to 7 in favour of first plaintiff. Plaintiff No.1 lived with him till his death and served him as his son. Yellappa was suffering from leprosy and no one served him except plaintiff No.1. After the death of Yellappa, item Nos.1 to 7 were transferred in the name of plaintiff No.1 in the year 1985 in all revenue records as per Orders passed by Revenue authorities after thorough enquiry. Plaintiff No.1 is paying the land revenue to the Government regarding the suit lands and he is in possession of item Nos.1 to 7 from 1985 after the death of its original Pattedar. The late Yellappa also filed Ceiling declaration in C.C.No.2276/s/75, in which he clearly mentioned that he adopted plaintiff No.1 during his life time and thus plaintiffs are having perfect title and are in peaceful possession and enjoyment of the suit schedule properties.
4. Plaintiff No.1 filed certified copies of the Pahanies for the year 1989-90, 1990-91, 1991-92, 1992-93, certified copy of the mutation Order in the year 1984-85, original Ceiling declaration, copy of the Will deed, sale deed and land revenue 4 payment receipts for the year 1989-90, 1990-91, 1991-92 and 1992-93 regarding the suit schedule lands in support of his title and possession. He stated that though defendant No.1 is his natural father and defendants No.2 to 5 are his brothers they are not having any kind of right or interest over the suit schedule property. The plaintiff No.1 was given in adoption to late Yellappa when he was 7 years old. Now, defendants out of jealousy and to cause loss to the plaintiffs bent upon to interfere with the possession of the suit schedule property. On 11.06.1993, defendants along with his supporters tried to interfere with his possession. As defendants threatened to dispossess him, he filed suit for injunction.
5. In a written statement filed by the defendant No.1 he stated that initially suit was filed for injunction and later converted into suit for declaration. He stated that plaintiffs and defendants are in joint possession of the suit schedule lands along with one Anthamma widow of late Yellappa. He also requested the Court to call for records in O.S.No.182 of 1993 on the file of learned District Munsif at Sangareddy and to make them as part of the record. He further stated that Items 1 to 7 are standing in the name of late Yellappa and item No.8 was 5 purchased by defendant No.1 in the name of second plaintiff from the family funds. Plaintiff No.1 had no income of his own as such he has not purchased the property in the name of his son. Both of them collusively filed the suit. He admitted that Yellappa was pattedar, possessor and owner of items 1 to 7 of the plaint schedule property and he was suffering from leprosy and denied all other factors. He denied adoption of first plaintiff by Yellappa and also the execution of a registered Will deed by Yellappa in favour of first plaintiff. He also stated that daughter of Yellappa namely Rachamma was given in marriage to him and plaintiff No.1 and defendants No.2 to 5 are their sons. The first plaintiff mischievously managed to get his name entered in the revenue records behind the back of the defendants and Anthamma. He stated that in the land Ceiling case adoption was not an issue and it was never accepted. He also stated that even in the present suit also plaintiff No.1 does not claim himself to be the adopted son of Yellappa, but only to save the land from surrender under the Ceiling law the plea of adoption might have been taken by him, by such mere plea plaintiff No.1 does not become an adopted son. The plaintiff No.1 is claiming himself to be the son of defendant No.1, but not as adopted son of late Yellappa. Mutation entries are illegally managed without notice 6 to the defendants and Anthamma and they will not create any right in favour of plaintiffs nor take away the rights of the defendants. Defendants are cultivating lands for themselves and also on behalf of Anthamma, as such there cannot be any restrained orders. Plaintiffs are seeking relief of declaration and injunction on payment of Court fee under Section 24(b) of A.P.C.F and S.V. Act. The family tree is shown below for the sake of convenience:
Papaiah (died prior to Police Action) Yellappa (died in 1985) Papamma (died) Balraj(died) = Anthamma (wife) =Manne Papaiah =Bharatamma Rachamma(died in1992) Parmaiah(Defendant No.1) Ramulu Mallesham Rajanna Srinivas Pandurangam (Plf.No.1) (D.2) (D.3) (D.4) (D.5) Mallikharjun (Plf.No.2) 7
6. Defendants are also the owners of the suit properties and they are in possession of the same along with the plaintiffs and Anthamma, as such no injunction shall be granted against them. Papaiah was the common ancestor, Yellappa is the son and Papamma is the daughter of late Papaiah and they are residing at Sadasivpet. Yellappa was the owner and possessor of agricultural lands mentioned in Sl.Nos.1 to 7 of the suit schedule. Item No.8 bearing Sy.No.861 was purchased from the family funds in the name of plaintiff No.2. At the time of purchase plaintiff No.2 was still a minor and he had no income of his own. Papamma is given in marriage to Manne Papaiah of Peddapur Village and defendant No.1 is their son. He is also having younger brother namely Ramaswamy. Yellappa married Anthamma and they had only one daughter namely Rachamma who was given in marriage to defendant No.1. The plaintiff No.1 and defendants No.2 to 5 are his sons. Yellappa the father-in- law of the defendant No.1 died in the year 1985 leaving his widow Anthamma and his daughter Rachamma as his legal heirs. The defendant No.1 is the native of peddapur village, but he was brought up by his maternal uncle Yellappa at Sadasivpet. He stayed hardly for 9 or 10 years at Peddapur. 8
7. During the life time of Yellappa, he was ailing for long and he could not lookafter his family and agriculture. Yellappa did not have any sons. The wife of defendant No.1 was his only daughter as such defendant No.1 along with his family shifted to the house of Yellappa at Sadasivpet and looking after his family affairs and agriculture. The defendant No.1 started a provision store at Sadasivpet and did business for more than 25 years. The plaintiff No.1 has no separate income. The defendant No.1 also purchased a shop for family bearing No.4-7-42 from late Deshetty Baswaraj in the year 1968 and got it registered in the name of plaintiff No.1 who was minor aged about 15 years at that time. All the sons are extending help in family, agriculture and business. Yellappa died in the year 1985. He never adopted plaintiff No.1 and never executed any registered Will deed either on 07.01.1984 or any other date. The plaintiff No.1 who was helping in running shop was managed to brought into existence some illegal documents to deprive defendants, Anthamma and Rachamma. He denied adoption of plaintiff No.1, even in the suit first plaintiff mentioned himself as son of Manne Parmaiah and he was never treated as son of Yellappa. In view of the relationship of the parties, mere entry in the village record will not give any right to plaintiffs. 9
8. The defendant No.1 was managing the affairs of the family and paying the land revenue on behalf of family. The first plaintiff was only assisting him. He cannot setup any exclusive right over the suit properties. The defendants are still continuing to reside in the family house at Sadasivpet along with Anthamma, but the plaintiffs only withdrawn from their company. One year prior to filing of the suit before learned Munsif Magistrate the parties settled before town elders by name Agamaiah, Satyanarayana, B.Eashwaraiah, S.Eashwaraiah and others under which plaintiff No.1 agreed to take Sy.No.806 and open space and the rest of the lands, house and shop are to be held as absolute owners by defendant No.1 and his other children. Persons figuring as attestors to the Will deed are henchmen of the plaintiff No.1. In view of the injunction order, defendants are not cultivating the suit lands and later defendants are asserting their title and possession over the suit properties.
9. After framing of issues, plaintiff No.1 was examined as P.W.1, he examined attesting witness as P.W.2 and he also examined P.W.3 to prove the registered adoption deed and Will deed in his favour. The defendant No.5 was examined as D.W.1. 10 D.W.Nos.2 & 3 are elders and they supported the version of defendants. P.W.1 marked Exs.A1 to A24 on his behalf and stated that he has shown the addresses of defendants No.1 to 4 at H.No.4-2-74 of Pathakeri. He also stated that defendants 1 to 5 are residing in Sadasivpet but not in Peddapuram. Yellappa died in the year 1985, his mother Rachamma died in the year 1992 and his grand-mother Anthamma died about 3 years back i.e, in the year 2001. He also admitted that Yellappa had no male issues and defendant No.1 stayed along with Yellappa. Prakasham and Chandramouli are the attesting witnesses of Ex.A13 and they are juniors to him in school and they are residents of the said area. The defendant No.1 came to the house of Yellappa when he was 5 or 6 years old and stayed along with him and also helped him in cultivating all the lands. He studied up to 10th class in 1969 and his marriage was performed in the year 1970. In the school records his father name was shown as Parmaiah/defendant No.1. It was suggested to him that even in the wedding card his father name is shown as Parmaiah and marriage was performed by paternal grand- father, but he stated that he did not know the same. He stated that shop bearing No.4-7-42 was purchased in the 1968. 11
10. He further stated that he know Sy.No.861 was purchased in the name of second plaintiff, but he did not know who purchased it and when it was purchased. He also stated that Rachamma and Anthamma died in the house bearing No.4-2-
74. He admitted that on the date of execution of Ex.A13, wife and daughter of Yellappa are alive and no reasons were mentioned in it for bequeathing the property in his name. He admitted that in the year 1992 there was a Panchayat in the presence of elders by name Agamaiah, Satyanarayana, D.Eashwaraiah & S. Eashwaraiah for settlement of properties, but he did not agree for the same. He filed the certified copy of Judgment in O.S.No.34 of 1974 and certified copy of the adoption deed dated 07.08.1965 under Ex.A23 & A24 respectively. He further admitted that Ex.A10 did not contain that mutation was effected on the basis of Will deed, but not on the basis of adoption deed. He stated that he was not in possession of the adoption deed as on the date of Ex.A10.
11. P.W.2 stated that Yellappa executed a registered Will deed in favour of first plaintiff on 07.11.1984 vide Doc.No.13 of 1984 bequeathing the suit schedule item No.1 to 7 in his favour as he served him though he was suffering from leprosy and after his 12 death the said properties were transferred in the name of first plaintiff. He along with Chandramouli and Krishna attested the Will deed as witnesses. In the cross-examination he admitted that P.W.1 is residing at Sadasivpet in a rented house for past 5 or 6 years. Defendent No.1 was residing with Yellappa in his house along with his wife and mother-in-law Anthamma. He stated that he was running a printing press and the shop of P.W.1 was adjacent to his printing press. P.W.1 is his senior in the school he also stated that wife of Yellappa, his daughter and defendant No.1 served Yellappa. He further stated that the Sub-Registrar obtained thumb impression of Yellappa in their presence, but the thumb impression was not fixed on the reverse of 1st page of Ex.A13 he identified signatures of Yellappa on Ex.A13.
12. P.W.3 stated regarding execution of sale deed in favour of first plaintiff. In the cross-examination he stated that he was present at the time of execution of Will by Yellappa, but he did not attend the same. He further stated that about 30 or 40 years back Yellappa adopted first plaintiff and executed adoption deed 2 or 3 years after adoption. He stated that defendant No.1 was residing at Sadasivapet since last 40 years 13 along with his wife, children and Yellappa. Defendent No.1 used to look after his lands and household affairs.
13. Defendent No.5 in the suit was examined as D.W.1 and stated that his father/Defendent No.1 is suffering from ill-health, his eye sight and hearing is badly effected and he is also suffering from breathing trouble. He also became very week and not in a position to leave the house and give evidence. Defendent No.2 is deaf and dumb. Defendent Nos.3 and 4 are looking after household affairs. As he was assisting his father in cultivating the suit lands he deposed on his behalf. He disputed Will deed executed by Yellappa in favour of first plaintiff and also stated that his father performed last rites of Yellappa and also to his wife Anthamma. He stated that they are not aware of the Will till few days prior to the filing of the suit. Defendant No.1 looked after Anthamma till her death, but she was not made as party to the suit. He filed Voters Enumeration List, land revenue passbook, land revenue receipts and certified copy of the order passed in C.M.A.No.15 of 1995 and affidavit filed by late Anthamma in the Court of learned District Munisiff, Sangareddy. He stated that in 1993 first plaintiff came to Sadashivapet and partitioned the properties 14 among all our brothers and sisters and father. At that time he came to know about the mutation proceedings in favour of first plaintiff. He further stated that they are not cultivating suit schedule lands after injunction and plaintiffs are also not cultivating the same. It was suggested that thumb impression of Anthamma is obtained on Ex.B6 without reading the contents to her, but he denied the same.
14. Defendent No.2 stated that first defendant was cultivating the suit lands of Yellappa since he came to Sadashivapet. Parmaiah and his wife looked after Yellappa and his wife Anthamma. Plaintiffs left company of defendants and Anthamma more than 13 years back and are residing at Edlabazar of Sadasivapet. He stated that first plaintiff was brought up by his grandfather from childhood along with other children of defendant No.1. He also stated that properties at Sadasivpet were partitioned by Yellappa and Balraj. Yellappa got half share and one Bharathamma got the other half share in the properties. When there was a dispute in the year 1979 between plaintiffs and said Bharathamma regarding the properties, he along with Baswaraj, Begari Balaiah and others settled their dispute and prepared a partition list of properties, fell to the 15 share of each shareholder and he also signed on it. He further stated that Yellappa provided amount for education of first plaintiff and also performed his marriage. He also stated that Yellappa brought up first plaintiff and adopted him and also executed Will bequeathing the properties to him. He stated that he did not know whether Yellappa executed Will bequeathing properties to the first plaintiff or not.
15. One Cheela Baswaraj was examined as D.W.3 and stated that he knows Yellappa as he was also resident of Sadasivpet town. He stated that defendant No.1 is the son-in-law of Yellappa and staying with his wife in the house of Yellappa from the past 45 years and looked after the welfare of Yellappa and his wife and his agricultural lands. The defendant No.1 cultivated the suit lands and his sons assisted him. The defendant No.1 performed the last rites of Yellappa and his wife Anthamma. He stated that plaintiff No.1 was never adopted by Yellappa and never treated him as adopted son. The lands were left fallow without cultivation from the past 12 years and he also stated that eye sight of defendant No.1 was badly affected and also developed hearing and breathing problems and confined to house. He also stated that there was dispute between 16 Bharathamma and first plaintiff. He along with D.W.2 and other conducted Panchayat and a partition list was prepared and the same was attested by him, DW.2, defendant No.1 and Bharathi. He stated that Yellappa brought up first plaintiff and performed marriage, but he did not know whether Yellappa adopted first plaintiff during his life time and executed Will in his favour or not. During life time of Yellappa, he did not enquire him whether he adopted first plaintiff or not. The trial Court disbelieved the adoption deed and Will deed in favour of the first plaintiff and it relied upon the documents filed by the first defendant and held that defendant No.1 along with his family members are residing in the house of Yellappa and looked after his welfare and also doing cultivation of his lands. As on the date of execution of Will the daughter and wife of Yellappa are alive, as such Will executed in favour of the first plaintiff is also not believed. It was observed that plaintiff could not dispel the suspicious circumstances surrounding the execution of Ex.B13, merely because it was of 30 years old document, presumption cannot be raised under Section 90 of the Indian Evidence Act. It was also observed that defendant No.1 himself admitted that in O.S.No.34 of 1974, he gave his son in adoption to his father-in- law Yellappa and produced Ex.A1 adoption deed therein, but 17 the trial Court held that there was no proof of giving and taking of child in adoption by his natural parents, as such it cannot be relied upon the adoption deed and accordingly dismissed the suit with costs. Aggrieved by the said Order, plaintiffs in the suit filed the present appeal.
16. Plaintiffs mainly contended that item Nos.1 to 7 of the suit schedule property stands in the name of first plaintiff and item No.8 stands in the name of second plaintiff and both of them are joint family members. Yellappa is the original pattedar and possessor of item Nos.1 to 7 and he is the paternal grand- father of the first plaintiff. During his life time, he adopted first plaintiff and out of love and affection he also executed a registered Will dated 07.11.1984 vide Doc.No.13 of 1984, bequeathing suit schedule property in his favour and he also declared first plaintiff as his adopted son in ceiling declaration C.C.No.2276 of 1975, but the trial Court not considered Ex.A13 in proper perspective. Ex.A14 is the verification report of the verifying officer under Land Ceiling Act. In the said verification it was mentioned that Yellappa was in possession of the suit properties, as he had no sons he adopted the son of his 18 daughter namely Ramulu i.e, first plaintiff, but it was not considered by the trial Court.
17. The certified copy of the registered adoption deed was filed under Ex.A24, it is the public document as per the provisions of Sections 74 and 90 of the Indian Evidence Act. Ex.A10 is the mutation order in which first plaintiff was shown as pattedar and possessor of item Nos.1 to 7 as per Section 6 of A.P. Right in Land and Pattedar Pass Books Act, 1971, every entry in Record of Rights shall be presumed to be true, until contrary is proved. Ex.A23 is the certified copy of the Judgment in O.S.No.34/1974. D.W.1 in the suit deposed that first plaintiff was adopted by Yellappa and also filed Ex.A1, as such he is estopped from contending that first plaintiff is not the adopted son of Yellappa. The first defendant who did not choose to enter into witness box or subjected to examination before the Court though he filed the written statement and it was adopted by defendants No.2 to 5, as such adverse inference is to be drawn against him. Appellants further stated that trail Court failed to consider the distinction between burden of proof and onus of proof as laid down in AIR 1964 SC 136. Plaintiffs discharged their burden by way of adducing both oral and documentary 19 evidence, but the defendants failed to disprove the same. The trial Court gave much credence to the oral evidence ignoring documentary evidence and it is contrary to the scope of Section 91 of Indian Evidence Act. Therefore, requested the Court to set aside the Judgment of the trial Court.
18. Heard arguments of both sides and the Counsel for the appellants also filed written arguments and citations in support of their contention and perused the entire record.
19. Now it is for this Court to see whether the Judgment of the trial Court is on proper appreciation of facts or not, if so to what extent.
20. The first plaintiff, defendants No.2 to 5 are children of the first defendant and second plaintiff is the son of first plaintiff. The first plaintiff contended that his grand-father Yellappa had no male issues and he was having only one daughter Rachamma. The Yellappa along with his wife Anthamma performed the marriage of their daughter Rachamma with first defendant. The first plaintiff also stated that his grand-father Yellappa adopted him when he was aged about 7 years, but 20 deed of adoption was executed when he was 15 years old and he took care of him, incurred his educational expenses and also performed his marriage in the year 1970. Surprisingly, defendant No.1 natural father of the first plaintiff denied the adoption and stated that as Yellappa was suffering from ill health, he along with his wife shifted to Sadasivpet and residing in the house of Yellappa and looked after his in-laws and also cultivated his lands and his children defendants No.2 to 5 were born at Sadasivpet and he also performed last rites of Yellappa and Anthamma. Even after the death of his wife Rachamma, he took care of his mother-in-law till her death.
21. The first defendant/Manne Parmaiah filed suit in O.S.No.34 of 1974 against his father Manne Papaiah, brother Manne Ramaswamy and sons of Ramaswamy claiming 1/3rd share to him. In the said suit initially he stated that he himself went in adoption to Yellappa but again during the pendency of the proceedings, he admitted that as Yellappa was not having male issues, he gave his son Ramulu in adoption to Yellappa. Even in issue No.5, the Court held that son of plaintiff went in adoption to Yellappa but not the plaintiff in that suit. The first defendant deposed that he gave first plaintiff in adoption to 21 Yellappa and also filed adoption deed, but for the reasons best known to him in this suit he denied the adoption. Defendants also filed third party affidavit of Anthamma in I.A.No.181 of 1993 in which she stated that she never treated first plaintiff as their adopted son and his marriage was also performed by his father. The subject affidavit was filed on 05.08.1994 with the thumb impression of Anthamma, but she was not made as party to the present suit. In view of the admission of first defendant who is none other than the father of the first plaintiff, the Court cannot rely upon the third party affidavit of Anthamma. Adoption deed was executed in Urdu on 07.08.1965 vide Document No.39 of 1965 and its translation is also filed before the Court. In the said document Anthamma was shown as one witness and Eshwaraiah was shown as another witness and it was executed by Yellappa.
22. The counsel for the defendants contended that the name of father of the first plaintiff is shown as the first defendant in all the records and also in the wedding card, if at all he was adopted by his grand-father his name should be reflected in all the records. The peculiarity of this case is that the grand-father of the first plaintiff adopted his daughter's son as he has no 22 male issues for performing his last rites. Though he has taken care of first plaintiff from his childhood, the adoption deed was executed in the year 1965 and he studied 10th class in the year 1969 and marriage was performed in the year 1970 and even in the suit the father name of the first plaintiff is shown as the first defendant only, merely because father's name of the first plaintiff was not shown as Yellappa, the registered adoption deed executed way back in the year 1965 cannot be disbelieved. In the said adoption deed it was specifically mentioned that he performed all religious and Shastric ceremonies of adoption. The first defendant clearly admitted that he gave his first son in adoption to Yellappa, therefore it can be presumed that there was giving and taking of the child in adoption and the religious and Shastric ceremonies were also performed at the time of adoption and he took care of Ramulu from childhood, as Yellappa had no male issues, he adopted his grand-son as his son for all purposes therefore, I do not find any reason to disbelieve the adoption of first plaintiff by Yellappa. Therefore, this Court finds that first plaintiff is the adopted son of Yellappa. Moreover, Yellappa himself declared first plaintiff as his adopted son in Land Ceiling Case in C.C.No.2276 of 1975. 23
23. Admittedly, the adopted deed was executed in the year 1965 and declaration was given in the year 1975. Moreover, under Ex.A14 verification report given by the verifying officer under Land Ceiling Act, after due enquiry it was observed that Yellappa was in possession of the land, he has no sons and he adopted his daughter's son Ramulu, as such the declaration was also verified and confirmed by the concerned authorities. Moreover, the adoption deed was registered and it is a public document, adoption was done to the knowledge of the first defendant and his children, but they never disputed the same till the filing of the suit in the year 1999. Moreover, the first defendant who filed written statement and disputed the adoption deed did not entered into the witness box, as such the learned Counsel for the appellants relied upon the decision of the Hon'ble Supreme Court in the case of Basant Singh Vs. Janki Singh and others in which it was held as follows:
"Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits."
In view of the above discussion, this Court finds that first plaintiff is able to establish that he is the adopted son of Yellappa.
24
24. The first plaintiff contended that item Nos.1 to 7 properties are pertaining to his grand-father Yellappa and he executed Will in favour of him on 07.11.1984. In the said Will he stated that he was suffering from leprosy from the past 25 years, as he has no male children he adopted his daughter's son first plaintiff and bequeathed his properties in favour of his adopted son by executing a Will in a sound and disposing state of mind voluntarily. Plaintiffs also examined the attestor of the Will as P.W.2 and he stated that Yellappa affixed his thumb impression before the Sub-Registrar in their presence and he along with Chandramouli and Krishna acted as witness to the Will.
25. The main contention of the first defendant is that on the date of execution of the Will, wife and daughter of Yellappa were alive, but Yellappa executed Will ignoring his family members in favour of adopted son, as such it is not valid. But, the learned Counsel for the appellants relied upon the decision of the Hon'ble Supreme Court in the case of Bharpur Singh and Ors.Vs. Shamsher Singh in which it was held as follows:
"Deprivation of due share to the natural heirs by itself may not be a suspicious circumstance, it is one of the 25 factors which is taken into consideration by the Courts before granting probate of Will."
The learned Counsel for the appellants further relied upon the decision of the Hon'ble Supreme Court in the case of S.Amarjit Singh Vs. State and others, in which it was held as follows:
"That suspicious circumstance ought to have been pleaded and urged. Those cannot be pleaded or urged for the first time before the appellate Court specially when foundation of such a suspicious was not laid before the Probate Court not pleaded otherwise."
He also relied upon the decision of the Hon'ble Supreme Court in the case of Madhukar D.Shende Vs. Tarabai Aba Shedage, in which it was held as follows:
"It is also a settled proposition of law, fraud, coercion or undue influence is alleged in execution of a Will, the burden of proving the same would be on the person by whom such a plea is set up."
26. As per the evidence of defendant No.1, he along with his wife stayed in the house of Yellappa and he took care of Yellappa during his life time and also he was doing cultivation of his agricultural lands. Even after the death of his wife Rachamma, he looked after his mother-in-law Anthamma till her death and he also performed her last rites. Whereas, the first plaintiff contended that he alone took care of his grand- father, as such he executed properties in his name. No doubt, 26 Will was executed in the year 1984 and Yellappa died in the year 1985. Even plaintiff witness stated that defendant No.1 was took care of Yellappa but not the first plaintiff, when first plaintiff was given in adoption by the first defendant to Yellappa, the first plaintiff will lose all his rights on properties of his natural family and he is entitled for rights on properties of adopted family. Admittedly, Yellappa adopted first plaintiff as he has no male issues and stated that he is his adopted son for all purposes, as such he might have executed sale deed in favour of his adopted son and bequeathed all the properties in his favour. Merely because he has not provided any share to his wife and daughter and not even provided any maintenance to them cannot be considered as a suspicious circumstance. As defendant No.1 contended that Will deed was brought up by the first plaintiff, it is for him to disprove the Will. As he failed to enter into the witness box, he failed to disprove the Will. Plaintiffs filed registered Will deed and deposed orally and also examined attesting witness in support of their contention. As per the provisions of Indian Evidence Act, he has to examine atleast one attesting witness to prove the Will and thus Plaintiffs were able to prove the Will deed executed in his favour as P.W.2 stated that Yellappa affixed his thumb impression in their 27 presence and he along with Chandramouli and Krishna acted as attestors for the Will and the Will deed was also registered in the Sub-Registrar Office, the contents of it cannot be disproved. Yellappa is the father-in-law of defendant No.1. Defendant No.1 himself gave his elder son in adoption to Yellappa. When Yellappa executed all the properties in the name of his own son, why he disputed the adoption deed and also the Will deed is not explained anywhere. The defendant No.1 along with his sons contended that after the death of Yellappa, properties devolve on his wife and daughter. When both of them expired, as they are joint family properties defendants No.1 to 5 and 1st plaintiff are equally entitled for the properties of Yellappa, as such defendants disputed the Will deed in which all the properties were executed in favour of first plaintiff by his adopted father.
27. The learned Counsel for the appellants relied upon the decision of the Hon'ble Supreme Court in the case of Ramabai Padmakar Patil Vs. Rukminibai Vishnu Vekhande and others,1 in which it was held as follows:
"A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, 1 (2003) 8 SCC 537 28 there is no necessity at all of executing a Will. It is true that a propounder if the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be suspicious circumstance especially in a case where the request has been made in favour of an offspring. In PPK Gopalan Nambiar v. PPK Balakrishan Manbiar and Ors., AIR (1995) SC 1852 it has been held that it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. In this case, the fact that the whole estate was given to the son under the Will depriving two daughters was held to be not a suspicious circumstance and the finding to the contrary recorded by the District Court and the High Court was reversed. In Pushpavati and Ors. v. Chandraja Kadanba and Ors., AIR (1972) SC 2492, it has been held that if the propounder succeeds in removing the suspicious circumstance, the Court would have to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. In Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by Lbs. and Ors., [1950] 4 SCC 459, it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession in and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly. The concurrent finding recorded by the District Court and the High Court for doubting the genuineness of the Will on the aforesaid ground was reversed."
And also argued that in this case, first plaintiff examined the attestor and proved execution of Will and as per the document 29 Will was executed by Yellappa when he was in sound and disposing state of mind with free Will and he was in a position to understand the consequences of his act. As per the evidence on record, defendant No.1 along with his wife and children and first plaintiff were residing in the house of Yellappa. Will was executed in the year 1984 and Yellappa died in the year 1985. They have not raised any objection regarding execution of the Will in favour of the first plaintiff. Defendants contended that they came to know about execution of Will in favour of first plaintiff only few days prior to the filing of O.S.No.52 of 1999, even if it presumed, why they have not filed any suit for cancellation of the Will deed prior to the filing of this suit was not explained. Initially plaintiff filed suit for injunction in O.S.No.182 of 1993 and obtained an interim injunction in I.A.No.181 of 1993. Aggrieved by the interim injunction respondents preferred C.M.A.No.15 of 1995 and the same was allowed by setting aside the Judgment and Decree of the trial Court in I.A.No.181 of 1993. Against the Judgment of the appellate Court in C.M.A.No.15 of 1995, appellants preferred C.R.P.No.467 of 1996 before High Court of Andhra Pradesh and the same was disposed by Order dated 17.06.1999 directing the trial Court to dispose of the said suit within a specific period. 30 After the disposal, plaintiffs have amended their plaint and filed suit for declaration on 08.10.1999. When defendant No.1 and his sons came to know about the execution of the Will deed in favour of the first plaintiff in the year 1993, they disputed Ex.A13 Will deed in the said suit. They have not initiated any proceedings either before the judicial authorities or before the Revenue authorities. The first Plaintiff stated that in pursuance of the Will deed, his name was mutated in the revenue records after the death of Yellappa in the year 1985, from then onwards he was paying land revenue to the Government regarding the suit schedule properties. As the defendant No.1 and his sons and plaintiff No.1 were residing in the same village it cannot be said that they have no knowledge about the mutation of plaintiff No.1 in the revenue records from 1985-1993.
28. Defendants further contended that mutation of entries in the revenue records is basing on the Will deed but not on adoption deed. In fact, Yellappa adopted first plaintiff under adoption deed, as he was adopted son, he executed Will deed in favour of first plaintiff at the fag end of his life. It was stated in the Will deed that Yellappa was suffering from leprosy, as such his thumb impression was affixed. Admittedly, by the above 31 discussion it cannot be said that there is suspicious circumstance in the execution of the Will deed by Yellappa in favour of his adopted son and first defendant proved the Will by presenting oral and documentary evidence. Therefore, this Court finds that the Judgment of the trial Court is not on proper appreciation of facts and is liable to be set aside. As the suit is filed for declaration and to declare plaintiffs as Pattedars and for perpetual injunction in respect of the suit schedule properties this Court finds it just and reasonable to declare the first plaintiff as owner and Pattedar of the suit schedule property, as second plaintiff is the son of first plaintiff both of them are declared as owners of item Nos.1 to 7 of the suit schedule properties.
29. The first plaintiff contended that he purchased item No.8 in the name of his son vide registered sale deed bearing Doc.No.442 of 2019, it was contended that defendant No.1 purchased item No.8 in the name of second plaintiff as the first plaintiff has no source of income to purchase the item No.8 in the name of his son. As per Ex.A12 dated 04.04.1979, the property was purchased by first plaintiff in favour of his minor son aged about 5 years for an amount of Rs.4,000/- vide 32 Doc.No.447 of 1979. As it was also purchased in the year 1979 and the title was not disputed till filing of the suit in the year 1993 and the first plaintiff stated that when the second plaintiff attained the age of majority, it was transferred in the name of second plaintiff, this Court finds it just and reasonable to declare the second plaintiff as owner and possessor of the item No.8 of the suit schedule property.
In the result, the appeal is allowed by setting aside the Judgment and Decree passed by the trial Court in O.S.No.52 of 1999 dated 31.08.2005. The first plaintiff is declared as the owner and possessor of item Nos.1 to 7 and second plaintiff is declared as owner and possessor of item No.8 of the suit schedule property. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATED: 20.01.2023 tri 33 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA APPEAL SUIT No.278 of 2006 DATED: 20 .01.2023 TRI