Andhra Pradesh High Court - Amravati

M. Venkateswara Rao Died vs M.Siva Kesava Rao on 24 January, 2024

     THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO

                   APPEAL SUIT No.1914 OF 2003

JUDGMENT:

This Appeal, under Section 96 of the Code of Civil Procedure

[for short 'the C.P.C.'], is filed by the Appellants/plaintiffs challenging

the Decree and Judgment, dated 20.03.2003, in O.S.No.190 of 1996

passed by the learned Principal Senior Civil Judge, Eluru [for short

'the trial Court']. The Respondents herein are the defendants in the

said Suit.

2. The Plaintiffs filed the above said suit for declaration that the

will dated 18.01.1991 executed by late Motaparthi Seshayya is true

and valid and for partition of the schedule properties into two equal

shares and to allot one such share to the plaintiffs and for mesne

profits and for costs of the suit.

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.190 of 1996, are as under:

2 VGKRJ AS.1914 of 2003

i) The father of the first plaintiff by name Seshayya executed a will

on 18.01.1991. Under the said will, he bequeathed the property an

extent of Ac.0.95 cents to the second plaintiff and Ac.0.15 cents in

R.S.No.64/1 and Ac.0.23 cents in RS.No.64/3 and 400 square yards

of site to the first plaintiff and Ac.0.28 cents out of Ac.0.43 cents in

R.S.No.64/1 to the first defendant. The rest of the land out of

Ac.2.98 cents was bequeathed to the defendants 2 and 3. He also

bequeathed the property acquired from his wife Bullamma to the first

plaintiff and the first defendant equally Ac.1.00 cents each.

ii) The first plaintiff further contend that his father executed a will

on 08.06.1990 wherein he bequeathed properties to both the

plaintiffs and the defendants. After the death of their father, the first

defendant in possession of the entire Ac.2.98 cents of land and

house portion and Ac.2.00 cents belongs to Bullemma. The first

plaintiff demanded for partition, ultimately, the landed property

belong to Bullemma was partitioned. The first defendant also

delivered upstair portion as per the will dated 29.12.1980. The first

defendant has staircase which leads to the upstair portion rooms.

Taking advantage of the first plaintiff has no stair case of his own, 3 VGKRJ AS.1914 of 2003

the first defendant trespassed into the upstair rooms belongs to the

plaintiffs removed valuable articles like TV, Cots, etc., and locked

the portion restraining the plaintiffs to enter into their portion. The

plaintiffs gave police report and demanded for partition of the

properties by virtue of a will dated 08.06.1990 and send notice dated

15.04.1993 and 05.03.1995. Later the first defendant handed over

the upstair portion, after the delivery of the portion while cleaning the

room and almirahs, the first plaintiff found a will executed by his

father on 18.01.1991, immediately he has shown the will and sought

partition of the properties as per the said will, but the first defendant

did not cooperate, as such the plaintiffs were constrained to file the

suit.

5. The first defendant filed a written statement, which was

adopted by other defendants, by denying the averments mentioned

in the plaint and further contended as under: -

i) Ever since the date of partition of properties under partition

deed dated 25.06.1970, the first plaintiff and the first defendant have

been in possession and enjoyment in their respective shares of

properties acquired through the partition. Even as per the schedule 4 VGKRJ AS.1914 of 2003

of the registered will dated 29.12.1980 executed by Bullemma, she

bequeathed some portion of the site and the building to the first

plaintiff and the first defendant but not entire 1200 square yards of

site owned by her. During the life time of their parents, the first

defendant and the first plaintiff and their parents lived therein, the

building in separate portions has earmarked in the will dated

29.12.1980 executed by Bullemma. Thus, the mother of the first

defendant Bullemma never bequeathed entire 1200 square yards of

site and house property under the registered will dated 29.12.1980.

Bullemma settled an extent of 833 square yards of site in favour of

the second defendant as per the settlement deed dated 16.12.1976.

The first plaintiff never questioned the validity of the said settlement

deed. It was acted upon and became final.

ii) The defendants further contend that Seshayya never owned

and possessed the alleged 1200 square yards of site at any point of

time. The said Seshayya also executed registered will dated

03.10.1990 in a sound and disposing state of mind bequeathing an

extent of 400 square yards with dilapidated tiled house at Denduluru

village to the first defendant and an extent of Ac.2.00 cents in 5 VGKRJ AS.1914 of 2003

R.S.No.65/1 of Malkapuram village to the first defendant preserving

life interest, an extent of Ac.0.42 cents in R.S.No.56/2 in another

extent of Ac.0.43 cents in R.S.No.64/1 of Malkapuram village to the

second defendant besides extent of Ac.0.50 cents of land to the

second defendant. He also bequeathed an extent of Ac.0.23 cents

in R.S.No.64/3 and Ac.0.77 cents in Rs.No.57/2 and Ac.1.13 cents

in Rs.No.57/4 in favour of the third defendant as per the said will.

The will dated 03.10.1990 executed by Seshayya cancelling the

previous registered will dated 08.06.1990. So, the defendants 1 to 3

have been in peaceful possession and enjoyment in their respective

properties as per the said will ever since the death of Seshayya. The

first plaintiff after the death of Seshayya immediately occupied the

portion of the house.

iii) The defendants further contend that the alleged discovery of

the will dated 18.01.1991 and the recitals therein is nothing but a

myth created by the first plaintiff in order to cause wrongful loss to

the defendants and the said will is a forged and fabricated document

pressed into service by the first plaintiff. The will executed by

Seshayya on 03.10.1990 in a sound and disposing state of mind is 6 VGKRJ AS.1914 of 2003

only his last will and testament subsequent his death, and said will

was acted upon. The defendants further alleged that the first plaintiff

over jealous of the development of the defendants' family, has been

harassing them since long by giving legal notices by creating one

false theory or the other. After execution of the registered partition

deed dated 25.06.1970 between the Seshayya and his sons in

respect of their joint family is nucleus of joint family disappears and

the question of their being again joint does not arise. The first

plaintiff is saying from the beginning that his father died intestate at

one breath and saying on the other breath that he executed a will on

18.01.1991. The plaintiffs in order to substantiate their claim from

time to time, they are setting up imaginary theories, therefore,

prayed the Court to dismiss the suit.

6. Based on the above pleadings, the trial Court framed the

following issues:

(i) Whether the will dated 18.01.1991 is true?

(ii) To what relief?

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

Plaintiffs, PW1 to PW3 were examined and Ex.A1 to Ex.A20 were

7 VGKRJ AS.1914 of 2003

marked. On behalf of the Defendants DW1 to DW6 were examined

and Ex.B1 to Ex.B43 were marked.

8. After completion of the trial and on hearing the arguments of

both sides, the trial Court dismissed the Suit vide its judgment,

dated 20.03.2003, against which the present appeal is preferred by

the appellants/ plaintiffs in the Suit questioning the Decree and

Judgment passed by the trial Court.

9. Heard Sri A.Bhaskara Chary, learned counsel for appellants/

plaintiffs and Sri C.Venkaiah, learned counsel for

respondents/defendants.

10. The learned counsel for appellants would contend that the

Ex.A6 will is valid and genuine one, but the trial Court came to

wrong conclusion that Ex.A6 will is not valid one. He would further

contend that the trial Court came to wrong conclusion that Ex.B5 will

is valid will and he would further contend that the suit may be

preliminarily decreed for partition and the appeal may be allowed.

11. Per contra, the learned counsel for the respondents would

contend that on appreciation of entire evidence on record, the trial 8 VGKRJ AS.1914 of 2003

Court rightly dismissed the suit and there is no need to interfere with

the finding given by the Trial Court and there are no merits in the

appeal filed by the appellants/plaintiffs and appeal may be

dismissed.

12. 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 on either side before this court, the following

points would arise for determination:

I. Whether Ex.A6 will dated 18.01.1991 alleged to have been executed by late Motaparthi Seshayya is true, valid and binding on the defendants? II. Whether the appellants/plaintiffs are entitled the relief of partition as prayed in the plaint?

13. Point No.1:

Whether Ex.A6 will dated 18.01.1991 alleged to have been executed by late Motaparthi Seshayya is true, valid and binding on the defendants?

The undisputed facts of the case are the first plaintiff and the

first defendant are brothers and they are the sons of late Seshayya.

9 VGKRJ AS.1914 of 2003

Second plaintiff is the son of first plaintiff. Second and third

defendants are son and daughter of first defendant. The plaintiffs

pleaded that the property has to be partitioned as per the terms of

the will dated 18.01.1991 said to have been executed by late

Motaparthi Seshayya, he has Ac.2.98 cents and the said item has to

be divided as per the terms of the will executed by late Seshayya.

The plaintiffs further contend that by virtue of the said will, late

Seshayya bequeathed Ac.0.95 cents to the son of Venkateswara

Rao namely Venkata Satya Naga Prasad, who is the second plaintiff

herein, Ac.0.15 cents in R.S.No.64/1, Ac.23 cents in R.S.No.64/3

and 400 square yards of site at Denduluru to his eldest son i.e., first

plaintiff herein and Ac.0.28 cents in R.S.No.64/1 to the first

defendant. The alleged will dated 18.01.1991 which is unregistered

will is disputed by the defendants. Therefore, it is for the plaintiffs to

prove the alleged unregistered will dated 18.01.1991. The alleged

will is marked as Ex.A6 by the plaintiffs before the trial Court.

Admittedly, the date of alleged will is 18.01.1991 and the date of

death of testator late Seshayya is 10.02.1991. Within three weeks of

alleged Ex.A6 unregistered will the testator died. In order to prove

the alleged Ex.A6 will, the plaintiffs relied on the evidence of PW1 to 10 VGKRJ AS.1914 of 2003

PW3. PW1 is the first plaintiff. His evidence in chief is nothing but

the contents of the plaint. PW2 is alleged scribe of Ex.A6. PW3 is

one of the attestor of alleged Ex.A6.

14. As per the evidence of PW2, he is a licensed document writer

and he know Motaparthi Seshayya and he got scribed a document,

a willnama, through him and he can identify the said will and he

wrote Ex.A6 as per the instructions of Seshayya and he signed in

the presence of Seshayya and so also other attestors and Seshayya

was healthy and in sound and disposing state of mind. In cross

examination when elicited, he admits that he cannot say what are

the ailments of Seshayya at the time of alleged Ex.A6. He further

admits that he know the first plaintiff since 20 years as he also used

to get the documents scribed by him and he does not know when

Seshayya died.

15. As per the evidence of PW3, he is one of the attestor in Ex.A6

will. As per his evidence, Ex.A6 bears his signature and Seshayya

signed in the will in his presence and the second attestor was also

present and PW2 scribed the Ex.A6 will. As per the instructions of

Seshayya only PW2 scribed it. In cross examination when elicited 11 VGKRJ AS.1914 of 2003

he admits that he used to assist document writer PW2 and he know

PW2 because both are in the same profession and he was called by

PW2 to attest in Ex.A6 will. He further admits that he know the first

plaintiff since 15 years.

16. The alleged Ex.A6 will is 2 pages will. Ex.A6 goes to show in

the first page of will in the beginning there was a more gap between

the lines and later the writing in the first page is congested and there

was an adjustment of lines and words in the alleged will and there

are interpolations. Whereas in the last page, there is so much gap in

between the alleged contents of the will and signature of the alleged

attestors and so also the scribe. More so, as per the admissions of

PW2, he know the first plaintiff since 20 years and he used to get

the documents scribed by him. It shows that PW2 is having much

acquaintance with the plaintiff No.1. As stated supra, plaintiff No.2 is

none other than the son of first plaintiff. As per the evidence of PW3,

he used to assist document writer PW2 and he know the first plaintiff

since 15 years. The evidence of PW2 and PW3 goes to show that

they are having close acquaintance with the first plaintiff. The

evidence of PW2 and PW3 is silent whether the late Seshayya 12 VGKRJ AS.1914 of 2003

witnessed at the time they are making signatures on the alleged will.

Further more, there is no whisper either in the evidence of PW2 or in

the evidence of PW3 that the contents in Ex.A6 are read over to the

testator and admitted by him to be true and correct. PW2 and PW3

are the strangers to the village of the plaintiffs and defendants and

they are residents of Eluru, both the parties in the suit are residents

of Denduluru and the properties are also situated at Denduluru.

More so, the earlier wills Ex.A7, Ex.A15 to Ex.A17 goes to show the

late Seshayya is in the habit of executing the registered wills.

Further more the case of the defendants is that the Seshayya

executed Ex.B5 registered will dated 03.10.1990, further more,

Ex.B43 goes to show one Tanukonda Mohan Rao filed a suit in

OS.No.149 of 1997 before the First Additional Junior Civil Judge's

Court against the defendants 1 and 2 herein for the perpetual

injunction. In the said suit, the Court gave a finding that the plaintiff

in the said suit is acting to the tunes of Motaparthi Venkateswara

Rao i.e., the first plaintiff herein. The said suit was dismissed by the

First Additional Junior Civil Judge, Eluru. In the said suit, which was

filed in the year 1997, it was pleaded that the alleged will dated

18.01.1991 executed by late Motaparthi Seshayya in favour of the 13 VGKRJ AS.1914 of 2003

plaintiffs herein is a registered one. More over, there is no

endorsement in Ex.A6 by the scribe that the contents of will were

read over to the testator or he himself read the contents of the will

and admitted by him to be true and correct. More so, the defendants

are disputing the alleged Ex.A6 will, but the plaintiffs did not made

any attempt to send Ex.A6 will to the hand writing expert for

comparison of signatures of alleged testator of Ex.A6 will. The

signatures of late Seshayya are available on a registered

documents viz., Ex.A7, Ex.A15 to Ex.A17 registered wills and so

also other registered documents. The same is not at all disputed by

the defendants. Another important circumstance to disbelieve the

case of the plaintiffs is that the date of alleged will is 18.01.1991 and

which is an unregistered will, within 3 weeks, the testator died. As

stated supra in the first page of Ex.A6 in the beginning there is more

gap between the lines and later the writing in first page is congested

and there was an adjustment of lines and words in the alleged will

and there are interpolations and in the last page there was so much

gap in between the alleged contents of the will and alleged signature

of testator and so also attestors. Therefore, it creates a suspicious

circumstances surrounding the Ex.A6 will. The evidence of PW2 and 14 VGKRJ AS.1914 of 2003

PW3 did not inspire much confidence to establish the genuineness

of Ex.A6 will. More over, the alleged second attestor Vamana

Murthy is alive, but he was not examined as a witness before the

trial Court.

17. Another important circumstance to disbelieve the Ex.A6 will is

the first plaintiff got issued 2 legal notices under Ex.A4 and Ex.A5

through his counsel. In Ex.A4 notice dated 15.04.1993 and so also

in Ex.A5 notice dated 05.03.1995, it was specifically mentioned that

his father died on 10.02.1991 intestate. In Ex.A4 dated 15.04.1993

and Ex.A5 notice dated 05.03.1995 it was not mentioned that the

father of the first plaintiff executed Ex.A6 will dated 18.01.1991. It is

important to note that Ex.A5 notice is issued after 4 years of the

date of death of testator of alleged will. Further more in the plaint it

was specifically pleaded that after issuance of Ex.A5 legal notice

dated 05.03.1995, the first defendant vacated the portion and he

removed the Air Cooler, T.V.Set, iron safe belongs to late Seshayya

containing his cloths and petty account books and in the said

almirah the first plaintiff was found a will executed by late Seshayya,

then the plaintiffs came to know the contents of the will of late 15 VGKRJ AS.1914 of 2003

Seshayya. There is no whisper in the plaint when the first defendant

handed over the premises to the first plaintiff and when he

discovered the alleged Ex.A6 will. The suit is filed in the year 1996,

what prevented the plaintiffs to give a legal notice to the defendants

about informing the discovery of alleged Ex.A6 will. Admittedly, no

notice is given by the plaintiffs after the alleged Ex.A6 will is traced.

So it makes clear that the plaintiffs have taken inconsistent pleas.

18. A specific plea is taken by the defendants in the written

statement that the alleged will dated 18.01.1991 said to have been

executed by late Seshayya is nothing but forged and fabricated

document. It was pleaded by the plaintiffs in the plaint itself after

issuance of legal notice dated 05.03.1995, the first defendant

vacated the portion belongs to late Seshayya and later the plaintiffs

found the unregistered will in the almirah of the Seshayya. If at all

really if there is any will, it will not kept idle in the almirah, that too if

the first defendant is in possession of the said portion for more than

5 years, certainly he would have concealed it. It is not the case of

the plaintiffs that the said almirah has lock and key. There is no

mention about the date or month or year when the alleged will Ex.A6 16 VGKRJ AS.1914 of 2003

was traced by the plaintiffs. More so, Ex.B1 complaint lodged by the

first plaintiff goes to show that Ex.B1 complaint is lodged by the

plaintiffs before the Station House Office, Denduluru police station.

In Ex.B1 it was pleaded by the first plaintiff that he has been living in

Eastern portion of the Western Dhaba down portion and Eastern

upstair portion of the upstair building and he has kept his valuable

articles in the Eastern portion of the room of his upstair building and

while keeping it under lock and key and on the night of 14.10.1991,

the accused i.e., first defendant herein broke open the upstair room

door lock and committed theft of his valuable properties. Therefore,

it goes to show that the first plaintiff is in possession of the alleged

property of Seshayya by the date of Ex.B1 15.10.1991. Ex.B1 is not

at all disputed by the plaintiffs. The date of death of Seshayya is

10.02.1991.

19. The legal requirement to prove the will under Section 63(c) of

Indian Succession Act is that every testator shall execute his will

according to Rule 63 (c) of the Act. According to Section 63 (c) of

the Act, the will shall be attested by 2 or more witnesses, each of

whom has seen the testator, signature or affix his thumb mark to the 17 VGKRJ AS.1914 of 2003

will and each of the witness shall sign the will in the presence of the

testator. Therefore, as per the requirements, a testator shall execute

the will in the presence of 2 witnesses and he shall see the testator

signing the will. The above requirements are missing in the evidence

of PW2 and PW3. The law is well settled that if there is a suspicious

circumstances about the execution of the will, it is the duty of the

person seeking declaration about the validity of the will to dispell

suspicious circumstances. In the case on hand, as stated supra,

there are several suspicious circumstances surrounding the alleged

execution of Ex.A6 unregistered will, the same are not removed by

the plaintiffs. As stated supra, the evidence of PW2 and PW3 did not

inspire much confidence to establish the genuineness of the Ex.A6

unregistered will.

20. In a case of Balathandayutham and another vs.

Ezhilarasan1, the Apex Court held as follows:

This Court also thinks that in view of the discussion made herein above that both the Ex.B-19 & Ex.B-20 are surrounded by various suspicious circumstances. When a Will is surrounded by suspicious circumstances, the person propounding the Will has a very heavy burden to discharge. This has been authoritatively explained by this

2010(4) ALT 8 (SC) 18 VGKRJ AS.1914 of 2003

Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors, (1) AIR 1959 SC 443. Justice P.B. Gajendragadkar, as His Lordship then was, in para 20 of the judgment, speaking for the Three Judge Bench in H. Venkatachala (supra) held that in a case where testator's mind is feeble and he is debilitated and there is not sufficient evidence as to the mental capacity of the testator or where the deposition in the Will is unnatural, improbable or unfair in the light of the circumstances or it appears that the bequest in the Will is not the result of testator's free will and mind, the Court may consider that the Will in question is encircled by suspicious circumstances.

In the aforesaid case, the facts are both the attestors are

strangers to the family members of the testator and the alleged will

is also said to have been executed by testator, a couple of weeks

before his death. As stated supra, in the case on hand, both PW2

and PW3 are kith and kin of first plaintiff and they are residing at a

different village i.e., at Eluru, whereas the parties and so also plaint

schedule properties are situated at Denduluru Mandal.

A reliance has been placed by the learned counsel for the

respondents in Balakrishna Menon and another vs. Padmavathy 19 VGKRJ AS.1914 of 2003

Amma and another2, in that decision, the Kerala High Court held as

follows:

A party to a litigation cannot be allowed to take a contradictory or inconsistent pleas one at trial stage and another at appellate stage. His contention in a proceedings from beginning to the end shall be consistent and uniform. It is an elementary rule that a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold to approbate and reprobate to the detriment of his opponent. This whole-some doctrine applies to the successive stages of the same suit.

In the case on hand in Ex.A4 legal notice said to have been

issued by the first plaintiff to the first defendant dated 15.04.1993

and so also in Ex.A5 notice dated 05.03.1995 there was a specific

plea that his father late Seshayya died intestate on 10.02.1991.

21. As stated supra, there are several suspicious circumstances

surrounding the Ex.A6 will. Therefore, for the said aforesaid reasons,

the plaintiffs failed to prove the alleged Ex.A6 will dated 18.01.1991,

accordingly, the point No.1 is answered against the

appellants/plaintiffs.

AIR 1993 Kerala 218

20 VGKRJ AS.1914 of 2003

22. Point No.2:

Whether the appellants/plaintiffs are entitled the relief of partition as prayed in the plaint?

It was specifically pleaded by the plaintiffs in the plaint that the

entire property of the plaintiffs and defendants and their father are

partitioned under Ex.A1 registered partition deed, the same is not in

dispute by both the parties. The father of the first plaintiff and first

defendant late Seshayya possessed Ac.2.98 cents as per Ex.A6

unregistered will and as per Ex.A6 and as per the case of the

plaintiffs Ac.0.95 cents bequeathed in favour of second plaintiff and

Ac.0.15 cents in R.S.No.64/1, Ac.0.23 cents in R.S.No.64/3, 400

square yards site at Denduluru to the first plaintiff herein and

Ac.0.28 cents in R.S.No.64/1 to the first defendant was bequeathed

by the late Seshayya. As stated supra, the alleged Ex.A6 will is not

at all proved by the appellants.

23. The defendants specifically pleaded that the said Seshayya

executed a registered will dated 03.10.1990 in a sound and

disposing state of mind bequeathing an extent of 400 square yards

with dilapidated tiled house at Denduluru to the first defendant and 21 VGKRJ AS.1914 of 2003

an extent of Ac.2.00 cents in R.S.No.65/1 of Malkapuram village to

the first defendant preserving life interest. The defendants would

contend that an extent of Ac.0.42 cents in R.S.No.56/2 in another

extent of Ac.0.43 cents in R.S.No.64/1 of Malkapuram village to the

second defendant besides extent of Ac.0.50 cents of land to the

second defendant and he also bequeathed an extent of Ac.0.23

cents in R.S.No.64/3 and Ac.0.77 cents in R.S.No.57/2 and Ac.1.13

cents in R.S.No.57/4 in favour of third defendant as per the will and

the said will dated 03.10.1990 executed by Seshayya cancelling the

previous registered will dated 08.06.1990. The said will is a

registered one, which is marked as Ex.B5 by the defendants. The

said will is disputed by the plaintiffs 3 to 5. The date of death of

Seshayya is 10.02.1991, the alleged will of defendants is a

registered will dated 03.10.1990. There was 4 months gap in

between the death of testator and Ex.B5 registered will. As stated

supra, Ex.A6 will is an unregistered one and the gap in between the

death of testator and Ex.A6 is 3 weeks only.

24. DW1 is the first defendant. The registered will is marked as

Ex.B5. When elicited in cross examination DW1 admits that the 22 VGKRJ AS.1914 of 2003

attestors of the will dated 03.10.1990 are not alive, but the scribe is

alive. DW2 is one of the identifying witness to Ex.B5 will. As per his

evidence he is a taxy driver and on 03.10.1990 he was summoned

by late Seshayya and asked him to take him to Sub-Registrar Office,

Eluru, when they reached Sub-Registrar Office, Seshayya

purchased 3 stamp papers and on the instructions of Seshayya, one

Nagaraju prepared the will. The contents were read over to late

Seshayya and the said Seshayya signed the will and the other

attestors are also present at that time and they also signed as

attesting witness and the scribe also made his endorsement,

thereafter he was asked to come to the Sub-Registrar Office and he

singed on the will as identifying witness. Ex.B5 bears the signatures

of Seshayya as well as himself, the other 2 attestors and scribe. In

cross examination, nothing was elicited to discredit the testimony of

DW2.

25. DW3 is the scribe of Ex.B5 will. As per his evidence, he is a

licensed document writer and he know Motaparthi Seshayya and on

03.10.1990 the said Seshayya along with his car driver DW2 came

to the Sub-Registrar Office and asked him to prepare a will and he 23 VGKRJ AS.1914 of 2003

instructed the Seshayya to bring stamp papers, accordingly he

brought the stamp papers and he prepared the will as narrated by

the said Seshayya. He further deposed at the time of preparation of

the will both the attestors were present and after preparation of the

will he read over the contents to the testator and he admitted the

said contents to be true and correct and then signed on each and

every page of the will, thereafter the attestors scribed their

signatures lastly he made his endorsement as a scribe. In his

evidence, he further deposed that Ex.B5 will is drafted by him and

the first attestor Samudrala Venkata Madhusudhana Rao is his

father and he died on 22.03.1995 and he can identify the signature

of his father as attestor on the will. The evidence of DW3 clearly

goes to show that he is none other than the son of the first attestor

and he died on 22.03.1995 and he identified the signatures of his

father. In cross examination, when elicited he admits that he know

the testator and used to visit his father.

26. The evidence of DW2 and DW3 supports the execution of

Ex.B5 will and so also registration of Ex.B5 will before the Sub-

Registrar in the year 1990. As stated supra, the testator died in the 24 VGKRJ AS.1914 of 2003

year 1991. The learned counsel for appellants would contend that

there is no issue about Ex.B5 will before the trial Court. In the case

on hand, relief of partition is claimed by the plaintiffs. Herein a

specific plea is taken by the defendants in the written statement

itself that the late Seshayya executed Ex.B5 will on 03.10.1990

bequeathing his properties and the same was registered on the

same day before the Sub-Registrar concern. But the plaintiffs have

not filed any re-joinder. If any re-joinder is filed certainly there will be

an issue and the same will be framed with regard to the

genuineness of Ex.B5 will. More over, the law is well settled that

mere not framing of a specific issue is not a fatal to the case of the

party to the suit.

27. In a case of Yadla Venkata Subbamma and others vs.

Yadla Punnamma and others 3 , the composite High Court of

Andhra Pradesh held as follows:

It is not uncommon that suits for partition are filed by some of the coparceners or co-owners, not being aware of prior partition or a different kind of disposition, on earlier occasions. Though non- reference of the same in the plaint may not have any impact on the case; at least when a specific plea on those lines is raised in a

2012(3) ALD 88 25 VGKRJ AS.1914 of 2003

written statement, the plaintiff is under obligation to file a rejoinder, if he intends to dispute such plea. In the absence of rejoinder, the plea raised by the defendant virtually stands unrebutted.

In the case on hand, as stated supra, a specific plea is taken

by the defendants in the written statement itself that late Seshayya

executed Ex.B5 registered will dated 03.10.1990 bequeathing his

properties and the same was registered on the same day before the

Sub-Registrar. In the case on hand, the plaintiffs have not filed any

re-joinder. If any re-joinder is filed, certainly an issue will be framed

on the alleged Ex.B5 will by the trial Court.

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

appellants in K.Munirathnam Naidu vs. K.Aadi Lakshmamma and

others 4 , in that decision, the composite High Court of Andhra

Pradesh held as follows:

The legal requirement to prove the Will under Section 63(c) of the Indian Succession Act is that every testator shall execute his Will according to Rule 63(c) of the Act. According to the Section 63(c) of the Act, the Will shall be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to the Will and each of the witnesses shall sign the Will in the presence of the testator but it shall not be necessary that more than one witness be

2005(6) ALD 534 26 VGKRJ AS.1914 of 2003

present at the same time, and no proforma of attestation shall be necessary. Therefore, as per the requirement a testator shall execute the Will in the presence of the two witnesses and they shall see the testator signing the Will.

In a case of H.Venkatachala Iyengar vs. B.N.Thimmajamma

and others5, the Apex Court held as follows:

....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 dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder 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 propounder. In other words, the onus on the

1959 Supp (1) SCR 426 27 VGKRJ AS.1914 of 2003

propounder can be taken to be discharged on proof of the essential facts just indicated.

In the case on hand, the case of the defendants is that both

the attestors are no more and they died. DW2 is identifying witness

of Ex.B5 registered will. DW3 is the scribe of will and he also the

son of the one of the attestor of Ex.B5 will and he identified the

signature of his father as attestor in Ex.B5 registered will. More over,

the alleged Ex.B5 will is said to have been executed in the year

1990 and the testator died in the year 1991, in the Ex.B5 will it was

specifically mentioned that the testator has given share of properties

of his elder son previously. Therefore, there are no suspicious

circumstances surrounding the execution of Ex.B5 registered will.

29. In a case of Gurdial Kaur and others vs. Kartar Kaur and

others6, the Apex Court held as follows:

....reference may be made to the decision of this Court in Rani Purnima Debi & Anr. v. Kumar Khagendra Narayan Deb & Anr. It has been held in the said decision that if a Will being registered and having regard to the other circumstances, is accepted to be a genuine, the mere fact that the Will is a registered Will it will not by itself be sufficient to dispel all suspicions regarding the validity of

(1998) 4 SCC 384 28 VGKRJ AS.1914 of 2003

the Will where suspicions exist. It has been held that the broad statement by witness that he had witnessed the testator admitting execution of the Will was not sufficient to dispel suspicions regarding due execution and attestation of the Will. It has been specifically held that registration of the Will by itself was not sufficient to remove the suspicion. Relying on an earlier decision of this Court reported in AIR 1959 SC 4432, it has been held in the said decision that where the propounder was unable to dispel the suspicious circumstances which surrounded the question of valid execution and attestation of the Will, no letters of administration in favour of the propounder could be granted.

In the case on hand DW2 is identifying witness and the

defendants also examined the scribe of Ex.B5 will as DW3, he is

none other than the son of one of the attestor in Ex.B5 will. As per

the evidence of DW3, his father, first attestor in the Ex.B5 will is no

more. More over, Ex.B7 to Ex.B42 goes to show that after the death

of the testator, the alleged Ex.B5 registered will is acted upon and

the necessary entries are also made in the revenue records. As

stated supra, the appellants failed to prove the genuineness of

Ex.A6 will by producing cogent and reliable evidence. For the

foregoing reasons, I am of the considered view that the Ex.B5 will is

proved by the defendants and there are no suspicious

circumstances surrounding the Ex.B5 will. As stated supra, the 29 VGKRJ AS.1914 of 2003