Sri Allamraju Srinivas Murthy vs Allamraju Syamala Murthy
2024 Latest Caselaw 6929 AP

Andhra Pradesh High Court - Amravati

Sri Allamraju Srinivas Murthy vs Allamraju Syamala Murthy on 9 August, 2024

    IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                  FRIDAY, THE NINETH DAY OF AUGUST
                  TWO THOUSAND AND TWENTY FOUR

                                PRESENT
        THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                        APPEAL SUIT No.799 OF 2008


Between:

Allamraju Srinivasa Murthy, R/o.7-2-36,
Gopalapatnam, Visakhapatnam.                            ...    Appellant

                                   AND

Allamraju Syamala Murthy,
S/o.late Marthanda Murthy, R/o.Pata,
Itawah District, Uttar Pradesh.                        ... Respondent


Counsel for the appellant:

Sri S.Sreeramachandra Murthy

The Court made the following:

JUDGMENT:

-

This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellant/defendant challenging the Decree and Judgment, dated 30.06.2008, in O.S. No.279 of 1997 passed by the learned III Additional Senior Civil Judge (Fast Track Court), Visakhapatnam [for short 'the trial Court']. The Respondent herein is the plaintiff in the said Suit.

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2. The appellant/defendant filed a Suit for partition of the suit schedule property into two equal shares and allotment of one such share to the plaintiff and for partition of the amount deposited in the Telegraph Employees Co-operative Thrift and Credit Society and to allot plaintiff's half share with accrued interest and also the amount in the bank i.e., Rs.2,07,000/- and Rs.60,000/- respectively and future mesne profits of the yielding and for costs.

3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.

4. The brief averments of the plaint, in O.S. No.279 of 1997, are as under:

The plaintiff and the defendant are the sons of late Sri Marthanda Murthy, who passed away on 21.12.1996 and the mother of the plaintiff and defendant passed away prior to their father. The plaintiff and the defendant are alone legal heirs to the estate of the deceased father and mother. The father of the plaintiff worked and after retirement, as to the knowledge of the plaintiff, got an amount of Rs.2,67,000/- and deposited the same in the credit society and in the bank, the plaintiff is entitled half share in that amount. Item No.1 of the suit schedule house is constructed with the amounts of plaintiff and his father and mother as the plaintiff got early employment. The plaintiff also got treated his mother at Puttaparthi. The father of the plaintiff informed during his lifetime that the amounts deposited in the society and in the bank and the other property be shared between the plaintiff and the defendant, but without executing any will, the father of the plaintiff and the defendant died. Subsequently the plaintiff informed the promise made by his father to the defendant, but the defendant put deaf ear and adamantly refusing to provide the share of the 3 VGKRJ

plaintiff in the said movable and immovable assets of their father and mother and all the efforts made by the plaintiff is futile. Hence, the plaintiff is constrained to file the suit.

5. The defendant filed a written statement denying the contents of the plaint and further contended as under:

The defendant worked in Telegraph department and earned about Rs.6,000/- per month. The father of the plaintiff and defendant retired from the service in the month of June, 1990, but he never invested his retirement benefits in any society. The plaintiff never extended any financial co-operation to the family. The father of the plaintiff had taken an amount of Rs.1,06,000/- from the defendant on various occasions between the years 1991 to 1994. If any amount is traced out, even then, those amounts are belonging to the defendant. In the year 1972-73 a house site was purchased and later constructed a house, the plaintiff never invested any amounts towards house construction and infact some amounts were invested by the defendant for construction of the house. The defendant met all kinds of repairs and maintenance by spending huge amounts. The plaintiff had taken gold ornaments, cloths, other valuables from the house, when the plaintiff attended his mother's ceremony on 11th day after her death. The father of the defendant wrote in diary book about all the illegal acts and behavior of the plaintiff and these are evident and sufficient to show about the conduct of the plaintiff. A letter addressed by the father of the plaintiff and defendant to Sri Venkateswara Rao also shows the bad conduct of the plaintiff. The father of the defendant executed a will dated 29.09.1996 and given all his movable and immovable properties to the defendant, therefore, the plaintiff has no right or title or any kind of interest in the plaint schedule 4 VGKRJ

properties. The defendant further pleaded that he is in possession and enjoyment of item No.1 of plaint schedule property on his own right and prays the Court to dismiss the suit.

6. Based on the above pleadings, the trial Court framed the following issues:

(i) Whether the plaintiff is entitled for the partition of item Nos.1 and 2 of schedule properties?

(ii) Whether the will pleaded by the defendant is true and what is the affect of the same?

(iii) To what relief?

7. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 to PW3 were examined and Ex.A1 to Ex.A9 were marked. On behalf of the Defendant DW1 to DW6 were examined and Ex.B1 to Ex.B11 were marked.

8. After completion of the trial and on hearing the arguments of both sides, the trial Court partly decreed the suit vide its judgment, dated 30.06.2008, against which the present appeal is preferred by the appellant/defendant in the Suit questioning the Decree and Judgment passed by the trial Court.

9. Heard Sri S.Sreeramachandra Murthy, learned counsel for appellant. None appeared for the respondent.

10. The learned counsel for appellant would contend that the Court below failed to observe that the conditions under Section 63 of Succession Act and Section 68 of Indian Evidence Act and Section 3 of Transfer of Property Act had been fully satisfied in the present case for 5 VGKRJ

upholding Ex.B3 will. He would further contend that Ex.B3 will is proved by the appellant. He would further contend that the learned trial Judge wrongly came to conclusion that the Ex.B3 will is not proved in accordance with law. He would further contend that the appeal may be allowed by setting aside the decree and judgment passed by the trial Court.

11. Now, in deciding the present appeal, the points that arise for determination are as follows:

1. Whether Ex.B3 will is proved in accordance with law?

2. Whether the trial Court is justified in decreeing the suit for partition?

12. Point No.1:

Whether Ex.B3 will is proved in accordance with law?

The relationship in between both the parties is not in dispute. The appellant/defendant and respondent/plaintiff are brothers and sons of late Marthanda Murthy and the wife of Marthanda Murthy predeceased him. Admittedly, the defendant has no personal knowledge about the alleged Ex.B3 will. As per his evidence, the will was traced within one month from the date of death of testator. The learned counsel for appellant would contend that the appellant discharged his burden to prove Ex.B3 will by examining one of the attestor in the will as PW2, since the other attestor is no more, his son was examined as PW3 before the trial Court.

13. Before I consider the facts of this case, it is well to set out the principles which govern the proving of a will, this was considered by the 6 VGKRJ

Apex Court in H.Venkatachala Iyengar vs. B.N.Thimmajamma1. It was observed by Apex Court in that case that the made of proving a will did not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of will under Section 63 of Indian Succession Act. Admittedly, the alleged will is marked as Ex.B3 before the trial Court, the alleged will appears to be typed on a paper through one M.V.S.N.Raju. Admittedly, M.V.S.N.Raju has not signed on the alleged Ex.B3. As seen from Ex.B3 it appears to be the statement of late Allamraju Marthanda Murthy.

14. The recitals in Ex.B3 as stated by the alleged testator as follows:

"I have two sons, Shyamala Murthy and Srinivasa Murthy. Both are married. My son Shyamala Murthy's conduct is not good. He removed valuables from my house without my knowledge. My eldest son Shyamala Murthy purchased a flat in Visakhapatnam and performed Gruhapravesam, but he did not call me. He did not attend to perform his mother's annual ceremony even after repeated requests. He did not see me since 1993, till date as I have questioned him regarding the valuables taken away by him...."

In the case on hand, the alleged will is strongly disputed by the plaintiff. Therefore, the burden heavily casts upon the profounder to prove the alleged Ex.B3 will. Admittedly, the alleged Ex.B3 will does not contain the recitals whether the testator is in a sound state of mind at the time of alleged execution of the will. Moreover, it does not contain the Ex.B3 is got typed by typist on the dictation given by the testator and in turn the

AIR 1959 SC 443 7 VGKRJ

typist who typed the alleged Ex.B3 will read over the contents to the testator and he admitted to be true and correct.

15. One of the attestor in the alleged will is examined as DW2. He stated in his chief examination affidavit as DW2 that a week before of the execution of the will, the testator informed him and Sri Pampadi another witness about the intention of execution of the will and asked them to visit their house to sign as witnesses and they were asked to come on 29.09.1996 and accordingly on that day they went there. He further stated in his chief examination as DW2 that another witness reached the house of Marthanda Murthy by that time he reached the house of Marthanda Murthy and Marthanda Murthy discussed his family matters and he brought a typed matter paper and informed that it is his will-nama and read the same and Marthanda Murthy executed the will and they witnessed the execution of the will and they attested the will and the same is witnessed by Marthanda Murthy. As per his evidence, by the time he reached the house of the testator another attestor was present at the house of the testator and the testator himself brought the typed matter paper and read the same and asked him to sign as a witness. There is no whisper in the evidence of DW2 that the testator was in a sound state of mind at the time of alleged will. There is also no whisper in the evidence of DW2 that the typist who typed Ex.B3 was also present and signed on Ex.B3 in their presence. In his evidence in cross examination he admits that he cannot identify the signature of testator Marthanda Murthy and Marthanda Murthy put his signature while making signature on Ex.B3 and Marthanda Murthy put date underneath his signature while signing on Ex.B3. As seen from the alleged will, no date is mentioned below the signature of Marthanda Murthy, the date underneath the signature of the 8 VGKRJ

alleged testator is typed as "twenty-ninth September ninety six". There is no whisper in the evidence of DW2 that Ex.B3 was got typed through M.V.S.N.Raju in their presence. Admittedly, the signature of typist is not at all there on Ex.B3. It is the another admission of DW2 that by the date of his death Marthanda Murthy was aged about 40 to 45 years, but in the alleged will it was mentioned that Marthanda Murthy was aged about 63 years. All the above discrepancies as narrated above are major discrepancies, those major discrepancies cannot be ruled out.

16. There is nothing on record, to show that the will was read over to the testator before he admitted the execution of the will. As stated supra, DW2 stated in his evidence in his chief examination affidavit itself that the testator brought a typed matter paper. There is no whisper in the chief examination of DW2 that whether Ex.B3 was typed on the instructions given by the testator. The typist, alleged to have been typed by M.V.S.N.Raju, has not signed on Ex.B3. It is not the case of either DW1 or DW2 the typist typed the Ex.B3 in the presence of both the attestors. Admittedly, it is not a registered document. No doubt, will is not a compulsorily document. The alleged Ex.B3 is dated 29.09.1996. It is the case of both the parties that the testator died on 21.12.1996 within 3 months from the date of alleged Ex.B3.

17. It is well settled that a will has to be executed in the manner required by Section 63 of Succession Act. Section 68 of Evidence Act requires the will has to be proved by examining atleast one attesting witness. Unlike other document the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will come to be executed. It was, 9 VGKRJ

therefore, incumbent on the profounder to prove its execution and attestation according to law. The witness is not supposed to repeat in a parrot like manner the language of Section 68 of Indian Evidence Act. It is a question of fact in each case as to whether the witnesses present at the time of execution of the will and whether testator and attesting witnesses have signed in his presence.

18. As stated supra, there are so many discrepancies in the evidence of one of the attestor i.e., DW2. Admittedly there is no whisper in the chief examination affidavit of DW2 that whether Ex.B3 alleged will was typed on the instructions given by the testator. Another important circumstance to disbelieve the Ex.B3 will is the typist alleged to have been typed Ex.B3 by name M.V.S.N.Raju has not signed on the alleged ExB3. Moreover, another important circumstance to disbelieve the evidence of DW2 is that DW2 admits in cross examination that he cannot identify the signature of the testator on Ex.B3. Therefore, the evidence of DW2 does not inspire confidence about the due execution of the will as required under law. Where one attesting witness examined to prove the will under Section 68 of Evidence Act fails to prove the due execution of the will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. It is the case of the defendant that the other attestor is no more. He examined his son as DW3. Admittedly DW3 has no personal knowledge about the alleged will. He identified the signature of his father as one of the attestor. Further more, one of the attestor, who examined as DW2 also not having personal knowledge about the contents of alleged will dictated by the testator to the typist. As per the evidence of DW2 the testator brought a typed matter paper and read over the contents and obtained his signature. Therefore, the above 10 VGKRJ

admissions of DW2 in his evidence is not suffice to prove the due execution of the will as required under law. Another attestor in the alleged will is not at all examined. It is the case of the defendant that another attestor is no more and his son is examined as DW3. The evidence of DW3 is confined to the extent of identifying his father's signature as one of the attestor in the alleged will and DW3 has no personal knowledge about the will.

19. The test of judicial conscience has been evolved for dealing with those cases where the execution of will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of dispositions in the will, sound, certain and disposing state of mind and memory of the testator at the time of alleged execution, testator executed the will while acting on his own free will. These ingredients are lacking in the evidence of witnesses in the case on hand. In the absence of any such evidence, it is unsafe to come to conclusion that the alleged will was duly executed by the testator in the presence of witnesses out of his free will in a sound and disposing state of mind. For the aforesaid reasons, the alleged Ex.B3 will dated 29.09.1996 is not proved in accordance with law by the profounder of the will. Accordingly, the point No.1 is answered against the appellant.

20. Point No.2

Whether the trial Court is justified in decreeing the suit for partition?

The case of the plaintiff in the suit is that the suit schedule property is undivided ancestral property and he is entitled half share in the plaint 11 VGKRJ

schedule property and the defendant who is no other than his brother is also entitled the remaining half share in the plaint schedule property. The plaintiff in the suit sought relief of partition of the plaint schedule property. Admittedly, the plaintiff and defendant are brothers and they are the only children of late Marthanda Murthy, the wife of late Marthanda Murthy predeceased him. The Marthanda Murthy also died on 21.12.1996 and the suit for partition is filed by the plaintiff in the year 1997.

21. It is the specific case of the appellant/ defendant is that his father bequeathed the plaint schedule property by virtue of unregistered will dated 29.09.1996 and the plaintiff is not having any rights in the plaint schedule property. As stated supra, the alleged will is not at all proved by the appellant/defendant in accordance with law. Therefore, the plaintiff being the son of late Marthanda Murthy and the defendant being the another son of late Marthanda Murthy are entitled equal shares in the plaint schedule property, since Marthanda Murthy died prior to institution of the suit and his wife predeceased him. Therefore, by giving cogent reasons, the learned trial Judge rightly decreed the suit for partition of the plaint schedule property, therefore, I do not find any illegality in the decree and judgment passed by the learned trial Judge and the decree and judgment passed by the learned trial Judge is perfectly sustainable under law and it requires no interference. Accordingly, the point No.2 is answered.

22. In the result, the Appeal Suit is dismissed confirming the decree and Judgment dated 30.06.2008, in O.S.No.279 of 1997 passed by the learned III Additional Senior Civil Judge (Fast Track Court), Visakhapatnam. The parties are directed to bear their own costs in the appeal.

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As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.

_________________________ V.GOPALA KRISHNA RAO, J Date: 09.08.2024 sj 13 VGKRJ

THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

APPEAL SUIT No.799 OF 2008

Date: 09.08.2024

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