P.L.V.S.Rao, Died Per Lrs And 2 Others vs M.Sumana 7 Other
2024 Latest Caselaw 1117 AP

Andhra Pradesh High Court - Amravati

P.L.V.S.Rao, Died Per Lrs And 2 Others vs M.Sumana 7 Other on 12 February, 2024

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 THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                    A.S. NO. 1621 of 2003
                    A.S. NO. 1924 of 2003
                    A.S. NO. 1938 of 2003

COMMON JUDGMENT:

-

The A.S. No.1924 of 2003 is filed against the Decree

and Judgment, dated 21.04.2003, passed in O.S. No.16 of

1996 on the file of the Principal Senior Civil Judge, Eluru.

The Plaintiff-Matta Sumana filed the Suit against the

Defendants-Parasa Kasivisweswara Rao and 4 others for

claiming the relief of declaration of the plaintiff's title to the

schedule property and for recovery of the possession along

with future profits and for costs. The trial Court decreed the

Suit. This Appeal is filed by the appellants/ Defendants 1 and

2 in the said suit questioning the decree and judgment

passed by the trial Court.

2. The A.S. No.1621 of 2003 is filed against the Decree

and Judgment, dated 21.04.2003, passed in O.S. No.16 of

1996 on the file of the Principal Senior Civil Judge, Eluru.

This Appeal is filed by the appellant/fourth Defendant in the

said suit i.e., Poosala Lakshmi Venkata Satyanarayana Rao,

questioning the decree and judgment passed by the trial

Court. Pending the appeal, the appellant/ fourth defendant

was died, his legal representatives were brought on record

as appellants 2 and 3.

3. The A.S. No.1938 of 2003 is filed by the plaintiff

against the Decree and Judgment, dated 21.04.2003,

passed in O.S. No.16 of 1996 on the file of the Principal

Senior Civil Judge, Eluru, for disallowing the costs by the trial

Court.

4. All the three appeals are filed against one common

judgment dated 21.04.2003 in O.S.No.16 of 1996 on the file

of the Principal Senior Civil Judge, Eluru, all the three

appeals were heard together and they are being disposed of

by this common judgment.

5. The parties to the above three appeals are referred to

as arrayed before the trial Court.

6. The brief averments of the plaint, in O.S. No.16 of

1996, are as follows:

The plaintiff is the sister of first defendant and they are

the children of Parasa Ramalingeswara Rao, who died on

13.09.1982. Late Nagabhushanamma is their paternal grand

mother, died on 16.04.1984. Second defendant is the wife of

first defendant. Defendants 3 and 4 are the alienees of item

No.1 of the plaint schedule property and they are in

possession. Fifth defendant is the alienee of 250 square

yards of site from and out of item No.2 of the plaint schedule

property and he is in possession. The third defendant died

pendent lite. Defendants 6 to 8 are the legal heirs of third

defendant.

ii) Late Nagabhushanamma during her life time executed

a registered will dated 19.10.1983 bequeathing an extent of

Ac.11.97 cents and 300 square yards of site and a tiled

house therein situated in Chintalapudi to the first defendant.

The first defendant used to manage the properties of her

paternal grand mother till her death.

iii) Late Nagabhushanamma had love and affection

towards the plaintiff and she voluntarily out of her own free

will and in sound and disposing state of mind executed a will

at Tekkali on 03.04.1984 bequeathing her remaining Ac.5.30

cents of dry land i.e., Ac.2.34 cents in R.S.No.697/2 and

Ac.2.96 cents in R.S.No.698 to the plaintiff. The said will is

her last will. So the plaintiff is enjoying the property in her

own right since 1984. Her name was also mutated in the

revenue records.

iv) Defendants 1 and 2 collusively with an oblique motive

to make wrongful gain to themselves and cause wrongful

loss to the plaintiff, trespassed into the schedule land without

any right, title or possession, taking advantage of the

plaintiff's absence at Chintalapudi, by that time, the plaintiff

was residing with her husband at Hyderabad, the second

defendant alienated item No.1 of the plaint schedule property

to the defendants 3 and 4. First defendant also sold 250

square yards of site from and out of item No.2 of the plaint

schedule property to the fifth defendant, on the strength of a

will alleged to have been executed by Nagabhushanamma

on 09.04.1984 to give a colour of reality to the said alienees.

The said will is not true, valid and binding on the plaintiff and

it is only a fabricated one. Under these circumstances, the

plaintiff got issued a notice dated 12.12.1995, but the notices

of defendants 1 to 3 were returned, defendants 4 and 5

received notices and the defendants 3 and 4 issued reply

notice dated 16.12.1995 with false and untenable

allegations, therefore, the plaintiff was constrained to file the

suit.

7. The Defendants 1 and 2 filed written statement by

denying all the averments mentioned in the plaint and further

contended as under:

The first defendant simply signed on the gift deed as

identifying witness, as donor is happened to his sister,

believing the representation of his sister that she is donating

Ac.0.50 cents of land out of Ac.1.00 cents, which was

bequeathed by virtue of the will dated 09.04.1984. So, the

first defendant is not aware of the contents of the gift deed

and they are also nothing to do with the property of an extent

of Ac.1.00 cents out of Ac.2.34 cents in item No.2 of the

plaint schedule property. The plaintiff is well aware of the will

dated 09.04.1984 and after lapse of more than 12 years, she

approached the Court only with an intention to have wrongful

gain of herself and the defendants 1 and 2 are not aware of

the notice dated 12.12.1995. So the plaintiff is entitled only

for Ac.1.00 cents of land out of item No.2 of plaint schedule

property, out of which she donated Ac.0.50 cents of land.

ii) Plaintiff was given Rs.40,000/- by her parents at the

time of her marriage in the year 1965 in addition to the

furniture and gold of 24 sovereigns and silver of 65 tulas.

Besides the above, the father of the plaintiff gave T.D.R. of

value of Rs.42,000/-. Late Nagabhushamma also gave 4

gold bangles of 6 sovereigns to the daughter of the plaintiff.

iii) The defendants 1 and 2 came to know for the first time

on 09.04.1984 that there is a will dated 03.04.1984. The said

will was cancelled and the said Nagabhushanamma

bequeathed the properties to the defendants 1 and 2 and the

plaintiff. The said will dated 09.04.1984 is the last will and

testament of the said Nagabhushamma and she got

executed the said will voluntarily and out of her own free will

and in a sound and disposing state of mind. The said

Nagabhushanamma clearly made out her intention in the

said will dated 09.04.1984 bequeathing Ac.1.00 cents out of

Ac.2.34 cents in R.S.No.697/2 to the plaintiff remaining

extent of Ac.1.34 cents to the first defendant and Ac.2.96

cents in R.S.No.698 to the second defendant, who is the wife

of first defendant. Nothing was prevented the plaintiff from

obtaining either the signature of the first defendant or second

defendant as identifying witness to the alleged will dated

03.04.1984, when the plaintiff is vigilant and diligent in

obtaining the signature of the first defendant as identifying

witness to the gift deed dated 20.12.1989. Thus as per the

terms of the will dated 09.04.1984, the plaintiff has no right,

title or interest over the schedule property except an extent

of Ac.1.00 cents in item No.2 of the plaint schedule property.

The said will dated 09.04.1984 is the last and final testament

of Nagabhushanamma and binding on the plaintiff and

prayed the Court to dismiss the suit

8. The defendants 3 and 4 filed their written statement.

The contents of the said written statement are as follows:

The third defendant is the bonafide purchaser of an

extent of Ac.2.46 cents and fourth defendant is the bonafide

purchaser of an extent of Ac.0.50 cents in R.S.No.698 of

Chintalapudi village under two separate sale deeds dated

01.07.1984 for a valuable consideration of Rs.37,000/- and

Rs.7,500/- respectively. Ever since their purchase, they have

always been in possession and enjoyment of the said

property and prayed the Court to dismiss the suit.

9. Based on the above pleadings, the following issues are

settled by the trial Court in O.S. No.16 of 1996.

i. Whether the will dated 03.04.1984 or 09.04.1984 is true?

ii. To what relief ?

10. During the course of trial in the trial Court, on behalf of

the Plaintiff, PW1 and PW2 were examined and Ex.A1 to

Ex.A11 were marked. On behalf of the Defendants DW1 to

DW5 were examined and Ex.B1 to Ex.B9 and Ex.C1 were

marked.

11. After completion of the trial and on hearing the

arguments of both sides, the trial Court decreed the suit as

prayed for vide its judgment, dated 21.04.2003, against

which these three appeals are preferred by the defendants 1

and 2 and by fourth defendant in the Suit questioning the

Decree and Judgment passed by the trial Court and the

plaintiff in the said suit also filed appeal for disallowing the

costs in the suit.

12. Heard Sri M.R.S.Srinivas, learned counsel for

defendants 1 and 2, Sri Chidambaram, learned senior

counsel on behalf of defendant No.4 and Sri T.Lakshmi

Narayana, learned counsel for plaintiff.

13. The learned Counsel for the Appellants/ defendants 1

and 2 in A.S.No.1924 of 2003 would contend that the trial

Court wrongly held in holding that the will dated 03.04.1984

is proved in accordance with law. He would further contend

that the trial Court wrongly came to conclusion in holding that

Ex.B1 will dated 09.04.1984 is not proved in accordance with

law. He would further contend that the trial Court instead of

dismissing the suit came to wrong conclusion and decreed

the suit.

14. The learned counsel for appellant/defendant No.4 in

AS.1621 of 2003 would contend that the appellant is a

bonafide purchaser for a valuable sale consideration from

the second defendant. He would further contend that the

learned trial judge wrongly came to conclusion and decreed

the suit and therefore the appeal may be allowed.

15. The learned counsel for appellant/plaintiff in

A.S.No.1938 of 2003 would contend that she is not

questioning the decree and judgment passed by the trial

Court except suit costs. He would further contend that the

trial Court decreed the suit, but disallowed the costs of the

suit. He would further contend that when the appellant has

enforced her legal right successfully and that there is no

justification at all in disallowing the costs. He would further

contend that the appeal may be allowed by awarding suit

costs to the plaintiff in the suit.

16. Having regard to the pleadings in the suit and the

findings recorded by the trial Court and in the light of rival

contentions and submissions made by either side before this

Court, the following points would arise for determination:

i. Whether Ex.B1 will dated 09.04.1984 is the last testament of late Nagabhushanamma and the said will is true and valid?

ii. Whether Ex.A1 will dated 03.04.1984 is the last testament of late Nagabhushanamma and the said will is true and valid ?

iii. Whether the plaintiff is entitled the relief of declaration of title and recovery of possession of the plaint schedule property as prayed for?

iv. Whether the appellant/plaintiff in AS.No.1938 of 2003 is entitled suit costs as prayed in the grounds of appeal in A.S.No.1938 of 2003?

v. Whether the decree and judgment passed by the trial Court needs any interference, if so, to what extent?

17. Point No.1

Whether Ex.B1 will dated 09.04.1984 is the last testament of late Nagabhushanamma and the said will is true and valid?

The relationship of the plaintiff with defendants 1 and 2

is not in dispute. The second defendant is none other than

the wife of first defendant. According to the defendants,

paternal grand mother of first defendant and plaintiff

executed an unregistered will on 09.04.1984 and the said will

is last will and testament of the said Nagabhushanamma.

They further pleaded that the said Nagabhushanamma

executed a will dated 09.04.1984 voluntarily and out of her

own free will and in a sound and disposing state of mind.

They further pleaded that the said Nagabhushanamma

clearly made out her intention in the said will bequeathing

Ac.1.00 cents out of Ac.2.34 cents in R.S.No.697/2 to the

plaintiff, remaining extent of Ac.1.34 cents to the first

defendant and Ac.2.96 cents in R.S.No.698 to the second

defendant, who is the wife of the first defendant. The

defendants further pleaded that for the first time on

09.04.1984 they came to know about the Ex.A1 will dated

03.04.1984 and in Ex.B1 it was recited that the previous will

dated 03.04.1984 was cancelled. The defendants 1 and 2

relied on Ex.B1 will. They further pleaded that Ex.B1 will is

the last testament of the testatrix Nagabhushanamma.

Therefore, it is the duty of the propounder of the Ex.B1 will to

prove the same in accordance with law. It is alleged by

defendants 1 and 2 that Ex.B1 dated 09.04.1984 is said to

have been executed by testator Nagabhushanamma in the

presence of attestors Kuchetti Sriramulu and Ginni Appanna

and scribed by Anantham Punnaiah Swamy. Admittedly the

alleged 2 attestors of Ex.B1 is not examined by the

propounder of Ex.B1 will. It is the case of defendants 1 and 2

that the second attestor Ginni Appanna is no more and he

died. The first attestor Kuchetti Sriramulu is not examined as

a witness by propounder of the will to prove Ex.B1 will. The

reason offered by the defendants 1 and 2 is that the first

attestor is aged about 70 years and he is unable to move,

due to that they could not examine the first attestor to prove

the Ex.B1 will. But it is quite surprise to note that the own

witness of the propounder of the Ex.B1 will i.e., scribe DW2

admits in cross examination that the first attestor Sriramulu is

able to move in the village and except his old age, he has no

other disease. Absolutely no oral or documentary evidence is

produced by the propounder of the Ex.B1 will to show that

first attestor is suffering from illness and he is a bed ridden.

Therefore, explanation offered by the profounder of Ex.B1

unregistered will for non-examination of the attestor of Ex.B1

will before the Court, even though he is alive, is certainly

fatal to the case of the defendants.

18. The scribe of alleged Ex.B1 will is examined as DW2.

He deposed in his evidence that on 09.04.1984 the first

defendant met him for getting a will and testament drafted by

him, along with him he also brought two witnesses in the

jeep, they came to Tekkali from Rayavalasa and Appanna

died at about 12 years ago. Sriramulu is aged about 70

years, he cannot move due to old age. He further deposed

that Nagabhushanamma asked him to draft a will,

accordingly he drafted a will and after conclusion of drafting

the will he read over the contents to Nagabhushanamma, he

also signed on the will and Nagabhushanamma and attestors

have signed in the original will in his presence. As stated

supra, there was a clear admission by DW2 in his evidence

in cross examination itself that the attestor Sriramulu is able

to move in the village and except old age, he has no other

sort of diseases. He admits in cross examination that Tekkali

is a town and it is a revenue sub division and there are

document writers at Tekkali and the village Rayavalasa is at

distance of 2 ½ kilometers from Tekkali. As stated supra, the

alleged Ex.B1 will is an un-registered will. It is the case of the

defendants that within 7 days from the date of Ex.B1, the

testatrix died.

19. A reliance has been placed by the learned counsel for

defendants 1 and 2 in Nirode Mohan Ray vs. Charu

Chandra Majumdar1, in that decision it was held as follows:

Section 63 of the Indian Succession Act requires that an attesting witness must not only see the testator sign and himself sign in his presence, but that he must sign as a witness to the fact of execution. It is not necessary that, in signing, any expression should be used to indicate that, but the Court must be able to infer from the evidence and the position of the signature on the will itself that he was signing as such.

In the case on hand, the above requirements are

missing in the evidence of DW2.

20. The leaned counsel for defendant No.4 relied on a

decision in Meena Pradhan and others vs. Kamla Pradhan

and another2. The learned counsel for defendant No.4 also

1949 SCC online Cal 188

2023 Live Law (SC) 809

relied on a judgment in Pattu vs. Krishnammal @ Singari3,

in that decision it was held as follows:

For proof of a document, there may be more than one witnesses like the scribe of the Will in this case. When one of the attesting witness is examined and subjected himself to be cross examined, mere non examination of the other attesting witness, who happen to be the scribe also, will not render the Will duly executed an ingenuine document. Under the evidence Act, the value of the evidence is appreciated not by quantity but, by quality. No law or judgment subscribes that when the scribe of the Will is one of the attesting witness, he is the best witness and he alone is competent to depose about the execution of the Will.

In the case on hand, as stated supra, even though one

attesting witness in Ex.B1 will is alive and he is able to move

in the village, the propounder of the Ex.B1 failed to examine

the said attestor, no explanation is offered by the profounder

of Ex.B1 will on the said aspect.

21. The learned counsel for defendant No.4 relied on a

judgment in Khatri Hotels Private Limited and another vs.

2017 SCC online Madras 13558

Union of India and another4 and also relied on a judgment

of composite High Court of Andhra Pradesh at Hyderabad in

CCCA.No.140 of 1988. The facts in the cited decision relates

to the declaration and consequential relief of permanent

injunction. In the case on hand, the suit is filed for relief of

declaration and recovery of possession. The case of the

plaintiff in the present suit is that she is staying along with

her husband at Hyderabad but not at the village of suit

schedule property.

22. The learned counsel for defendants 1 and 2 relied on a

judgment in Madamanchi Venkatasubbaiah vs.

Madamanchi Subbamma and others5, in that decision it

was held as follows:

Undeniably one attesting witness was alive at the relevant time. The question for consideration is whether the non examination of one of the persons who subscribed his signature as an attesting witness results in the document being excluded from evidence. In my opinion, the proof contemplated in this section can be furnished by the

(2011) 9 SCC 126

1955 SCC online AP 202

scribe of the document who could speak to the execution of it and it is not essential that it should be proved only by at least one of the attesting witnesses.

The law regarding proof of will is well settled by this

Court in catena of judgments Section 63 of Succession Act

1925 mandates that the will shall be attested by 2 or more

witnesses as per Section 68 of Evidence Act, if only one

attesting witness is alive, the execution of will can be proved

by only one attesting witness subject to process of the Court

and capable of giving evidence.

23. In the case of N.Kamalam (dead) and others vs.

Ayyasamy and others6, the Apex Court held as follows:

This attestation however, shall have to be in accordance with Section 68 of the Evidence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so however, in the event of there being an attesting witness alive and capable of giving the evidence. The law is also equally well-settled that in the event of there being circumstances surrounding the

MANU/SC/0422/2001

execution of the will, shrouded in suspicion, it is the duty paramount on the part of the propounder to remove that suspicion by leading satisfactory evidence.

24. In a case of Dhanpat vs. Sheo Ram (Deceased)

through L.Rs. and others7, the Apex Court held as follows:

Ordinarily, the burden of proving the due execution of the will is discharged if the propounder leads evidence to show that the will bears the signature or mark of the testator and that the will is duly attested. For proving attestation, the best evidence would naturally be of an attesting witness and indeed the will cannot be used as evidence unless at least one attesting witness, depending on availability, has been called for proving its execution as required by Section 68 of the Evidence Act....

In the case on hand, the case of the defendants 1 and

2 is that Ex.B1 alleged unregistered will is attested by 2

attestors and first attestor is alive and second attestor Ginni

Appanna is no more and he died. The first attestor Kuchetti

Sriramulu is not examined by the propounder of the will. As

per the own admissions of the witness of the defendants i.e.,

scribe, the first attestor is able to move in the village and

except old age he has no other sort of disease. As stated

MANU/SC/0330/2020

supra, no evidence is produced by the propounder of the will

to show that the first attestor in Ex.B1 will is suffering from

sickness. It is well settled that the scribe cannot be treated

as an attesting witness.

The legal position in this regard is no more res integra,

the same has been well settled by the Apex Court in

(aforesaid judgment) N.Kamalam (dead) and others vs.

Ayyasamy and others, in that decision, it was held as

follows:

The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of same status as that of the attesting witnesses. The signature of the attesting witness as noticed above on a document, required attestation (admittedly in the case of a will the same is required), is a requirement of the statue, thus cannot be equated with that of the scribe.

The ratio laid down in the said decision is squarely

applicable to the present facts of the case.

25. For the reasons stated above, it is undoubtedly clearly

that the defendants failed to prove the Ex.B1 unregistered

will. As stated supra, the alleged will Ex.B1 is unregistered

will and the testatrix died within one week from the date of

Ex.B1. Even though, one of the attesting witness is alive and

able to move in the village and except his old age, he has no

other sort of disease, the propounder of the will failed to

examined the first attestor of the alleged Ex.B1, as a witness

before the trial Court, the same is admitted by DW2 (scribe

of alleged Ex.B1) i.e., own witness of the propounder of the

Ex.B1 will, therefore, the alleged Ex.B1 will is not at all

proved by the defendants, accordingly, the point No.1 is

answered against the defendants.

26. Point No.2:

Whether Ex.A1 will dated 03.04.1984 is the last testament of late Nagabhushanamma and the said will is true and valid ?

It is not in dispute by both sides that the entire plaint

schedule property belongs to Nagabhushanamma i.e.,

paternal grand mother of plaintiff and first defendant. It is

also not in dispute that the plaintiff donated an extent of

Ac.0.50 cents land from out of Ac.2.34 cents in R.S.No.697/2

to the government for construction of building to locate

Junior Civil Judge's Court at Chinthalapudi and executed a

registered gift settlement deed by the plaintiff dated

20.12.1989. It is also made it clear that the first defendant,

who is none other than the own brother of the plaintiff is

acted as one of the attesting witness as well as identifying

witness before the Sub Registrar in the said gift settlement

deed. Fact remains that the said copy of gift settlement deed

is marked as Ex.A2.

27. The case of the plaintiff is that the Nagabhushanamma

executed a will dated 03.04.1984 by bequeathing the

Ac.5.30 cents of land i.e., total plaint schedule property and

other property in favour of the plaintiff and as per the terms

of the said will the entire property was bequeathed to the

plaintiff. The case of the plaintiff is that from out of the total

extent of property given under Ex.A1 will, she donated an

extent of Ac.0.50 cents of land to the government for

construction of Junior Civil Judge's Court building at

Chinthalapudi. As stated supra, the first defendant also

acted as attestor and so also acted as identifying witness in

the said gift settlement deed. The contention of the

defendants 1 and 2 is that the said Nagabhushanamma

executed another will dated 09.04.1984 cancelling the earlier

will Ex.A1 and as per the terms of the will item No.1 of the

plaint schedule property was bequeathed to the wife of the

first defendant and Ac.1.34 cents out of item No.2 of the

plaint schedule property to the first defendant and the

remaining Ac.1.00 cents to the plaintiff. As stated supra, the

propounder of the alleged Ex.B1 will dated 09.04.1984 failed

to prove the alleged Ex.B1 will.

28. The case of the plaintiff is that late

Nagabhushanamma is her paternal grand mother and the

first defendant is the only brother to the plaintiff and late

Nagabhushanamma during her life time executed a

registered will dated 19.10.1983 bequeathing an extent of

Ac.11.97 cents and 300 square yards of site and tiled house

therein situated at Chinthalapudi to the first defendant. The

same is not disputed by the defendants. It goes to show that

the said late Nagabhushanamma had given sufficient

property under a registered will dated 19.10.1983 to the first

defendant by leaving the plaint schedule property in the

present suit. The plaintiff further pleaded that the said

Nagabhushanamma excluded the plaint schedule property in

the said registered will dated 19.10.1983 executed in favour

of the first defendant. The contention of the plaintiff is that in

fact the first defendant advised the Nagabhushanamma to

bequeath the suit schedule property of an extent of Ac.5.30

cents to the plaintiff, from out of love and affection towards

the plaintiff, she voluntarily, out of her own will in a sound

and disposing state of mind, executed a will at Tekkali on

03.04.1984 bequeathing her remaining Ac.5.30 cents of dry

land to the plaintiff. It is also not in dispute that the testatrix

Nagabhushanamma was no more. The original will dated

03.04.1984 is filed and marked as Ex.A1. As stated supra,

the duty cast on the propounder of Ex.A1 will to prove the

Ex.A1 will. The defendants pleaded that the said Ex.A1 will

is a forged will and they pleaded that Nagabhushanamma

executed Ex.B1 will on 09.04.1984, the same is her last

testament. It is not in dispute by both the defendants that in

the alleged will of the defendants i.e., Ex.B1, Ex.A1 will is

referred. As stated supra, the Ex.B1 will is not proved by the

propounder of the will.

29. To prove the Ex.A1 will dated 03.04.1984, the

propounder of Ex.A1 got examined one of the attestor in

Ex.A1 as PW2. He deposed in his evidence that he knows

the plaintiff and defendants 1 and 2 and he knows the grand

mother of the plaintiff and the first defendant i.e.,

Nagabhushanamma, Ex.A1 was executed by Parasa

Nagabhushanamma in the presence of himself and another

attestor and scribe and the first defendant instructed the

scribe and got Ex.A1 drafted and the scribe read over the

contents of the Ex.A1 will to the testatrix and the testatrix

admitted the contents are true and correct and signed in

Ex.A1 in the presence of all of them including 2 witnesses

and scribe. He further deposed that himself and other

witness also attested Ex.A1, the scribe also endorsed his

endorsement in his presence, at the time of execution of

Ex.A1, Nagabhushanamma was in a sound and disposing

state of mind. He further deposed that the first defendant

invited him to attest Ex.A1 will. No specific suggestion is

given to PW2 by the learned counsel for defendants in cross

examination that the Nagabhushanamma did not execute

Ex.A1 will. No suggestion was given to PW2 by the learned

counsel for defendants that the first defendant did not gave

instructions to the scribe of Ex.A1 will to prepare Ex.A1 will.

Another important circumstance to believe Ex.A1 will is no

suggestion was given to PW2 by the learned counsel for

defendants that the Ex.A1 will is a forged one. In cross

examination nothing was elicited from PW2 to discredit the

testimony of PW2. The evidence of PW2 is consistent and

cogent with regard to execution of Ex.A1 will by the testatrix

Nagabhushanamma.

30. It is well settled that ordinarily, the burden of

proving the execution of the will is discharged if the

propounder leads evidence to show that the will bears

the signature or mark of the testator and that the will is

duly attested. For proving attestation, the best evidence

would naturally be of an attesting witness and indeed the will

cannot be used as evidence unless at least one attesting

witness, depending on availability has been called for

proving its execution as required by the Section 68 of Indian

Evidence Act. The pleadings in the plaint itself show that

since the grand mother of plaintiff and first defendant

Nagabhushanamma bequeathed sufficient property of

Ac.11.97 cents and 300 square yards of site and tiled house

therein situated at Chinthalapudi to the first defendant, the

first defendant advised the said Nagabhushanamma to

bequeath her remaining property of an extent of Ac.5.30

cents in favour of the plaintiff and the first defendant himself

gave instructions to the scribe to prepare the Ex.A1 will. The

evidence of PW2 also goes to show that the first defendant

gave instructions to the scribe to prepare Ex.A1 will. As

stated supra, no suggestion was given to PW2 in cross

examination by the learned counsel for defendants that the

first defendant did not give instructions to prepare Ex.A1 will.

The evidence of PW2 inspires confidence to prove the Ex.A1

alleged testament, therefore, the propounder of Ex.A1

satisfied the requirements of Sections 63 and 68 of Indian

Evidence Act.

31. It is well settled that the witness is not supposed to

repeat in a parrot like manner the language of Section 68

of Evidence Act. It is a question of fact in each case as

to whether the witness was present at the time of

execution of the will and whether the testator and the

attesting witness have signed in his presence. The

statement of attesting witness proves the due execution

of the will.

32. In the case on hand, to prove the Ex.A1 will, the

propounder of the Ex.A1 will produced sufficient cogent

evidence and she got examined the attestor of Ex.A1 will as

PW2. As stated supra, the evidence of PW2 inspires

confidence to believe the Ex.A1, the evidence of PW2 clearly

proves about the execution of Ex.A1 will by the testatrix in

the presence of PW2 and another attestor and scribe.

Further more, no suggestion was given to PW2 by the

learned counsel for defendants in cross examination that

Ex.A1 will is a fabricated will. As stated supra, no suggestion

was given to PW2, in cross examination, by the learned

counsel for defendants that the said Nagabhushanamma did

not execute Ex.A1 will. Therefore, the plaintiff proved the

Ex.A1 will dated 03.04.1984, accordingly the point No.2 is

answered in favour of the plaintiff.

33. Point No.3:

Whether the plaintiff is entitled the relief of declaration of title and recovery of possession of the plaint schedule property as prayed for?

It is not in dispute that the entire plaint schedule

property originally belongs to late P.Nagabhushanamma i.e.,

the paternal grand mother of the plaintiff and the first

defendant. The material on record clearly proves that the

said Nagabhushanamma executed Ex.A1 will dated

03.04.1984 in favour of plaintiff by bequeathing the total

property of Ac.5.30 cents of land under a will dated

03.04.1984 and later the said Nagabhushanamma died,

subsequent to the death of Nagabhushanamma, the plaintiff

donated Ac.0.50 cents of land from out of Ac.2.34 cents in

item No.2 of plaint schedule property, under Ex.A1 will to the

government for construction of the Court building at

Chinthalapudi, the first defendant also acted as attestor in

the said gift settlement deed dated 20.12.1989. The said gift

settlement deed was marked as Ex.A2. The first defendant is

acted as attestor and so also identifying witness in the Ex.A2

gift settlement deed. As stated supra, the plaintiff proved the

Ex.A1 will. It is not in dispute that the Nagabhushanamma

died in the year 1984 itself. Therefore, the plaintiff is having

valid right and title in the plaint schedule property by virtue of

Ex.A1 will dated 03.04.1984. The case of the plaintiff is that

she came to know that the defendants 1 and 2, who are

none other than the husband and wife, collusively with a view

to make unlawful gain to themselves and cause wrongful

loss to the plaintiff, trespassed into the suit schedule land in

the year 1994 without any right, title or possession, taking

advantage of the plaintiff's absence at Chinthalapudi and

who is residing at Hyderabad with her husband and second

defendant alienated Ac.2.96 cents of land to the defendants

3 and 4 even though, she is not having any right and title in

the plaint schedule property. The suit is instituted by the

plaintiff in the year 1996 itself. The material on record reveals

that the plaintiff is having valid right and title in the plaint

schedule property by virtue of Ex.A1 will dated 03.04.1984

executed by the Nagabhushanamma in favour of the plaintiff

and the said Nagabhushanamma is no more, she died in the

year 1984, therefore by virtue of Ex.A1 will, the plaintiff is

having valid right and title in the plaint schedule property.

Since the plaintiff is having valid right and title in the plaint

schedule property, certainly, she is entitled to recovery of

possession of the plaint schedule property from the

defendants, accordingly the point No.3 is answered in favour

of the plaintiff.

34. Point No.4:

Whether the appellant/plaintiff in AS.No.1938 of 2003 is entitled suit costs as prayed in the grounds of appeal in A.S.No.1938 of 2003?

The plaintiff filed A.S.No.1938 of 2003. The plaintiff is

not challenging the decree and judgment passed by the trial

Court, she is challenging the finding of the trial Court for not

awarding the suit costs, even though the suit is decreed. It is

a fact that the trial Court decreed the suit by granting the

relief of declaration and recovery of possession of the plaint

schedule property to the plaintiff, but no suit costs was

awarded to the plaintiff by the trial Court. The trial Court

simply held that each party do bear their own costs. As per

Section 35 of Civil Procedure Code, the Court has to assign

reasons for denying the costs to the successful plaintiff in a

suit. The suit of plaintiff is decreed by the trial Court. But no

reasons were assigned by the trial Court for denying the suit

costs to the successful party.

35. It is well settled that the trial Court while denying

the suit costs to the successful party/plaintiff, while

granting main relief of declaration of title and recovery

of possession in favour of the plaintiff, reasons has to

be assigned for denying the suit costs.

Now, there is no doubt that the Section 35 of Civil

Procedure Code empowers the Court in its discretion to

order payment of costs. But this discretion has to be

properly exercised within the frame work of law and the

normal rule, which is well known, is that cost follow the

event. There is a power to the Court to direct in any

particular case that costs shall not follow the event. But

that case if Court has to state its reasons in writing.

36. In the case on hand, no reasons were assigned by the

trial Court for denying the suit costs to the successful

party/plaintiff, even though the suit of the plaintiff is decreed.

The plaintiff filed the suit in the year 1996 for claiming the

relief of declaration of title and recovery of possession and

as on today the defendants are in a possession of the plaint

schedule property. As stated supra, this Court also came to

conclusion that the plaintiff is entitled relief of declaration of

title and recovery of possession and the defendants are

enjoying the suit schedule property from 1994 onwards. The

plaintiff filed the present appeal for denying the suit costs to

the plaintiff even though the suit is decreed. I do not find any

reasons to disallow the costs in the suit by the trial Court,

therefore, the plaintiff is entitled the suit costs in the suit. The

finding of the trial Court that each party do bear their own

costs is liable to be set aside and the plaintiff is entitled suit

costs from the defendants, accordingly, the point No.4 is

answered in favour of the plaintiff.

37. Point No.5:

Whether the decree and judgment passed by the trial Court needs any interference, if so, to what extent?

For the foregoing reasons, the trial Court justified in

decreeing the suit, but the trial Court came to wrong

conclusion that each party do bear their own costs, therefore,

the said finding of disallowing the suit costs to the plaintiff is

liable to be set aside.

38. In the result, A.S. No.1924 of 2003 and A.S.No.1621

of 2003 are dismissed.

In the result, A.S.No.1938 of 2003 filed by the plaintiff

is allowed by modifying the finding of the trial Court that

each party do bear their own costs as the plaintiff is entitled

the suit costs from the defendants. The defendants are

directed to deliver the vacant possession of the plaint

schedule property to the plaintiff within 3 months from the

date of this judgment. Considering the circumstances of the

case, I order that each party do bear their own costs in the

appeals.

As a sequel, miscellaneous petitions, if any, pending in

the Appeals shall stand closed.

_________________________ V.GOPALA KRISHNA RAO, J Date: 12.02.2024 sj

THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

A.S. NO. 1621 of 2003 A.S. NO. 1924 of 2003 A.S. NO. 1938 of 2003

Date: 12.02.2024

sj