Andhra Pradesh High Court - Amravati
Chandra Yugandhar vs Maalampati Annapurna on 6 September, 2022
HON'BLE SRI JUSTICE SUBBA REDDY SATTI
SECOND APPEAL No.342 of 2022
JUDGMENT:-
The above second appeal was filed under Section 100 of
the Code of Civil Procedure, 1908 against the judgment and
decree, dated 05.07.2022 passed in A.S.No.154 of 2018 on
the file of learned VI District and Sessions Judge, Krishna at
Machilipatnam, confirming the judgment and decree, dated
09.07.2018 passed in O.S.No.130 of 2012 on the file of
learned Senior Civil Judge, Avanigadda.
2. The parties to the appeal are referred to as they are
arrayed in O.S.No.130 of 2012.
3. Plaintiff filed O.S.No.130 of 2012 for declaration of title,
for recovery of possession and future mesne profits etc.
4. In the plaint, it was contended inter alia that plaintiff
and defendant are children of Chandra Seetamma; that
Chandra Seetamma owned Ac.4-00 of land in R.S.No.981/1
and Ac.0-69 cents in R.S.No.982/3 of Pedakallepalli Village in
2
Mopidevi; that Chandra Seetamma executed registered Will,
dated 19.10.2009 in sound and disposing state of mind,
bequeathing Ac.1-00 cents in R.S.No.981/1 and Ac.00-69
cents in R.S.No.982/3 totalling to Ac.1-69 cents to the
plaintiff and Ac.3-00 in R.S.No.981/1 to another daughter by
name M. Kalpana; that Chandra Seetamma died on
10.08.2012 and hence, the Will executed by Chandra
Seetamma came into operation; that plaintiff applied to
Tahsildar, Mopidevi, through AP online for pattadar
passbook; that defendant sent copy of caveat petition against
the plaintiff before learned Senior Civil Judge, Avanigadda
and that plaintiff immediately issued reply notice for which
defendant issued rejoinder with false averments. Hence,
eventually filed the suit for the relief as stated supra.
5. The defendant filed written statement and contended
inter alia that Will, dated 19.10.2009 is not valid and is not
attested properly; that Chandra Seetamma cancelled the Will,
dated 19.10.2009 on 05.11.2011 and executed an
acknowledgment to that effect; that Chandra Seetamma
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executed another Will, dated 12.12.2011 bequeathing Ac.1-
65 cents out of Ac.4-65 cents in R.S.No.981/1 and 982/3 of
Pedakallepalli Village in favour of the defendant and the
remaining Ac.3-00 of land in R.S.No.981/1 to Kalpana and
eventually prayed the Court to dismiss the suit.
6. Plaintiff also filed another suit in O.S.No. 1 of 2016 for
recovery of Rs.60,000/- with interest on the ground that the
defendant trespassed into the fields, cut and took away
paddy crop. The defendant denied the allegations in the
plaint and pleaded that pursuant to the death of their
mother, by virtue of Will, dated 12.12.2011, he came into
possession of the property and cultivated the paddy crop.
Thus, prayed for dismissal of the said suit.
7. Basing on the pleadings in O.S.No.130 of 2012, trial
Court framed the following issues:
1. Whether the plaintiff is entitled for declaration that she
is the absolute owner of plaint schedule property?
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2. Whether the Will dated 19.10.2009 is last Will and
testament executed by Chandra Seethamma in favour
of the plaintiff?
3. Whether the Will dated 12.12.2011 is last Will and
testament executed by Chandra Seethamma in favour
of the defendant?
4. Whether the plaintiff is in possession and enjoyment of
the plaint schedule property?
5. Whether the plaintiff is entitled for permanent
injunction as prayed for?
6. To what relief?
Additional Issues:
1. Whether the plaintiff is entitled for possession of the
plaint schedule property as prayed for?
2. Whether the plaintiff is entitled for future mesne
profits?
8. Both the suits were clubbed together, and evidence was
recorded in O.S.No.130 of 2012.
5
9. On behalf of the plaintiff, she examined herself as PW1
and got examined PWs2 to 4. PWs 2 and 3 are attestors of
Ex.A1/Will. The evidence of PW4 was eschewed. Exs.A1 to
A12 were marked on behalf of the plaintiff. On behalf of the
defendant, he himself examined as DW1 and got examined
DWs2 to 5 and Exs.B1 to B6 were marked.
10. The trial Court by judgment, dated 09.07.2018 decreed
suit O.S.No.130 of 2012 with costs declaring that plaintiff is
the absolute owner of the plaint schedule property i.e. Ac.1-
69 cents of land and directed the defendant to handover the
possession of plaint schedule property to the plaintiff within
six months from the date of the said judgment. O.S.No.1 of
2016 was also decreed against the defendant for a sum of
Rs.60,000/- towards price of paddy crop with interest at 12
½% per annum from the date of institution of suit till delivery
of possession of property.
11. Aggrieved by the said common judgment and decree in
both the suits, defendant in the suit filed A.S.No.154 and 158
6
of 2018. The lower appellate Court being final factfinding
Court framed the following points for consideration:
1. Whether the plaintiff has proved that the registered Will
Ex.A1 was validly executed in her favour and whether
the said Will came into operation in favour of the
plaintiff?
2. Whether the plaintiff is entitled for declaration of title,
for recovery of possession of suit property and for
future mesne profits from the defendant?
3. Whether the plaintiff has proved that she was in
possession and enjoyment of the suit property as on
16.12.2012 and the defendant trespassed into the
same, cut and taken away the paddy crop raised by
her?
4. Whether the plaintiff is entitled for recovery of
Rs.60,00/- with interest at the rate of 12.5% per
annum thereon from the date of filing of the suit
O.S.No.1 of 2016?
12. The lower appellate Court on scrutiny of both oral and
documentary evidence, dismissed both the appeals by
common judgment, dated 05.07.2022. Aggrieved by the
7
judgment passed in A.S.No.154 of 2018, the present second
appeal is filed.
13. Heard Sri A. Syam Sundar Reddy, learned counsel for
the appellant/defendant and Sri Tungala Raghu Prasad,
learned counsel for the respondent/plaintiff.
14. Learned counsel for the appellant/defendant would
contend that Ex.A1/Will was not duly proved as required
under law and there are suspicious circumstances
surrounding Ex.A1/Will. He also contended that Ex.A1/Will
was cancelled and later Chandra Seetamma executed
Ex.B2/Will on 12.12.2011. After the death of Chandra
Seetamma, Ex.B2/Will was acted upon and thus, defendant
came into possession of the property and he is in enjoyment
of the said property. He further contended that the suit filed
for declaration and recovery of possession basing on Will
without arraying other daughters and sons of Chandra
Seetamma is not maintainable. Learned counsel for the
respondent supported the judgments of Courts below.
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15. Basing on the contentions of appellant, the following
substantial questions of law are involved in this second
appeal:
1. Whether all other sons, daughters and successors of
testator under Ex.A1/will, dated 19.10.2009 are
necessary and proper parties to a suit for declaration,
recovery of possession basing on the Will propounded
by one daughter against another son who is also
claiming title to the property under another testament?
2. Whether genuineness or otherwise of the Will Ex A-1,
dated 19.10.2006 can be decided without
hearing/considering objections of other sons and
daughters the testator who are not arrayed as party
defendants to the suit?
3. Whether plaintiff is need not prove Ex.A1/Will, dated
19.10.2009 when the defendant admitted the execution
of Ex A-1 by way of cancellation of Ex A-1 under
Ex.B1?
16. Before delving into the matter, since the appeal is filed
under Section 100 CPC, this Court must see the scope of
Section 100 of CPC.
9
17. In Nazir Mohamed vs. Kamala and Others1, the
Hon'ble Apex Court held that formulation of substantial
question of law is mandatory and the mere reference to the
ground mentioned in memorandum of second appeal cannot
satisfy the mandate of Section 100 CPC.
18. The Hon'ble Apex Court in Kulwant Kaur and Ors vs.
Gurdial Singh Mann (Dead) By Lrs. and Ors.2 held as under:
"Sec 100 CPC introduced a definite restriction on
to the exercise of jurisdiction in a second appeal
so far as the High Court is concerned. Needless to
say that the Code of Civil Procedure Amendment
Act, 1976 introduced such an embargo for such
definite objectives and since we are not required to
further probe on that score, we are not detailing
out, but the fact remains that while it is true that
in a second appeal a finding of fact even if
erroneous will generally not be disturbed but
where it is found that the findings stands vitiated
on wrong test and on the basis of assumptions
and conjectures and resultantly there is an
1
2020 (19) SCC 57
2
2001 (4) SCC 262
10
element of perversity involved therein, the High
Court in our view will be within its jurisdiction to
dealt with the issue. This is, however, only in the
event such a fact is brought to light by the High
Court explicitly and the judgment should also be
categorical as to the issue of perversity vis-à-vis
the Concept of justice. Needless to say however,
that perversity itself is a substantial question
worth adjudication what is required is a
categorical finding on the part of the High Court
as to perversity."
19. In Leela Soni vs. Rajesh Goyal3, the Hon'ble
Supreme Court held as under:
It will be apt to refer to Section 103 of C.P.C.
which enables the High Court to determine the
issues of fact:
"103. Power of High Court to determine issue of
fact.- In any second appeal, the High Court may, if
the evidence on the record is sufficient, determine
any issue necessary for the disposal of the appeal,
3
2001 (7) SCC 494
11
(a) which has not been determined by the Lower
Appellate Court or both by the Court of first
instance and the Lower Appellate Court, or
(b) which has been wrongly determined by such
court or courts by reason of a decision on such
question of law as is referred to in section 100."
The section, noted above, authorizes the High Court
to determine any issue which is necessary for the
disposal of the second appeal provided the evidence
on record is sufficient, in any of the following two
situations: (1) when that issue has not been
determined both by the trial court as well as the
Lower Appellate Court or by the Lower Appellate
Court; or (2) when both the trial court as well as the
Appellate Court or the Lower Appellate Court has
wrongly determined any issue on a substantial
question of law which can properly be the subject
matter of second appeal under Section 100 of
C.P.C."
20. Ishwasdas Jain vs. Sohan lal4 the Hon'ble Supreme
Court held that it is essential for the High Court to formulate
a substantial question of law under section 100 CPC, after
4
2000 (1) SCC 434
12
the 1976 amendment and it is not permissible to reverse the
judgment of the first appellate Court without doing so.
21. Further the Hon'ble Apex Court in Hero Vinoth Vs.
Seshammal5, held thus:
"19. It is not within the domain of the High Court to
investigate the grounds on which the findings were arrived at,
by the last court of fact, being the first appellate court. It is
true that the lower appellate court should not ordinarily reject
witnesses accepted by the trial court in respect of credibility
but even where it has rejected the witnesses accepted by the
trial court, the same is no ground for interference in second
appeal when it is found that the appellate court has given
satisfactory reasons for doing so. In a case where from a given
set of circumstances two inferences of fact are possible, one
drawn by the lower appellate court will not be interfered by
the High Court in second appeal. Adopting any other approach
is not permissible. The High Court will, however, interfere
where it is found that the conclusions drawn by the lower
appellate court were erroneous being contrary to the
mandatory provisions of law applicable or its settled position
on the basis of pronouncements made by the Apex Court, or
was based upon inadmissible evidence or arrived at by
ignoring material evidence.
5
AIR 2009 SC 1481
13
It was furthermore held:
23. To be "substantial" a question of law must be debatable,
not previously settled by law of the land or a binding
precedent, and must have a material bearing on the decision
of the case, if answered either way, insofar as the rights of the
parties before it are concerned. To be a question of law
"involving in the case" there must be first a foundation for it
laid in the pleadings and the question should emerge from the
sustainable findings of fact arrived at by court of facts and it
must be necessary to decide that question of law for a just and
proper decision of the case. An entirely new point raised for
the first time before the High Court is not a question involved
in the case unless it goes to the root of the matter. It will,
therefore, depend on the facts and circumstance of each case
whether a question of law is a substantial one and involved in
the case, or not; the paramount overall consideration being
the need for striking a judicious balance between the
indispensable obligation to do justice at all stages and
impelling necessity of avoiding prolongation in the life of any
lis. (See Santosh Hazari v. Purushottam Tiwari
MANU/SC/0091/2001).
24. The principles relating to Section 100 CPC, relevant for
this case, may be summerized thus:-
(i) ...
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(ii) The High Court should be satisfied that the case involves a
substantial question of law, and not a mere question of law. A
question of law having a material bearing on the decision of
the case (that is, a question, answer to which affects the rights
of parties to the suit) will be a substantial question of law, if it
is not covered by any specific provisions of law or settled legal
principle emerging from binding precedents, and, involves a
debatable legal issue. A substantial question of law will also
arise in a contrary situation, where the legal position is clear,
either on account of express provisions of law or binding
precedents, but the court below has decided the matter, either
ignoring or acting contrary to such legal principle. In the
second type of cases, the substantial question of law arises
not because the law is still debatable, but because the
decision rendered on a material question, violates the settled
position of law."
22. In the light of the expressions of Hon'ble Apex Court in
various judgements qua the scope of interference of the High
Court in second appeal, this Court while exercising
jurisdiction under Section 100 of the CPC, must confine to
the substantial question of law involved in the appeal. This
Court cannot re-appreciate the evidence and interfere with
the concurrent findings of the Courts below where the Courts
below have exercised the discretion judicially. Further the
15
existence of substantial question of law is the sine qua non
for the exercise of jurisdiction. This Court cannot substitute
its own opinion unless the findings of the Court are
manifestly perverse and contrary to the evidence on record.
23. In the present case, the admitted facts are that Smt.
Chandra Seetamma blessed with two sons and four
daughters. Smt. Chandra Seetamma is owner of Ac.4-00 in
survey No.981/1 and Ac.00-65 cents of Pedakallepalli village
of Mopidevi Mandal. Smt. Chandra Seetamma died on
10.08.2012.
24. According to the plaintiff, one of the daughters of Smt.
Chandra Seetamma, she executed Ex.A1/registered Will
deed, dated 19.10.2009 in a sound and disposing state of
mind bequeathing Ac.1-00 in survey No.981/1 and Ac.00-65
cents in survey No.982/3 totalling to Ac.1-65 cents in her
favour. Remaining extent of Ac.3-00 was bequeathed in
survey No.981/1 in favour of Kalpana, the other daughter of
Smt. Chandra Seetamma. Whereas the defendant pleaded
16
that Smt. Chandra Seetamma cancelled Ex.A1. Cancellation
was acknowledged under Ex.B1, dated 05.11.2011. Chandra
Seetamma executed another Will, dated 12.12.2011 Ex B-2
bequeathing Ac.1-65 cents to the defendant and Ac.3-00 in
survey No.981/1 to Kalpana.
25. Thus, both the plaintiff and defendant are claiming title
in respect of Ac.1-65 cents (Ac.1-69 cents) of land basing on
Ex.A1 and B2. Regarding remaining Ac 3-00 cts of land of in
R.S.No.982/3, either under Ex A-1 or under Ex B-2 Smt
Chandra Seetamma bequeathed the same to other daughter
by name Kalpana.
26. To prove Will, the profounder requires examining
Attesors and scribe and also had to remove the suspicious
circumstances surrounding the Will.
27. In H. Venkatachala Iyengar vs. B.N. Thimmajamma
& Others6 the Hon'ble Apex Court held as under:
6
1959 AIR 443
17
18. "... Sections 67 and 68 of the Evidence Act are
relevant for this purpose. Under Section 67, if a
document is alleged to be signed by any person, the
signature of the said person must be proved to be in his
handwriting, and for proving such a handwriting under
Sections 45 and 47 of the Act the opinions of experts
and of persons acquainted with the handwriting of the
person concerned are made relevant. Section 68 deals
with the proof of the execution of the document
required by law to be attested; and it provides that such
a document shall not be used as evidence until one
attesting witness at least has been called for the
purpose of proving its execution. These provisions
prescribe the requirements and the nature of proof
which must be satisfied by the party who relies on a
document in a court of law. Similarly, Sections 59 and
63 of the Indian Succession Act are also relevant.
Section 59 provides that every person of sound mind,
not being a minor, may dispose of his property by will
and the three illustrations to this section indicate what
is meant by the expression "a person of sound mind" in
the context. Section 63 requires that the testator shall
sign or affix his mark to the will or it shall be signed by
some other person in his presence and by his direction
and that the signature or mark shall be so made that it
shall appear that it was intended thereby to give effect
to the writing as a will. This section also requires that
the will shall be attested by two or more witnesses as
18
prescribed. Thus, the question as to whether the will
set up by the profounder is proved to be the last will of
the testator has to be decided in the light of these
provisions. Has the testator signed the will? Did he
understand the nature and effect of the dispositions in
the will? Did he put his signature to the will knowing
what it contained? Stated broadly it is the decision of
these questions which determines the nature of the
finding on the question of the proof of wills. It would
prima facie be true to say that the will has to be proved
like any other document except as to the special
requirements of attestation prescribed by Section 63 of
the Indian Succession Act. As in the case of proof of
other documents so in the case of proof of wills it would
be idle to expect proof with mathematical certainty. The
test to be applied would be the usual test of the
satisfaction of the prudent mind in such matters.
19. However, there is one important feature which
distinguishes wills from other documents. Unlike other
documents the will speaks from the death of the
testator, and so, when it is propounded or produced
before a court, the testator who has already departed
the world cannot say whether it is his will or not; and
this aspect naturally introduces an element of
solemnity in the decision of the question as to whether
the document propounded is proved to be the last will
and testament of the departed testator. Even so, in
19
dealing with the proof of wills the court will start on the
same enquiry as in the case of the proof of documents.
The profounder would be called upon to show by
satisfactory evidence that the will was signed by the
testator, that the testator at the relevant time was in a
sound and disposing state of mind, that he understood
the nature and effect of the dispositions and put his
signature to the document of his own free will.
Ordinarily when the evidence adduced in support of the
will is disinterested, satisfactory and sufficient to prove
the sound and disposing state of the testator's mind
and his signature as required by law, courts would be
justified in making a finding in favour of the
profounder. In other words, the onus on the profounder
can be taken to be discharged on proof of the essential
facts just indicated.
20. There may, however, be cases in which the
execution of the will may be surrounded by suspicious
circumstances. The alleged signature of the testator
may be very shaky and doubtful and evidence in
support of the profounder's case that the signature, in
question is the signature of the testator may not remove
the doubt created by the appearance of the signature;
the condition of the testator's mind may appear to be
very feeble and debilitated; and evidence adduced may
not succeed in removing the legitimate doubt as to the
mental capacity of the testator, the dispositions made
20
in the will may appear to be unnatural, improbable or
unfair in the light of the relevant circumstances; or, the
will may otherwise indicate that the said dispositions
may not be the result of the testator's free will and
mind. In such cases the court would naturally expect
that all legitimate suspicions should be completely
removed before the document is accepted as the last
will of the testator. The presence of such suspicious
circumstances naturally tends to make the initial onus
very heavy; and, unless it is satisfactorily discharged,
courts would be reluctant to treat the document as the
last will of the testator. It is true that, if a caveat is filed
alleging the exercise of undue influence, fraud or
coercion in respect of the execution of the will
propounded, such pleas may have to be proved by the
caveators; but, even without such pleas circumstances
may raise a doubt as to whether the testator was acting
of his own free will in executing the will, and in such
circumstances, it would be a part of the initial onus to
remove any such legitimate doubts in the matter.
.....
... any discovering truth even in such cases the
judicial mind must always be open though vigilant,
cautious and circumspect.
....
What circumstances would be regarded as suspicious
cannot be precisely defined or exhaustively enumerated
and it would a question of fact in each case. ...."
28. In Guru Dutt v. Durga Devi7 it was observed that the
mere fact that the signature appearing on the Will is a
genuine one, is not by itself sufficient to prove the
genuineness of the Will, where the execution of the Will is
shrouded by suspicious and unnatural circumstances.
29. In Ajit Kumar v. Mukunda Lal8, it was held that the
onus of proving a Will is on the profounder and in the
absence of suspicious circumstances surrounding the
execution of the Will, the proof of testamentary capacity and
the signature of the testator, as required by law, are sufficient
to discharge the onus. Where there are suspicious
circumstances, the onus would be on the profounder to
explain them to the satisfaction of the Court before the Will
could be accepted as genuine.
AIR 1966 J&K 75
AIR 1988 Cal. 196
30. In Sridevi v. Jayaraja Shetty9, it was pointed out that
proof in either case cannot be mathematically precise and
certain and should be one of the satisfactions of a prudent
mind in such matters and as to what are suspicious
circumstances have to be judged in the facts and
circumstances of each particular case. It was held that the
propounder of the Will has to show that the Will was signed
by the testator; that he was at the relevant time in sound
disposing state of mind; that he understood the nature and
effect of dispositions and had put his signatures to the
testament of his own free Will and that he had signed it in the
presence of two witnesses who attested in his presence and in
the presence of each other.
31. In Shashi Kumar v. Subodh Kumar10, the Hon'ble
Supreme Court held that if there is hardly any suspicious
circumstance attached to the Will, which will require very
little evidence to prove due execution and attestation of the
2005 (2) ALD 99 (SC)
AIR 1964 SC 529
Will. It was further held that a slight discrepancy in the
evidence of attesting witnesses is not serious as to distrust
their evidence and there is nothing impossible in advantage
being taken of the accidental presence of chance witnesses to
attest the Will.
32. In K. Nookaraju v. P. Venkatarao 11, it was held that it
would be sufficient even if one attestor has been examined.
But, that attestor should speak to all the elements of clause
(c) of Section 63 of the Succession Act. The attestor witness
should speak not only about the testator's signature or
affixing his mark to the Will or somebody else signing it in his
presence and by his direction or that he had attested the Will
after taking acknowledgement from the testator of the
signature or mark, but also should speak that each of the
witnesses had signed the Will in the presence of the testator.
It was also held that registration of a Will though not required
under law is only a piece of evidence of the execution and
cannot take the place of due attestation of the document.
AIR 1974 AP 13
33. In Pushpavati v. Chandraja Kadamba12, it was held
that where the signature of the testator is challenged as a
forged signature and the Will does not come from the custody
of a public authority or a family Solicitor the fact that the
dispositions made in the Will were unnatural, improbable or
unfair, would undoubtedly create some doubt about the Will,
especially, when the document is unregistered and comes
from the custody of a person who is the major beneficiary
under the Will.
34. In Jaswant Kaur v. Amrit Kaur13, 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 if the Will was duly
(1973) 3 SCC 291
(1977) 1 SCC 369
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."
35. In Chinmoyee Saha v. Debendra Lal Saha 14, it was
held that the Will is the Will of the testator and he has, under
the law, the freedom to give his property to whomsoever he
likes. What strikes the Court as an eccentric or an unjust
or an unnatural disposition can certainly be taken as a
consideration on the main question of finding out whether
the testator was acting as a free agent and with a sound
disposing and understanding mind. But once it is established
that the testator was free and had a sound disposing state of
mind, it is no longer the duty of the Court to go further to
inject its own ethics of what is or not a moral or a fair
disposition according to the Court's own standard. It was
further held that the absence of endorsement that the Will
was read over to the executant is not a suspicious
AIR 1985 Cal. 349
circumstance when it is stated in the Will that at the instance
of the testator, the scribe wrote the Will and that after
reading and knowing all the contents of the Will, the testator
would have put the signature.
36. Regarding comparison of signature by Courts, the
Hon'ble Apex Court in Ajit Savant Majagavi v. State of
Karnataka15 held as follows :
"... as a matter of extreme caution and judicial
sobriety, the Court should not normally take upon
itself the responsibility of comparing the disputed
signature with that of the admitted signature or
handwriting and in the event of slightest doubt,
leave the matter to the wisdom of experts. But this
does not mean that the Court has no power to
compare the disputed signature with the admitted
signature, as this power is clearly available under
Section 73 of the Evidence Act."
37. In E. Anantha Ramana v. State Bank of India,
Kothakota, Visakhapatnam16, it was held that normally the
(1997) 7 SCC 110
Court shall not embark upon such exercise having regard to
the fact that it does not possess the expertise in this regard.
But it may be a case where the Court had no option but to do
it having regard to the fact that the disputed signatures were
not sent for comparison to the Handwriting Expert; as a
result whereof the Court is not in a position to get the
assistance of an expert. The decision of the trial Court based
on oral evidence and comparison of the disputed signatures
with the admitted signatures was held to suffer from no
infirmity.
38. In Guru Govindu v. Devarapu Venkataramana17, it
was held that it is always competent for the Court to
undertake comparison of signatures of disputed document by
itself and the opinion rendered by expert is only supporting
material and cannot be treated as conclusive. It was pointed
out that if the Court is capable of forming an opinion on the
strength of oral and documentary evidence before it, in
2001 (2) ALD 585
2006 (4) ALD 333
exercise undertaken under Section 73 of the Evidence Act,
the necessity to send the document for expert's opinion may
not arise.
39. The conspectus of the above expressions of the Hon'ble
Apex Court made it clear that the profounder of the Will has
to prove its due execution. The profounder of the Will must
remove the suspicious circumstances surrounding/shrouding
the Will. What circumstances would be regarded as
suspicious cannot be precisely defined or exhaustively
enumerated and it would be question of fact in each case.
40. Though registration of Will by the testator is a strong
circumstance to support the genuineness of the will, however,
it does not by itself be sufficient to dispel of the suspicion. In
this case on hand, Court compared the disputed signature
with admitted signature and in fact such power is available to
the Court under Section 73 of the Indian Evidence Act.
However, the same should not be normally taken upon itself,
such responsibility and should leave the matter to the
wisdom of experts in the event of slightest doubt. The Court
can form opinion on the strength of oral and documentary
evidence by undertaking exercise of comparison as available
under Section 73 of the Indian Evidence Act and the
necessity of sending the document to the expert may not
arise. In fact, the opinion rendered by an expert being
supporting material, the Court can come to its own
independent conclusion.
41. In Ramesh Verma (Dead) Through Legal
Representatives v. Lajesh Saxena (Dead) by Legal
Representatives and Another18, the Hon'ble Apex Court
held that even in a case where the opposite party does not
specifically deny the execution of the document in the written
statement, still the profounder must prove the execution of
the Will in view of the mandate of Section 68 of the Indian
Evidence Act and Section 63 of the Succession Act.
42. Ex.A1/Will propounded by the plaintiff is dated,
19.10.2009 and it was registered in Sub-Registrar Office,
2017 (1) SCC 257
Challapalli. To prove the execution of the Will, plaintiff
examined herself as PW1 and, also examined PWs2 and 3,
who are paternal aunt and brother of the plaintiff and the
defendant. They are attestors of Ex.A1. The evidence of PWs2
and 3, attestors of Ex.A1 is consistent regarding the
execution of said document by Chandra Seetamma and their
attesting Ex A-1. Thus, plaintiff complied with mandatory
requirement of Sec 63 of Indian Succession Act and Sec 68 of
Indian Evidence Act regarding proving of Ex A-1.
43. PW3, is none other than brother of plaintiff and the
defendant deposed that by the time of execution of
Ex.A1/Will he does not have any disputes.
44. Immediately after the death of Smt. Chandra
Seetamma, plaintiff applied to the MRO for updation of
revenue records and for issuance of pattedar passbooks and
title deeds. Plaintiff also filed pattedar passbooks and title
deeds in respect of the suit schedule property standing in the
name of Smt Chandra Seetamma, which according to her
was given by mother, Smt. Chandra Seetamma. Thus, the
evidence let in by the plaintiff is indefeasible. The evidence of
PWs2 and 3, in fact, is supporting the case of the plaintiff
regarding execution of Ex.A1. Both the Courts on careful
scrutiny of the evidence, recorded finding that PWs 2 and 3
attested Ex.A1 and thus, Ex.A1 was duly proved.
45. Learned counsel for the appellant would contend that
other sons and daughters were not arrayed as party
respondents to the suit and hence, the suit itself is not
maintainable. In support of said contention, he placed
reliance on Shailndra Kumar Jain and Ors. V. Maya
Prakash Jain and Ors.19, wherein the Hon'ble Apex Court
while considering the application filed under Order I Rule 10
of CPC held that the appellant therein who is one of the
daughters of the testator was necessary party and hence, the
order of the trial Court, was set aside whereby implead
petition filed by the appellant therein was dismissed. The
ratio laid therein has no application to the facts of the case.
AIR 2019 SC 1900
46. The facts of the case in that suit are that suit was filed
for partition, whereas in the case on hand, suit is filed for
declaration of title over the plaint schedule properties basing
on Ex.A1/Will. Both plaintiff and defendant are claiming
Ac.1-69 cents (Ac.1-65 cents) under Ex.A1 and Ex.B2. The
other land to an extent of Ac.3-00 cents was admittedly
bequeathed to another daughter Kalpana, both under Exs.A1
and B2. Apart from that one of the sons was examined as
PW3, who deposed about execution of Ex.A1 by Chandra
Seetamma and his attestation on Ex A-1. Since, the suit is
filed for declaration basing on Ex A-1, the other sons or
daughters of Smt Chandara Seethamma need not be arrayed
as party defendants to the suit, unless they claim interest
over the property by disputing the Will. In view of the same,
the contention of learned counsel for the appellant that the
suit is bad for non-impleadment of other son and daughters
of late Smt. Chandra Seetamma falls to ground.
47. The suit O.S.No.130 of 2012 is filed for declaration of
title and recovery of possession and for future mesne profits.
Plaintiff based her claim on Ex.A1. In a suit for declaration
and recovery of possession, the burden lies on the plaintiff to
prove title on the strength of his/her own case and he/she
cannot rely upon the laches or weaknesses on the part of the
appellant/defendant.
48. In Union of India and Others v. Vasavi Cooperative
Housing Society Limited and Others20, the Hon'ble Apex
Court held that in a suit for declaration of title, the burden
always lies on the plaintiff to make out and establish a clear
case for granting such a declaration and the weakness, if
any, of the case set up by the defendants would not be a
ground to grant relief to the plaintiff.
49. Thus, in view of expression of Hon'ble Apex Court in the
judgement referred to supra, that the plaintiff in a suit for
declaration of title and possession could succeed only on the
strength of his/her own title and that could be done only by
adducing sufficient evidence to discharge the onus on it,
irrespective of the question whether the defendants have
2014 (2) SCC 269
proved their case or not. Even if the title set up by the
defendants is found against them, in the absence of
establishment of the plaintiff's own title, the plaintiff must be
non-suited.
50. A perusal of the record shows that, plaintiff not only
proved execution of Ex.A1 by Chandra Seetamma, but also
let in evidence that it was acted upon after the death of
Chandra Seetamma. Plaintiff immediately made application
for updation of revenue records and for issuance of pattedar
pass books and title deeds. Since the defendant filed caveat
and disputed the title, plaintiff filed the above suit for
declaration. Plaintiff also proved that she planted paddy in
the plaint schedule property and defendant trespassed and
cut the crop. Hence, the evidence of plaintiff is consistent.
Plaintiff also proved that Ex.A1 is the last Will testament by
Chandra Seetamma. Though the defendant propounded
Ex.B2/Will there are a number of suspicious circumstances
surrounding/shrouding Ex.B2. In fact, the trial Court took
pains of comparing the signature by using magnified glass. In
para 56 of the judgment, the trial Court observed as under:
"In this case on hand, I have carefully invoked power
conferred under Section 73 of the Act and I will later
add the reasons justifying that signature on Ex.B2 is
dissimilar that of the signature on Ex.A1. I have no
hesitation to conclude that Ex.A1/Will is executed by
mother of DW1 and it is valid. Ex.A1 is valid is also
clear from the fact that DW1 admits the photo affixed
on Ex.A1 stating that it is the photography of his
mother. DW1 further admits that the signatures of the
testator on Exs.A1 and B2d are dissimilar. When the
signature of mother of DW1 on Ex.B2 is not tallied
with the signature on Ex.A1, it is a clear case to hold
that Ex.B2/Will is not genuine and it is bolstered up
document.
51. The Courts below also considered regarding non-
registration of Ex.B2 apart from the fact that DW1 admitted
about execution of Will under Ex.A1. Both the Courts also
disbelieved Ex.B2/Will propounded by the defendant and
Ex.B1/acknowledgment. One of the suspicious
circumstances pointed out by the Courts below qua Ex.B2 is
that, there was no reference about Ex.B1 in Ex B2 and its
date. Further in the evidence of defendant it was elicited that
at the time of executing Ex.B2, he came to know about
Ex.B1/endorsement. Failure to refer the same in Ex.B2, itself
creates any amount of doubt. In Ex.A6/rejoinder, the
defendant has not pointed out about existence of Ex.A1.
51. The findings of facts recorded by the Courts below are
based on appreciation of both oral and documentary
evidence. Since they are not perverse or misconstruction of
documents or misreading evidence, this Court is of the view
that the findings recorded by the Courts below do not brook
interference of this Court under Section 100 CPC. No
question of law much less substantial question of law is
involved in the second appeal and the same is liable to be
dismissed at the stage of admission.
52. Accordingly, this second appeal is dismissed at the
stage of admission. However, no costs.
As a sequel, pending miscellaneous petitions, if any,
shall stand closed.
________________________________
JUSTICE SUBBA REDDY SATTI
Date : 06.09.2022
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HON'BLE SRI JUSTICE SUBBA REDDY SATTI
SECOND APPEAL No.342 of 2022
Date : 06.09.2022
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