C.P.C Seeking To Implead The vs Basavaraj.K & Another"1. The ...
2023 Latest Caselaw 3605 AP

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      THE HON'BLE DR. JUSTICE K. MANMADHA RAO

                      C.R.P.No.1333 of 2023

ORDER:

This Revision Petition, under Article 227 of the Constitution

of India, is preferred against the order, dated 30.01.2023, in

I.A.No.442 of 2011 in I.A.No.742 of 2010 in O.S.No.85 of 1987 on

the file of the Court of the Senior Civil Judge, Addanki, filed under

Order 22, Rule 4, Order 1, Rule 10(12) read with Section 151 of

C.P.C seeking to implead the petitioner as supplemental 3rd

respondent in I.A.No.742 of 2010 being the legal heir of the

deceased 2nd respondent.

2. The petitioner herein is the third party to the suit. The

plaintiffs 1 and 2 filed a suit against the sole defendant in

O.S.No.85 of 1987 seeking partition and delivery of possession of

the suit schedule property. During pendency of the suit, the 1st

plaintiff died and his legal heirs were brought on record as

plaintiffs 2 and 3. The said suit was decreed and the defendant in

the suit has preferred an Appeal and the same was dismissed.

During pendency of the appeal the Pentyala Koteswara Rao,

appellant/ defendant died and his wife came on record as 2nd

appellant. A notice was given to i.e 2nd appellant for determination

of mesne profits in respect of their shares as per the decree, but

unfortunately she died on 21.03.2011 leaving behind her a Will

dated 01.09.2009 executed in fit statement of mind. As per the

said Will the petitioner is entitled to Ac. 4.00 cents of land and

house shown therein and the petitioner is in physical possession

and enjoyment of the same by virtue of the said Will. Therefore

knowing about the pendency of application in I.A.No.742 of 2010

and by vitue of the Will executed by the 2nd appellant and to

safeguard his interest himself gets implead as supplemental 3rd

respondent in I.A.No.742 of 2010 to contest the claim as he is

entitled to the property after demise of 2nd appellant, being the

legal representative of deceased 2nd respondent as he is proper and

necessary party. The trial court dismissed the application holding

that the petitioner failed to prove unregistered Will dated

01.09.2009 i.e Ex.A1 beyond all reasonable doubt and failed to

remove the suspicion about the properties mentioned in Ex.A1 and

also failed to explain about the non-registration of the Will.

Assailing the same, the present Revision came to be filed.

3. Heard Sri V. Surya Kiran Kumar, learned counsel for the

petitioner and Sri G. Ramachandra Rao, learned counsel for the

respondents.

4. During hearing learned counsel for the petitioner would

contend that the trial court ought to have appreciated the Expert

Opinion dated 20.02.2016, shows that there are no fundamental

differences between the signatures on the Will dated 01.09.2009

and the admitted Registered Sale Deeds dated 29.08.2009 of Mrs.

Pentyala Kumaramma. It is further contended that the registration

of Will is not mandatory under Section 18 of Indian Registration

Act, 1908 and non-registration of the said Will is not fatal to the

authenticity of the Will as per Judgment of the Hon'ble Apex Court

in "V. Prabhakara Vs. Basavaraj.K & Another"1. The trial court

ought to have seen that the said Will dated 01.09.2009 was

created before the order of this Court in A.S.No.929 of 2000, dated

31.05.2010. Therefore the Will rightly recites the properties that

are subjudice and have not attained finality as to the title of the

properties. Further the trial court ought to have seen that the

suspicious circumstances alleged with respect to the relation

between testator and propounder was also sufficiently explained to

the Aunty- Nephew relationship by the PW-2/ Narne Srinivasa

Rao.

5. Learned counsel for the petitioner further contended that

the trial court examined both the witnesses as well as the Scribe of

the Will. Further the Will was sent to the Expert for opinion on

20.02.2016, who confirmed the signatures on the Will to be of the

same person to that of the signatures in the admitted Registered

Sale Deeds executed by late Pentyala Kumaramma, dated

29.08.2009. But the trial court dismissed the I.A.No.442 of 2011

on 30.01.2023 on the ground that non registration of the Will and

(2002) 1 SCC 115.

that the Will was not proved beyond reasonable doubt. Therefore

the present revision came to be filed.

6. In support of his contention, learned counsel for the

petitioner placed reliance on the Judgment in "Surendra Pal and

Others Vs. Dr. (MRS) Saraswati Arora and Another"2 wherein

the Hon'ble Apex Court held as follows:

"7. The propunder has to show that the Will was signed by the testator; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testatement of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of the testator's free will and mind. In all such cases there may be reviewed and satisfactorily explained before the Will is accepted. Again in cases where the propounder has himself taken, a prominent part in the execution of the Will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a

(1974) 2 SCC 600

reasonable man may, in the relevant circumstances of the case, entertain....."

7. Learned counsel for the respondents would contend that

the respondents/ plaintiffs filed counter in I.A.No. 442 of 2011

that Kumaramma died intestate while the suit is pending at the

stage of First Appeal in A.S.No.929 of 2000 on the file of this

Court, since both the respondents in the suit have died intestate,

the plaintiffs filed a Memo in I.A.No. 742 of 2010 on 29.03.2011 to

recognize them as legal representatives of deceased Kumaramma

and those plaintiffs forged the unregistered Will dated 01.09.2009

by antedating and forging the signatures of pentyala Kumaramma.

They questioned the Will, alleging that the same to be shrouded in

suspicious circumstances and that the said Will cannot be proved

beyond reasonable doubt. So, the trial court dismissed the

I.A.No.442 of 2011. Therefore, the petitioner is not entitled to claim

any relief in the revision.

8. As could be seen from the evidence of PW-4 is the

document writer and he is the scribe of Ex.A1 unregistered Will,

who categorically deposed that as per instructions of Kumaramma

he prepared Will and subscribed her signature in his presence and

in the presence of attestors. The said Kumaramma disclosed

survey numbers, extents and boundaries orally to him. Further as

could be seen from the evidence of PW-5, who is expert and he

deposed that as per his scientific examination both the signatures

in the Will and also registered sale deeds are similar in nature.

Therefore the petitioner has placed sufficient evidence for proving

the testament. Therefore, the "Surendra Pal and Others case"

cited supra is squarely applicable to the facts of the case. But the

trial court wrongly held that the petitioner failed to remove the

suspicion about the properties mentioned in Ex.A1 Will and also

failed to explain about non registration of the said Will. It is well

known fact that registration is not required for Will. However, this

Court opines that the petitioner has placed evidence on record by

examining the witnesses.

9. The order impugned is very cryptic and the court below

has not given any reasons nor taken into consideration the facts on

record properly. The court below has not dealt the issue in a right

perspective and hence the order impugned requires interference of

this Court.

10. Having regard to the facts and circumstances of the

case, upon perusal of the material on record and considering the

submissions of both the counsel, the C.R.P is allowed, while

setting aside the impugned order dated 30.01.2023 passed in

I.A.No. 442 of 2011 in I.A.No.742 of 2010 in O.S.No.85 of 1987 on

the file of the Senior Civil Judge, Addanki. There shall be no order

as to costs.

As a sequel, miscellaneous applications pending, if any,

shall also stand closed.

___________________________ DR.K.MANMADHA RAO, J Date: 21.07.2023.

KK

THE HON'BLE DR. JUSTICE K. MANMADHA RAO

C.R.P.No.1333 of 2023

Date: 21.07.2023.

KK