T.Satyavathi And 11 Others vs G.Veera Venkata Ratnavathi Died ...
2021 Latest Caselaw 428 AP

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

                 APPEAL SUIT No.2922 of 1990
                               &
            ASMP 1007 of 2014 in A.S.No.2922 of 1990

COMMON JUDGMENT :

       This appeal filed under Section 96 CPC is directed against the

decree and judgment in O.S.No.59 of 1998 dated 25.01.1990 of the Court

of the learned I Additional District Judge, Rajahmundry.


      2. The defendants 1 to 3 and 5 to 10 are the appellants. The

plaintiff is the 1st respondent and the defendants 4 and 11 are the

respondents 2 and 3 respectively. The 1st respondent/plaintiff died during

pendency of this appeal and her L.Rs. are respondents 8 to 13. The 4th

respondent also died and his L.Rs. are the respondents 23 to 27. The 1st

appellant died and her L.Rs. are the appellants 4 to 6 and the appellant

No.10. The 4th appellant died and his L.Rs. are the appellants 11 and 12.

The 2nd respondent died and her L.Rs. are the respondents 14 to 16.

Similarly, the 5th respondent died and her L.Rs. are the respondents 17 to

11. The respondents 28 to 31 were brought on record being the L.Rs. of

the deceased 8th respondent.


      3. The parties as arrayed in the plaint shall be referred to

hereinafter for convenience.


      4. The plaintiff is no other than the wife of Sri late Grandhi Virraju.

They have four daughters viz., the defendants 1 to 4 and six sons. They

were residents of Srikrishna Patnam near Rajahmundry, East Godavari

District. The defendants 5 to 7 are the children of the 1st defendant and

Sri Suryanarayana Murthy. The defendant No.8 is the son of defendant

No.2 and Sri Satyanarayana Murthy. The defendant No.9 is his brother.
                                                                               MVR,J
                                                                  A.S.No.2922 of 1990



                                         2



The defendant No.10 is the son of defendant No.3 and Sri Ramakrishna.

The defendant No.11 is the son of defendant No.4 and Sri Sriprasad.


         5. The plaintiff laid the suit for the following main reliefs, amongst

others.


             "(a)for cancellation of the three settlement-deeds dated 24-2-1986,
                  25-2-1986 and 27-2-1986 in respect of items 1 to 3 of the plaint
                  schedule property respectively and also the sale deed dated 28-
                  2-1986 in respect of item 4 of the plaint schedule property
                  which were obtained by defendants 1 to 4 fraudulently from the
                  plaintiff;
             (b) by granting a permanent injunction restraining defendants from
                 interfering with plaintiff's possession of item 4 of the plaint
                 schedule property;"


         6. The property in dispute is described in the plaint schedule as

under:


         "Item No-1: East Godavari Dt., Rajahmundry Tq.,
         Rajanagaram Mandalam, Srikrishnapatnam
         Village, R.S.No.243, Jeroiti dry full extent 3-17 (Hc.1.283)

         Item No.2:
         (A) do     do      do Jeroiti dry
         R.S.No.239/2 full extent Ac. 1-98 cents

         (B) do   do       do Jeroiti dry
         R.S.No.241/4 full extent Ac. 1-07 cents      3-05 (Hc. 1.234)

         Item No.3: do do Jeroiti dry
         R.S.No.239/1, full extent                   2-37 (Hc.0.959)

         Item No.4: do do Jeroiti dry
         R.S.No.240 full extent                      3-91 (Hc.1.582)
                                                     ------

12.50 (Hc.5.058)

------"

7. They shall be referred to hereinafter as 'the suit lands', for

convenience.

8. The plaintiff was owner of Ac.20-00 of land at Srikrishna

Patnam, a major part of which was acquired by her from late husband Sri MVR,J A.S.No.2922 of 1990

Grandhi Virrraju under a registered Will dated 23.07.1982. She had

absolute right, title and interest to these properties. Sri Grandhi Virraju

and his sons got divided their family properties evidenced by a partition

list dated 26.02.1980. Thereafter, all of them began to live separately.

The defendants 1 to 4 were married even during the lifetime of Sri

Grandhi Virraju. He died in or about the year 1983.

9. The suit lands comprising a compact extent out of Ac.20-00, is a

garden, where fruit bearing trees like Orange, Lemon, Batavia, Mango

etc., were raised. They were all yielding crop and the usufruct was being

sold to third parties. There was no cultivation of any type in the suit lands

as such since there was growth of these fruit bearing trees. There were a

cattle shed and hut for residence of the farm servant in this land, apart

from a hayrick yard.

10. It is desirable to consider the pleadings set up by the parties

before adverting to the evidence and material on record.

11. The case of the plaintiff in brief as seen from the plaint is as

under:

(a) The 8th defendant was then studying Engineering at

Hyderabad. During the 1st week of February, 1986, he requested

the plaintiff to accompany him to Korukonda-his village, to assist

his mother, since his father was undergoing piles surgery at

Rajahmundry. Believing the same, the plaintiff went to Korukonda

along with the 8th defendant on 9th or 10th February, 1986. During

her stay, the 2nd defendant and her son viz., the 8th defendant MVR,J A.S.No.2922 of 1990

exerted pressure on her to execute a Will in favour of the

defendants 1 to 4 bequeathing her properties in equal shares

representing that she could cancel it at her pleasure. It made her

to execute a registered Will dated 11.02.1986 at Korukonda

bequeathing the suit lands in favour of the defendants 1 to 4 in

equal shares, for their enjoyment and vested remainder in favour

of their male progeny. Thereafter, she was informed that the

proposed surgery of the husband of the 2nd defendant was

cancelled and the 2nd defendant took the plaintiff to Peddapuram to

the 3rd defendant without disclosing the purpose.

(b) At Peddapuram, the 3rd defendant, her husband and her

father-in-law Sri Vemula Jagannadha Murthy, a powerful and

influential person as well as a seasoned litigant, coerced her to

execute certain documents in respect of her properties and

threatened with dire consequences if she refused. The plaintiff

refused to oblige such demands stating that she had already

executed a Will and did not want to execute any further

documents. However, because of her old age and the

circumstances in which she was placed, she was made to sign on

certain documents. She was forcibly taken to Kakinada by the 8th

defendant and Sri Vemula Jagannadha Murthy, making her to sign

certain documents and during the period from 24.02.1986 to

28.02.1986, she was made to admit execution of the documents

in respect of the suit lands before the District Registrar. She being MVR,J A.S.No.2922 of 1990

an illiterate and did not know the contents of the documents, she

was threatened and subjected to duress for such purpose.

(c) Three or four days after 28.02.1986, the 3rd defendant,

her husband and her father-in-law as well as the 8th defendant

allowed her to go, that made her to return to her village

Srikrishnapatnam, where she informed what happened to her sons.

Upon enquiry she learnt that three settlement deeds dated

24.02.1986, 25.02.1986 and 27.02.1986 purporting to convey items

1 to 3 of the suit lands in favour of the defendants 1 to 4 with life

interest to her and after her lifetime, creating life interest in their

favour with vested remainder to their male progeny were brought

out. A sale deed dated 28.02.1986 was also obtained as if the

defendants 1 to 4 purchased item No.4 of the suit lands for a

consideration of Rs.39,100/- and that this land was delivered in

possession to them.

(d) All the recitals in the above documents are false, never

acted upon nor property was delivered in possession in terms of

the sale deed dated 28.02.1986. Execution of these documents was

never voluntary nor was the plaintiff intending to execute these

documents in favour of the defendants 1 to 4 or as per their

contents. In those circumstances, she was constrained to lay the

suit.

12. The defendants 1 to 4 resisted the claim of the plaintiff as set

out in the plaint denying that there was any coercion or duress which she

was subjected to in bringing out the documents in question. They MVR,J A.S.No.2922 of 1990

contended that she executed all these documents on her free will and

voluntarily. They further contended that she visited the 2nd defendant at

Korukonda, on her own, where she executed the Will dated 11.02.1986

and got it registered voluntarily, calling necessary attestors and getting it

scribed.

(a) The defendants also contended in the written statement

that a few days after executing the Will dated 11.02.1986, the

plaintiff told that her sons would compel her to cancel the said Will

and asked the defendants 2 and 8 to get registered conveyances,

so that they would not be cancelled. Since this process required a

lot of money, it is contended by the defendants that the plaintiff

along with the defendant No.8 went to Peddapuram to consult the

husband of the 3rd defendant and her father-in-law. It is also the

contention of the defendants that on the advice of father-in-law of

the 3rd defendant, she agreed to execute three settlement deeds

and when the plaintiff told that she had to discharge debt of

Rs.20,000/- to her 2nd son, every one of the defendants 1 to 4

upon contributing Rs.10,000/- each, paid to the plaintiff for the

purpose of discharging the above debt as well as meeting the

expenses relating to execution of proposed documents. Thus, the

defendants 1 to 4 contended that the plaintiff voluntarily and

willingly, as per her instructions, executed three settlements deeds

and for consideration she executed a sale deed. They also

contended that these documents were registered in the office of

the District Registrar at Kakinada, knowing their contents and their MVR,J A.S.No.2922 of 1990

purpose. They further contended that after executing these

documents, she visited her 4th son at Kakinada, where she stayed

for a week, thereafter returned to Peddapuram and later to

Kakinada. After staying for about 15 days at Kakinada, she went to

her village Srikrishna Patnam.

(b) The defendants also contended in the written statement

that she was prevailed upon by her sons to file the suit against her

will and that she did not know the contents of the plaint nor the

purpose of filing the suit. No police report was given nor any legal

notice before the institution of the suit according to their contention

in the written statement.

13. Basing on the above pleadings, the trial Court settled the

following issues for trial:

"1.Whether the three settlement deeds dated 24.2.86, 25.2.86 and 27.2.86 in respect of items 1 to 3 of the plaint schedule property and the sale deed dated 28.2.86 were obtained by defendants 1 to 4 from the plaintiff, fraudulently and under coercion?

2.Whether the plaintiff is entitled for cancellation of those three settlement deeds and the sale deed as prayed for?

3. Whether the plaintiff is entitled for a permanent injunction as prayed for?

4. To what relief?"

14. At the trial, the plaintiff examined herself as P.W.1,P.W.2-an

Advocate Commissioner, P.W.3-her 2nd son, while P.W.4 being the

document writer, while relying on Ex.A1 to Ex.A10. The 8th defendant

examined himself as D.W.1 and the scribe of the originals of Ex.A1 to

Ex.A4 as D.W.2, D.W.3 being the father-in-law of the 3rd defendant, MVR,J A.S.No.2922 of 1990

D.W.4 a resident of Peddapuram and neighbour of D.W.3, in support of

the defence set up by the defendants, while relying on Ex.B1 to Ex.B3.

15. Basing on the material and the evidence, the learned trial

Judge held in respect of issues 1 and 2 that the originals of Ex.A1 to Ex.A4

were obtained by fraud, mis-representation and undue influence applying

doctrine of 'non est factum'. The relief of Permanent injunction was

granted while considering issue No.3. Thereby relief as sought in the suit

was granted holding that the originals of Ex.A1 to Ex.A4 are vitiated by

fraud and coercion, directing their cancellation.

16. Sri Vedula Venkata Ramana, learned senior counsel, for Sri

Prabhakar Peri, learned counsel for the appellants and Sri E.V.V.S.Ravi

Kumar, learned counsel for the respondents addressed arguments in this

appeal.

17. As seen from the material in this case, A.S.M.P.No.1007 of

2014 under Order-41, Rule-27 CPC was filed by the respondent No.11 to

receive additional documents viz., copies of gift deed dated 23.02.1999

and certified copies of judgment and decree in O.S.No.731 of 2005 on the

file of the Court of I Additional Junior Civil Judge, Rajahmundry claiming

that the suit lands were gifted to him by the plaintiffs and that other legal

heirs of the plaintiffs are not entitled to any share in the suit lands. The

11th respondent is one of the sons of the plaintiff and according to his

version as seen from the affidavit filed in support of the petition, reception

of these documents is essential for effective and proper adjudication of

the matter in dispute and to avoid multiplicity of proceedings.

MVR,J A.S.No.2922 of 1990

18. In the course of hearing in this appeal, Sri E.V.V.S.Ravi Kumar,

the learned counsel for the respondents, referred to this petition. All the

legal representatives of the deceased plaintiffs were already brought on

record in this appeal and the documents relied on by the 11th respondent,

emanated during pendency of this appeal reflecting a post decretal

situation. In view of this situation since the proposed documents have no

bearing in deciding this appeal, this petition for reception of additional

evidence the same has to be dismissed. Accordingly, A.S.M.P.No.1007 of

2014 is dismissed.

19. Now, the following points arise for determination:

1. Whether the originals of Exs.A1 to A4 were obtained from the plaintiff under duress, by coercion and if they are required to be cancelled?

2. whether the plaintiff is entitled for the relief for permanent injunction against the defendants?

3. Whether judgment and decree of the trial Court are proper?

4. To what relief?

POINT No.1:

20. In terms of Section 101 of the Evidence Act, the burden of

proof is on the plaintiff. The specific case of the plaintiff is that the

originals of Ex.A1 to Ex.A3, which are settlement deeds, and original of

Ex.A4 sale deed were obtained subjecting her to threat, coercion and

applying pressure on her. It is not her case that she was subjected to

undue influence nor a specific case of fraud is projected on her behalf, in

the plaint or in the evidence.

MVR,J A.S.No.2922 of 1990

21. The nature of relief sought in the suit indicates that execution

of originals of Ex.A1 to Ex.A4 is admitted. The manner of their execution

or going by the case of the plaintiff, obtaining them is the main question

to be decided. In these circumstances, it is for the plaintiff to establish

these circumstances whereby she was allegedly threatened, forced or

coerced to execute the originals of these documents.

22. Ex.B1 is the Will dated 11.02.1986 admittedly executed by the

plaintiff in favour of the defendants 1 to 4. It preceded the execution of

originals of Ex.A1 to Ex.A4. The case set up by the plaintiff in the plaint as

well as at the trial is that Ex.B1 Will was also obtained from her subjecting

her to coercion.

23. According to the case of the plaintiff, 8th defendant (D.W.1)

played a predominant role in this entire process and he is no other than

her grand-son being the son of the 2nd defendant.

24. There is no dispute in respect of Ex.B1 Will. Sri E.V.V.S.Ravi

Kumar, learned counsel for the respondents, contended that Ex.B1 itself

did not have any significance in the matter and Sri Vedula Venkata

Ramana, learned senior counsel, contended that execution of Ex.B1 is

admitted, which is not being disputed by the defendants.

25. Ex.B1 Will has a significant effect impacting the veracity of the

claim of the plaintiff in this case.

26. According to the plaintiff as P.W.1, in the 1st week of February,

1986, she went to the house of the 2nd defendant at Korukonda along

with the 8th defendant, since she was requested to assist the 2nd MVR,J A.S.No.2922 of 1990

defendant, whose husband was undergoing surgery for piles at

Rajahmundry. At Korukonda, it is the case of the plaintiff that the

defendants 2 and 8 brought pressure on her to execute a Will in favour of

her daughters viz., the defendants 1 to 4 and that she did so since, she

was given to understand that this Will could be revoked at any time if she

intended. In her deposition as P.W.1, the plaintiff specifically stated that

she heeded to the compulsion of the defendants 2 and 8 on the premise

that the Will could be cancelled at any moment. Details of execution of

this Will are stated in the deposition of P.W.1. She stated that she did not

carry any documents by then, like title deeds for the purpose of execution

of this Will.

27. But, the contents of Ex.B1 belies her statement. There are

details of the properties which the plaintiff intended to bequeath in favour

of her daughters with recitals relating to the manner of acquisition of the

properties by her from her husband under the Will dated 23.07.1982,

preceded by a partition among her husband and sons dated 26.02.1980.

Apart from the extents conferred upon the defendants 1 to 4, Ex.B1 also

refers to a bequest of Ac.2-00 of land in favour of Sri Nageswara Rao,

who is her brother after her lifetime with life interest and thereafter, his

male progeny to get this property.

28. Cross-examination of the plaintiff as P.W.1 on behalf of the

defendants has brought out certain statements, which bear significance in

this matter. She admitted that Ex.B1 Will was executed only in respect of

Ac.12-00 of land out of Ac.20-00 bequeathed to her by her husband. It is

interesting to note that the defendants 2 and 8 had prevailed on her to MVR,J A.S.No.2922 of 1990

execute the Will, giving away the properties to all her daughters equally

which the plaintiff admitted. She further stated that the 2nd defendant felt

that it would not be proper for her to demand execution of the Will for the

entire property in her favour and to confer this property on all of them

viz., the defendants 1 to 4 to get her share. The property covered by

Ex.B1, is the very same property, which is subject matter of Ex.A1 to

Ex.A4 transactions.

29. The plaintiff as P.W.1 further admitted that the defendants 2

and 8 did not compel her to execute Ex.B1 for remaining extent of

Ac.8-00, out of the property acquired by her from her husband and her

own property. She further admitted that these defendants 2 and 8 did not

compel her to bequeath some property to her brother viz., Sri Nageswara

Rao.

30. Ac.2-00 of land conferred as a bequest upon Sri Nageswara

Rao by the plaintiff was purchased by her from Smt. Mandavilli

Suryakantham, who is the sister of her husband. It is the property given

by means of a settlement under Ex.B2 dated 27.03.1986 to Sri Nageswara

Rao. Therefore, from the above statements, it is manifest that neither

with reference to remaining property belonging to her or in respect of

entire extent, the defendants 2 and 8 did not bring any pressure on the

plaintiff. These statements further prove that the 2nd defendant was fair

enough to request the plaintiff to execute Ex.B1 Will to have equal

distribution of the property among all the sisters. The fact that Ac.2-00

was bequeathed in favour of Nageswara Rao under Ex.B1, which later on

manifested in the shape of Ex.B2 settlement deed in his favour, is clear MVR,J A.S.No.2922 of 1990

circumstance pointing out that the so-called force or pressure brought on

the plaintiff to execute Ex.B1 Will is not correct.

31. When Ex.B1 Will admittedly was executed by the plaintiff

making such dispositions of the property, when its contents coupled with

the statements elicited from the cross-examination of the plaintiff are

considered, they leave no manner of doubt that the transaction under

Ex.B1 was a voluntary effort by the plaintiff in order to distribute her

properties in a rationale manner.

32. The impact of the same should be considered in respect of the

transactions covered by Ex.A1 to A4 and which are sought to be tainted

as such transactions, which were forced upon the plaintiff. Thus, the

foundation of the case of the plaintiff in this respect suffered a serious

dent. Therefore, the contention on behalf of the plaintiff that Ex.B1 Will

did not have any effect in this case is not correct.

33. On account of the transactions under Ex.A1 to Ex.A4 and

Ex.B2, this Will (Ex.B1) stood revoked undoubtedly. Yet it cannot be

relegated to the background of being of no consequences in this case.

34. The case of the plaintiff is also that she was taken to

Peddapuram to the house of her third daughter (3rd defendant) by the 8th

defendant. She voluntarily accompanied 8th defendant to the above place.

35. The defence version is that the plaintiff was apprehensive of

interference of her sons on account of execution of Ex.B1 Will by her in

favour of the defendants 1 to 4 and who would prevail upon to revoke the

same. Therefore, according to the defendants, the plaintiff expressed her MVR,J A.S.No.2922 of 1990

intention to execute registered conveyances in favour of her daughters for

which purpose she asked the defendants 2 and 8 and since it would

involve a lot of money, as desired by the plaintiff, she along with the 8th

defendant came to Peddapuram. The reason to visit the 3rd defendant at

Peddapuram was to have an advice from father-in-law of the 3rd

defendant in this respect, who was one of the mediators who admittedly

settled the partition transaction among her husband and her sons. The 8th

defendant as D.W.1 specifically deposed in this respect that, on or about

15th or 16th February, 1986, both of them went to the 3rd defendant at

Peddapuram. Father-in-law of the 3rd defendant viz., D.W.3 also deposed

in this respect corroborating the version of D.W.1.

36. In seeking assistance of D.W.3 by the plaintiff in respect of

Ex.A1 to Ex.A4 transactions, there is no artificiality as such. He as an

elder, who settled partition of the properties among her husband and her

sons. Being no other than the father-in-law of her daughter, who had

helped their family earlier, in the circumstances stated by the defendants,

upon execution of Ex.B1 Will, she would have preferred to approach him

at Peddapuram to see that her daughters did not face the consequences

thereof and in order to see that her intention of conferring certain

properties to her daughters, is secured by means of registered

conveyances. Apparently in that process she approached D.W.3 at

Peddapuram and the transactions thereafter went on.

37. At Peddapuram, as per the version of D.W.1 and D.W.3, with

the assistance of D.W.2, who was a document writer and a neighbour of

D.W.3 for long at Peddapuram, the extent of expenditure was arrived at.

MVR,J A.S.No.2922 of 1990

At the same time, their version is that the plaintiff informed them that she

had borrowed Rs.20,000/- from her 2nd son (P.W.3) and to raise

Rs.40,000/- to meet the expenditure relating to execution of the

registered conveyances in favour of D1 to D4 and to discharge the

amount due to her 2nd son. The evidence of these witnesses also reflected

that each daughter was asked to contribute Rs.10,000/-. Thus, their

evidence is to the effect that Rs.40,000/- was pooled up for this purpose.

38. The plaintiff denied this version of the defendants contending

that there was no necessity for her to borrow from any one nor she had

borrowed.

39. It is to be noted that the 2nd son of the plaintiff was examined

at the trial as P.W.3. As seen from his deposition, no explanation was

elicited on behalf of the plaintiff with reference to this specific defence

that the plaintiff had borrowed Rs.20,000/- from him and which she

should repay. It is the significant omission and cannot be overlooked.

40. The evidence on behalf of the defendants is also that with the

assistance of D.W.2 required stamp papers were purchased.

41. In cross-examination of D.W.1, it was elicited that the plaintiff

suggested to prepare a sale deed for Ac.4-00 in favour of the defendants

1 to 4 since they contributed Rs.10,000/- each. The version of D.W.3 in

this context is on the same lines, corroborating and supporting the

testimony of D.W.1. The evidence of D.W.2 is also that he scribed the

original of Ex.A4 as per the instructions of the plaintiff, since she had

received Rs.40,000/- from her daughters, supporting D.W.1. He further MVR,J A.S.No.2922 of 1990

deposed in respect of execution of originals of Ex.A1 to Ex.A3

corroborating the testimony of D.W.1 and D.W.3.

42. The contents of Ex.A1 to Ex.A3 stand similar and alike, except

the extents of the land. There is no dispute that they were executed by

the plaintiff on 24.02.1986, 25.2.1986 and 27.2.1986 respectively. They

were registered in the office of the District Registrar at Kakinada. A limited

interest was assigned under the originals of these documents in favour of

defendants 1 to 4 and their male progeny to succeed to these properties

after their lifetime. They were attested by one Sri P.Nageswara Rao and

Sri P.B.Jogi Raju. P.W.2 is the scribe of these settlement deeds.

43. It is the contention of the plaintiff that these persons who

attested these settlement deeds were then all stock attestors available at

the premises of the Registrar's Office at kakinada, who upon receiving

small sums of money like Rs.2/- or Rs.3/- offer their services to attest.

Thus, they are sought to be characterised as professional attestors and

therefore, these documents did not meet the requirements of attestation

in terms of Section 3 of the Transfer of Property Act. There is testimony of

the plaintiff as P.W.1 in this context.

44. P.W.3 also deposed in respect of their alleged nature. He

further deposed that Sri Nageswara Rao is co-brother of father-in-law of

the 3rd defendant. Since D.W.2 is a close associate of D.W.3, it is the

contention of the plaintiff that the testimony of all these individuals, who

were associated with the transactions of execution of originals of Ex.A1 to

Ex.A3, they are suspicious. Contentions are also advanced to the effect

that the defendants should have examined the attestors to explain away MVR,J A.S.No.2922 of 1990

the circumstances under which the originals of Ex.A1 to Ex.A3 were

executed and registered.

45. D.W.2 also stated in his cross-examination that Sri Ch.Govinda

Raju and Sri P.V.Jogi Raju are in the habit of attesting documents by

taking some money as attestors as their fee. He further deposed that

they will be available at registrar's office always. Identifying witnesses to

the originals of Ex.A1 to Ex.A3 are also of similar nature as of the

attestors. Therefore, having regard to these circumstances it is the

contention of the plaintiff that no credence as to voluntary execution of

the originals of Ex.A1 to Ex.A3 can be attached.

46. From the material on record, it is clear that originals of Ex.A1

to Ex.A3 were registered on three different dates referred to above. It is

also in the evidence of the parties that every day the plaintiff went to

registrar's office at Kakinada and in the presence of the concerned

Registrar she confirmed execution of these documents. As rightly

contended for the defendants by Sri Vedula Venkata Ramana, learned

Senior Counsel, at no stage on all these days, the plaintiff had raised any

protest or objection and that she quietly admitted execution of these

documents in the presence of the registering authorities. In those

circumstances, the learned senior counsel contended that in view of

Section 34 of the Registration Act, since the registering authorities are

under the obligation to enquire the executant about execution, having

regard to the duties these authorities discharge in regular course of

performance of their activity, in the presence of the nature of the case set MVR,J A.S.No.2922 of 1990

up by the plaintiff, execution of these documents voluntarily by the

plaintiff, cannot be doubted.

47. In terms of Section 34 of the Registration Act, the registering

authorities should enquire the executant of a document before

registration. The evidence on record makes out that P.W.1 did attend the

concerned registration office at Kakinada and in the presence of the

Registrar concerned, apparently she admitted execution of the

documents. Obviously, on all the dates when she appeared, she had no

occasion to raise any question, protest or inform the concerned registering

authority that she was forced or threatened to kill, if she refused to

execute these documents.

48. The version of the plaintiff is that at Peddapuram, after she

stayed for 4 days, the defendant No.8 and D.W.3 forced her to sign on

certain stamp papers going to the extent of threatening her with dire

consequences and on account of the pressure so built up, she was made

to sign on those papers and present herself before the registration office

at Kakinada. This version of the plaintiff is rather difficult to accept. It is

not as though on a single day all the transactions took place and in one

go. Every day she attended the office of registering authority at Kakinada

on all the four days. At no stage, she made her resentment in obtaining

these documents, known to anyone on all these days. Though her version

is that she did not carry any title deeds or documents relating to these

properties as stated above with reference to Ex.B1 Will, it is hard to

believe. The version of D.W.1 is clear that she had all necessary MVR,J A.S.No.2922 of 1990

documents and D.W.2, as deposed by him, prepared the settlement deeds

basing on the documents supplied by the plaintiff herself.

49. In the circumstances, non-examination of the attestors, is not

fatal by itself. As rightly contended by Sri Vedula Venkata Ramana,

learned senior counsel, it is not the case where execution of the

documents itself is denied. Unless there is specific denial in this context in

terms of Proviso to Section 68 of the Evidence Act relating to proof of

execution of the documents required by law to be attested, it is not

necessary to call an attesting witness in proof of their execution. Only

exception made out in terms of Section 68 of the Act is 'Will', which is not

only governed by Section 68 of the Evidence Act but also Section 63 of

the Indian Succession Act.

50. Apart from silence of the plaintiff to raise any object in respect

of registration of these documents before the registering authorities, there

are further circumstances which make out that the contest offered by her

questioning these documents is not proper. She had an opportunity to

ventilate about the manner by which she was allegedly forced to execute

these documents. It was when Smt. Kamala, who is her sister, visited her

at peddapuram. Smt. Kamala is a resident of Pithapuram, who was with

the plaintiff on a day during the above period. The plaintiff could have

informed Smt. Kamala the manner by which the originals of Ex.A1 to

Ex.A4 were obtained. One of the sisters of her husband by name Smt.

Mandavilli Suryakantham is a resident of Peddapuram. According to

D.W.1, the plaintiff had also visited her at Peddapuram. It is also in the MVR,J A.S.No.2922 of 1990

evidence of P.W.1 that she did not inform about these transactions to the

son of Sri Mandavilli Suryakantham, who is an Advocate at Peddapurm.

51. The evidence of D.W.4, who is a neighbour of D.W.3, is with

reference to movements of the plaintiff, when she was in the house of

D.W.3 at Peddapuram. It reflected that the plaintiff was not prevented

from meeting any one nor she was confined or restrained in that process.

When these positive circumstances are available from the evidence on

record, it is rather far-fetched to contend that the plaintiff was subjected

to coercion to execute these settlement deeds.

52. Similar is the situation in respect of execution of original of

Ex.A4 sale deed. The circumstances discussed supra equally apply to this

transaction affecting the claim of the plaintiff fatally and to reject.

53. Sri E.V.V.S.Ravi Kumar, learned counsel for the defendants,

strenuously contended that this sale transaction is not supported by

consideration and the evidence presented by the defendants themselves

glaringly makes it out.

54. Ex.A4 reflected that it was a sale transaction for Rs.39,100/-.

Its recitals are that consideration thereunder was received and that

possession of the land thereudner was also delivered to the defendants 1

to 4 by the plaintiff.

55. D.W.1 stated that they did not pay Rs.39,100/- to the plaintiff

on the date of execution. He further stated that they did not take

possession of this land pursuant to it nor the plaintiff has delivered this

land to them. D.W.2-the scribe also stated that no money was paid at the MVR,J A.S.No.2922 of 1990

time of execution of Ex.A4 and that the land covered by Ex.A4 was not

measured in his presence.

56. When the versions of D.W.1 and D.W.2 in respect of pooling

up of Rs.40,000/- are considered, these statements from D.W.1 and

D.W.2 do not gain importance. Evidence of D.W.1 and D.W.3 is to the

effect that Rs.40,000/- was collected on account of the contributions by

defendants 1 to 4, to meet the requirement of the plaintiff. When the

plaintiff had already received the amount which she was expecting, these

statements of D.W.1 and D.W.2 do not have any bearing. Upon execution

of the original of Ex.A4 sale deed, in view of recitals of delivery of

possession thereunder, want of physical delivery of the land covered by it

cannot affect this transaction as such. Added to it, the plaintiff is no other

than the mother of the defendants 1 to 4, who had already executed

three settlement deeds in their favour and Ex.A4 transaction was the last

in the series which took place on 28.2.1986.

57. Therefore, the contentions so advanced on behalf of the

plaintiff in this respect needs rejection.

58. If these transactions had been of such nature as sought to be

propounded by the plaintiff, she did not choose to get a legal notice

issued to the defendants 1 to 4 before institution of the suit. The suit was

instituted on 16.04.1986 and within two months of last of these

transactions viz., the one covered by Ex.A4 dated 28.02.1986. She could

have even presented a complaint to the police making out that she was

coerced and threatened to the extent of doing away with her in securing MVR,J A.S.No.2922 of 1990

these documents. Silence on the part of the plaintiff in this respect

remained unexplained.

59. However, Sri E.V.V.S.Ravi Kumar, learned counsel for the

plaintiff, contended that want of legal notice prior to the institution of the

suit, is not fatal by itself and the purpose of issuing such notice is only to

place the defendants on guard apprising of the proposed action by the

plaintiff. It is further contended by the learned counsel for the plaintiff

that on account of the close relationship among these parties, no

complaint to the police was given particularly when the plaintiff is mother

of the defendants 1 to 4. In this context, it is pointed out by the learned

counsel that D.W.3 was already an accused in a Sessions Case as

admitted by him in cross-examination and in view of such nature of

D.W.3, it is rather hard to expect the plaintiff to give a complaint to the

police.

60. In her examination in chief itself P.W.1 stated that she did not

issue any legal notice before institution of the suit nor present a complaint

to the police questioning these transactions. In such event, the

defendants cannot be expected to cross-examine this witness further.

61. The material on record from the evidence of the plaintiff as

P.W.1 is clear that at the instance of her sons she began this litigation.

She approached her Advocate to file the suit along with her sons. She

secured Ex.A1 to A4 registration extracts through her 4th son Sri

Subrahmanyeswara Raju, a resident of Kakinada. When her sons were

prepared to enter into litigation in respect of these transactions with their

sisters through the plaintiff, issuing a notice before institution of the suit MVR,J A.S.No.2922 of 1990

questioning them, would have been proper. It is the expected reaction

and response in the circumstances from the plaintiff and particularly when

her evidence is that 4 days after execution of the original of Ex.A4 she

returned to her village, where she informed her sons as to what happened

leading to execution of Ex.B1 and Ex.A1 to Ex.A4.

62. Involvement of D.W.3 in a sessions case could not have

prevented her and her sons to give a complaint to the police atleast

against the 8th defendant and D.W.3.

63. These circumstances reflecting conduct of the plaintiff do lend

credence to the contention of the defendants that this entire litigation was

forced upon the plaintiff by her sons for their benefit and that she was

never a willing party for this purpose.

64. One of the contentions of Sri E.V.V.S.Ravi Kumar, learned

counsel for the plaintiff, is that none of the defendants 1 to 4 came

forward to depose and they being the direct beneficiaries in the

transactions, want of their evidence amounts to suppression of the

material evidence. The contents of these settlement deeds are that the

ultimate beneficiaries are sons of the defendants 1 to 4. When D.W.1 is

no other than one of the sons of the 2nd defendant, when the entire case

of the plaintiff as seen from the plaint and her evidence is against him as

if he was responsible for all the alleged troubles she was made to run

through in executing these documents, he is the witness who is proper to

examine. Therefore, he entered the box at the trial and deposed in

respect of all these transactions.

MVR,J A.S.No.2922 of 1990

65. On the other hand, the evidence let in on behalf of the plaintiff

is dependent only on her highly interested testimony as P.W.1 without any

supporting or corroborating evidence. Though P.W.3, her son was

examined at the trial, he was categorical in stating that he did not have

any personal knowledge of all the transactions that commenced during

the 1st week of February and went on upto last week of the same month.

Thus, he clearly gave out that he did not know about Ex.B1 and Ex.A1 to

Ex.A4 transactions.

66. Ex.B2 and Ex.B3 further demonstrate that the plaintiff was

conscious of the nature of documents she was executing. In the sense she

had voluntarily executed Ex.B2 settlement deed on 27.03.1986 in favour

of her brother Sri Nageswara Rao. Ex.B3 is another settlement deed dated

02.03.1986 executed in favour of her sons giving away Ac.6-00 remaining

land belonging to her. When the plaintiff had executed such documents, it

cannot be inferred that she was not oblivious of nature of transactions

covered by Ex.A1 to Ex.A4.

67. In the above circumstances, when the material on record

clearly projects that the transactions covered by Ex.A1 to Ex.A4 were

willingly attended to by the plaintiff, conscious of their nature on her own

volition with a free mind, her version has to be rejected.

68. In this context, the conduct reflected with reference to

execution of Ex.B1 Will by her, as discussed supra, in respect of which she

had chosen to implement a part of her desire and intention reflected

therein in giving away properties to her brother Nageswara Rao is a

definite pointer that she was a willing party to all these transactions.

MVR,J A.S.No.2922 of 1990

69. It is manifest from the material on record that she was made

to enter this litigation only at the instance of her sons, who were

obviously not satisfied with the properties they had on account of the

family partition. It is obvious that they intend to retain the whole property

for themselves.

70. Sri E.V.V.S.Ravi Kumar, learned counsel for the plaintiff, also

referred to a ruling of the then High Court of Andhra Pradesh in

K.Tulasamma vs. Ch.Singamma1 in this respect which was relied on by

the learned trial Judge. The contention in this context by Sri E.V.V.S.Ravi

Kumar is that the plaintiff is an illiterate who had known only to sign.

However, for the reasons stated supra and the manner in which she could

manage the properties, with certain amount of precision, is an indicator

that this illiteracy did not come in her way. The question only is degree of

literacy and if a person is worldly-wise, this alleged deficiency cannot be a

reason.

71. Thus, on a conspectus, when essentially the burden is on the

plaintiff to establish tainted nature of these transactions, particularly when

coercion, force etc., are alleged not only that there should be specific

pleading furnishing all required particulars in terms of Order-6, Rule-4 CPC

but also specific and acceptable evidence on which the Court can implicitly

and unhesitatingly rely on. The material and the evidence of the plaintiff

did not meet these requirements. Therefore, she failed to discharge the

burden in this context. The defendants by the material on record have

.1988(3) APLJ 36 (SN) MVR,J A.S.No.2922 of 1990

probablised their case in preponderance. Therefore, inference to draw is

that the originals of Ex.A1 to Ex.A4 were executed by the plaintiff in

favour of the defendants 1 to 4 consciously out of free will, knowing their

nature and with an intent to confer the properties thereunder in their

favour.

72. The learned trial Judge erroneously placed burden on the

defendants in this regard. As seen from the judgment under appeal the

evidence on record did not receive required attention. There is no

discussion at all with reference to the effect of Ex.B1 to Ex.B3. In these

circumstances, for the reasons stated above, the findings recorded on

issues 1 and 2 by the learned trial Judge are required to be interfered with

and setting aside the same.

73. Thus, this point is answered in favour of the defendants and

against the plaintiff.

POINT NO.2:-

74. Neither there is any pleading nor any proof laid by the plaintiff

at the trial in this connection. The learned trial Judge in view of the

findings on issues 1 and 2 apparently assumed that this relief for

permanent injunction should be extended to the plaintiff.

75. In view of the findings recorded on point No.1 reversing the

judgment of the trial Court on issues 1 and 2, now it is held that the

plaintiff did not make out a case for grant of permanent injunction

restraining the defendants from interfering wit her alleged possession and MVR,J A.S.No.2922 of 1990

enjoyment of the suit lands. On this score also, the judgment of the trial

Court requires interference.

POINT NO.3:

76. In view of the findings on points 1 and 2, the decree and

judgment of the trial Court have to be set aside. Consequently, the suit

has to be dismissed.

77. In the result, this appeal is allowed setting aside the decree

and judgment of the Court of the learned I Additional District Judge,

Rajahmundry in O.S.No.59 of 1988 dated 25.01.1990. Consequently, the

suit is dismissed. Permanent injunction granted thereby is dissolved.

Having regard to the close relationship among the parties, they are

directed to bear their own costs throughout.

As sequel thereto, pending miscellaneous petitions, if any, shall

stand closed. Interim Orders, if any, shall stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt: 29.01.2021 RR MVR,J A.S.No.2922 of 1990

HON'BLE SRI JUSTICE M.VENKATA RAMANA

APPEAL SUIT No.2922 of 1990

Dt:29.01.2021

RR